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Securities Law Commons

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2011

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Articles 1 - 30 of 198

Full-Text Articles in Securities Law

Coco Rising: Can The Emergence Of Novel Hybrid Securities Protect From Future Liquidity Crises?, Eric S. Halperin Dec 2011

Coco Rising: Can The Emergence Of Novel Hybrid Securities Protect From Future Liquidity Crises?, Eric S. Halperin

Brigham Young University International Law & Management Review

No abstract provided.


Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel Dec 2011

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel

Richard A Grisel

The development of geothermal resources has been greatly hampered by the legal and institutional framework governing geothermal energy resources. This framework has been plagued by conflicting mining and water laws, anachronistic common law systems of property rights, problematic legal classifications of geothermal resources, and jurisdictional variances from state to state and between states and the Federal government. These issues have combined to significantly hinder the development of what will be a vital resource for our nation’s future energy needs.

This thesis concerns one way to address the suboptimal development of geothermal energy resources. Using the Federal acquisition of exclusive ...


At War With The Environment, David A. Wirth Nov 2011

At War With The Environment, David A. Wirth

David A. Wirth

In this Article, Professor Wirth reviews the book National Defense and the Environment by Stephen Dycus, a recognized expert in both environmental and national security law. The emphasis of the book is on containing and remediating the environmental excesses of the American defense-industrial complex, with a domestic policy focus. While Professor Wirth considers Dycus’ work an intellectually rewarding and refreshing new entry into the ongoing environment-as-security colloquy, he does not consider the book to be accessible to a general audience given the book’s fundamentally legalistic nature.


Corporate Governance And Accountability, Renee M. Jones Nov 2011

Corporate Governance And Accountability, Renee M. Jones

Renee Jones

This book chapter on Corporate Governance and Accountability is a contribution to the book CORPORATE GOVERNANCE - SYNTHESIS OF THEORY, RESEARCH, AND PRACTICE (Wiley, forthcoming 2010), edited by Ronald Anderson and H. Kent Baker. This chapter describes the sources of corporate governance standards for American corporations and analyzes the accountability mechanisms designed to ensure that corporate officials act faithfully in their management of corporate affairs. The chapter focuses on the financial reporting system under the U.S. securities laws which forms the foundation of the accountability system, and discusses structures and rules designed to ensure the integrity of financial reporting. The ...


Will The Sec Survive Financial Regulatory Reform?, Renee M. Jones Nov 2011

Will The Sec Survive Financial Regulatory Reform?, Renee M. Jones

Renee Jones

The Securities and Exchange Commission’s (“SEC”) conspicuous failures during the financial crisis of 2008 have led many to question the agency’s relevance in the modern financial era. Some commentators have called for the creation of new super-agencies to assume a substantial portion of the SEC’s duties. Others highlight enforcement failures and question the agency’s commitment to its investor protection mission. Despite its recent missteps and persistent calls for regulatory overhaul, the SEC’s future seems secure for now as President Obama’s reform proposals (the “Obama Plan”) as currentlyconceived preserve the agency’s independence. Although thus ...


Legitimacy And Corporate Law: The Case For Regulatory Redundancy, Renee M. Jones Nov 2011

Legitimacy And Corporate Law: The Case For Regulatory Redundancy, Renee M. Jones

Renee Jones

This article provides a democratic assessment of the corporate law making structure in the United States. It draws upon the basic democratic principle that those affected by legal rules should have a voice in determining the substance of those rules. Although other commentators have noted certain undemocratic aspects of corporate law, this Article is the first to present a comprehensive assessment of the corporate regulatory structure from the perspective of democracy. It departs from prior accounts by looking past the states' role to consider the ways that federal regulation shores up the legitimacy of the overarching structure. This focus on ...


Law, Norms, And The Breakdown Of The Board, Renee M. Jones Nov 2011

Law, Norms, And The Breakdown Of The Board, Renee M. Jones

Renee Jones

This Article considers the dominant claim in corporate law literature that extra-legal mechanisms such as markets and social norms provide adequate safeguards against corporate mismanagement and opportunism. After noting recognized deficiencies in the arguments from market discipline, the Article draws on psychological insights to show that certain behavioral phenomena prevent social norms from appropriately constraining corporate conduct. It then argues that because neither markets nor social norms can sufficiently discipline corporate officials, a credible accountability mechanism is necessary to prevent director conduct standards from deteriorating. Unfortunately, an inveterate tradition of judicial deference in corporate law has undermined the role of ...


Dynamic Federalism: Competition, Cooperation And Securities Enforcement, Renee M. Jones Nov 2011

Dynamic Federalism: Competition, Cooperation And Securities Enforcement, Renee M. Jones

Renee Jones

The concept of competition between the federal government and the states was central to the framers’ vision of our constitutional structure. In the framers’ view, federal-state regulatory competition ensured an alternative regime to citizens dissatisfied with the dominant regulator’s performance. Recently, the dynamics of federalism have shifted power in the securities enforcement field from the SEC to certain state securities regulators. The states, rather than the SEC, have led enforcement efforts in the Wall Street analyst conflicts and the mutual fund trading investigations. This shift in authority has prompted renewed debate over whether a uniform national system of securities ...


Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom Nov 2011

Legal Lines In Shifting Sand: Immigration Law And Human Rights In The Wake Of September 11, Daniel Kanstroom

Daniel Kanstroom

In March of 2004, a group of legal scholars gathered at Boston College Law School to examine the doctrinal implications of the events of September 11, 2001. They reconsidered the lines drawn between citizens and noncitizens, war and peace, the civil and criminal systems, as well as the U.S. territorial line. Participants responded to the proposition that certain entrenched historical matrices no longer adequately answer the complex questions raised in the “war on terror.” They examined the importance of government disclosure and the public’s right to know; the deportation system’s habeas corpus practices; racial profiling; the convergence ...


Transnational Class Actions And The Illusory Search For Res Judicata, Tanya Monestier Nov 2011

Transnational Class Actions And The Illusory Search For Res Judicata, Tanya Monestier

Law Faculty Scholarship

The transnational class action-a class action in which a portion of the class consists of non-US claimants-is here to stay Defendants typically resist the certification of transnational class actions on the basis that such actions provide no assurance of finality for a defendant, as it will always be possible for a non-U.S. class member to initiate subsequent proceedings in a foreign court. In response to this concern, many U.S. courts will analyze whether the "home" courts of the foreign class members would accord res judicata effect to an eventual U.S. judgment prior to certifying a U.S ...


Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García Oct 2011

Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García

Bruno L. Costantini García

Discernir la noción y elementos de existencia de los títulos de crédito, considerando la doctrina y la denominación expresada en nuestra Ley General de Títulos y Operaciones de Crédito, conceptualizando el término de los documentos que consignan un derecho crediticio propio de su naturaleza y deslindando de manera dogmatica y exegética los elementos que lo forman y le dan su funcionamiento, mediante una visión de las instituciones jurídicas que les dan su existencia y aplicación dentro del devenir de los actos de comercio.


Commodity Swap Position Limit Rule May Help Return Price-Risk Management, Michael Greenberger Oct 2011

Commodity Swap Position Limit Rule May Help Return Price-Risk Management, Michael Greenberger

Michael Greenberger

No abstract provided.


Agency Cost Problems In Executive Compensation: An Evaluation Of Dividend Equivalent Rights On Restricted Stocks, Ufuoma Barbara Akpotaire Oct 2011

Agency Cost Problems In Executive Compensation: An Evaluation Of Dividend Equivalent Rights On Restricted Stocks, Ufuoma Barbara Akpotaire

Ufuoma Barbara Akpotaire

Some authors argue that the integration of stock options as well as restricted stocks into executive compensation may reduce the conflicts between shareholders and management but may at the same time give rise to other agency problems connected to debt. While this line of argument may hold some merit, the structure of executive compensation packages, has over the years, focused less on stock options and more on restricted stocks. A classic example of this trend is Microsoft, who in 2003, switched from using stock options to restricted stock.

Compensating executives through restricted stocks has recently come under scrutiny due to ...


Does Sarbanes-Oxley Foster The Existence Of Ethical Executive Role Models In The Corporation?, Joan Heminway Oct 2011

Does Sarbanes-Oxley Foster The Existence Of Ethical Executive Role Models In The Corporation?, Joan Heminway

Joan M Heminway

If compliance with, or the efficacy of, Sarbanes-Oxley and other corporate governance initiatives requires that executives (or other firm leaders) be good ethical role models, then it is important to ask whether Sarbanes-Oxley - or any other attribute of existing corporate governance regulation - in fact promotes or permits the production or preservation of ethical role models in the executive ranks of public companies. An absence of support for ethical role models in public companies may signal the failure of broad-based federal corporate governance initiatives like Sarbanes-Oxley.

This Article assumes that ethical roles models may be important to the maintenance of good ...


Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Heminway Oct 2011

Reframing And Reforming The Securities And Exchange Commission: Lessons From Literature On Change Leadership, Joan Heminway

Joan M Heminway

As a reaction to perceived and actual regulatory failures at the Securities and Exchange Commission (the SEC), from mistakes that contributed to the financial crisis to the Bernard Madoff affair, the SEC has been engaged in an operational transformation process. The growing literature on management and leadership in times of change -- change leadership literature -- offers a number of potentially valuable lenses through which we may assess reform at the SEC. With the thought that securities regulators and others may learn valuable lessons about the SEC’s restructuring and reorganization from experts in change leadership, this Article explores a selected group ...


Enron's Tangled Web: Complex Relationships; Unanswered Questions, Joan Heminway Oct 2011

Enron's Tangled Web: Complex Relationships; Unanswered Questions, Joan Heminway

Joan M Heminway

This essay originally was presented orally at the University of Cincinnati College of Law's Sixteenth Annual Corporate Law Symposium. The essay describes corporate agency and agency-related relationships as implicated in the "Enron affair" and explores ways in which the Sarbanes-Oxley Act of 2002 fails or attempts to address the alleged malfunctions in these relationships. The essay concludes that the reforms enacted in Sarbanes-Oxley provide little assistance in resolving agency and agency-related problems associated with Enron's public misstatements and omissions. Ultimately, the essay exhorts scholars and practicing lawyers to work together to resolve these problems through (among other things ...


The Best Of Times, The Worst Of Times: Securities Regulation Scholarship And Teaching In The Global Financial Crisis, Joan Heminway Oct 2011

The Best Of Times, The Worst Of Times: Securities Regulation Scholarship And Teaching In The Global Financial Crisis, Joan Heminway

Joan M Heminway

This short piece is an annotated version of remarks that I gave to introduce a roundtable discussion on securities regulation scholarship at the University of Maryland School of Law program on “Corporate Governance and Securities Law Responses to the Financial Crisis” held on April 17, 2009. The piece represents my current thoughts about what it is like to teach, research, and write in the area of securities regulation. Ultimately, the message I deliver is a positive one; there is much opportunity for securities regulation teachers and scholars in an environment like the one we have been wrestling with since at ...


Martha Stewart Saved! Insider Violations Of Rule 10b-5 For Misrepresented Or Undisclosed Personal Facts, Joan Heminway Oct 2011

Martha Stewart Saved! Insider Violations Of Rule 10b-5 For Misrepresented Or Undisclosed Personal Facts, Joan Heminway

Joan M Heminway

This article analyses the criminal securities fraud charges brought against Martha Stewart. Stewart was acquitted of these charges by a federal district court judge in February 2004. Specifically, the article initially focuses on whether the securities fraud charges brought against Stewart were valid as a matter of prosecutorial discretion and substantive law and whether the court was correct in granting Stewart's motion for acquittal before handing the rest of her case to the jury for deliberation. The article then offers substantive and procedural observations about Rule 10b-5 cases like the one brought against Stewart.


Save Martha Stewart? Observations About Equal Justice In U.S. Insider Trading Regulation, Joan Heminway Oct 2011

Save Martha Stewart? Observations About Equal Justice In U.S. Insider Trading Regulation, Joan Heminway

Joan M Heminway

Martha Stewart is the subject of a civil enforcement action alleging violations of U.S. securities laws and regulations governing insider trading. The facts, as we now know them, suggest that the considerable governmental resources spent in pursuit of Martha Stewart (which are out of proportion to the apparent financial magnitude of any illegal trading activity) result from an express decision to single her out for potential criminal prosecution or civil enforcement based on some personal characteristic or characteristics. After describing the basic structure of insider trading regulation in the United States, this paper identifies potential structural sources of selective ...


Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Heminway Oct 2011

Federal Interventions In Private Enterprise In The United States: Their Genesis In And Effects On Corporate Finance Instruments And Transactions, Joan Heminway

Joan M Heminway

In response to U.S. corporate failures involved in the current global financial crisis, traditional corporate finance vehicles and tools were widely used in new ways and for new purposes. Of course, one object of the U.S. government’s investment and intervention in, and exercise of influence over, private enterprise during the crisis was to provide for or ensure the provision of adequate capital funding. But its investment, intervention, and influence also represented a new way to oversee and otherwise regulate key business enterprises in the financial services and automotive sectors. This Article reviews certain aspects of the use ...


Personal Facts About Executive Officers: A Proposal For Tailored Disclosures To Encourage Reasonable Investor Behavior, Joan Heminway Oct 2011

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

Joan M Heminway

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 ...


Materiality Guidance In The Context Of Insider Trading: A Call To Action, Joan Heminway Oct 2011

Materiality Guidance In The Context Of Insider Trading: A Call To Action, Joan Heminway

Joan M Heminway

This article reflects upon certain negative effects associated with the ambiguity of the current legal standard for materiality in the insider trading context and suggests and demonstrates an approach to mitigating these negative effects. Specifically, after describing and illustrating the concept of materiality and its application in the insider trading context, this article identifies and assesses applicable regulatory policies, showing that these policies do not dictate an imprecise definition of materiality. Next, the article explains certain negative impacts on stockholder value emanating from the lack of predictability and certainty in interpreting and applying the existing materiality standard, including negative impacts ...


Hell Hath No Fury Like An Investor Scorned: Retribution, Deterrence, Restoration, And The Criminalization Of Securities Fraud Under Rule 10b-5, Joan Heminway Oct 2011

Hell Hath No Fury Like An Investor Scorned: Retribution, Deterrence, Restoration, And The Criminalization Of Securities Fraud Under Rule 10b-5, Joan Heminway

Joan M Heminway

This brief article focuses attention on the ineffectual nature of prosecutions of corporations and their insiders - generally, officers and directors - for securities fraud under Rule 10b-5. Specifically, the article begins by briefly summarizing the nature of enforcement actions and related penalties under Rule 10b-5. Next, the article argues that, as currently conceived and executed, criminal enforcement actions under Rule 10b-5 are ineffective as a means of achieving retribution, as deterrents of undesirable behavior, and as enforcement vehicles that vindicate the policies underlying Rule 10b-5. As a means of addressing these criticisms, the article suggests possible enhancements to Rule 10b-5 prosecutions ...


Martha’S (And Steve’S) Good Faith: An Officer’S Duty Of Loyalty At The Intersection Of Good Faith And Candor, Joan Heminway Oct 2011

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

Joan M Heminway

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 ...


Female Investors And Securities Fraud: Is The Reasonable Investor A Woman?, Joan Macleod Heminway Oct 2011

Female Investors And Securities Fraud: Is The Reasonable Investor A Woman?, Joan Macleod Heminway

Joan M Heminway

Let's face it. Women and men are different in more than just the biological sense. These differences play themselves out in a variety of contexts. Some of them are meaningful in theory or in reality; others are not. Given an increase in women's involvement in business and finance, it is unsurprising that a multidisciplinary literature is emerging at the intersection of sex or gender differences and corporate governance. Much of the work in this area has centered on women and boards of directors and women in the executive ranks. However, it is important to focus on women not ...


Martha Stewart And The Forbidden Fruit: A New Story Of Eve, Joan Heminway Oct 2011

Martha Stewart And The Forbidden Fruit: A New Story Of Eve, Joan Heminway

Joan M Heminway

This paper narrates a biblical story - Eve’s ingestion of the forbidden fruit - and analogizes it to a recent business law story that I explore in my scholarship and use in my teaching - Martha Stewart’s sale of ImClone stock as alleged insider trading. The analogy, while imperfect, helps expose interesting questions about the descriptive and normative content of U.S. insider trading law and related legal process issues. Although many of the points made in the paper (and the related details and examples presented) can be and have been explored or used in other ways, I contend that the ...


Negotiability, Property, And Identity, James S. Rogers Oct 2011

Negotiability, Property, And Identity, James S. Rogers

James S. Rogers

In this Article, Professor Rogers challenges the assumption that securities transfer law has always been based on negotiable certificates and suggests that the reign of negotiability is a relatively recent, and brief, phase in the long history of investment securities trading. Professor Rogers posits that the difficulties currently facing the law of securities transfers are in large part due to the transition from paper to electronic representations of investments. To place these challenges into perspective, Professor Rogers first surveys the history of securities trading and then examines the theoretical underpinnings of the law of securities transfers.


The Economic Theory Of Derivative Actions, Diego G. Pardow Oct 2011

The Economic Theory Of Derivative Actions, Diego G. Pardow

Diego G. Pardow

This paper offers a model to formalize the economic theory of derivative actions developed during the last 30 years. From this perspective, the derivative action presents two interrelated problems. The first is how to solve the collective action problem that prevents that minority shareholders file a suit. The second is how to control the risk of collusive settlements between the defendant manager and the plaintiff’s attorney. This model identifies the fundamental tradeoffs that are implicit in these problems, as well as an optimum that could be used as normative benchmark. In brief, it argues that if the goal of ...


Fiduciary Relationships Are Not Contracts, Scott Fitzgibbon Sep 2011

Fiduciary Relationships Are Not Contracts, Scott Fitzgibbon

Scott T. FitzGibbon

No abstract provided.


Generalidades De La Propiedad Intelectual En México, Bruno L. Costantini García Sep 2011

Generalidades De La Propiedad Intelectual En México, Bruno L. Costantini García

Bruno L. Costantini García

Presentación de las Generalidades de la Propiedad Intelectual en México (Propiedad Industrial y Derechos de Autor), legislación que la rige, aplicación y modalidades