Securities Law Commons^™

Fraud By Hindsight, G. Mitu Gulati, Jeffrey J. Rachlinski, Donald C. Langevoort

Jeffrey J. Rachlinski

In securities-fraud cases, courts routinely admonish plaintiffs that they are not permitted to rely on allegations of "fraud by hindsight." In effect, courts disfavor plaintiffs' use of evidence of bad outcomes to support claims of securities fraud. Disfavoring hindsight evidence appears to tap into a well known, well-understood, and intuitively accessible problem of human judgment of "20/20 hindsight." Events come to seem predictable after unfolding, and hence, bad outcomes must have been predicted by people in a position to make forecasts. Psychologists call this phenomenon the hindsight bias. The popularity of this doctrine among judges deciding securities cases suggests that …

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

Michael L Seigel

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 …

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

Michael L Seigel

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. …

The Criminal Practitioner's Guide To Understanding The New York Securities Laws And Penal Law Scheme To Defraud, John C. Henry

John C. Henry

No abstract provided.

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Falling Short: Has The Sec’S Quest To Control Market Manipulation And Abusive Short-Selling Come To An End Or Has It Really Just Begun?, Richard Ramirez

Richard E. Ramirez, J.D. | CFCS

No abstract provided.