Digital Commons Network^™

Some Kind Of Hearing Officer, Kent H. Barnett

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In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not …

Investor And Market Protection In The Crowdfunding Era: Disclosing To And For The 'Crowd', Joan Macleod Heminway

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This article focuses on disclosure regulation in a specific context: securities crowdfunding (also known as crowdfund investing or investment crowdfunding). The intended primary audience for disclosures made in the crowdfund investing setting is the “crowd,” an ill-defined group of potential and actual investors in securities offered and sold through crowdfunding. Securities crowdfunding, for purposes of this article, refers to an offering of securities made over the Internet to a broad-based, unstructured group of investors who are not qualified by geography, financial wherewithal, access to information, investment experience or acumen, or any other criterion.

To assess disclosure to and for the …

Mandating Precontractual Disclosure, Eric Franklin Amarante

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Parties negotiating an arm’s length contract are generally not required to disclose facts to one another. Although this default rule is supported by both centuries of common law and freedom of contract principles, courts and legislatures treat certain transactions differently. This is particularly true in circumstances in which the default rule results in an unacceptable harm suffered by a broad group of persons. In such cases, lawmakers have acted to impose precontractual disclosure obligations. These decisions and statutes are largely reactive: a harm is identified in a certain transaction’s precontractual period and disclosure is mandated to rectify the harm. These …

The Sec’S New Line-Item Disclosure Rules For Asset-Backed Securities: Mots Or Tmi?, Joan Macleod Heminway

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Despite the lack of a dominant explanation for the level of risk assumed by investors in asset-backed securities in the period preceding the financial crisis, the U.S. Congress proposed and passed new disclosure prescriptions addressing various aspects of the secondary mortgage market as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This essay asks whether certain disclosure provisions embraced in Dodd-Frank and the related regulations of the U.S. Securities and Exchange Commission are merely new and necessary components of a disclosure infrastructure that the SEC has been building for years for the protection of investors and markets …

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

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Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between …

Placebo Ethics, Usha Rodrigues, Mike Stegemoller

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While there are innumerable theories on the best remedy for the current financial crisis, there is agreement on one point, at least: increased transparency is good. We look at a provision from the last round of financial regulation, the Sarbanes Oxley Act of 2002 (SOX), which imposed disclosure requirements tailored to prevent some of the kinds of abuses that led to the downfall of Enron. In response to Enron's self-dealing transactions, Section 406 of SOX required a public company to disclose its code of ethics and to disclose immediately any waivers from that code the company grants to its top …

Martha’S (And Steve’S) Good Faith: An Officer’S Duty Of Loyalty At The Intersection Of Good Faith And Candor, Joan Macleod Heminway

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This short paper begins to explore whether a corporate officer’s duty of good faith extends to public disclosures of personal facts. Specifically, the paper preliminarily attacks the following question: in the post Stone v. Ritter, post-Gantler v. Stephens era in which we now live, is the absence or inadequacy of an executive officer’s disclosure of personal facts a breach of the duty of good faith and, as a result, the fiduciary duty of loyalty under Delaware law? The answer to this question is tied up in recent jurisprudence of the Delaware Supreme Court at the intersection of the duty of …

Personal Facts About Executive Officers: A Proposal For Tailored Disclosures To Encourage Reasonable Investor Behavior, Joan Macleod Heminway

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Required disclosures under U.S. securities laws, whether mandated by line-item disclosure rules, gap-filling regulations, or antifraud provisions, tend to focus principally, although not exclusively, on corporate facts - information about an issuer of securities or a transaction involving an issuer of securities. Although there are line-item disclosure rules that require the public revelation of personal facts about executive officers (both by the issuer and by the executive himself or herself), these rules are limited in scope.

However, public disclosure of executives' personal facts not covered by these line-item rules still may be required under applicable gap-filling regulations or antifraud provisions. …

Politics And Sociology In Federal Civil Rulemaking: Errors Of Scope, Jeffrey W. Stempel

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In April 2000 the United States Supreme Court promulgated a package of Proposed Amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2000, without Congressional intervention. As one commentator observed, “(a)ll of (the proposed amendments) promise to have a significant effect on discovery practice.” One Proposed Amendment--narrowing the scope of discovery available pursuant to Rule 26(b)(1)--was particularly controversial before both the Advisory Committee, the Standing Committee, and the Judicial Conference. Nonetheless, the Proposed Amended Rule narrowing scope proceeded from the Court to finality with no intervention by Congress. Proponents of the change minimized criticism by …

The Prudent Prosecutor, Leslie C. Griffin

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No abstract provided.

Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel

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Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …

Bootstrapping And Slouching Toward Gomorrah: Arbitral Infatuation And The Decline Of Consent, Jeffrey W. Stempel

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The Seventh Amendment to the Constitution preserves for litigants a right to a jury trial in actions at law. The right to a jury trial does not attach for equitable actions, but in cases presenting claims for both legal and equitable relief a right to a jury trial exists for common questions of fact. Although many modern statutes and claims did not exist in 1791, the Amendment has been interpreted to require a jury trial of statutory claims seeking monetary damages, the classic form of legal relief, so long as there is a relatively apt analogy between the modern statutory …

Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel

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Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …

New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel

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One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …