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Full-Text Articles in Securities Law

Securities Treatment Of Tokenized Offerings Under U.S. Law, Carol Goforth Jun 2019

Securities Treatment Of Tokenized Offerings Under U.S. Law, Carol Goforth

Pepperdine Law Review

This article considers how the SEC currently approaches the question of regulating cryptoassets and ICOs. It includes a brief overview and history of cryptotransactions (including problems of terminology), and then looks at the current crypto space to consider the kinds of interests being promoted today in comparison to Bitcoin and the original altcoins. It then examines the traditional approach taken by the SEC with regard to these interests and explains briefly the kinds of compliant offerings that are currently possible. It then covers the range of reasons why a specialized regulatory approach is called for, rather than simply relying on ...


Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh Jun 2018

Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh

Robert B. Ahdieh

A central feature – if not the central feature – of legal scholarship today is analysis across divides.

It is surprising, then, how little has been written across the divide that separates administrative law and financial regulation. That is perhaps especially so, given the modest nature of the relevant divide: one that is intra- rather than interdisciplinary, one that operates within rather than across geographic boundaries, and one that involves no temporal dimension but operates entirely within current-day law.

For all the proximity in their interests, targets of study, and even analytical tools, however, scholars of administrative law and of financial regulation ...


Dictation And Delegation In Securities Regulation, Usha Rodrigues Apr 2017

Dictation And Delegation In Securities Regulation, Usha Rodrigues

Indiana Law Journal

When Congress undertakes major financial reform, either it dictates the precise con-tours of the law itself or it delegates the bulk of the rule making to an administrative agency. This choice has critical consequences. Making the law self-executing in federal legislation is swift, not subject to administrative tinkering, and less vulnerable than rule making to judicial second-guessing. Agency action is, in contrast, deliberate, subject to ongoing bureaucratic fiddling, and more vulnerable than statutes to judicial challenge.

This Article offers the first empirical analysis of the extent of congressional delegation in securities law from 1970 to the present day, examining nine ...


Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke Mar 2016

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Marco Ventoruzzo

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding ...


Broker-Dealer Law Reform: Financial Intermediaries In A State Of Limbo, Alexander R. Tiktin Jan 2016

Broker-Dealer Law Reform: Financial Intermediaries In A State Of Limbo, Alexander R. Tiktin

Brooklyn Law Review

No abstract provided.


Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh Jan 2016

Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh

Faculty Scholarship

A central feature – if not the central feature – of legal scholarship today is analysis across divides.

It is surprising, then, how little has been written across the divide that separates administrative law and financial regulation. That is perhaps especially so, given the modest nature of the relevant divide: one that is intra- rather than interdisciplinary, one that operates within rather than across geographic boundaries, and one that involves no temporal dimension but operates entirely within current-day law.

For all the proximity in their interests, targets of study, and even analytical tools, however, scholars of administrative law and of financial regulation ...


Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke Jan 2015

Do Conservative Justices Favor Wall Street: Ideology And The Supreme Court's Securities Regulation Decisions, Marco Ventoruzzo, Johannes W. Fedderke

Journal Articles

The appointment of Supreme Court justices is a politically-charged process and the "ideology" (or "judicial philosophy") of the nominees is perceived as playing a potentially relevant role in their future decision-making. It is fairly easy to intuit that ideology somehow enters the analysis with respect to politically divisive issues such as abortion and procreative rights, sexual conduct, freedom of speech, separation of church and state, gun control, procedural protections for the accused in criminal cases, governmental powers. Many studies have tackled the question of the relevance of the ideology of the justices or appellate judges on these issues, often finding ...


The Ban Has Lifted: Now Is The Time To Change The Accredited-Investor Standard, Larissa Lee Jan 2014

The Ban Has Lifted: Now Is The Time To Change The Accredited-Investor Standard, Larissa Lee

Utah Law Review

Lifting the ban on general advertising and general solicitation will ultimately change how emerging companies receive funding. With greater access to previously untapped investors, more new businesses will be able to get on their feet and be successful. This success depends on the regulation of these offerings to ensure they are free of fraud and that investors maintain confidence in the market.

As the standard currently stands, it is likely that the removal of the ban will result in a regulatory gap, which may take advantage of several investors. The accredited investor standard should be changed to reflect not only ...


Rebalancing Private Placement Regulation, William K. Sjostrom, Jr. Mar 2013

Rebalancing Private Placement Regulation, William K. Sjostrom, Jr.

Seattle University Law Review

Regulating securities offerings entails balancing investor protection and capital formation. Inevitably, this balance gets upset. As financial markets evolve, Congress passes new legislation, the Securities and Exchange Commission (SEC) adopts new rules, and the courts issue unanticipated opinions. These events upset the balance because they happen in an uncoordinated and haphazard manner and oftentimes produce unintended consequences.The Article proceeds as follows. To set the stage, Part II provides background on the Securities Act and describes the differences between public offerings and private placements. Part III explains why rebalancing private placement regulation may be warranted. Part IV offers proposed statutory ...


Foreword, Marc I. Steinberg Nov 2012

Foreword, Marc I. Steinberg

Pepperdine Law Review

No abstract provided.


The New Uniform Statute Of Limitations For Federal Securities Fraud Actions: Its Evolution, Its Impact, And A Call For Reform, Anthony Michael Sabino Nov 2012

The New Uniform Statute Of Limitations For Federal Securities Fraud Actions: Its Evolution, Its Impact, And A Call For Reform, Anthony Michael Sabino

Pepperdine Law Review

No abstract provided.


Closing Wall Street’S Commodity And Swaps Betting Parlors: Legal Remedies To Combat Needlessly Gambling Up The Price Of Crude Oil Beyond What Market Fundamentals Dictate, Michael Greenberger Sep 2012

Closing Wall Street’S Commodity And Swaps Betting Parlors: Legal Remedies To Combat Needlessly Gambling Up The Price Of Crude Oil Beyond What Market Fundamentals Dictate, Michael Greenberger

Michael Greenberger

The price of crude oil in the futures markets has oscillated wildly during the past five years. Although these price swings may partly be a result of insufficient supply meeting large demand for oil, economic data demonstrate that market fundamentals have in fact remained in equilibrium. An overwhelming number of market participants, financial analysts, and academics have instead shown that unregulated excessive speculation in the oil futures markets is to blame. Such excessive speculation is a result of the financialization of commodities, which has exacerbated price swings in oil because the speculative upward betting causes artificially high prices that do ...


What Should We Expect From The Dodd-Frank Bounty Program?, Diego G. Pardow Jul 2012

What Should We Expect From The Dodd-Frank Bounty Program?, Diego G. Pardow

Diego G. Pardow

Among other changes, the Dodd–Frank bounty program substantially increases the size of the rewards. The supporters argue that the program should encourage more players to step in, whereas the critics claim that it would only increase less reliable whistleblowers. This note describes the economic reasoning behind the dispute, attempting to build a reasonable expectation in light of the available empirical data. Although most of the evidence from previous bounty programs sides with the supporter’s theory, it has to be considered that the quantity and quality of whistleblower reporting are not the only relevant factors. Whistleblowers play a key ...


The Extraterritorial Provisions Of The Dodd-Frank Act Protects U.S. Taxpayers From Worldwide Bailouts, Michael Greenberger Mar 2012

The Extraterritorial Provisions Of The Dodd-Frank Act Protects U.S. Taxpayers From Worldwide Bailouts, Michael Greenberger

Michael Greenberger

The significant extraterritorial scope of the derivatives regulation within the Dodd-Frank Wall Street Reform and Consumer Protection Act promises to foster rigorous international standards for financial regulation that will restore transparency and stability to the global derivatives market. At present, that market exceeds $700 trillion notional value, or over ten times the world GDP. Despite opposition from Wall Street to the present extraterritorial application of almost all of Dodd-Frank’s derivatives regulation, the plain language of the statute requires implementing that regulation on an appropriate extraterritorial basis in order to protect U.S. taxpayers from bailing out financial institutions engaging ...


Implementing Dodd-Frank: A Review Of The Cftc‟S Rulemaking Process: Testimony, Michael Greenberger Mar 2012

Implementing Dodd-Frank: A Review Of The Cftc‟S Rulemaking Process: Testimony, Michael Greenberger

Michael Greenberger

The Relationship of Unregulated OTC Derivatives to the Meltdown. It is now accepted wisdom that it was the non-transparent, poorly capitalized, and almost wholly unregulated over-the-counter (“OTC”) derivatives market that lit the fuse that exploded the highly vulnerable worldwide economy in the fall of 2008. Because tens of trillions of dollars of these financial products were pegged to the economic performance of an overheated and highly inflated housing market, the sudden collapse of that market triggered under-capitalized or non-capitalized OTC derivative guarantees of the subprime housing investments. Moreover, the many undercapitalized insurers of that collapsing market had other multi-trillion dollar ...


Diversifying Clearinghouse Ownership In Order To Safeguard Free And Open Access To The Derivatives Clearing Market, Michael Greenberger Mar 2012

Diversifying Clearinghouse Ownership In Order To Safeguard Free And Open Access To The Derivatives Clearing Market, Michael Greenberger

Michael Greenberger

Implementing the rigorous governance and ownership standards established in the Dodd-Frank Wall Street Reform and Consumer Protection Act3 for derivatives clearing organizations (DCOs) will promote free and open access to clearing and reduce systemic risk within what is now the $700 trillion notional value derivatives market. Such standards are central to and advance the key regulatory tenants of Dodd-Frank: i.e., to restore transparency, capital adequacy, and accountability to what was the unregulated over-the-counter (OTC) derivatives market by ensuring that swaps are cleared through financially sound DCOs. Also, these rules will promote competition by curtailing large swap dealers‘ (SDs) control ...


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.


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 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 ...


Examining Timely Disclosure Of Material Information To Shareholders And The Privacy Concerns Of Executive Officers, Ufuoma Barbara Akpotaire Apr 2011

Examining Timely Disclosure Of Material Information To Shareholders And The Privacy Concerns Of Executive Officers, Ufuoma Barbara Akpotaire

Ufuoma Barbara Akpotaire

On January 20, 1993, Michael Walsh, the former Chairman and CEO of Tenneco revealed to the public that he had brain cancer. This type of disclosure of health issues are arguable serious enough to affect Wall Street. Other company officials have previously made similar disclosures such as Hugh Martin, CEO of Pacific Biosciences who in October 2010 disclosed to his employees that he had cancer of the Blood (multiple myeloma), and Harry J. Pearce, the Vice President of General Motors, who disclosed in 2001 that he had leukemia.

The above public disclosures are however more the exceptions than the rule ...


Will The Cftc Defy Congress's Mandate To Stop Excessive Speculation In Commodity Markets And Aid And Abet Hyperinflation In World Food And Energy Prices: Analysis Of The Cftc's Proposed Rules On Speculative Position Limits, Michael Greenberger Apr 2011

Will The Cftc Defy Congress's Mandate To Stop Excessive Speculation In Commodity Markets And Aid And Abet Hyperinflation In World Food And Energy Prices: Analysis Of The Cftc's Proposed Rules On Speculative Position Limits, Michael Greenberger

Michael Greenberger

On January 26, 2011, the Commodity Futures Trading Commission issued the Notice of Proposed Rulemaking on Position Limits for Derivatives pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules are designed to implement the historic Congressional mandate of the Commodity Exchange Act, as amended by Section 737 of the Dodd-Frank Act, to ban excessive speculation from the derivatives market, i.e., the speculation which exceeds the need for liquidity by commercial handlers hedging price risk in these markets. Section 737 is the result of multi-year consideration by Congress, during which a strong consensus was reached ...


Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo Jan 2011

Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo

Faculty Publications

Plaintiffs commonly bring two distinct types of claims under Section 1(b) of the Securities Exchange Act of 1934: 1) claims of material misrepresentations or omissions; and 2) claims of trade-based market manipulation. Despite the distinctive features of the two types of claims, courts have tended to treat them identically when applying the “fraud on the market” doctrine. In particular, courts have required both types of plaintiffs to make identical showings that the relevant security traded in an “efficient market” in order to gain a presumption of reliance. The reasons for requiring such a showing by plaintiffs in a misrepresentation ...


Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner Aug 2010

Managing Corporate Federalism: The Least-Bad Approach To The Shareholder Bylaw Debate, Christopher M. Bruner

Scholarly Works

Over recent decades, shareholders in public corporations have increasingly sought to augment their own power - and, correlatively, to limit the power of boards - through creative use of corporate bylaws. The bylaws lend themselves to such efforts because enacting, amending, and repealing bylaws are essentially the only corporate governance actions that shareholders can undertake unilaterally. In this Article I examine thecontested nature of bylaws, the fundamental issues of corporate power and purpose that they implicate, and the differing ways in which state and federal lawmakers and regulators may impact the debate regarding thescope of the shareholders' bylaw authority.

The Article first ...


Moving Beyond Gartenberg: A Process-Based And Comparative Approach To Section 36(B) Of The Investment Company Act Of 1940, John M. Greabe, Michael Brickman, James Bradley, Nina Fields Jan 2009

Moving Beyond Gartenberg: A Process-Based And Comparative Approach To Section 36(B) Of The Investment Company Act Of 1940, John M. Greabe, Michael Brickman, James Bradley, Nina Fields

John M Greabe

Section 36(b) of the Investment Company Act of 1940 imposes on mutual fund advisers a fiduciary duty with respect to their receipt of compensation from fund assets for the advisory services they provide. For the past quarter century, courts adjudicating claims for breaches of this fiduciary duty have relied heavily on a rubric proposed in Gartenberg v. Merrill Lynch Asset Management Trust, 694 F.2d 923 (2d Cir. 1982). But in doing so, courts have tended to read Gartenberg to require them to serve as rate setters and to make substantive economic judgments about the fairness of mutual fund ...


Measuring And Representing The Knowledge Economy: Accounting For Economic Reality Under The Intangibles Paradigm, Olufunmilayo B. Arewa Mar 2006

Measuring And Representing The Knowledge Economy: Accounting For Economic Reality Under The Intangibles Paradigm, Olufunmilayo B. Arewa

ExpressO

Enron has become a symbol: a symbol of excess, an illustration of how a company can base its business on fraudulent, deceptive or even largely non-existent business transactions. The collapse of Enron had a significant impact on the adoption of legislation such as the Sarbanes-Oxley Act, which was intended to prevent the types of fraudulent behavior that occurred at Enron. However, Sarbanes-Oxley and other responses to the business practices of many companies during the late 1990s do not fully address some of the underlying factors that permitted and in fact encouraged the Enrons of the world to represent their companies ...


Predictions, Projections, And Precautions: Conveying Cautionary Warnings In Corporate Forward-Looking Statements, Susanna Ripken Jan 2005

Predictions, Projections, And Precautions: Conveying Cautionary Warnings In Corporate Forward-Looking Statements, Susanna Ripken

Susanna K. Ripken

This article discusses the problems that are created when corporate insiders make public predictions about the future prospects of their business. Investors crave these types of forward-looking corporate disclosures because investors use them to make judgments about the future profitability of companies. Corporations, however, are often reluctant to make predictions and projections because sometimes the predictions fail to come true, and investors may then sue corporations for misleading the market. Congress enacted a controversial statutory safe harbor designed to encourage corporations to make forward-looking statements. The safe harbor immunizes corporations from liability so long as they include meaningful cautionary warnings ...


Comparisons Among Firms: (When) Do They Justify Mandatory Disclosure?, Sharon Hannes Feb 2004

Comparisons Among Firms: (When) Do They Justify Mandatory Disclosure?, Sharon Hannes

ExpressO

Comparisons among firms play a major role in securities analysis. This essay asks if this fact justifies the mandatory nature of securities regulation. Once a firm approaches the public securities markets, federal securities regulations compel it to disclose financial information to the public. A seminal theory argues that firms would not otherwise commit to maintain optimal disclosure levels, since a disclosing firm bears all disclosure costs but does not gain all disclosure benefits.

This paper examines the robustness of this argument in relation to disclosure benefits which arise from comparisons among firms. Financial data of peer firms allows shareholders to ...


Patching A Hole In The Jobs Act: How And Why To Rewrite The Rules That Require Firms To Make Periodic Disclosures, Michael D. Guttentag Jan 2000

Patching A Hole In The Jobs Act: How And Why To Rewrite The Rules That Require Firms To Make Periodic Disclosures, Michael D. Guttentag

Indiana Law Journal

Provisions in the Jumpstart Our Business Startups Act of 2012 have made it much easier for firms to avoid federal periodic disclosure obligations, but these provisions were enacted based upon a virtually nonexistent legislative record and upended rules established only after careful consideration almost fifty years earlier. Determining when firms should be required to comply with federal periodic disclosure requirements is best done in the context of a broader understanding of the history and economics of periodic disclosure regulation. This Article provides such an understanding.

The history of periodic disclosure regulation in the United States is traced back to its ...


Securities Regulation In The Electronic Era: Private Placements And The Internet, Todd A. Mazur Jan 2000

Securities Regulation In The Electronic Era: Private Placements And The Internet, Todd A. Mazur

Indiana Law Journal

No abstract provided.


Fasb V. Iasc: Are The Structure And Standard Setting Process At The Iasc Adequate For The Securities And Exchange Commission To Accept International Accounting Standards For Cross-Border Offerings? , Charles Canfield Jan 1999

Fasb V. Iasc: Are The Structure And Standard Setting Process At The Iasc Adequate For The Securities And Exchange Commission To Accept International Accounting Standards For Cross-Border Offerings? , Charles Canfield

Northwestern Journal of International Law & Business

This comment compares and contrasts the IASC's structure and stan- dard setting process with the structure and process for promulgating ac- counting standards of the Financial Accounting Standards Board ("FASB"), the standard setter for the United States. The purpose of this comparison is to determine whether or not the IASC's structure and process for standard development are adequate for the development of acceptable core standards. This comparison uses FASB, not for the purpose of imposing FASB as the standard setter for the world, but for the purpose of comparing the IASC with an established long-standing standard setter, and ...