Research proposal posted by Valentina Reyes.

Tort law carries the “no duty to rescue” principle, which establishes an individual’s freedom to choose whether to intervene in situations of peril while imposing no sanction on those who choose not to act. “While there is properly in law a duty not to harm, there is not . . . a negative duty not to allow harm to happen” (U.S. Supreme Court Justice Oliver Wendell Holmes). So long as there is no fiduciary relationship – which is defined as a relationship of trust or legal obligation of a person to another – between the two parties, an individual is not obliged to intervene, even if refraining from doing so may lead to the impending death of the other. This principle was established with the idea that people should not be held responsible for the demise of others unless they were directly involved with the causation of the incidents that led to the other’s peril, or had some established duty of care to the other, and to protect one’s freedom of choice.

In some instances, some courts may find that if a person began to rescue another and then ceased, the rescuer may be found liable if the reasonable person would have continued to rescue the victim. Under the umbrella of negligence, this is called “undertaking to act.” However, some states provide immunity from liability under specific statutes typically referred to as “Good Samaritan laws.” These statutes are put in place to protect those who, in good faith, decide to help in an emergency situation from being sued in civil court for any damage which may result from their act or omission to act. Depending on the situation, courts may wish to protect a rescuer or deem them responsible for negligent acts if the additional damage caused to the plaintiff resulted from an unreasonable act by the rescuer.

While the “no duty to rescue” principle was put in place to protect people’s liberty to choose, it also gives people power to allow others to perish. On the one hand, people are free to choose whether to get involved, but if they choose not to help when they are capable of helping and when the help may save a life, then they have the indirect power over another’s life. The principle also reinforces individualistic behavior that is already very much present in American society and culture which is often noted as being extremely averse to collectivism. Further, if a person intends another to perish by doing nothing, they may be able to get away with being the indirect cause of the other’s demise by choosing to do nothing out of a desire to cause the other harm. In this case, we have the element of mens rea without actus reus (so long as the bystander was not involved in the proximate cause of the victim’s accident or ailment), and the person intending to do harm by doing nothing could be protected under the law. In the case that the defendant was involved in the proximate cause of the victim’s accident, as was the case in Podias v. Mairs, the defendant could be found guilty for doing nothing because at that point, a fiduciary relationship is formed because but for the defendant’s actions, the victim would not have been put in danger.

Catholic social teaching teaches us that we should love everyone and show a sense of community towards our neighbors. We should treat everyone how we would like to be treated and respect and protect all forms of life. Whether we are free to choose, we should do the correct thing and provide help when we can for those who need it because if we are the difference between life and death for another, it does not take much away from us to give another what they can never get back. Gaudium et Spes states “[…] the duty which is imposed upon us, that we build a better world based upon truth and justice. Thus, we are witnesses of the birth of a new humanism, one in which man is defined first of all by this responsibility to his brothers and to    history.”

Works Cited

http://www.siue.edu/~evailat/i-mill.html

http://injury.findlaw.com/accident-injury-law/specific-legal-duties.html

http://caselaw.findlaw.com/nj-superior-court-appellate-division/1187493.html

https://www.stthomas.edu/media/catholicstudies/center/ryan/conferences/2005-vatican/Uelmen.pdf

http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_const_19651207_gaudium-et-spes_en.html

http://injury.findlaw.com/accident-injury-law/specific-legal-duties.html

http://negligence.uslegal.com/specific-duties/duty-to-rescue/

https://www.shrm.org/legalissues/stateandlocalresources/stateandlocalstatutesandregulations/documents/goodsamaritanlaws.pdf

Research proposal posted by Elizabeth Donald.

Part One: Topic Explanation

Liberty of contract was originally introduced into U.S. constitutional jurisprudence through the case of Lochner v. New York, 198 U.S. 45 (1905). In this case, Joseph F. Lochner challenged a provision of the New York Bakeshop Act of 1895 that prohibited bakers from working more than ten hours per day and 60 hours per week. The Supreme Court held that this regulation failed to pass constitutional muster in violation of the Due Process Clause of the Fourteenth Amendment. In doing so, the Court found “liberty of contract,” that is, the freedom of individuals and groups to enter into contracts, to be a fundamental right under the Fourteenth Amendment.  Other Supreme Court decisions continued to build on this idea during what is now referred to as “The Lochner Era” of cases. This includes Adkins v. Children’s Hospital, 261 U.S. 525 (1923), invalidating a minimum wage law and Pierce v. Society of Sisters, 286 U.S. 510 (1925), deeming unconstitutional a regulation that led to the closing of many private Catholic schools.

Part Two: Pros and Cons

The Lochner decision was considered one of the most controversial cases of its time after being handed down in 1905. Progressive jurists, politicians, and scholars alike denounced Lochner, whether for attempting to constitutionalize laissez-faire economics or for exceeding judicial authority.[1] They believed that the conservative-leaning Lochner majority reached far beyond the scope of its powers. This is because although the U.S. Constitution does not explicitly list “liberty of contract” as a fundamental right, the court still found it to be so under the Fourteenth Amendment Due Process Clause which states, “[N]or shall any person … be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. XVI, § 1. In finding a liberty of contract within the Constitution, Progressives saw the majority as an advocate of big business that attempted to adopt policy by means of judicial decision. These Progressive jurists instead encouraged a deference to the legislature on all matters, economic and personal. Since the early 20^th century, Progressive ideology has shifted, but still views liberty of contract in a negative light.

Flashing forward to today, jurists across the political spectrum remain highly critical of Lochner. Constitutional theorist Bruce Ackerman places Lochner in his “anticanon” of cases. Unlike early 20^th century Progressives, today’s Progressive jurists typically believe in using strict scrutiny to analyze laws regarding personal rights. Yet, they now isolate personal liberties from economic liberties, which are still considered unwarranting of constitutional protection.[2] Twenty-first century conservatives, likewise, do not tend to favor liberty of contract. Conservative jurists today often advocate for a deference to the legislature on both personal and economic issues. Thus, the conservative viewpoint has also significantly shifted from the Lochner Era right-wing belief that natural rights precede positive law and that liberty of contract is one of those inherent natural rights. This leaves little room for hope for the few present-day proponents of liberty of contract. However, the idea of contractual freedom as a fundamental right might not be as bad as many make it seem. In fact, liberty of contract is really a derivative of the natural law.

The natural law, according to St. Pope John Paul II, is a law that resides within the “depths of the conscience.” It is written on the hearts of all men, according to which God will be the judge. Legal theorists have found certain rights to be inherent within this natural law. The Constitution itself was founded on the idea of natural rights. James Madison, a drafter of the Constitution, believed that man “embraces everything to which a man may attach a value and have a right; and which leaves to everyone else the like advantage…”[3] This idea was the bedrock of the Due Process Clause of the Fifth Amendment, which was eventually applied to the states through the Fourteenth. Therefore, the Court majority in Lochner simply viewed liberty of contract as one of these natural rights under due process. This reading of the Due Process Clause achieves much greater validation than suggested by Lochner’s opponents. The Civil Rights Act of 1866, 14 Stat. 27-30, which gave way to the Fourteenth Amendment, listed liberty of contract first in the rights accorded to man. In this act, the 39^th Congress wrote that, “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties …” This act served the purpose of enforcing the natural rights of man. Therefore, the Lochner majority’s belief in liberty of contract as a fundamental right was not unwarranted.

Part Three: Questions of Ethics

Liberty of contract is intertwined with ethics because the very idea of ethics rests on the natural law. St. Thomas Aquinas said that the natural law “constitutes the principles of practical rationality,” which are the rules by which human action is to be judged as reasonable or unreasonable.[4] It is from this ethical theory that fundamental rights were developed. Not only that, but contractual freedom is essential to business ethics as well. The significance of liberty of contract comes through in the employment-at-will rule which gives employers unfettered power to “dismiss their employees at will for good cause, for no cause, or even for cause morally wrong, without being thereby guilty of a legal wrong.” However, because the employment-at-will theory is supported by laissez-faire economics, it too is often criticized by Progressive jurists who oppose free markets. Yet, even though early 20^th century Progressive jurists denounced the Lochner decision for its association with laissez-faire ideals, this does not invalidate the fact that liberty of contract can be viewed as a fundamental right within the natural law. Further, just because liberty of contract is an economic liberty does not mean it cannot be a fundamental liberty. Since provisions of the Constitution and the Civil Rights Act of 1866 demonstrate that both the Founding Fathers and the 39^th Congress understood liberty of contract as deriving from the natural law, it is valid to not only consider this liberty as fundamental, but also ethical.

Works cited:

[1] David E. Bernstein, Rehabilitating Lochner (2012).

[2] Ibid.

[3] Colleen Sheehan, James Madison and Our First Duty, THE CENTER FOR VISION AND VALUES (Sep. 23, 2014), http://www.visionandvalues.org/2014/09/james-madison-and-our-first-duty-by-dr-colleen-sheehan/.

[4] Aquinas, ST I-II. Q94.

Posted by Joseph Papandrea.

All different opinions are being thrown around in this case between Apple and the Federal Government. Syed Farook’s phone is what the Federal Government wants to access, due to his previous activity. Farrook killed 14 people during the San Bernardino attack. His relations to ISIS is why the government wants to access his phone. The judge decided to side with Apple in not letting the Fed’s access Farrok’s phone. Apple’s argument not to unlock this phone is because it affects everyone who owns iPhones. “Apple’s lawyers argue that the government’s demands would ultimately make iPhones less safe”(Riley). Apple being able to unlock this phone would make it less safe because phones could fall into the wrong hands. Apple in the past has helped the law enforcement in a drug dealer case. In this case it is much more serious and dangerous for society. Judge James Orenstein says there is no way he can force Apple to hack and access the phone.

The Federal Government holding this phone and stressing about this case does not make sense. There has to be a way the government can hack into the phone themselves, but do not want to reveal that power. If they are able to do that without the help of Apple that could also put a lot of people in danger.

Both Apple and the Federal Government are making a lot of things difficult. Apple was faced with a big decision about whether they were going to help access Farrok’s phone. If Apple accesses the phone, it can help the government in many ways. Their view on it though is that it affects every iPhone owner. Apple’s power to access one phone will give the government access all. A lot of people would side with Apple for fear of their own privacy, but others will argue and say that it will benefit the government because there can be evidence leading to ISIS. Apple decision is probably what is best for the company. Apple wants to stay loyal to its customers and do not want to lose income. People knowing that Apple is able to unlock a phone so easy is where customers lose trust with the company.

In conclusion, both Apple and the Federal Government are stuck between what is morally right. Apple is doing what is best for the company, because if the technology falls into the wrong hands it will bring the company down. I believe the Federal Government must have someone who can find a way to access this phone., because they have the technology already and are looking for a means to protect that secret. They can listen in on anything. In my opinion Apple is not wrong for not wanting to unlock the phone, because they are only protecting the company.

Joseph is a sports management major at the Stillman School of Business, Seton Hall University, Class of 2019.

The Second Circuit upheld Tom Brady’s suspension for the first four games of the new season and overturned the district court’s ruling.  The court ruled the arbitrator’s award was valid and should not be disturbed.

Judge Parker, writing for the majority, stated, “Our role is not to determine for ourselves whether Brady participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all. Nor is it our role to second-guess the arbitrator’s procedural rulings.”  He continued, “Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act.”

Courts are loathe to upend an arbitrator’s decision, unless for example, there was some type of fraud or corruption on the part of the arbitrator. The parties agree by contract to arbitration in lieu of bringing their case to court.

Brady can appeal to the entire Second Circuit (en banc) and to the United States Supreme Court, however, his chances either take the case are slim.

The opinion can be found here: http://www.ca2.uscourts.gov/decisions/isysquery/98c62698-d29a-4b91-98a0-5a5af0c19e88/1/doc/15-2801_complete_opn.pdf

Posted by Andrew Nguyen.

Uber is one of the most popular apps that are around today. This application allows users to call upon a driver to take them to a destination of their choice. Uber has become a widely-used application that proves to be beneficial. However, the company is facing a lawsuit regarding their price surges. It was said that CEO Travis Kalanick faces the lawsuit that alleges that he conspired with Uber drivers to increase prices for more profit. The case is Meyer vs Kalanick. Due to the quick growing popularity of the app, the price surged. The suit alleged that the Uber drivers conspired with CEO Travis Kalanick to rig the prices for the rides.

When a user is in a popular area, the price increases due to the amount of users that are around who also want to use the app. This conspiracy was looked on to after New Year’s Eve when the prices went up to $200. The high-price surge had customers outraged by the unrealistic cost for a ride. The company appears to take advantage of how desperate users need to get a driver. By increasing their prices, users have no choice but to either accept it or find an alternative.

In the scheme of things, Uber has done nothing wrong. Sure the prices may be outrageous at times, but that’s how a business is, supply and demand. Uber drivers are independent contractors who make money off of how much they make from driving. Although the prices may be higher than expected sometimes, users are not forced to use the app. The app is available for the convenience of users. No wrong has been done regarding this company. It is tough making a living and Uber is trying to make a statement that their company is an asset to the users.

There are many alternative ways of getting to a destination. However, Uber is probably one of the most convenient ways. What people pay for their Uber ride is not by force. It is a decision that they have to make whether they want to or not. Uber gives an estimated fare price before calling for one, so users typically have an idea on how much they are paying.

Andrew is an accounting major at the Feliciano School of Business, Montclair State University, Class of 2019.

Posted by Stephen D’Angelo.

Just six hours after New York Attorney General placed a temporary injunction, which would stop sites like Fanduel and DraftKings from doing business in New York, an appellate court saved them by issuing an emergency temporary stay that will allow New Yorkers to continue to use Fanduel and Draft Kings until further notice. This stay will last at least till the end of the year which is likely when a permanent decision will be made, “Eventually, both sides will go before a panel of four or five appellate judges” Randy Mastro said, from an outside council for DraftKings.

The State of New York is likely to win the case because of the wording of their law on gambling. Fantasy football gambling sites commonly use the defense that they don’t take wagers, they take entry fees. In many states, this allows them to continue to do business. But, New York is stating that their penal law does not refer to “wagering” or “betting.” Instead it states that a person, “risks something of value.”

Although New York has the upper hand, the laws in place are very vague. The statement regarding risking something of value had no relation to online fantasy sports gambling when created. It was worded this general because that would include gambling bookies in a gambling law. I personally do not believe that Fantasy sports gambling will be shut down in New York. The NBA, NHL, and MLB all own equity in Fanduel and the likelihood of the 600,000 New Yorkers who play daily fantasy to not be able to in the New Year is very slim.

Stephen is an accounting major at the Feliciano School of Business, Montclair State University, Class of 2017.

Posted by Tiffany Zapata.

Wells Fargo is the most recent bank to get caught in the act of predatory lending. The bank was accused in court filings of targeting minorities, such as black and Latino borrowers, for more costly home loans in comparison to whites. The acts took place in Cook County, Illinois, with a population of about 5 million. The case was filed in Chicago federal court.

The bank’s strategies encompassed home-loan origination, refinancing, and foreclosure. Their main concentration was equity stripping. Equity stripping is asset based lending which maximizes lender profit and makes it nearly impossible for the borrower to pay it off due to onerous loan terms. Before getting caught, the bank got away with 26,000 loans. The court order called for 300 million dollars in money damages.

Tom Goyda, a spokesman for the San Francisco-based Wells Fargo stated: “It’s disappointing they chose to pursue a lawsuit against Wells Fargo rather than collaborate together to help borrowers and home owners in the county,’’ Goyda said. “We stand behind our record as a fair and responsible lender.”

Wells Fargo is also currently involved in a lawsuit with the federal government due to its mortgage lending. This is not the first time courts have seen these sorts of acts from banks. Miami and Los Angeles filed similar suits alleging banks were “red-lining” minorities to block loans and for not informing investors on the status of the mortgages that were sold.

Wells Fargo ended up wining the lawsuit brought by the City of Miami in July. The City claimed Wells Fargo sold predatory mortgages in neighborhoods immersed with minorities before the “housing bubble burst.” The judge decided the City was not qualified to file these claims under the Fair Housing Act. The decision is being appealed.

Tiffany is a business administration major with a concentration in international business at Montclair State Univsersity, Class of 2016.

The United States Supreme Court has denied certiorari leaving in place a ruling by the D.C. Circuit that a fee cap set by the Federal Reserve Bank at $.24 per transaction. Each time a customer swipes his or her debit card, a retailer is charged the fee.

Retailers complained when the Fed appeared to be abusing Congress’ mandate to create a ceiling on debit card swipes. The Fed originally proposed a $.12 cap, but retailers claim it was under pressure by bank lobbyists to double that amount and include fees and expenses that are not permitted under law.

The D.C. Circuit rejected that argument and determined the Fed’s interpretation of the law was reasonable. “The Fed rule doesn’t apply to credit cards, government-issued debit cards, prepaid cards or cards issued by banks and credit unions with assets under $10 billion.” Retailers vowed to “continue to press the issue in the courts over the ‘anti-consumer and anti-competitive practices of the card industry.’”

Posted by Renaldo Nel.

Uber is considering leaving the state of New Jersey if a proposed bill passes. This proposed bill’s main objective is to implement tough regulations regarding commercial insurance.  There is currently an ongoing debate whether there is a gap in the insurance coverage of Uber drivers. Insurance industry experts and New Jersey law makers argue that Uber’s operations are not covered sufficiently. Currently Uber’s commercial coverage, which it buys for its drivers, kicks-in the moment the driver accepts a ride request. Lawmakers want to change this and require that the insurance is in place from the point which the driver logs onto the Uber Application. They argue that there is commercial benefit whilst the driver is waiting for someone to request a ride.

Furthermore, lawmakers assert that the personal insurance cover of the driver often does not cover any incident that occurs if the driver is logged-on to the application. They argue that it is vital that the driver is insured between the time that he logs-on and the time he or she gets a ride request. Uber disagrees.

Uber states that more often than not, personal insurance will pay for any incident that occurs between the time the driver logs-on and waits for a ride. Uber furthermore states that they have insurance in place in the event that the personal coverage of the driver does not pay. If this is true, one would not know at this stage. Uber does however claim that “rides on the platform, beginning to end, from when the driver turns on the app to when they drop a person off is insured. Any claim to the contrary is incorrect” (Mohrer). Christine O’Brien, president of the Insurance Council of New Jersey, states that “It is clear under New Jersey law that people who engage as an UberX driver are not covered by their private passenger auto policy. That is a very clear conclusion.”

I believe the problem here is to find out what the actual truth is. We need to determine whether these drivers are sufficiently covered or not. If not, then extra commercial insurance would most definitely be needed. If Uber claims that they provide insurance for the time frame in controversy, then they should provide proof of this insurance.

I understand that law makers are only trying to protect the common citizen, however, I also understand Uber’s argument that the proposed law is burdensome. Uber claims that the level of coverage proposed is higher than that of what is expected from taxi operators. Furthermore, Uber states that four states, including Washington D.C., have passed transport network regulation, and that these regulations are not nearly as burdensome as those proposed in New Jersey.

Uber is many people’s livelihood, and I understand their frustration as it can easily be seen as a vendetta against Uber drivers. New Jersey lawmakers should take into consideration what other states have done and see how they can accommodate both parties.

Renaldo is an economics major at the Stillman School of Business, Seton Hall University, Class of 2019.

Posted by Peyton Adams.

The Fourth and Fourteenth Amendment have been overlooked by authorities many times in the past.  The Martinez vs Denver Police case is yet another time this has occurred.

The Denver police forcefully entered the Martinez house on January 27, 2009.  Instead of allowing Mr. Martinez to fully open the door to determine why the District 1 Special Crime Attack Team (SCAT) was at his door, SCAT forced their way into the house, without a warrant, after receiving information about this home being that of a drug dealer.  This Crime Team failed to realize that a new family had taken over the home since the tip was received.

The Denver police were apparently working on “stale information about the former tenants presumably being into drugs and prostitution and some bad stuff.”  The police failed to do their background checks; failed to do some investigation; failed to show any respect; and, failed to handle the situation in a proper manner.  Instead, the police asserted their power, entered the house, abused their power, and assaulted a family of a mariachi band.

The Martinez family were wrongly accused, but does the Denver police care? The Denver police instead ignored it and didn’t punish anyone on this raid.  They merely overlooked the fact that their team did not do their job.

The jury, however, came to a conclusion.  The Martinez family sued on two accounts: one, for excessive force, and two, for wrongful prosecution.  The jury did not see enough information to determine if the officers entered the house and abused their power, although there were broken windows and injuries sustained by the family.  Nonetheless, the jury found that the Martinez family was wrongfully prosecuted and awarded the Martinez family a monetary value of $1.8 million.

The officers planned on appealing the case.

Peyton is a marketing major with a minor in nonprofit studies and business law at the Stillman School of Business, Seton Hall University, Class of 2019.

Posted by Daniel Perez.

In “Accountants Increasingly Use Data Analysis to Catch Fraud,” Jo Craven McGinty highlights the rise in the use of mathematical and forensic procedures in the today’s audit industry. Americans are burdened with an estimated $300 billion a year due to employee fraud in the workplace. In the aftermath of large-scale fraud cases, such as Enron and WorldCom, audit firms are increasingly using more reliable audit procedures in their engagements to prevent such fraud cases from occurring again. Benford’s Law is the center focus of this article as it supports how similar procedures drives audit quality in the right direction.

In investigating refunds issued by a call center, a group of forensic accountants used Benford’s Law to detect employee fraud. Instead of traditional sampling used by auditors, the group of forensic accountants used Benford’s Law because it offers mathematical evidence that fraud may or may not be occurring: “According to Benford’s Law—named for a Depression-era physicist who calculated the expected frequency of digits in lists of numbers—more numbers start with one than any other digit, followed by those that begin with two, then three and so on.” In their testing of the refund amounts, the accountants expected to see a significant amount of refunds starting with “1,” followed by “2” and so on. The occurrence of refunds beginning with “4” were much more prevalent than it should have been according to Benford’s Law, raising the flag that fraud may be occurring. Applying similar procedures to Benford’s Law in the foundation of audits may grow to be a normal practice at some point in the future.

An application of the procedure to Enron’s financial statements portrays a clear variation from the normal results from Benford’s Law. McGinty’s article states that as computer programs, such as ACL, featuring forensic accounting procedures grow rampant in the marketplace, the use of these procedures does have a positive impact on future.

Article:

http://www.wsj.com/articles/accountants-increasingly-use-data-analysis-to-catch-fraud-1417804886

Daniel is a graduate accounting student at the Feliciano School of Business, Montclair State University, Class of 2016.

Posted by Daniel Perez.

The demand for forensic accountants has been growing rapidly in recent years, especially in divorce cases of the ultra-wealthy. In an article published in Forbes in September, Russ Alan Prince cites divorce by the wealthy as being a key area that drives the need to hire forensic accountants. The rationale behind this drive in demand is that the services provided by forensic accountants is best in the market in determining the true economic value of a couple’s financial assets.

In most wealthy divorce cases, spouses often attempt to conceal assets and inaccurately state their income. This foul play is a common practice in the today’s landscape says practicing forensic accounting James DiGabriele:

It’s impossible to appropriately divide marital assets if everyone doesn’t know just what those assets are and what they’re worth. High-net-worth couples generally have a number of types of assets such as investment portfolios, businesses, collectables, partnerships, and the list goes on. Divorce lawyers are not the professionals that are going to be able to determine the value of all the different assets. That’s the job of the forensic accountant.

The fundamental analytical skills used by forensic accountants qualify them as key players in attempting to circumvent tactics used by spouses to hide assets and income. Forensic accountants investigate these divorce cases in their fundamental training and continuing education in order to meet the prevalence of these cases in practice.

Director of Geltrude & Company’s divorce practice, Ellen Rabasca reaffirms just how common it is for spouses to conceal marital assets in order to reduce their financial liability after the divorce: “When assets are held in trusts or partnerships, or located in different jurisdictions, getting a valuation can be complicated. Also, the valuation of retirement plans, deferred compensation arrangements, and life insurance programs all require the expertise of a qualified accountant.” Forensic accountants offer the services of reviewing tax returns, confirming bank balances, tracing financial transactions, and most importantly, maintaining a high degree of professional skepticism and inquiry in order to determine the true value of assets spouses possess.

Daniel is a graduate student in accounting with a certificate in forensic accounting at the Feliciano School of Business, Montclair State University.