Law Commons^™

Wherefore Art Thou Guidelines? An Empirical Study Of White-Collar Criminal Sentencing And How The Gall Decision Effectively Eliminated The Sentencing Guidelines, S. Patrick Morin

The University of New Hampshire Law Review

[Excerpt] “Until the passage of the U.S. Federal Sentencing Guidelines in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. This judicial discretion led to a disparity in the sentences of similarly situated offenders, particularly in white-collar cases. The Guidelines attempted to eliminate this disparity by establishing maximum and minimum sentences for certain offenses based on the characteristics of the crime. An important feature of the Guidelines system was its mandatory nature, which decreased and structured the judiciary‘s discretion within bounds set by Congress.

The mandatory application of the Guidelines resulted in stiff …

Wills, Trusts, And Estates, J. Rodney Johnson

University of Richmond Law Review

No abstract provided.

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

No abstract provided.

Are Artificial Tans The New Cigarette? How Plaintiffs Can Use The Lessons Of Tobacco Litigation In Bringing Claims Against The Indoor Tanning Industry, Andrea Y. Loh

Michigan Law Review

Indoor tanning salons have grown significantly in popularity during recent years. Scientific research has revealed a strong link between skin cancer and ultraviolet light exposure from indoor tanning lamps. Despite such dangers, federal regulations place minimal restrictions on the labeling of indoor tanning lamps. Indoor tanning salons work vigorously to dispel notions of a link to skin cancer, often falsely promoting various health benefits of indoor tanning. The first lawsuit for injuries resulting from indoor tanning was recently filed against an indoor tanning salon, and other such litigation is poised to follow. This Note examines three potential tort claims against …

Reforming Securities Litigation Reform: A Proposal For Restructuring The Relationship Between Public And Private Enforcement Of Rule 10b-5, Amanda M. Rose

Amanda M Rose

Forthcoming in Columbia Law Review, Vol. 108, No. 6 (Oct. 2008)

For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle. Is private enforcement of Rule 10b-5 worth preserving, or might we be better off with exclusive public enforcement? This fundamental and neglected question demands attention today more than ever. An academic consensus has now emerged that private enforcement of Rule 10b-5 cannot be defended on compensatory grounds, at least in its most common form (a fraud-on-the-market class action brought against a non-trading issuer). That …

Stoneridge V. Scientific-Atlanta: Do Section 10(B) And Rule 10b-5 Require A Misstatement Or Omission? (Pre-Publication Draft), Rodney D. Chrisman

Faculty Publications and Presentations

This version is a draft submitted for publication and accepted prior to the Supreme Court’s ruling. The final version, published by QLR and also posted on Digital Commons, was modified subsequently to the Supreme Court ruling. Stoneridge v. Scientific-Atlanta promises to be the most important securities litigation case to reach the Supreme Court since Central Bank of Denver. In this important case, Stoneridge presents the Supreme Court with the opportunity to clarify the application of its ruling in Central Bank to liability for secondary actors under section 10(b) and rule 10b-5. This Article points out that the fundamental question plaguing …

Mtic (Carousel) Fraud: Twelve Ways Forward; Two Ways 'Preferred' - Has The Technology-Based Administrative Solution Been Rejected?, Richard Thompson Ainsworth

Faculty Scholarship

In a May 31, 2006 Communication to the Council, the European Parliament, and the European Economic and Social Committee, the European Commission indicated a need to develop a co-ordinated strategy to improve the fight against fiscal fraud [COM(2006) 254 final]. Although the Communication considers fiscal fraud broadly (VAT, excise duties and direct taxes) the most pressing need seems to be for a VAT strategy that will effectively deal with MTIC (Missing Trader Intra-Community) or carousel fraud. To this end the Commission hosted a conference: Fiscal Fraud - Tackling VAT Fraud: Possible Ways Forward. The March 29, 2007 conference was constructed …

Raising The Hue And Crying: Do False Claims Act Qui Tam Relators Act Under Color Of Federal Law?, Isaac B. Rosenberg

W&M Law Student Publications

No abstract provided.

Commercial Fraud: Cases And Commentary, Alex Steel

Alex Steel

This monograph - published online - is a detailed analysis of theft and fraud laws in NSW. It was developed for UNSW Law students because of a lack of any up to date commercially published text on theft and fraud. It contains extracts and commentary on all key offences and caselaw. The law was current as of 2008.

Sentencing High-Loss Corporate Insider Frauds After Booker, Frank O. Bowman Iii

Faculty Publications

The Federal Sentencing Guidelines have for some years prescribed substantial sentences for high-level corporate officials convicted of large frauds. Guidelines sentences for offenders of this type moved higher in 2001 with the passage of the Economic Crime Package amendments to the Guidelines, and higher still in the wake of the Sarbanes-Oxley Act of 2002. Today, any corporate insider convicted of even a moderately high-loss fraud is facing a guideline range measured in decades, or perhaps even mandatory life imprisonment. Successful sentencing advocacy on behalf of such defendants requires convincing the court to impose a sentence outside (in many cases, far …

An Assessment Of The Impact Of The Sarbanes-Oxley Act On The Investigation Violations Of The Foreign Corrupt Practices Act, Karen Cascini, Alan L. Delfavero

WCBT Faculty Publications

During the late 1990s and early 2000s, a plethora of corporate scandals occurred. Due to these corporate debacles, corporate executives have been placed under fire. In response to such unethical conduct with regard to internal practices and financial reporting, legislation has been passed in order to ensure that corporations conduct their business in an ethical manner. The purpose of this paper is to assess the connection between the Foreign Corrupt Practices Act of 1977 (FCPA) and the Sarbanes-Oxley Act of 2002 (SOx), to determine whether SOx has influenced the FCPA’s investigative violation activities by examining the number of such investigations …

Corruption In Education: A Global Legal Challenge, Vincent R. Johnson

Faculty Articles

In every educational institution, in every country and generation, there is a struggle between corrupt practices and the continuing quest for high ethical standards. An educational institution is poorer if its members engage in corrupt practices. Such misfeasance wastes limited resources, demoralizes participants, and adversely affects productivity. The nature of this corruption is multi-faceted, and observes no geographic boundaries. It exists in every culture.

In some of these cases, educational corruption can be quite subtle. This is true where conduct that is neither criminal, fraudulent, nor a breach of fiduciary duty nevertheless undercuts the moral foundations of the educational enterprise. …

Data Security And Tort Liability, Vincent R. Johnson

Faculty Articles

Established tort principles carefully applied to the contemporary problems of cybersecurity and identity theft can perform a key role in protecting the economic foundations of modern life. Tort law offers an appropriate legal regime for allocating the risks and spreading the costs of database intrusion-related losses. It can also create incentives, on the part of both database possessors and data subjects, to minimize the harm associated with breaches of database security.

In considering this field of tort law, it is useful to differentiate three questions. The first issue is whether database possessors have a legal duty to safeguard data subjects’ …

The New Antifraud Rule: Is Sec Enforcement The Most Effective Way To Protect Investors From Hedge Fund Fraud?, Kathleen E. Lange

Fordham Law Review

Hedge Funds have consistently grown in both size and influence. Traditionally, hedge funds escaped regulation because access was limited to the wealthy and sophisticated. However, due to inflation, the wealth threshold has become more attainable to less sophisticated investors. Also, an increasing number of pension funds and other institutional investors have begun to invest a significant portion of their money in hedge funds. This increased growth, combined with the "retailization" of the industry, has led to concern over whether investors are adequately protected from the corresponding growth in hedge fund fraud. This Note argues that, absent new legislation, the SEC …

Shame, Paul Campos

Publications

Here are some observations drawn from nearly seventeen years spent as a legal academic, using a particular device: the depiction of several fictional yet all-too-familiar legal academic characters. With one exception these characters are imaginary - yet their name is legion. The characters are The Drone, The Bully, The Hack, and The Fraud.

What can be done about them - or about us? Answering this question at all satisfactorily requires confronting more than the personal flaws of particular individuals: it necessitates grappling with the structural failures of the contemporary law school. It's true that some of what is wrong with …

Stoneridge Investment Partners V. Scientific-Atlanta: The Political Economy Of Securities Class Action Reform, Adam C. Pritchard

Articles

I begin in Part II by explaining the wrong turn that the Court took in Basic. The Basic Court misunderstood the function of the reliance element and its relation to the question of damages. As a result, the securities class action regime established in Basic threatens draconian sanctions with limited deterrent benefit. Part III then summarizes the cases leading up to Stoneridge and analyzes the Court's reasoning in that case. In Stoneridge, like the decisions interpreting the reliance requirement of Rule 10b-5 that came before it, the Court emphasized policy implications. Sometimes policy implications are invoked to broaden the reach …

Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova

Fordham Journal of Corporate & Financial Law

No abstract provided.

Hybrid Class Actions, Dual Certification, And Wage Law Enforcement In The Federal Courts, Andrew Brunsden

Articles & Chapters

Hybrid wage-and-hour class actions, which combine a Fair Labor Standards Act ("FLSA ') opt-in collective action and a Federal Rule of Civil Procedure Rule 23 opt-out class action in a single civil action, demonstrate the unusual interplay of opt-in and opt-out rules. The hybrid class action, and its viability as a mechanism for wage law enforcement, raises fundamental questions as to who participates in lawsuits, how we should hold employers accountable for wage-and-hour noncompliance, and the role of the federal courts in enforcing public rights. An opt-in rule tends to produce low participation rates, while an opt-out rule tends to …

Corporate America Fights Back: The Battle Over Waiver Of The Attorney-Client Privilege, Michael L. Seigel

UF Law Faculty Publications

This Article addresses a topic that is the subject of an on-going and heated contest between the business lobby and its lawyers, on the one side, and the U.S. Department of Justice on the other. The fight is over federal prosecutors' escalating practice of requesting that corporations accused of criminal wrongdoing waive their attorney-client privilege as part of their cooperation with the government. The Department of Justice views privilege waiver as a legitimate and critical tool in its post-Enron battle against white collar crime. The business lobby views it as encroaching on corporations' fundamental right to protect confidential attorney-client communications. …

Taking Possession: The Defining Element In Theft, Alex Steel

Alex Steel

This article argues that the Theft Act 1968 (UK) c 60 and subsequent legislative developments in Australia have overlooked the principle of preventing public violence that was historically a justification for the common law offence of larceny. The article outlines the English Criminal Law Revision Committee’s decision to amalgamate previously separate offences into one overarching theft offence in the Theft Act 1968 (UK) c 60. It then describes the historical development of the common law offence of larceny, and its basis in the protection of the possessory rights of victims. The author argues that the restriction of the term ‘property …