Law Commons^™

'Tis A Gift To Be Simple: A Model Reform Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This essay introducing the June 2006 edition of the Federal Sentencing Reporter (Vol. 18, No. 5) describes two important contributions to the movement for real reform of the federal sentencing system. First, Professor Bowman summarizes the recommendations of the Constitution Project Sentencing Initiative (CPSI) report on federal sentencing. The CPSI report, reproduced in this Issue, cautions against any over-hasty legislative response to the Supreme Court's decision in United States v. Booker, suggests some near-term improvements to the existing federal sentencing system, and then sets out a framework for a reformed and markedly simplified federal sentencing regime. Second, Professor Bowman describes …

Making The Broker Pay When The Deal Goes Bad, Roger Bernhardt

Publications

This article discusses a California decision holding the broker liable to a buyer for misrepresenting the ability of the sellers to convey good title.

Autonomy Suspended: Using Female Patients To Teach Intimate Exams Without Their Consent, Robin Fretwell Wilson

Faculty Scholarship

Recent reports of medical students performing pelvic exams for training purposes on anesthetized women without their consent have produced a firestorm of controversy. Peter Ubel and colleagues found that 90% of medical students performed such exams during their obstetrics/gynecology rotations. A series of 2003 reports focused a white-hot spotlight on this teaching practice and resulted in Federal Trade Commission and Department of Justice hearings and action by the American Association of Medical Colleges and the American College of Obstetrics and Gynecology. In this article, Professor Wilson examines the merits of the defenses and justifications for using female patients for pelvic …

Restating The "Original Source Exception" To The False Claims Act's “Public Disclosure Bar”, Joel D. Hesch

Faculty Publications and Presentations

The False Claims Act (FCA) is the Department of Justice’s (DOJ) primary litigative tool to combat fraud under federal government programs, including as Medicare and the military. The FCA provides for triple damages and civil penalties. It also contains a unique qui tam provision, which allows a whistleblower, known as a “relator,” to file a FCA lawsuit on behalf of the government and receive a share of 15-25% in the recovery. The DOJ has recovered $20 billion under the FCA from companies cheating the government, and has paid out over $2 billion in citizen rewards. The FCA contains a “public …

The Model Federal Sentencing Guidelines Project: A Simplified Economic Crimes Guideline, Model Sentencing Guidelines §2b1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the third of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929.

Identity Theft And Foreclosure Surpluses: Ctc Real Estate Servs. V Lepe, 2006, Roger Bernhardt

Publications

This article discusses a California case which held that an identity theft victim in whose name a mortgage was obtained may recover the undistributed surplus proceeds that remained after its foreclosure sale.

Bringing Coherence To Mens Rea Analysis For Securities-Related Offenses, Michael L. Seigel

UF Law Faculty Publications

This Article has demonstrated that the failure of commentators and the courts to tackle mens rea analysis head-on has resulted in lasting incoherence in the law. Unintelligible legal doctrine does not simply upset individuals who strive for elegant solutions to legal problems; it also exacts a huge, real-life toll. Juries faced with incoherent legal instructions are likely to become disillusioned about the justice system. Citizens receive inadequate guidance as to acceptable and unacceptable behavior, hampering deterrence -- particularly in the securities-law arena, where one presumably finds mostly rational actors who would be deterred by clear legal rules. Securities regulation is …

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

Publications

This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

The Best Puffery Article Ever, David A. Hoffman

All Faculty Scholarship

This Article provides the first extensive legal treatment of an important defense in the law of fraud and contracts: puffery. Legal authorities commonly say they make decisions about whether defendants should be able to utter exaggerated, optimistic, lies based on assumptions about buyer behavior, concluding that consumers do not rely on such speech. However, as the Article shows, such analyses are proxies for a deeper analytical question: does the speech encourage or discourage a type of consumption activity that the court deems welfare maximizing? The Article presents a novel constitutional analysis of puffery doctrine that focuses on the meaning of …

Novel Criminal Fraud, Samuel W. Buell

Faculty Scholarship

The crime of fraud has been underdescribed and undertheorized, both as a wrong and as a legal prohibition. These deficits contribute to contention and uncertainty over the practice of punishing white-collar crime. This Article provides a fuller account of criminal fraud, describing fraud law's open-textured, common-law, and adaptive qualities and explaining how fraud law develops along its leading edge while limiting violence to the legality principle. The legal system has a surprising, often overlooked methodology for resolving whether to treat novel commercial behaviors as frauds: Courts and enforcers often conduct an ex post examination of whether an actor's mental state …

After Dura: Causation In Fraud-On-The-Market Actions, Merritt B. Fox

Faculty Scholarship

On April 19, 2005, the Supreme Court announced its unanimous opinion in Dura Pharmaceuticals, Inc. v. Broudo, concerning what a plaintiff must show to establish causation in a Rule lob-5 fraud-on-the-market suit for damages. The opinion had been awaited with considerable anticipation, being described at the time of oral argument in the Financial Times, for example, as the "most important securities case in a decade." After the opinion was handed down, a representative of the plaintiffs' bar lauded it as a "unanimous ruling protecting investors' ability to sue." A representative of the defendants' bar equally enthusiastically hailed it as "a …