For a state to lawfully use force in anticipation of a cyber attack, the prospective attack must rise to the level of an “armed attack” under Article 51 of the United Nations Charter, and it must be “imminent.” While there is broad agreement that some cyber attacks will satisfy Article 51’s “armed attack” requirement, the question of how to evaluate whether such an attack is “imminent”—based on an analysis of the technology...
Note
In the 1932 case Gebardi v. United States, the Supreme Court held that the failure of a statute to punish a party necessary to the commission of the proscribed conduct reflected an affirmative legislative policy to leave such party unpunished. As such, the Court declined to use the conspiracy statute to frustrate Congress’s grant of immunity. In doing so, the Court carved out an exception to the federal conspiracy statute: an exception...
The Supreme Court’s 2014 decision in Fifth Third Bancorp v. Dudenhoeffer rejected a long-held presumption in the U.S. circuit courts that fiduciaries of employee stock ownership plans (ESOPs) act prudently in investing in company stock. Instead, the Supreme Court held, ESOP fiduciaries should be subject to the same duty of prudence as all ERISA fiduciaries, leaving ESOP fiduciaries vulnerable to plaintiffs testing the new standard.
To...
Climate change represents, perhaps, the greatest challenge of the twenty-first century. As temperatures and sea levels rise, governments around the world will face massive and unprecedented human displacement that international law currently has no mechanism to address. While estimates vary, the scope of the migration crisis that the world will face in the coming decades is startling. In addition to losing their homes, climate change migrants,...
Suicide is the leading cause of death in jails, yet many jails and municipalities have insufficient policies for preventing inmate suicide. One of the ways to lead jails and municipalities to change such policies would be through financial pressure from individual lawsuits for damages resulting from an inmate’s suicide; however, due to the legal structure surrounding custodial liability, it is often difficult for inmates’ estates to successfully...
For over half a century, New York City’s groundbreaking Landmarks Preservation Law has protected the city’s most significant structures and spaces. Yet today, some of New York’s most celebrated interior landmarks are closed off to the public, the very group for whose benefit the spaces have been protected. In order to receive a landmark designation, an interior must be “customarily open...
The Supreme Court’s denial of certiorari in Madden v. Midland Funding, LLC leaves a dangerous precedent standing in the Second Circuit that poses a significant risk to the consumer-credit market writ large. This Note highlights the dangers that the Madden ruling presents and in so doing cautions against the adoption of the ruling by other circuits. Moreover, given the centrality of New York in the financial economy...
Each state offers a property tax exemption to qualifying charitable organizations. Municipalities both administer these charitable exemptions and bear their economic cost. This creates an incentive for municipalities to adopt an interpretation of their state’s exemption framework that limits the exemption’s scope and preserves tax revenue. This Note focuses on community economic development (CED) organizations to explore how overly narrowed...
In its landmark Cracker Barrel no-action letter, the SEC staff announced a bright-line rule permitting exclusion of any shareholder proposal pertaining to a company’s management of its general workforce, even if focused on a significant social policy issue such as employment discrimination, under the “ordinary business operations” exclusion. The SEC reversed Cracker Barrel in 1998, returning to a case-specific approach...
In 1987, the Supreme Court held that the Constitution requires federal and state courts to retroactively apply all new federal-constitutional rules of criminal procedure to direct appeals of convictions. Since then, the Court has not addressed whether the U.S. Constitution also requires state courts to retroactively apply new criminal procedure rules derived from state law on direct review. This issue is particularly significant because state jurisdictions...