Agency Commons^™

The Carried Interest Standoff: Reaffirming Executive Agency Authority, Dean Galaro, Greg Crespi

SMU Law Review

This Article argues that, if reform is necessary, carried interest taxation should be amended by agency rulemaking and not by Congress. Much has already been said about carried interest, but this Article attempts to look through a new lens—legislative history. Carried interest presents a complicated question about the application of foundational partnership tax principles. It is an issue that has received popular attention only within the last decade. Since then, the face of reform has been efforts in Congress to pass an overly complex bill—Section 710. By looking back through the legislative history of carried interest, we begin ...

The Civil Asset Forfeiture Program An Analysis Of The Actual Use, Racial Subjectivity, And Unfairness To Lower Earning Individuals, Nicholas Schieber

Economic Crime Forensics Capstones

Being able to seize property without a criminal conviction has become a hot button topic in periodical and academic papers. The Civil Asset Forfeiture program gave law enforcement the ability to seize “guilty” property, which can be defined as contraband, proceeds from criminal activity, or tools and instrumentalities used in the commission of a crime, without a criminal conviction on the part of the owner. Numerous academic authors and journalists have called for reform, racial unfairness, and targeting of lower earning communities. However, the majority of data regarding the Civil Asset Forfeiture program is qualitative in nature with few quantitative ...

Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager

Daniel B. Yeager

Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships ...

Executive Estoppel, Equitable Enforcement, And Exploited Immigrant Workers, Angela D. Morrison

Faculty Scholarship

Unauthorized workers in abusive workplaces have found themselves in a tug-of-war between federal agencies. On one side are federal prosecutors with the Department of Justice or Immigration and Customs Enforcement--who seek to criminally prosecute or deport the workers and treat the workers as defendants. On the other side are agencies like the U.S. Equal Employment Opportunity Commission, the Department of Labor, and U.S. Citizenship and Immigration Services who have determined the workers are victims of workplace exploitation and deserve protection. This mixed message—protection from one federal agency and prosecution by another—is contrary to Congressional intent and ...

Social Capital Of Directors And Corporate Governance: A Social Network Analysis, Zihan Niu, Christopher Chen

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article examines how a director’s social capital might affect his or her behavior, the board’s performance, and corporate governance, as well as the potential normative implications of the director’s social network. We argue that the quality of board performance could be improved where the social network closure within the board is high and there are many non-redundant contacts beyond the board. Network closure can improve trust and collaboration within a board, while external contacts may benefit a company with more diverse sources of information. Moreover, different network positioning leads to the inequality of social capital for ...

Localist Administrative Law, Nestor M. Davidson

Faculty Scholarship

To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrative law that emerges from the vast subterranean regulatory state operating within cities, suburbs, towns, and counties has gone largely unexamined. Not only are scholars ignoring a key area of governance, but courts have similarly failed to develop an administrative jurisprudence that recognizes what is distinctive about local agencies. The underlying justifications for core administrative law doctrines at the federal ...

Corporate Officers As Agents, Deborah A. Demott

Faculty Scholarship

Although officers are crucial to corporate operations, scholarly and theoretical accounts tend to slight officers and amalgamate them with directors into a single category, "managers." This essay anchors officers within the common law of agency-as does black-letter law-which crisply differentiates officers from directors. Understanding that agency is central of the legal account of officers' positions and responsibilities is crucial to seeing why, like directors, officers are fiduciaries, but distinctively so, not as instances of generic "corporate fiduciaries." Officers, like directors, owe duties of loyalty, but also particularized duties of care, competence, and diligence. Additionally, officers' duties of performance encompass two ...

Dashboard Compliance: Benefit, Threat, Or Both?, James Fanto

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article poses the basic question that is reflected in its title and that was the subject of the conference where the Article was initially presented: whether technology poses any threats to the mission of compliance and the position of compliance officers, whether it is just another useful tool for them, or whether it is something of both. It begins by explaining the origin of compliance in broker-dealers and investment advisers and its important current position in those firms. It then discusses why compliance officers have always been drawn to technology, particularly to keep up with the business sides of ...

Compliance, Technology, And Modern Finance, Tom C.W. Lin

Brooklyn Journal of Corporate, Financial & Commercial Law

An important transformation is happening in the financial industry. The rise of new technology and compliance has dramatically altered many of the key functions and functionaries of modern finance. Artificial intelligence, algorithmic programs, and supercomputers, instead of human actors, now constitute the core of many financial operations. Compliance officers have become just as critical to financial institutions as traders, bankers, and analysts. Finance as we knew it has changed and continues to change. This symposium Article offers a studied commentary on these unfolding changes, the crosscutting developments in compliance, technology, and modern finance. It examines the concurrent and intersecting ascents ...

Mandatory Third Party Compliance Examinations For Investment Advisers: An Sec Waterloo?, Mercer Bullard

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC or Commission) appears to be on the verge of requiring investment advisers to undergo third party examinations. One justification for the rulemaking is that the Commission lacks sufficient resources to examine advisers frequently enough. Another is to create indirectly a self-regulatory organization (SRO) for investments advisers. Both may leave a rulemaking particularly vulnerable to challenge as arbitrary and capricious under the Administrative Procedures Act. This Article considers three novel grounds on which a rulemaking may be successfully challenged. Congress has repeatedly rejected SEC requests to provide additional funding for examinations or to create an ...

Preserving Human Agency In Automated Compliance, Onnig H. Dombalagian

Brooklyn Journal of Corporate, Financial & Commercial Law

As technology transforms financial services, so too must it transform the regulation of financial markets and intermediaries. The imperative of real-time, prophylactic regulation increasingly compels reallocation of regulatory and compliance budgets to surveillance and enforcement technology. At the same time, in light of the well-known weaknesses of automated systems, securities firms (and their regulators) must temper investment in automation with efforts to augment the agency of compliance professionals. This symposium contribution considers how investment in the professional development of compliance personnel can better integrate automated tools within established compliance and supervisory structures and thereby advance regulatory and operational objectives.

Dvla Gov.Uk-Vehicle Registration Amp Sorn Dvla Faqs.Pdf, Lissa Coffey

LissaCoffey

Apple Watch-Ing You: Why Wearable Technology Should Be Federally Regulated, Grant Arnow

Loyola of Los Angeles Law Review

No abstract provided.

Without Unnecessary Delay: Using Army Regulation 190–8 To Curtail Extended Detention At Sea, Meghan Claire Hammond

Northwestern University Law Review

This Note analyzes instances of U.S. detention of suspected terrorists while at sea as an alternative to Guantánamo, and how this at-sea detention fits in the interplay of U.S. statutory law, procedural law, and applicable international law. Of particular interest is the dual use of military and civilian legal regimes to create a procedural-protection-free zone on board U.S. warships during a detainee’s transfer from their place of capture to the U.S. court system. The Note concludes that U.S. Army Regulation 190–8 contains language of which the purpose and intent may be analogized to ...

Natural Resources Defense Council, Inc. V. Pritzker, Caitlin Buzzas

Public Land and Resources Law Review

In Natural Resources Defense Council, Inc. v. Pritzker, the Ninth Circuit dealt with the conflict of science in making legal and policy decisions. NMFS was held to a stringent mitigation standard to protect marine mammals against the Navy’s use of LFA sonar for military operations. In this decision the court held that agencies are required to apply the least practicable adverse impact on marine mammals in these types of operations and agencies must listen to their own experts when making these decisions.

Rethinking The Nature Of The Firm: The Corporation As A Governance Object, Peer Zumbansen

Peer Zumbansen

This Article attempts to bridge two discourses—corporate governance and contract governance. Regarding the latter, a group of scholars has recently set out to develop a more comprehensive research agenda to explore the governance dimensions of contractual relations, highlighting the potential of contract theory to develop a more encompassing theory of social and economic transactions. While a renewed interest in the contribution of economic theory for a concept of contract governance drives one dimension of this research, another part of this undertaking has been to move contract theory closer to theories of social organization. Here, these scholars emphasize the “social ...

Beyond Agency Core Mission, Yoon-Ho Alex Lee

University of Southern California Legal Studies Working Paper Series

A long-standing view among legal scholars, political scientists, sociologists, and regulators posits that it is important for a regulatory agency to have a narrowly-defined core mission and to focus on activities that are central to accomplishing it successfully. Although this view has no doctrinal foundation, rhetoric grounded on it crops up frequently in regulatory dialogues, especially in opposition to prospective agency regulations. The purpose of this Article is to formalize this “core-mission model” of the administrative state and analyze its benefits, costs, and risks. An important starting point for the analysis is that, unlike a private corporation or a non-profit ...

Environmental Justice And Community-Based Reparations, Catherine Millas Kaiman

Seattle University Law Review

This Article seeks to illuminate the lack of adequate legal remedies that are available for low-income, predominantly minority communities that have suffered historic environmental injustices. The Article not only discusses the lack of adequate legal remedies, but also proposes the use of local, state, and federal reparations programs for communities that have previously suffered environmental injustices; are still living with the effects of environmental injustices, by way of disease, air, soil, and water pollution; or are suffering current and ongoing environmental injustices. As has been recently illustrated by Michigan’s state action of providing lead-contaminated water for over a year ...

Medicaid Maximization And Diversion: Illusory State Practices That Convert Federal Aid Into General State Revenue, Daniel L. Hatcher

Seattle University Law Review

For years, states have been using illusory schemes to maximize federal aid intended for Medicaid services—and then often diverting some or all of the resulting funds to other use. And states have help. Private revenue maximization consultants are hired by states to increase Medicaid claims, often for a contingency fee. We do not know the exact amount of federal Medicaid funds that has been diverted to state revenue and private profit each year, but it is in the billions. Part I of this Article sets out the structure of the Medicaid program and describes states’ use of revenue maximization ...

Salomon Redux: The Moralities Of Business, Allan C. Hutchinson, Ian Langlois

Allan C. Hutchinson

In this Essay, we revisit the Salomon case and its related litigation not only from a legal standpoint but also from a broader moral perspective. 4 In the second Part, we offer a detailed context for and account of the Salomon litigation. The third Part focuses on the historical roots of the corporation and the judicial arguments in Salomon. In the fourth Part, we explore the moral and legal consequences of the Salomon decision. Throughout the Essay, our ambition will be not only to give the Salomon case a more contextual and richer spin but also to tackle the relationship ...