Fordham Law Review

http://ir.lawnet.fordham.edu/flr/

List of Papers (Total 2,934)

The Decline in Tax Adviser Professionalism in American Society

In Part I, this Article briefly examines the debate over the proper role of the tax professional in representing clients. Part II discusses whether tax professionals owe special duties to the tax system. Part III analyzes how the tax professionals’ involvement in several waves of tax shelter abuses is in sharp contrast to the high-minded rhetoric of the tax ethics debate. This part ...

Registered Savings Plans and the Making of Middle-Class Canada: Toward a Performative Theory of Tax Policy

Campaigning politicians and elected governments across Canada’s political spectrum strive to position themselves as defenders of the middle class. This is to be expected given the large proportion of the Canadian population that self-identifies as middle class. Since the term lacks precision, it is a claim that can accommodate a wide range of policy proposals. Tax policy serves as ...

Rhetoric and Reality in the Tax Law of Charity

This Article contrasts the rhetoric of public benefit connected to charity in the law with the reality of private control of charitable organizations. It argues that the tension between the rhetoric and reality have produced norms of entitlement that undermine taxation. It offers an approach to the role of charity under the law by defining the obligations of government in a just ...

The Social Boundaries of Corporate Taxation

This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment. First, classical corporate taxation is, in many ways, deeply embedded within a larger network of legal and social meanings. Classical corporate taxation operates in concert with, rather than separately from, these ...

The Curious Beginnings of the Capital Gains Tax Preference

Despite the importance of the capital gains tax preference, and the controversy it often evokes, there has been relatively little serious scholarly attention paid to the historical development of this highly significant tax provision. This Article seeks to move beyond the normative and presentist concerns for or against the tax preference to recount the empirical beginnings and ...

How Individual Income Tax Policy Affects Entrepreneurship

This Article reviews the empirical literature on the effects of individual income tax policy on entrepreneurship. We find no evidence of consensus, even on relatively narrow questions such as whether individual income tax rates deter or encourage entrepreneurial entry. We believe the absence of consensus reflects both the complexity of mechanisms connecting tax policy to ...

Job Creationism

Does a low tax rate on entrepreneurial income create jobs? Tax scholars view this question as empirical in nature. But for many policymakers, voters, and even some academics, the relationship between taxes and entrepreneurship is a matter of faith. If there is a question, it is one of ideological commitment, not evidence and reason. Consider the ease with which politicians claim ...

Perpetuating Inequality by Taxing Wealth

This Article attempts to correct this shortcoming in the progressive argument by returning narrative to its central place in the estate tax debate. Drawing on psychological insights, I hope to underscore the difficulty of the effort to preserve progressive taxation and combat wealth inequality.

Lawyer Speech in the Regulatory State

A lawyer’s speech as advisor and advocate not only holds First Amendment value for the client and for the public, but also for the functioning of American democracy. This is supported both by foundational values undergirding the First Amendment as well as Supreme Court doctrine. This Article builds upon that analysis to posit that lawyers for the regulatory state ought not to be ...

Ethics for Examiners

The inquisitorial bankruptcy examiner is sui generis in our system. He faces unique ethical quandaries and considerations, which require a code of ethics tailored to his role if he is to achieve fully the promise of improving Chapter 11 through the introduction of inquisitorial investigative methods. This Article attempts to point the way toward guidelines that will regulate the ...

Nothing Could Be Finer?: The Role of Agency General Counsel in North and South Carolina

This Article examines the role of agency general counsel in North and South Carolina. The two states offer a rich comparative context for research on agency general counsel. Though closely linked in both name and culture, they have different executive structures and recent political histories, and the agency counseling function has evolved and is currently organized in different ...

Lawyering Within the Domain of Expertise

This Article uses the history of patent prosecution to assess the relationship between the practice of law and the claim of an administrative agency to possess and to employ expertise.

Recalling the Lawyers: The NHTSA, GM, and the Chevrolet Cobalt

This Article summarizes product safety and vehicle safety law and recounts General Motors Company’s (GM) response to the Cobalt ignition switch defect, paying particular attention to the actions of GM’s in-house and outside counsel. This Article then considers the legality and prudence of a regulatory agency’s imposition of gatekeeping responsibilities on such counsel.

Lawyers and the Secret Welfare State

This Article suggests that the United States maintains a secret welfare state. The secret welfare state exists because of lawyers

Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court

Since 2014, U.S. immigration courts have expedited the cases of many children and families fleeing persecution in Mexico and Central America. This Article conducts an empirical and legal analysis of this policy, revealing that reasonable time between immigration court hearings is necessary to protect the statutory and constitutional rights to legal representation. A large majority ...

Foreword: Lawyering in the Regulatory State

The authors use a variety of methodologies, including traditional legal analysis, as well as empirical and historical research. Finally, they focus on such diverse issues as the role of agencies in facilitating access to justice, the lawyer’s role as gatekeeper in agency litigation and regulatory compliance, and the unique role of the in-house lawyer, both private and public. Taken ...

The Changing Odds of the Chancery Lottery

Delaware is home to the majority of shareholder class action litigations related to mergers and acquisitions (M&A). These cases usually result in settlements that provide shareholders with only disclosure in exchange for a broad release of future claims, which encompasses unknown and federal security claims. The Delaware Court of Chancery must review and approve these settlements ...

The Conscious Parallelism of Wolf Packs: Applying the Antitrust Conspiracy Framework to Section 13(d) Activist Group Formation

Section 13(d) of the Williams Act requires all persons and groups that acquire 5 percent or more of an issuer’s outstanding stock to disclose their holdings to the Securities and Exchange Commission. Whether a group is formed under section 13(d) often is unclear. The legal precedent is ambiguous; courts give more weight to certain forms of circumstantial evidence than others ...

Oh, Won't You Stay With Me?: Determining Whether § 3 of the FAA Requires a Stay in Light of Katz v. Cellco Partnership

The Federal Arbitration Act (FAA) provides the legal framework to render international and interstate arbitration agreements judicially enforceable in the United States. In furtherance of that goal, it provides that, if a party initiates litigation rather than arbitration of an arbitrable dispute, either party may request that the court stay the litigation pending resolution in an ...

Moving Beyond “Reasonable”: Clarifying the FTC’s Use of Its Unfairness Authority in Data Security Enforcement Actions

Data security breaches, which compromise private consumer information, seem to be an ever-increasing threat. To stem this tide, the Federal Trade Commission (FTC) has relied upon its authority to enforce the prohibition against unfair business practices under section 5 of the Federal Trade Commission Act (“section 5”) to hold companies accountable when they fail to employ data ...

Guns and Drugs

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, this Article uses as its test case the criminal regulation of gun possession. This Article identifies and distills three lines of drug war criticism and argues that they apply to possessory gun crimes in much ...

Communication and Competence for Self-Representation

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination ...

Prior Inconsistent Statements and Substantive Evidence—Federal Rule 801(D)(1)(A): The Compromise

Federal Rule of Evidence 801(d)(1)(A) is a compromise. The Supreme Court’s version of the Rule, which it submitted to Congress in 1972, would have made all prior inconsistent statements of a witness present in court for cross-examination admissible as substantive evidence. The Court’s proposal was strongly favored by the Advisory Committee on the Federal Rules of Evidence (or “the ...

Rethinking the Rationale(s) for Hearsay Exceptions

The thirty-seven principal provisions that permit out-of-court statements to be admitted for their truth under the Federal Rules of Evidence are found in Article VIII of the Rules. There are eight provisions in Rule 801(d), twenty-three provisions in Rule 803, five provisions in Rule 804 and one provision in Rule 807 that can be relied upon to admit hearsay evidence for its truth ...