Showing papers in "Fordham Urban Law Journal in 1984"

Local Government Action and Antitrust Policy: An Economic Analysis

Abstract: At least partly as a result of the Supreme Court decision in Community Communications Co. v. City of Boulder, cities are facing antitrust challenges to their rights to franchise cable television systems. Other municipal activities have been similarly challenged. The prospect of costly and uncertain antitrust litigation challenging local government actions will restrict the scope and extent of local regulatory activity. Such restrictions could, in turn, preempt city residents’ ability to choose, through their elected representatives, the goods and services they prefer. This Article proposes that as a mater of policy the burden of proving a municipal antitrust violation should be on those who seek to restrict municipal action. This Article discusses the merits behind the general case for municipal antitrust immunity and the specific circumstances in which cities might face liability under antitrust laws. Further, this Article sets out three criteria by which the potential for adverse effects of a city’s action may be determined, then assesses the leading “state action” cases using these criteria. Finally, this Article concludes by describing the appropriate policies for dealing with potentially inefficient city actions and makes specific recommendations consistent with the current case law.

Computer Abuse: The Emerging Crime and the Need for Legislation

Abstract: Advancements in computerization and the growing use of computers in business, government, education, and the private sector has resulted in the expanding potential for criminal infiltration. The problems of computer crime are in great part attributable to the shortcomings of our criminal laws, which were written long before there was knowledge of computer crimes. Moreover, there is a reluctance of our legal establishments to adapt to the new technology’s potential harm. This Note urges that new federal legislation be passed as a means to counteract future computer crimes.

New York City's J-51 Program: Controversy and Revision

Abstract: New York City administers a real estate tax incentive program, called the J-51 program, for eligible building owners who rehabilitate existing structures. Despite the need for such a program, various problems and abuses arose, emphasizing the need for major reform. Economic conditions changed the housing market and the tax incentives demonstrated several deleterious effects which contravene the original legislative intent of the program. After long negotiations surrounding several competing arguments, reforms were made. The current revisions were necessary to correct the abuses and to return the program to its original purpose of providing adequate housing for moderate and lower income families. This goal may be realized by eliminating the award of financial incentives for rehabilitation work performed in specified geographic areas and for the benefit of economic groups for which this type of assistance cannot be justified by considerations

The Effect of Collective Bargaining on the Baseball Antitrust Exemption

Abstract: Baseball remains the only professional sport exempt from anti-trust scrutiny. Because of this unique status, baseball players have not pursued anti-trust lines of attack. Some now say that baseball players no longer need to depend on the anti-trust laws to effectuate modifications in their reserve system. Such commentators say that because of the equal bargaining strength of the parties, the labor exemption would operate to shelter from scrutiny even a term that was unilaterally imposed by the owners. In Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs, the Supreme Court held that the baseball industry was not amenable to anti-trust attack because it was purely an intrastate activity; Toolson v. New York Yankees, Inc. reaffirmed this holding. The Court failed to extend this exemption to other professional sports. The Court should overrule the exemption or alternatively, Congress should place the baseball industry in the same position as other professional sports with respect to antitrust laws via legislative acts. Usage of the labor exemption to shelter unilaterally imposed terms, such as a reserve system, turns labor’s shield into the employer’s sword.

An Outsider Looks at Insider Trading: Chiarella, Dirks and the Duty to Disclose Material NonPublic Information

Abstract: The “abstain or disclose” rule, which states that persons in possession of material non-public information must either disclose that information or refrain from trading on such information, is at the heart of insider trading law. Despite the complex legal system designed to thwart insider trading, the community’s widespread criticism of such conduct, and the risk of civil and/or criminal sanctions for violation of federal securities law, insider trading cases have been on the rise. This Note argues that a more serious stance against insider trading must be taken in order to achieve the federal securities laws’ purposes and so that investors have confidence in the securities markets. The policy behind anti-fraud provisions is ”to protect investors against manipulation of stock prices through regulation of transactions upon securities exchanges and in the over-the-counter markets, and to impose regular reporting requirements on companies whose stock is listed on national securities exchanges.” Meanwhile, there are two categories of arguments in favor of insider trading: first, that there are inherent benefits to it and second, that the current system prohibiting insider trading needs to be reorganized. New legislative approaches have been presented as alternative remedies for reducing insider trading. For instance, the Insider Trading Sanctions Act of 1983, would substantially increase both civil and criminal penalties for insider trading. New legislative proposals such as these should be seen as valuable additions to insider trading law.

Representational Rights of Security Guards Under the National Labor Relations Act: The Need for a Balancing of Interests

Abstract: The private security industry is experiencing great prosperity. Despite the job opportunities in the industry, however, there are various problems endemic to employment as a security guard. Wages are usually low and risks can be high. While union membership has increased among security guards, collective bargaining has been unsuccessful in alleviating the occupation’s problems. Section 9(b)(3) of the National Labor Relations Act specifically prevents the Board from finding a unit appropriate if it includes both guards and non-guards. This section cannot be applied properly without first considering the Act’s overall policies and Congress’ specific intention in passing this section. Meanwhile, voluntary recognition has also been an important factor in the security industry. Section 9(b)(3) does not state how, or if, it affects bargaining relationships commenced voluntarily by employers and non-qualified unions. Thus, Congress should clarify the statutory rule regarding the withdrawal of voluntary recognition of non-qualified unions. Congress could either add a proviso to the section stating that it should not be construed to affect bargaining relationships voluntarily commenced by employers and non-qualified unions, or it could prohibit voluntary recognition altogether. The Board should modify the Bally’s rule (where the Board adopted a broad rule allowing all unions, qualified and non-qualified, incumbent and non-incumbent, to appear on the ballot, provided the petition was filed by a qualified union) by recognizing a thirty percent showing of interest by non-qualified unions which seek to intervene. The Board should also affirm the Wells Fargo decision (saying the Board has discretion to allow non-qualified unions to participate in its election processes) as it would not be inconsistent to continue to hold voluntary recognition of non-qualified unions permissible while allowing employers to end the bargaining relationship unilaterally.

Proving Qualification in a University Setting: McDonnell Douglas and the Tenure Cases

Abstract: The scenario is frequently the same: a minority candidate who holds a probationary faculty position at a college or university is denied tenure. Though the institution claims that the denial was based on the candidate’s deficiency in one of three important areas, he suspects that, in reality, the denial was based on his minority status. The unsuccessful candidate’s recourse, after exhausting internal grievance procedures, is to sue under Title VII of the Civil Rights Act of 1964. In 1973, the Supreme Court in McDonnell Douglas v. Green described for the first time a method of analysis to be utilized in Title VII disparate treatment cases. The lower courts have tried to clarify this ambiguous standard, but the question that remains is which party bears the burden of proving qualification for a particular job This Note explores problems of proving relative qualifications under Title VII. It begins with a discussion of the allocations of burdens of proof and pleading under Title VII and proceeds to address the question of which party must prove relative qualification under the McDonnell Douglas formula. Finally, the Note analyzes the role of the subjective criteria in the tenure setting.

Municipal Tort Liability for Criminal Attacks Against Passengers on Mass Transportation

Abstract: This Note discusses municipal tort liability for criminal attacks against passengers. The analysis focuses upon the liability of the New York City Transit Authority (TA). Comparisons are made to other mass transit systems in order to examine various theories concerning the duty owed by the municipally-run transit system to its passengers. Recommendations are offered to construct a clear standard of care with corresponding limits on liability. Further, this Note discusses various safety measures and will analyze the issues of whether the TA has assumed a duty to protect its passengers by developing such measures to combat subway crime and the subsequent funding necessitated by increased tort liability. Ultimately, when a duty is recognized, the TA can avoid an onslaught of litigation by maintaining an efficient security network which would decrease crime and the TA’s corresponding tort liability.

Privacy Rights In Medical Records

Abstract: The privacy interest recognized in medical records is in its infancy, as legal protections of personal information are relatively new. Major changes in medical technology, the introduction of third-party payment, government participation in medical care, and computerization of recordkeeping have expanded the amount, type and accessibility of health data available about a patient. Concurrently, health records are now requested for a number of purposes, such as, legal actions, law enforcement, public health evaluation, employment, credit-rating, etc. Only limited access to these records should be permitted in order to protect the patient, yet public policy concerns also call for the disclosure of such records. An individual may have legal recourse against invasions of this privacy interest, depending upon who is the party seeking or having obtained access to the records, the purposes for which the record is sought, and whether there are common law, statutory or constitutional protections available. Within the increase in computerized information, invasions of privacy are likely to rise. Courts must continue to balance the competing interests of privacy and public need, in order to stay abreast of this issue. By using special tactics such as retracting identifiable information and only requiring disclosure of absolutely necessary information, the courts can carefully balance the competing interests regarding private medical records. PRIVACY RIGHTS IN MEDICAL RECORDS

Post-Sale Obligations of Product Manufacturers

Abstract: In products liability law, a post-sale warning exists when the manufacturer learns after a product is distributed that it failed to warn of a danger that was knowable at the time of sale. However, a manufacturer has no point-of-sale duty to warn of dangers from unforeseeable misuses or alterations of its products. When a product develops a post-sale problem because of an improvement in the state of the art (e.g. because of the development of a more effective safety device), there is no requirement that a manufacturer seek out past customers and notify them of changes in the state of the art, as that would be unreasonable and inconsistent with the rule that a product’s compliance with the state of the art is judged no later than the time of sale. When a duty to warn is present, it extends to foreseeable users of a product, including, the employees of the purchaser, at times. However, this duty to warn may be discharged by warning only the employer when it is a knowledgeable industrial user of the product, is well aware of its risks, and can be expected to supervise the use of the product and issue appropriate warnings to its own employees. Some courts, such as the Seventh Circuit in Gracyalny v. Westinghouse, fail to give this principle proper weight.

Unfair Dismissal: Emerging Issues in the Use of Arbitration as a Dispute Resolution Alternative for the Nonunion Workforce

Abstract: This Article reviews the concept of just cause as a test for termination of employment and its applicability to the nonunion workforce. It addresses the feasibility of applying dispute resolution mechanisms found workable in labor-management relations under union contracts to employmentat-will disputes. It further outlines the standards and criteria utilized in the arbitration process and recognizes some problems of proof, evidence, remedy and procedure that will arise from the application of alternative methods of resolution to nonunion disputes. Finally, this Article identifies a substantial number of issues that need to be resolved if arbitration of just cause for termination of nonunionized personnel is to be successful.

The Federal Role in Social Ordering: Lessons From Labor Protection in Urban Mass Transit

Abstract: The purpose of this Article is to highlight lessons that may be learned from the area of labor protection in urban mass transit. Public transportation is quite relevant to the issues of federal influence on local public service delivery, because the local transit industry is presently governed my the Urban Mass Transportation Act (UMT Act). This Article traces the development of federal intervention in the urban mass transit industry. This Article goes on to review labor relations in urban mass transit and the policy of federal labor protection. It also examines section 13(c) of the UMT Act. This Article considers the alternative models of social ordering that have developed because of the rapid rise in governmental, particularly federal, involvement in public transportation, and the resulting complications. Further, this Article examines the theoretical foundations of proposals for changing the social order and applies these concepts to the transportation industry. Finally, this Article addresses the judicial role in social ordering. It criticizes the current trend of the case law and sets forth an alternative framework for the future endeavor.