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Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner
Articles by Maurer Faculty
The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …
The Supreme Court And The Pro-Business Paradox, Elizabeth Pollman
The Supreme Court And The Pro-Business Paradox, Elizabeth Pollman
All Faculty Scholarship
One of the most notable trends of the Roberts Court is expanding corporate rights and narrowing liability or access to justice against corporate defendants. This Comment examines recent Supreme Court cases to highlight this “pro-business” pattern as well as its contradictory relationship with counter trends in corporate law and governance. From Citizens United to Americans for Prosperity, the Roberts Court’s jurisprudence could ironically lead to a situation in which it has protected corporate political spending based on a view of the corporation as an “association of citizens,” but allows constitutional scrutiny to block actual participants from getting information about …
The Corporation As Trinity, David A. Skeel Jr.
The Corporation As Trinity, David A. Skeel Jr.
All Faculty Scholarship
In “Corporate Capitalism and ‘The City of God,’” Adolf Berle references Augustine’s theological classic The City of God in service of his contention that corporate managers have a social responsibility. In this Article, I turn to another work by Augustine, The Trinity, for insights into another feature the corporation, corporate personhood. The Trinity explicates the Christian belief that God is both three and one. I argue that corporations have analogously Trinitarian qualities. Much as theologically orthodox Christians understand God to be both one and three, I argue that corporations are best seen as both a single entity and through …
Reconsidering Hostile Takeover Of Religious Organizations, B. Jessie Hill
Reconsidering Hostile Takeover Of Religious Organizations, B. Jessie Hill
Faculty Publications
Beginning in 2016, the headlines of major publications began announcing that Donald Trump had successfully completed a “hostile takeover” of the Republican Party. Whether this appraisal is accurate or not, it reflects concern about the associational integrity of a voluntary private organization—the Republican Party—and it suggests that some forms of organizational transformation are problematic. Moreover, the same concern might arise regarding other private associations, including religious associations. Yet, given that some transformation is inevitable and universal within religious and other voluntary organizations, it would be unwarranted to assume that all change within a religious organization is necessarily problematic.
This Article …
Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer
Corporations As Conduits: A Cautionary Note About Regulating Hypotheticals, Douglas M. Spencer
Publications
No abstract provided.
(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton
(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton
Publications
Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of …
Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski
Standing After Snowden: Lessons On Privacy Harm From National Security Surveillance Litigation, Margot E. Kaminski
Publications
Article III standing is difficult to achieve in the context of data security and data privacy claims. Injury in fact must be "concrete," "particularized," and "actual or imminent"--all characteristics that are challenging to meet with information harms. This Article suggests looking to an unusual source for clarification on privacy and standing: recent national security surveillance litigation. There we can find significant discussions of what rises to the level of Article III injury in fact. The answers may be surprising: the interception of sensitive information; the seizure of less sensitive information and housing of it in a database for analysis; and …
Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French
Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French
Journal Articles
On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …
Supreme Court Amicus Brief Of 19 Corporate Law Professors, Friedrichs V. California Teachers Association, No. 14-915, John C. Coates, Iv, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee Jr., James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence A. Hamermesh, Henry Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier Kraakman, Donald C. Langevoort, Edward B. Rock, Mark J. Roe, Helen S. Scott
Supreme Court Amicus Brief Of 19 Corporate Law Professors, Friedrichs V. California Teachers Association, No. 14-915, John C. Coates, Iv, Lucian A. Bebchuk, Bernard S. Black, John C. Coffee Jr., James D. Cox, Ronald J. Gilson, Jeffrey N. Gordon, Lawrence A. Hamermesh, Henry Hansmann, Robert J. Jackson Jr., Marcel Kahan, Vikramaditya S. Khanna, Michael Klausner, Reinier Kraakman, Donald C. Langevoort, Edward B. Rock, Mark J. Roe, Helen S. Scott
Faculty Scholarship
The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt …
Corporations Are Not People: An Analysis Of Citizens United V. Federal Election Commission, Melissa Gaughan
Corporations Are Not People: An Analysis Of Citizens United V. Federal Election Commission, Melissa Gaughan
Summer Research
In 2010, the Supreme Court answered this question in Citizens United v. FEC, which granted corporations First Amendment political speech rights and struck down limitations on independent expenditures by for-profit corporations. My research focused on the uses of legal theories of corporate personhood within the Citizens United decision. I found that the Court’s Citizens United decision used logic from several theories of corporate personhood to avoid acknowledging that there are different types of corporations, each with unique claims to political speech rights. The use of multiple theories of corporate personhood led the Court to conflate the two major types of …
The Garcetti Virus, Nancy M. Modesitt
The Garcetti Virus, Nancy M. Modesitt
All Faculty Scholarship
In an era where corporate malfeasance has imposed staggering costs on society, ranging from the largest oil spill in recorded history to the largest government bailout of Wall Street, one would think that those who uncover corporate wrongdoing before it causes significant harm should receive awards. Employees are particularly well-placed to uncover such wrongdoing within companies. However, rather than reward these employees, employers tend to fire or marginalize them. While there are statutory protections for whistleblowers, a disturbing new trend appears to be developing: courts are excluding from the protection of whistleblowing statutes employees who report wrongdoing as part of …
Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger
Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger
Scholarly Works
This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …
Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori A. Ringhand
Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori A. Ringhand
Scholarly Works
On December 10, 2003 the United States Supreme Court issued its decision in McConnell v. FEC. In McConnell, the Court was asked to determine the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). A divided Court, in a deeply fractured decision in which six justices wrote individual opinions, upheld the major provisions of the legislation. Yet despite the almost 300 pages of reasoning provided by the Court, and a voluminous record developed by the district court, the Justices could not agree on what purportedly is the central issue in campaign finance law: whether the challenged regulations were necessary …
What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger
What Is The Sound Of A Corporation Speaking? How The Cognitive Theory Of Metaphor Can Help Lawyers Shape The Law, Linda L. Berger
Scholarly Works
This article argues that better understanding of metaphor's cognitive role can help lawyers shape judicial decision-making. As a way of exploring metaphor's contribution to shaping the law, the article focuses on how a particular lawsuit was influenced by metaphor, in particular, by the primary metaphor that a corporation is a person within the more complex metaphorical system suggested by the marketplace of ideas model for First Amendment protection. After describing the cognitive theory of metaphor and examining the metaphors underlying First Amendment protection for corporate speech, the article analyzes the use of metaphor in the briefs filed in the U.S. …
Investment Company Advertising, Tamar Frankel
Investment Company Advertising, Tamar Frankel
Faculty Scholarship
SEC Regulation has changed from specific guidelines for advertisers to a general antifraud provision. Despite greater latitude, conflicts may arise between the commission's regulation and first amendment protection of commercial speech.