Securities Law Commons^™

Arbitration As Contract: The Need For A Fully Developed And Comprehensive Set Of Statutory Default Legal Rules, Jack M. Graves

William & Mary Business Law Review

This Article analyzes the United States Federal Arbitration Act, as a statutory framework for effective arbitration of contract disputes. While arbitration under this Act has been subject to ever increasing criticism and calls for reform on a variety of fronts—most often from the perspective of consumer or employment arbitration—this Article focuses specifically on commercial, business-to-business arbitration and critically evaluates the Act as a set of default legal rules governing arbitration as a unique contractual business relationship.

The Article first looks at arbitration from a contractual default rules perspective and then employs this perspective to analyze: (1) the existing federal statutory …

The Securities And Exchange Commission's 2010 Proxy Access Proposals: A Poison Pill For Corporate Health, Stephen W. Kiefer

William & Mary Business Law Review

The SEC has proposed proxy access rules in the wake of the recent financial crisis. With the stated purpose of removing impediments to the exercise of shareholder voice and increasing director accountability, the proposed rule changes are not without problems. The proposed rules enter a mix in which the corporate governance landscape, shaped by powerful role players, already presents troubling possibilities for activist shareholder abuse. This Article argues that adoption of the proposed rules could be the final piece to a puzzle in which shareholder power is achieved at the expense of long-term corporate health and shareholder value.

The Howey Test Turns 64: Are The Courts Grading This Test On A Curve?, Miriam R. Albert

William & Mary Business Law Review

Sixty-four years ago, the Supreme Court decided SEC v. W.J. Howey, crafting a definition for one form of security, known as an investment contract. The Supreme Court’s definition of investment contract in Howey is flexible, consistent with the Congressional approach to defining the broader concept of what constitutes a security. This choice of adopting a flexible definition for investment contract is not without cost, and raises the specter of inconsistent interpretation and/or application by the lower courts that threatens to undermine the utility of the Howey test itself as a trigger for investor protection. The intentional breadth and adaptability of …