Business Law, Public Responsibility, and Ethics Commons^™

Constructive Ambiguity And Judicial Development Of Insider Trading, Jill E. Fisch

All Faculty Scholarship

The Texas Gulf Sulphur decision began what has become a fifty-year project of developing U.S. insider trading regulation through judicial lawmaking. During the course of that project, the courts developed a complex, fraud-based approach to determining the scope of liability. The approach has led, in many cases, to doctrinal uncertainty, a result that is reflected in the recent decisions in Newman, Salman, and Martoma.

n the face of this uncertainty, many commentators have called for a legislative solution. This article argues, however, that the true challenge of insider trading regulation is a lack of consensus about the …

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

All Faculty Scholarship

For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality norm, first …

Probing The Depths Of The Responsible Corporate Officer's Duty, Kimberly Kessler Ferzan

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Many criminal law scholars have criticized the Responsible Corporate Officer Doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the Responsible Corporate Officer Doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, …