Digital Commons Network^™

Accountability Lost And The Problem(S) Of Asymmetry, Gregory M. Gilchrist

Loyola University Chicago Law Journal

Professor Gilchrist argues that calls for more individual prosecutions in cases of corporate malfeasance are ultimately misguided. In this Essay, Gilchrist discusses the asymmetries of information and power within corporations that make criminal prosecutions of high-level executives particularly difficult and often inappropriate.

Lehman 10 Years Later: The Dodd-Frank Rollback, Thomas W. Joo

Loyola University Chicago Law Journal

In response to the financial crisis of 2007–08, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010. The Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018 has repealed or altered many Dodd-Frank’s reforms. This Article analyzes the EGRRCPA’s deregulation of large banks, community banks, mortgage lending standards, and consumer protection in the industry. While Dodd-Frank may have taken only small steps to address the causes of the financial crisis, the EGRRCPA completely ignores those risk factors. Congress and the Administration have justified the counter-reforms on the ground that they have hampered economic growth, but …

United States Supreme Court Surveys: 2017 Term: Digital Realty Trust V. Somers: Whistleblowers And Corporate Retaliation, Susan B. Heyman

Roger Williams University Law Review

No abstract provided.

False Claims Act Liability For Higher Education Institutions: Analyzing Claim Against Charlotte School Of Law And Infilaw Systems, Brian Munsie

Student Works

No abstract provided.

Do Enforcement Actions By Us Federal Banking Regulators Against Banks For Unsound And Unsafe Banking Practices Deter Further And Future Wrongdoing? A Way Forward., Ikem Onyiliogwu

Master's Theses

“Wells Fargo fined $1 billion for ‘reckless unsafe or unsound practices.”1 The story behind this headline in the Washington Post on April 20, 2018, set out the problem. Wells Fargo engaged in “unsafe or unsound practices”2 by charging customers for services that Wells Fargo should have absorbed and administering a compulsory insurance scheme that unnecessarily increased borrowers auto loans financial obligation without approval. 3 According to the Office of the Comptroller of the Currency (OCC), “Since at least 2011, the Bank4 (Wells Fargo) has failed to implement and maintain a compliance risk management program commensurate with the Bank’s size, complexity …

Unintentional Irony In Landmark Decisions Of The Delaware Supreme Court Regarding Corporate Law, Steven Cleveland

Faculty Articles

No abstract provided.

The Eu’S Struggles With Collective Action For Securities Fraud: An American Perspective, Dan Morrissey

Texas A&M Law Review

Notwithstanding the apparent exit of the United Kingdom, the European Union (“EU”) has grown in membership and power since its modest beginnings after World War II, now rivaling the U.S. in economic strength. With the goal of promoting the security and prosperity of all the citizens of the countries that belong to it, the EU is pressing ahead to adopt laws that will promote their political and financial integration. Along those lines, it has also recently acknowledged a deficiency in the legal systems of its member states when it comes to allowing collective actions for victims of various types of …

Respect The Hustle: Necessity Entrepreneurship, Returning Citizens, And Social Enterprise Strategies, Priya Baskaran

Scholarly Articles in Law Reviews & Journals

This Article addresses a pervasive and growing problem for returning citizens – high rates of economic insecurity – and as a novel solution, proposes the creation of Economic Justice Incubators a new municipally led social enterprise strategy.

Mass incarceration is a national problem and requires comprehensive criminal justice reform. In contrast, the process of reentry is locally focused thanks to a complex web of collateral consequences. An estimated 641,000 people return home from prison each year, many to a limited number of economically distressed communities. Once released, their mobility is limited by the terms of their parole and the collateral …

Self-Interest Rightly Understood: The Case Against Attorneys Receiving The Sec Whistleblower Bounty, Chelsea A. Bollman

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

What Is ‘Dark Money’? 5 Questions Answered, Richard Briffault

Faculty Scholarship

With the 2020 campaign season upon us, “dark money” is again in the news.

Maine’s Republican Sen. Susan Collins has decried what she contends is a “dark money” campaign against her. Montana’s Gov. Steve Bullock has made opposition to dark money a centerpiece of his Democratic presidential campaign.

But what exactly is “dark money,” and why is it considered a problem?

As a law professor who studies campaign finance, I’d like to answer those questions and explain how improved disclosure laws could shed some light on dark money.

Digital Realty Trust V. Somers: Whistleblowers And Corporate Retaliation, Susan B. Heyman

Law Faculty Scholarship

No abstract provided.

Tinder Lies, Irina D. Manta

Hofstra Law Faculty Scholarship

The rise of Internet dating—in recent years especially through the use of mobile-based apps such as Tinder or Bumble—forces us to reexamine an old problem in the law: how to handle sexual fraud. Many people with romantic aspirations today meet individuals with whom they do not share friends or acquaintances, which allows predators to spin tales as to their true identities and engage in sexual relations through the use of deceit on a greater scale than was previously practicable. Indeed, according to some studies, about eighty percent of individuals lie on at least some part of their online dating profiles, …

Regulating Offshore Finance, William J. Moon

Vanderbilt Law Review

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies. While the prevailing account has examined offshore financial havens as "tax havens" that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable business entities to opt out of otherwise mandatory domestic regulatory laws. Specifically, recent U.S. Supreme …

Consumer Protection After A Global Financial Crisis, Melissa B. Jacoby

Faculty Publications

Like other major events, the Global Financial Crisis generated a large and diffuse body of academic analysis. As part of a broader call for operationalizing the study of crises as policy shocks and resulting responses, which inevitably derail from elegant theories, we examine how regulatory protagonists approached consumer protection after the GFC, guided by six elements that should be considered in any policy shock context. After reviewing the introduction and philosophy of the Bureau of Consumer Financial Protection, created as part of the Dodd–Frank Act of 2010, we consider four examples of how consumer protection unfolded in the crises’ aftermath …

Legally Cognizable Manipulation, Ido Kilovaty

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Liablity For Legalization Of Incomes Obtained From The Proceeds Of The Offences In International Law Acts And Legislation Of Foreign Countries, F.M. Fazilov

Review of law sciences

This article the author analyzes the issues of responsibility for the legalization of income derived from criminal activity in international legal acts and legislation of foreign countries. The legalization of proceeds derived from criminal activities is a criminal socially dangerous act representing imparting a lawful type to the origin of money or other property by transferring or exchanging it, non-disclosure or concealment of the true nature, source, location, method disposition, movement, rights with respect to money or other property or its accessories if money or other assets derived from criminal activity.

A Farewell To Falsity Shifting Standards In Medicare Fraud Enforcement, Isaac D. Buck

Seton Hall Law Review

No abstract provided.

Saving Disgorgement From Itself: Sec Enforcement After Kokesh V. Sec, Patrick L. Butler

Duke Law Journal

Disgorgement is under threat. In Kokesh v. SEC , the Supreme Court held that disgorgement—a routine remedy that allows the SEC to recoup ill-gotten gains from financial wrongdoers—is subject to a 5-year statute of limitations because it functions as a “penalty.” This ruling threatens to upend the traditional conception of disgorgement as an ancillary remedy granted by the court’s equity power, because there are no penalties at equity. With the possibility that Kokesh’s penalty reasoning could be adopted beyond the statute of limitations context, the future of disgorgement in federal court is in doubt.

This Note proposes a way forward …

Discovery And The Social Benefits Of Private Litigation, Paul Stancil

Vanderbilt Law Review

In the era just before the Federal Rules of Civil Procedure went into effect in 1938, federal civil litigation was a different animal.' Although Congress had created several private statutory causes of action before the 1930s,2 the federal civil docket prior to enactment of the Rules consisted primarily of diversity jurisdiction common law cases, labor injunctions and receiverships, and miscellaneous cases brought by the United States, including Prohibition-era "liquor cases" as well as internal revenue and food and drug enforcement. 3 Occasional exceptions notwithstanding, pre-New Deal federal courts hearing private claims functioned primarily as forums for the resolution of discrete, …

Week Of October 29, 2018 - November 2, 2018, Benjamin N. Cardozo School Of Law

Today at Cardozo 2018

Events occurring this week have been sponsored by:

• Asian Pacific American Law Students Association (APALSA)
• Black Law Students Association (BLSA)
• Cardozo Art Law Society
• Cardozo FAME Center
• Cardozo Fashion Law Society
• Cardozo For Immigrants' Rights and Equality (FIRE)
• Cardozo Law Institute in Holocaust and Human Rights (CLIHHR)
• Cardozo Minority Law Student Association (MLSA)
• Cardozo South Asian Law Students Association (SALSA)
• Cardozo Women's Law Initiative (WLI)
• Chabad at Cardozo
• Heyman Center on Corporate Law and Governance
• Indie Film Clinic
• Intellectual Property Law Society (IPLS)
• Jewish Law Students Association (JLSA)
• Latin American Law Student Association (LALSA)
• New York Democratic Lawyers Council

Regulation A+: New And Improved After The Jobs Act Or A Failed Revival?, Neal Newman

Faculty Scholarship

This piece is a follow-up to a previous article that I wrote on Regulation A. In April of 2012, then President Barack Obama signed into law the Jumpstart our Business Start Ups (JOBS) Act. Under the JOBS Act’s Title IV, Congress made revisions to a private offering exemption referred to as Regulation A with the intention of reviving an exempt offering option that was close to dormant. The primary Regulation A criticism being that issuers were required to do too much in terms of providing business and financial disclosure where the most the issuer could raise though a Regulation A …

The Equifax Data Breach And The Resulting Legal Recourse, Caitlin Kenny

Brooklyn Journal of Corporate, Financial & Commercial Law

What happens when one’s sensitive information falls into the wrong hands? With the twenty-first century’s advancement of technology comes the increasing problem of data breaches wherein sensitive information is exposed. On September 7, 2017, Equifax, one of three major United States credit reporting agencies announced one of the largest data breaches in the history of the United States. The data breach affected approximately 145 million consumers and subsequently a wave of consumer class actions followed. This Note clarifies why class action lawsuits and arbitration are not viable legal remedies for massive data breaches where entities like credit reporting agencies are …

The Necessity Of The Good Person Prosecutor, Jessica A. Roth

Fordham Law Review Online

In a 2001 essay, Professor Abbe Smith asked the question whether a good person—i.e., a person who is committed to social justice—can be a good prosecutor. Although she acknowledged some hope that the answer to her question could be “yes,” Professor Smith concluded that the answer then was “no”—in part because she saw individual prosecutors generally as having very little discretion to “temper the harsh reality of the criminal justice system.” In this Online Symposium revisiting Professor Smith’s question seventeen years later, my answer to her question is “yes”—a good person can be a good prosecutor.

Regulatory Enforcement Under New York's Martin Act: From Financial Fraud To Global Warming, Richard A. Epstein

Articles

No abstract provided.

Do Independent Directors Curb Financial Fraud? The Evidence And Proposals For Further Reform†, S. Burcu Avci, Cindy A. Schipani, Nejat Seyhun

Indiana Law Journal

In this Article, we argue that the U.S. corporate governance rules put too much faith in the independent board members and insufficient emphasis on the shareholders to control and monitor top management. Given the agency problem between the board of directors and the shareholders, outside directors can be captured by management, thereby leading to inadequate checks on management. The evidence presented in this Article shows that outside board members do not exercise sufficient controls on management even when management has gone awry. To solve this agency problem, we propose increasing the power of the principals: make shareholder resolutions binding on …

Causation And "Legal Certainty" In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

A line of California cases holds that causation of damages in legal malpractice actions must be proven with “legal certainty.” This Article argues that judicial references to legal certainty are ambiguous and threaten to undermine the fairness of legal malpractice litigation as a means for resolving lawyer-client disputes. Courts should eschew the language of legal certainty and plainly state that damages are recoverable if a legal malpractice plaintiff proves, by a preponderance of the evidence, that those losses were factually and proximately caused by the defendant’s breach of duty.

Domestic Asset Tracing And Recovery Of Hidden Assets And The Spoils Of Financial Crime, Nathan Wadlinger, Carl Pacini, Nicole Stowell, William Hopwood, Debra Sinclair

St. Mary's Law Journal

Abstract forthcoming

Why They Do It: Inside The Mind Of The White-Collar Criminal, By Eugene Soltes, Larissa Lucas

Osgoode Hall Law Journal

Sociologist Edwin Sutherland first coined the term “white-collar crime” on December 27, 1939 during his presidential address at the fifty-second annual meeting of the American Sociological Society. Sutherland began his speech by arguing that much of what his colleagues understood about crime—namely, that it was restricted to the streets and largely committed by individuals in the lower social classes—was “misleading and incorrect.” According to Sutherland, the most serious criminal offences were not being committed by the poor or the “delinquent,” but rather by society’s most “respected business and professional men."

Whistling In The Wind: Why Federal Whistleblower Protections Fall Short Of Their Corporate Governance Goals, Meera Khan

University of Miami Business Law Review

Teetering on the line between hero and villain, whistleblowers have a remarkably unusual role in contemporary American society. Those who blow the whistle on public sector activities, like Edward Snowden and the Watergate Scandal’s “Deep Throat”, are often vilified in history as treasonous and unprincipled rogues. In the private sector, however, whistleblowers are seen as moral compasses for corporate behavior, and are even afforded federal protections for speaking out against internal malfeasance. The piecemeal evolution of whistleblower legislation including the Sarbanes–Oxley Act of 2002 and the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 created regulatory and enforcement …

Accountability For Nonenforcement, Urska Velikonja

Notre Dame Law Review

Changes in enforcement can move in more than one direction: enforcement can increase significantly as the Securities and Exchange Commission saw in the aftermath of the accounting scandals or the Madoff Ponzi scheme, and decrease precipitously, as evidenced at the Consumer Financial Protection Bureau under Acting Director Mick Mulvaney. There is no reason in constitutional or administrative law to treat changes in enforcement policy differently depending on whether enforcement increases or decreases. Policy choices raise similar questions about reviewability and accountability, regardless of whether they increase or decrease enforcement. They also raise symmetrical questions about fair notice and due process …