In Volume 53, Issue 3

Socially Accountable Investing: Applying Gartenberg v. Merrill Lynch Asset Management

Zachary Barker

In the past several years, the investment management industry has seen the tremendous growth of mutual funds that invest according to principles of socially responsible investment (SRI). What is missing from this growing sector, however, is any oversight as to whether these funds actually accomplish their socially conscious mission. With the Securities and Exchange Commission reluctant to police “social disclosure,” the unregulated promises of these SRI funds present a significant consumer protection risk.

This Note proposes that existing securities laws provide a potential avenue to effective SRI fund regulation without the need for new regulatory action. The rules of fiduciary obligation for mutual fund directors imposed by §36(b) of the Investment Company Act and the landmark decision Gartenberg v. Merrill Lynch Asset Management, which until now have largely been applied to funds’ financial performance, could easily be adapted by SRI fund investors to ensure a modicum of oversight for those funds’ social performance. State laws governing the management of public benefit corporations, which impose on directors a duty to disclose and compare corporate social performance, can provide potential principles for evaluating social performance.

Diagnostic Trends and Donald DD.: Has the Watershed Case Changed How State Doctors Diagnose Sex Offenders?

Maximilian J. Auerbach

Twenty states currently have laws providing for the civil management of sex offenders through involuntary confinement or outpatient supervision. These “SVP statutes” unanimously require a finding of a “mental abnormality,” a legal standard that has generated significant debate since the Supreme Court affirmed the standard’s constitutionality in Kansas v. Hendricks. Proving the existence of a mental abnormality requires psychiatrists to diagnose sex offenders, and much of the aforementioned criticism focuses on the reliability of these predicate diagnoses. The New York Court of Appeals, in State v. Donald DD., interpreted these cases to mean a sole diagnosis of antisocial personality disorder is insufficient to find a mental abnormality.

This Note investigates whether, and to what extent, the Donald DD.decision has affected New York’s ability to civilly manage sex offenders and changed the diagnoses used in those civil management proceedings. Part II explores the constitutional requirements for SVP statutes established by the Supreme Court in Kansas v. Hendricks and Kansas v. Crane. Part III details the civil commitment scheme in New York, with particular focus on the diagnostic stages of a case. Part IV summarizes a review of civil management cases in New York since 2007 in order to determine whether Donald DD.’s holding affected New York’s ability to civilly manage sex offenders, or the diagnoses offered by state experts when seeking civil management. This review includes analyses of whether Donald DD. has changed how frequently New York recommends sex offenders for civil management, and how frequently the State succeeds at trial. This Note observes that, while the case may have had some effect on referral, it has not affected trial success rates. Additionally,this Note finds some evidence that Donald DD. may have led to increased psychopathy diagnoses, unspecified and other specified paraphilic disorder diagnoses, and the number of diagnoses assigned to individual respondents.

Bargaining Life Away: Appellate Rights Waivers and the Death Penalty

Edmund A. Costikyan

In our criminal justice system, it is now a matter of little note that the vast majority of cases are resolved by guilty plea rather than at trial, without a single fact ever presented to a jury. Since the passage of the Sentencing Reform Act of 1984, it has become common practice for plea agreements to require not only that a defendant waive her right to trial by pleading guilty, but also that she waive her right to ever appeal her conviction or sentence. This Note explores the waiver of appellate rights from both a due process and public policy standpoint, arguing ultimately that when a defendant faces a potential death sentence at any point during the adjudication of her case, her appellate rights cannot be constitutionally waived; additionally, that in both the interest of justice and the public interest, such waivers should not be sought or upheld.

Part II of this Note introduces the relevant background of the plea bargaining system and the use of appellate waivers. Part III discusses the issues raised both when a defendant is asked to waive her appellate rights and by the enforcement of such waivers once effected, before addressing the arguable benefits of such waivers. Finally, Part IV seats these arguments in the context of capital punishment, where, due to the finality of the punishment and its powerful coercive force, the unreviewability of a conviction is at the highest level of concern.

Proxy War: The Role of Recent CEQA Exemptions in Fixing California’s Housing Crisis

Annelise Bertrand

As California’s housing crisis continues to balloon, legislators are scrambling to identify its root causes and fashion fixes. One major challenge to the state’s housing fix is its existing fix for a different issue: environmental protection. The California Environmental Quality Act (CEQA) is one of the strongest state-level environmental statutes in the United States, and mandates that residential projects of a certain scale and potential impact undergo rigorous rounds of public review prior to approval. It also grants a private right of action against a project approval to any anonymous individual, and given the glacial pace of such litigation, the exercise of this right often informally functions as an injunction. Recognizing its defensive potential, prosperous communities have repurposed a law intended to preserve the environment into a weapon of exclusion that preserves property values and views by preventing the construction of new and affordable housing where most needed.

To counteract CEQA abuse in the housing domain, the California legislature has passed three bills that streamline environmental review for projects that reserve a certain portion of units for affordable housing: SB 35, SB 540, and AB 73. This Note examines each bill in turn and, after reviewing their requirements in light of inclusionary housing literature, ultimately argues that the streamlining efforts are unlikely to produce the effects hoped for due to their mismatched incentives and concessions. Finally, the Note concludes with several recommendations for improving future CEQA-based affordable housing initiatives in the Golden State.