Digital Commons Network^™

Can President Trump Be Impeached As Mr. Trump? Exploring The Temporal Dimension Of Impeachments, Harold J. Krent

Chicago-Kent Law Review

No abstract provided.

Are U.S.-Listed Chinese Firms A Minefield? A Board Perspective

The International Lawyer

No abstract provided.

Securities Regulation, Bill Banowsky, Jessica Magee

SMU Annual Texas Survey

This article is a survey of the relevant developments in securities regulation law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

Prosocial Fraud, Julia Y. Lee

Faculty Scholarship

This Article identifies the concept of prosocial fraud--that is, fraud motivated by the desire to help others. The current incentive-based legal framework focuses on deterring rational bad actors who must be constrained from acting on their worst impulses. This overlooks a less sinister, but more endemic species of fraud that is not driven by greed or the desire to take advantage of others. Prosocial fraud is induced by prosocial motives and propagated through cooperative norms. This Article argues that prosocial fraud cannot be effectively deterred through increased sanctions because its moral ambiguity lends itself to self-deception and motivated blindness. The …

Whistleblowers: Implications For Corporate Governance, Deborah A. Demott

Faculty Scholarship

Often overlooked in academic accounts of corporate governance and the actors who populate governance structures, whistleblowers are no more visible in formal governance frameworks. Within a corporation, whistleblowers may be lower-rank employees, not directors or officers; they may report perceptions of wrongdoing to others within the corporation or inform governmental or other actors who are externally situated. Nonetheless, it is striking how often retrospective accounts of corporate scandals involve episodes of internal whistleblowing associated with governance and compliance failures. This paper argues that incorporating whistleblowers into formal governance structures could spur more proactive involvement by directors in monitoring compliance with …

Examining Indenture Trustee Duties, Steven L. Schwarcz

Faculty Scholarship

This Chapter examines the duties of indenture trustees appointed under bond indentures. Although their post-default duties generally are subject to a prudent-person standard, indenture trustees have relatively little legal guidance concerning pre-default duties. The rise of activist investors, however, is making it increasingly critical to identify and understand how to perform those duties. This Chapter seeks to provide that understanding.

Corporate Misconduct In The Pharmaceutical Industry, Richard C. Ausness

Law Faculty Scholarly Articles

Sadly, many pharmaceutical companies have engaged in unethical or illegal behavior. The current opioid crisis is the most recent example of misconduct by pharmaceutical companies. Moreover, this pattern of conduct is neither rare, nor recent. Instead, it is long-standing and pervasive in nature. Furthermore, unlike wrongdoing by other businesses that cause primarily economic or environmental harm, wrongdoing by pharmaceutical companies, like that of asbestos or tobacco companies, may cause personal injuries and death on a large scale.

Risky Business: A New(Ish) Approach To Corporate Criminal Liability, Anish Patel

Student Works

No abstract provided.

Stripped Of Funds, Stripped Of Rights: A Critique Of Guardianship As A Remedy For Elder Financial Harm, Rebekah Diller, Leslie Salzman

Articles

There is a growing consensus in the United States and abroad recognizing the right to “legal capacity”—the right to make legally binding decisions for oneself—as a basic human right. Despite this recognition, adult guardianship—the state court procedure by which a person is declared incapacitated and stripped of decision-making rights—remains a widely used tool, particularly for older adults who have suffered financial exploitation or loss. For this population, guardianship is considered an unpleasant yet necessary remedy to address their financial harms. But what if the cure does not really work as intended, while other, less intrusive means could prevent and redress …

The Mischief Rule, Samuel L. Bray

Journal Articles

The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted the statute. The mischief rule has been associated with Blackstone’s appeal to a statute’s “reason and spirit” and with Hart-and-Sacks-style purposivism. Justice Scalia rejected the mischief rule. But the rule is widely misunderstood, both by those inclined to love it and those inclined to hate it. This Article reconsiders the mischief rule. It shows that the rule has two enduringly useful functions: guiding an interpreter to a stopping point for statutory language that can be given a broader or narrower …

The Fraud Triangle And Tax Evasion, Leandra Lederman

Articles by Maurer Faculty

The “fraud triangle”—a theory of why people commit fraud —is the preeminent framework for analyzing fraud in the accounting literature. It developed out of studies of fraudsters, including inmates convicted of embezzlement. The three components of the fraud triangle are (1) an incentive or pressure (usually financial); (2) opportunity; and (3) rationalization.

There is a separate, extensive legal literature on tax compliance and evasion. The fraud triangle is largely absent from this legal literature, although tax evasion is a type of fraud. This Article rectifies that oversight, analyzing how using the fraud triangle as a lens can inform the legal …

The Criminalization Of Foreign Relations, Steven Arrigg Koh

Faculty Scholarship

Overcriminalization has rightly generated national condemnation among policymakers, scholars, and practitioners alike. And yet, such scholarship often assumes that the encroachment of criminal justice stops at our borders. This Article argues that our foreign relations are also at risk of overcriminalization due to overzealous prosecution, overreaching legislation, and presidential politicization—and that this may be particularly problematic when U.S. criminal justice supplants certain nonpenal U.S. foreign policies abroad. This Article proposes three key reforms— presidential distancing, prosecutorial integration, and legislative de-escalation—to assure a principled place for criminal justice in foreign relations.

Executive Pay Clawbacks And Their Taxation, David I. Walker

Faculty Scholarship

Executive pay clawback provisions require executives to repay previously received compensation under certain circumstances, such as a downward adjustment to the financial results upon which their incentive pay was predicated. The use of these provisions is on the rise, and the SEC is expected to soon finalize rules implementing a mandatory, no-fault clawback requirement enacted as part of the Dodd-Frank legislation. The tax issue raised by clawbacks is this: should executives be allowed to recover taxes previously paid on compensation that is returned to the company as a result of a clawback provision? This Article argues that a full tax …

Testing Compliance, Brandon L. Garrett, Gregory Mitchell

Law and Contemporary Problems

No abstract provided.

Door Shut And Ears Plugged: How Consumer Reporting Casts Identity Theft Victims Out Of Financial Society And How The Law Can Be Harmonized To Bring Them Back In, Ryan Bolger

Brooklyn Journal of Corporate, Financial & Commercial Law

Consumer Reporting Agencies (CRAs) are the gatekeepers to the American economy. As the chief informants for prospective lenders, landlords, and employers, they exert immense power over the day-to-day decisions of who gets what. Despite these high stakes, the CRAs run consumer reporting as an automated electronic process that causes a lot of reporting errors, disqualifying consumers from essential goods, services, and opportunities. This is painfully true in the context of identity theft, where perverse incentives pollute the integrity of consumer reporting, piling undue harm onto identity theft victims. The law provides a remedy for this problem, but circuit courts are …

Guns-For-Hire: Chinese Mercenaries On The 21st Century Silk Road, Carl H. Peterson Iv

Washington International Law Journal

There has been an increased global use of private military contractors (PMCs) since the large-scale American use of them in the wars in Afghanistan and Iraq. This has included an increase in Russian and now Chinese PMCs. As China continues to develop its Belt and Road Initiative (BRI), it is likely that the world will see an increase in the number of Chinese PMCs used to protect these projects. In this event it is important to bring Chinese PMCs into the PMC industry’s most effective private regulatory bodies, as these bodies are often more effective at ensuring ethical PMC conduct …

The Role Of "Commercial Morality" In Trade Secret Doctrine, Lynda J. Oswald

Notre Dame Law Review

The approaching anniversary of E.I. duPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”

Commercial morality has played a significant but shifting role in trade secret law over the past seven …

Class Action Squared: Multistate Actions And Agency Dilemmas, Elysa M. Dishman

Notre Dame Law Review

As the Supreme Court continues to restrict the reach of private class actions, numerous commentators have championed public enforcement actions by state attorneys general (AGs) as a superior alternative to hold corporations accountable for misconduct. While AG actions fill some of the void left by the forced retreat of the private class action, few scholars have seriously considered whether the agency problems that exist in private class actions also occur in AG actions. And, until now, no scholar has recognized the unique agency problems that arise when AGs act together in multistate actions.

Multistate actions are made up of two …

The Lost Justification: White-Collar Crime And The Argument For Expanding Brady Rights, Chris Dernbach

Seton Hall Law Review

No abstract provided.

How Does The Capability Of Top Management Influence Financial Reporting Fraud?, Michael Wojcikiewicz

Honors Projects in Finance

This study examines the attributes which capture the capability of a perpetrator to engage in financial reporting fraud. Fraudulent financial reporting can be devastating for a company and its employees. Capability includes such measures as the person’s position and the function in which they work. The study reveals how capability influences the occurrence of fraud, the amount of the fraud, and whether capability interacts with concealing the fraud from an audit. The results of the thesis should assist fraud professionals, investors, and regulators as well as stakeholders of corporations by examining publicly available data and highlighting characteristics that can contribute …

Forging A Path Towards Meaningful Digital Privacy: Data Monetization And The Ccpa, Rebecca Harris

Loyola of Los Angeles Law Review

The California Consumer Privacy Act (CCPA) was passed in response to a number of newsworthy data breaches with widespread impacts, and which revealed how little digital privacy consumers actually have. Despite the large market for consumer data, individual consumers generally do not earn money when their personal data are sold. Further, consumers have very little control over who collects their data, what information is collected, and with whom it is shared. To place control back in the hands of the consumer, affirmative consent should be required to collect and sell consumer’s data, and consumers should have the ability to sell …

David Versus Godzilla: Bigger Stones, Jerry Ellig, Richard Williams

Dickinson Law Review (2017-Present)

For four decades, U.S. Presidents have issued executive orders requiring agencies to conduct comprehensive regulatory impact analysis (RIA) for significant regulations to ensure that regulatory decisions solve social problems in a cost-beneficial manner. Yet experience demonstrates that agency RIAs often fail to live up to the standards enunciated in executive orders and Office of Management and Budget (OMB) guidance. The Office of Information and Regulatory Affairs (OIRA) oversees agency compliance with the executive orders, but OIRA is about half the size it was when it was established in 1980. Regulatory agency staff outnumber OIRA staff by a ratio of 3600 …

Drafting Under The Upoaa: Safeguarding Against Elder Financial Exploitation Without Compromising Autonomy, Jessica A. Liebau

ACTEC Law Journal

No abstract provided.

The Threat Of Data Misuse As An Injury-In-Fact: Establishing A Uniform Framework For Constitutional Standing In The Privacy Era, Isabella Anderson

West Virginia Law Review

No abstract provided.

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Arkansas Law Review

"For an intended injury the law is astute to discover even very remote causation." - Justice Thurgood Marshall

ExxonMobil, the world's largest oil company, misled the public about climate change for at least two decades. Several states' attorneys general have opened investigations into the potential criminality of the company's conduct. The Securities and Exchange Commission (SEC) has opened its own investigation. Criminal or not, however, ExxonMobil's conduct closely resembles schemes carried out by the tobacco, asbestos, opioid, sugar, and leaded gasoline industries, among others. The scheme is always the same: there is a product that is both profitable and destructive, …

The Case For Preempting State Money Transmission Laws For Crypto-Based Businesses, Carol R. Goforth

Arkansas Law Review

Few industries are evolving as rapidly or as dramatically as those involving payment systems. The recent advent and spread of cryptocurrencies and associated trading platforms and exchanges, as well as ongoing improvements and innovations in FinTech generally, ensure that this is going to continue for the foreseeable future. Along with this rapid change has come a dynamic increase in the number and range of payment startups, a development that has been recognized as likely to redound to the benefit of consumers and the broader economy. The problem is simply that regulation is not keeping up with innovation.

Effects Of Japanese Financial Regulations And Keiretsu Style Groups On Japanese Corporate Governance, Ken Kobayashi

UC Law SF International Law Review

No abstract provided.

Legal Transplants, Law Books, And Anglo-American Corporate Fiduciary Duties, Victoria Barnes

UC Law Business Journal

This Article explores legal transplants and divergences in Anglo- American corporate fiduciary law. The internal management rule in English law acts to restrict judicial interference in corporate governance disputes. It is conceptually similar to the business judgment rule but the two remain distinct. This Article explains why Anglo-American corporate law developed differently, despite its shared roots. It pinpoints the origins of the internal management rule to Lord Lindley’s work, which was written in the late nineteenth century. Lord Lindley was central to the development of corporate law in England and other common law jurisdictions within the British Empire, but his …

Addressing The Auditor Independence Puzzle: Regulatory Models And Proposal For Reform, Martin Gelter, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Auditors play a major role in corporate governance and capital markets. Ex ante, auditors facilitate firms’ access to finance by fostering trust among public investors. Ex post, auditors can prevent misbehavior and financial fraud by corporate insiders. In order to fulfill these goals, however, in addition to having the adequate knowledge and expertise, auditors must perform their functions in an independent manner. Unfortunately, auditors are subject to conflicts of interest by, for example, providing non-audit services or the mere fact of being hired and paid by the audited company. Therefore, even if auditors act independently, investors have reason to think …

Securities Exchange Act Section 4e(A): Toothless "Internal-Timing Directive" Or Statute Of Limitation?, Richard E. Brodsky

William & Mary Business Law Review

The Securities and Exchange Commission has a problem, and everyone knows it: its investigative process suffers from excessive delay, which harms both individuals and entity it investigates and its own enforcement program. This problem has long been recognized and complained about, but never remedied.

In 2010, Congress passed a law specifically designed to solve the problem of excessive delay but, the way the SEC has read the law—which has been acquiesced in by the courts and ignored by subsequent Congresses—has rendered it toothless and essentially meaningless. This has been accomplished, first, by the Commission’s cabined interpretation of the purpose of …