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Wink, Wink, Nudge Judge: Persuading U.S. Courts To Take Accountants Seriously In Federal Securities Cases With Help From The U.K. Companies Act, Kurt S. Schulzke 2015 Kennesaw State University

Wink, Wink, Nudge Judge: Persuading U.S. Courts To Take Accountants Seriously In Federal Securities Cases With Help From The U.K. Companies Act, Kurt S. Schulzke

Kurt S. Schulzke

The 2008 collapse of Lehman Brothers reopened wounds many thought were healed by the Sarbanes-Oxley Act (SOX) in 2002. The Lehman litigation finally ended in late 2013 with audit firm Ernst & Young paying $99 million to investors who claimed the firm misled them with generally accepted accounting principles (GAAP) and other defendants, including banks, officers, and directors, paying out more than $500 million. The bright line standards of GAAP and SOX were obviously not enough to protect Lehman plaintiffs or defendants. Why not? The 2006 fraud trial of Enron CEO Jeffrey Skilling offers clues. When asked at trial whether U ...


Broker-Dealer: A Fiduciary By Any Other Name?, William Alan Nelson II 2015 George Washington University School of Law

Broker-Dealer: A Fiduciary By Any Other Name?, William Alan Nelson Ii

William Alan Nelson II

Broker-dealers, unlike investment advisers, are not regulated as fiduciaries when providing investment advice, even though broker-dealers are holding themselves out as financial advisors and offering virtually identical services to investors. The lack of consistent regulation of financial service providers arises from the structure in which advice historically has been delivered. Financial services regulation since the Great Depression has developed along roughly dual tracks: laws governing the sale of financial products, which may or may not require that the products be suitable for the customer, and laws governing investment advice, which impose a fiduciary requirement on the adviser to act solely ...


Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson II 2015 George Washington University School of Law

Take It Or Leave It: Unconscionability Of Mandatory Pre-Dispute Arbitration Agreements In The Securities Industry, William Alan Nelson Ii

William Alan Nelson II

The pervasive use of mandatory pre-dispute arbitration agreements in the securities industry is a relatively new phenomenon. However, research reflects that an overwhelming majority of retail brokerage and investment advisory agreements include language requiring that all disputes between the customer and the broker-dealer / investment adviser be resolved through arbitration – most often with Financial Industry Regulatory Authority (FINRA) Dispute Resolution. Thus, only in rare instances can an investor open either a brokerage or investment advisory account without agreeing to submit to mandatory pre-dispute arbitration.

The enclosed article is the first to focus on the fairness of mandatory pre-dispute arbitration agreements through ...


The Export Trade Note: A New Instrument For International Trade, Eugene A. Ludwig, Michael J. Coursey 2015 Covington & Burling

The Export Trade Note: A New Instrument For International Trade, Eugene A. Ludwig, Michael J. Coursey

Georgia Journal of International & Comparative Law

No abstract provided.


Sec Rules, Stakeholder Interests, And Cost-Benefit Analysis, Yoon-Ho Alex Lee 2015 USC Gould School of Law

Sec Rules, Stakeholder Interests, And Cost-Benefit Analysis, Yoon-Ho Alex Lee

University of Southern California Legal Studies Working Paper Series

Rules designed to regulate capital markets and protect investors often have spillover effects, either negative or positive, on stakeholders other than investors. These stakeholders can include managers, employees, consumers, taxpayers, gatekeepers, vendors, and others. This raises a question as to whether cost-benefit analyses of such investor protection rules -- to the extent that the regulator is expected to conduct them -- should take account of these spillover effects. One dilemma is that a rule may potentially be net beneficial to investors while net costly to society at large, or alternatively, it may be net beneficial to society at large but net costly ...


Jury Certification Of Federal Securities Fraud Class Actions, Thomas Kayes 2015 Northwestern University School of Law

Jury Certification Of Federal Securities Fraud Class Actions, Thomas Kayes

Northwestern University Law Review

No abstract provided.


Congressional Arbitrage At The Executive's Expense: The Speech Or Debate Clause And The Unenforceable Stock Act, Anna Fodor 2015 Northwestern University School of Law

Congressional Arbitrage At The Executive's Expense: The Speech Or Debate Clause And The Unenforceable Stock Act, Anna Fodor

Northwestern University Law Review

No abstract provided.


The Changed Landscape Of American Corporate Ownership: What Does It Mean For Socially-Responsible Investing?, Ori Shafirstein 2015 George Washington University Law School

The Changed Landscape Of American Corporate Ownership: What Does It Mean For Socially-Responsible Investing?, Ori Shafirstein

Ori Shafirstein

This article aims to gauge whether various institutional shareholders in the United States are likely to engage in socially-responsible investing (“SRI”), to the extent that they can be relied upon as quasi-regulators of U.S. corporate practices. In order to answer this question, this article explores the investment practices of a various institutional shareholders that make up the vast majority of institutional equity ownership in the U.S.: pension funds (both private and public), mutual funds, hedge funds, and SRI funds. The investment practices of each of these institutional investors are analyzed for the reason(s) of their prevalence and ...


Better Bounty Hunting: How The Sec's New Whistleblower Program Changes The Securities Fraud Class Action Debate, Amanda M. Rose 2015 Northwestern University School of Law

Better Bounty Hunting: How The Sec's New Whistleblower Program Changes The Securities Fraud Class Action Debate, Amanda M. Rose

Northwestern University Law Review

No abstract provided.


Oxford Handbook: Institutional Investors In Corporate Governance, Edward B. Rock 2015 University of Pennsylvania Law School

Oxford Handbook: Institutional Investors In Corporate Governance, Edward B. Rock

Faculty Scholarship

This chapter of the Oxford Handbook on Corporate Law and Governance examines the role of institutional investors in corporate governance and the role of regulation in encouraging institutional investors to become active stewards. I approach these topics through asking what lessons we can draw from the U.S. experience for the E.U.’s 2014 proposed amendments to the Shareholder Rights Directive.

I begin by defining the institutional investor category, and summarizing the growth of institutional investors’ equity holdings over time. I then briefly survey how institutional investors themselves are governed and how they organize share voting. This leads me ...


Managing Cyberthreat, Lawrence J. Trautman 2015 Entrepreneur & Professional Corporate Director

Managing Cyberthreat, Lawrence J. Trautman

Lawrence J. Trautman Sr.

Cyber security is an important strategic and governance issue. However, because most corporate CEOs and directors have no formal engineering or information technology training, it is understandable that their lack of actual cybersecurity knowledge is problematic. Particularly among smaller companies having limited resources, knowledge regarding what their enterprise should actually be doing about cybersecurity can’t be all that good.

My goal in this article is to explore the unusually complex subject of cybersecurity in a highly readable manner. First, an examination of recent threats is provided. Next, governmental policy initiatives are discussed. Third, some basic tools that can be ...


Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. McCall 2015 University of Oklahoma

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Many politicians and commentators agree that credit default swaps (CDS) played a significant role in the financial crisis of 2008. Yet, few who observe this role are aware that CDS were set loose on the economy by the federal pre-emption of thousands of years of public policy. Since the time of Aristotle law, philosophy and public policy have been hostile to gambling. Viewed as a socially unproductive zero sum wealth transfer, the law has generally refused to permit parties to use the courts to enforce wagers. Courts and legislatures worked in harmony to control and in some cases punish financial ...


Banking And Financial Regulation, Steven L. Schwarcz 2015 Duke Law School

Banking And Financial Regulation, Steven L. Schwarcz

Faculty Scholarship

This chapter provides a basic overview of banking and financial regulation for the forthcoming Oxford Handbook of Law and Economics (Francesco Paris, ed.). Among other things, the chapter compares traditional and shadow banking and their regulation, differentiating “micro prudential” regulation (which focuses on protecting individual components of the financial system, such as banks) and “macro prudential” regulation (which focuses on protecting against systemic risk). The chapter also examines how regulation can help to correct market failures that undermine financial efficiency. In that context, it discusses, among other things, capital requirements, ring-fencing, and stress testing. Finally, the chapter examines how regulation ...


Shari’Ah-Based Sukuk Have So Far Failed To Bond With Korea's Capital Markets, But Not Due To Lack Of Interest: An Examination Of The Korean Government's Unsuccessful Attempts To Introduce Sukuk-Friendly Legislation, Mee-Hyon Lee 2015 Yonsei University

Shari’Ah-Based Sukuk Have So Far Failed To Bond With Korea's Capital Markets, But Not Due To Lack Of Interest: An Examination Of The Korean Government's Unsuccessful Attempts To Introduce Sukuk-Friendly Legislation, Mee-Hyon Lee

Mee-Hyon Lee

Shari’ah-based Sukuk have so far failed to bond with Korea’s capital markets, but not due to lack of interest: An examination of the Korean government’s unsuccessful attempts to introduce Sukuk-friendly legislation.

Mee- Hyon Lee

While Korean companies for a long time have been keenly interested in attaining fuller and more direct participation in the Islamic financial markets to take advantage of the huge growth potential there and to keep in step with significant global trends, progress toward that goal remains elusive because the relatively unconventional characteristics of Sukuk (the Shari’ah-compliant alternative to standard debt ...


Law In Regression? Impacts Of Quantitative Research On Law And Regulation, David C. Donald 2015 The Chinese University of Hong Kong

Law In Regression? Impacts Of Quantitative Research On Law And Regulation, David C. Donald

David C. Donald

Quantitative research (QR) has undeniably improved the quality of law- and rulemaking, but it can also present risks for these activities. On the one hand, replacing anecdotal assertions regarding behavior or the effects of rules in an area to be regulated with objective, statistical evidence has advanced the quality of regulatory discourse. On the other hand, because the construction of such evidence often depends on bringing the complex realities of both human behavior and rules designed to govern it into simple, quantified variables, QR findings can at times camouflage complexity, masking real problems. Deceptively objective findings can in this way ...


Ceo Stock Ownership Policies: Rhetoric And Reality, Nitzan Shilon 2015 Harvard Law School

Ceo Stock Ownership Policies: Rhetoric And Reality, Nitzan Shilon

Indiana Law Journal

This Article is the first academic endeavor to analyze the efficacy and transparency of stock ownership policies (SOPs) in U.S. public firms. SOPs generally require managers to hold some of their firms’ stock for the long term. Following the 2008 financial crisis, firms universally adopted these policies and cited them more than any other policy as a key element in their mitigation of risk. However, my analysis of the recent SOPs of S&P 500 CEOs disputes what firms claim about these policies. First, I find that SOPs are extremely ineffectual in making CEOs hold on to their firm’s stock; this is because these policies generally function in a way that allows CEOs to immediately unload virtually all of the stock they own. Second, I show ...


Canadian Stock Exchange Checklist, Tiffany C. Walsh 2015 Western Michigan University

Canadian Stock Exchange Checklist, Tiffany C. Walsh

Tiffany Walsh J.D., B.Comm.

Checklist for a public listing on the Canadian Stock Exchange via IPO.


The Development Of A Global Market-Based Debt Strategy To Regulate Private Lending To Developing Countries, Bradley K. Boyd 2014 University of Georgia School of Law

The Development Of A Global Market-Based Debt Strategy To Regulate Private Lending To Developing Countries, Bradley K. Boyd

Georgia Journal of International & Comparative Law

No abstract provided.


Opening The Gate To Money Market Fund Reform, Hester Peirce, Robert Greene 2014 Mercatus Center, George Mason University

Opening The Gate To Money Market Fund Reform, Hester Peirce, Robert Greene

Pace Law Review

This article proceeds as follows. Part I outlines briefly the background of MMFs. Part II discusses the role of the board of directors in governing MMFs, a role upon which our proposal would build. Part III discusses MMF-related events during the financial crisis of 2007-2008 and describes the government’s response to these events. Part IV describes the reforms the SEC instituted in 2010. Part V outlines options for further reform. Part VI outlines and discusses benefits and drawbacks of our proposed solution—unrestricted discretionary gating by fund boards. Part VII concludes.


Securities - Insider Trading - The Effects Of The New Eec Draft Insider Trading Directive, Douglas A. Nystrom 2014 University of Georgia School of Law

Securities - Insider Trading - The Effects Of The New Eec Draft Insider Trading Directive, Douglas A. Nystrom

Georgia Journal of International & Comparative Law

No abstract provided.


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