Digital Commons Network^™

Possible Bias In Asset Valuations: An Application Of The Fraud Risk Triangle To Divorce Cases, Jennifer Tomasetti

Honors Projects in Accounting

No abstract provided.

Time For An Update: A New Framework For Evaluating Chapter 9 Bankruptcies, Michael J. Deitch

Fordham Law Review

    Municipal bankruptcies have been making national news since the “Great Recession.” Municipalities like Stockton, Vallejo, and Jefferson County gained notoriety for the record scale of their bankruptcy filings, only to be surpassed by Detroit shortly thereafter as the largest and most populous municipal bankruptcy filing. Historically, municipal bankruptcy occurred infrequently, leaving the nuances of many critical issues, including insolvency, asset utilization, and good faith, unexplored in case law. For example, how should a bankruptcy court analyze Detroit’s cityowned art museum that houses billions of dollars of art when bondholders, pensioners, and other unsecured creditors have unpaid claims? And how should …

The Other Side Of The Coin: The Fec's Move To Approve Crytocurrency's Use And Deny Its Viability, Juliya Ziskina

Washington Journal of Law, Technology & Arts

This Article examines the implications of the Federal Election Committee’s May 2014 advisory opinion on cryptocurrency’s viability within campaign finance regulation, and U.S. financial regulation more generally. Although the Commissioners sharply disagreed on whether Bitcoin is a cash or in-kind contribution, they voted unanimously to allow political committees to accept Bitcoin donations. Moreover, all the Commissioners agreed that Bitcoin donors must disclose their names, addresses, and occupations. While many view this decision as pushing Bitcoin and cryptocurrency further toward legitimacy, in actuality it undermines one of cryptocurrency’s distinct functionalities: pseudonymity. Paradoxically, while it approves the use of Bitcoin in campaign …

Cybersecurity: Recognizing The Risk And Protecting Against Attacks, Kristin Shields

North Carolina Banking Institute

This Note proceeds in six parts. Part II details the mechanics behind cyberattacks. Part III identifies the effects of cyberattacks on financial institutions. Part IV discusses the legal liability of financial institutions following a cyberattack. Part V evaluates regulatory efforts to increase cybersecurity requirements and prevent cyberattacks. Part VI suggests solutions financial institutions may use to protect against cyberattacks. Finally, Part VII concludes by emphasizing the importance of financial institutions using the available guidance to make sure that their networks are sufficiently protected.

The Financial Institutions Reform, Recovery, And Enforcement Act Of 1989: The Effect Of The “Self-Affecting” Theory On Financial Institutions, Filmon M. Sexton

North Carolina Banking Institute

This Note addresses why the Self-Affecting Theory misinterprets § 1833a. This Note argues that in cases where the DOJ could bring, but is unwilling or unable to bring, criminal actions, a federally insured financial institution should not be held civilly liable under § 1833a for engaging in fraudulent conduct "affecting" that same institution. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") does not define what it means to "affect[] a federally insured financial institution." Congressional intent demonstrates that Congress enacted § 1833a in response to the pervasive insider abuse and fraud of the savings and loan crisis …

Clarifying What Is “Clear”: Reconsidering Whistleblower Protections Under Dodd-Frank, Caroline E. Keen

North Carolina Banking Institute

This Note argues that the Fifth Circuit’s holding should be disregarded and the definition of a whistleblower should be expanded to include those who report potential securities laws violations internally, in addition to those who report directly to the SEC. This Note proceeds in four parts. Part II explains the differences between the anti- retaliation provisions of SOX and Dodd-Frank. Part III provides an overview of the approach taken by the Fifth Circuit in adopting a restrictive definition of whistleblower in Asadi. Part IV discusses how the majority of courts choose not to follow the Fifth Circuit after correctly applying …

Admit Or Deny: A Call For Reform Of The Sec's "Neither-Admit-Nor-Deny" Policy, Priyah Kaul

University of Michigan Journal of Law Reform

For four decades, the SEC’s often-invoked policy of settling cases without requiring admissions of wrongdoing, referred to as the “neither-admit-nor-deny” policy, went unchallenged by the courts, the legislature, and the public. Then in 2011, a harshly critical opinion from Judge Jed Rakoff in SEC v. Citigroup incited demands for reform of this policy. In response to Judge Rakoff’s opinion, the SEC announced a modified approach to settlements. Under the modified approach, the Commission may require an admission of wrongdoing if a defendant’s misconduct was egregious or if the public markets would benefit from an admission. Many supporters of the neither-admit-nor-deny …

Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham

Florida Law Review

When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous, and implementing improvised reforms afterwards may have severe unintended consequences—particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases—Arthur Andersen, AIG, and Bristol-Myers Squibb—this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions …

The Special Value Of Public Employee Speech, Heidi Kitrosser

Articles

In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the …

A Spoof Of Justice: Double Jeopardy Implications For Convictions Of Both Spoofing And Commodities Fraud For The Same Transaction, Abram Olychyk

American University Law Review

No abstract provided.

Exposure Without Redress: A Proposed Remedial Tool For The Victimns Who Were Set Aside, Elizabeth T. Isaacs

Oklahoma Law Review

No abstract provided.

Expanding The Ponzi Scheme Presumption, David R. Hague

Faculty Articles

Ponzi schemes and other investment frauds inevitably end up in bankruptcy or receivership, leaving behind numerous victims—many of whom invested their life savings in the scheme without any knowledge of its fraudulent nature. Although trustees and receivers can sometimes recover some of the fraudulently acquired funds from the assets of the perpetrators, in most cases, those assets fall woefully short of the victims’ losses. This leads to fraudulent transfer lawsuits (claw-back actions) against those who are suspected to have profited from the wrongdoing.

A transfer is fraudulent if it was made with the actual intent to defraud, but actual fraud …

Breaking The Law: The Failure To Award Mandatory Criminal Restitution To Victims In Sex Trafficking Cases, Alexandra F. Levy, Martina E. Vandenberg

Saint Louis University Law Journal

No abstract provided.

The Case That Won't Be Forgotten, Julia Powles

Loyola University Chicago Law Journal

In May 2014, Europe’s highest court planted a flag in the digital rights desert, declaring that individuals have limited, conditional rights against search engines. Popularized as the “right to be forgotten,” the case affirmed a right to data delisting. Specifically, European law provides a right to correct or block personal information from appearing on name searches if that information has lost its timeliness, relevance, or accuracy, and if it holds no public interest.

The European case has inspired a tremendous and vigorous public debate, marked by the general sentiment that it represents a worrying development for the Internet. Yet, the …

Managing The Wealth Of Nations: What China And America May Have To Teach Each Other About Corporate Governance, Daniel J. Morrissey

SMU Law Review

No abstract provided.

Is Deterrence Relevant In Sentencing White-Collar Criminals?, Peter J. Henning

Law Faculty Research Publications

No abstract provided.

Excessive Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz

Faculty Scholarship

Government agencies and prosecutors are being criticized for seeking so few indictments against individuals in the wake of the 2008-09 financial crisis and its resulting banking failures. This article analyzes why — contrary to a longstanding historical trend — personal liability may be on the decline, and whether agencies and prosecutors should be doing more. The analysis confronts fundamental policy questions concerning changing corporate and social norms. The public and the media perceive the crisis’s harm as a “wrong” caused by excessive risk-taking. But that view can be too simplistic, ignoring the reality that firms must take greater risks to …

Training The Next Generation Of Anti-Corruption Enforcers: International Anti-Corruption Curriculum In U.S. Law Schools, Elena Helmer, Mikhail Reider-Gordon

Journal of International Business and Law

No abstract provided.

Form Vs. Function In Rule 10b-5 Class Actions, Amanda M. Rose

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Rodrigo’S Abstraction: Capitalism Inequality & Reform Over Time And Space, Steven A. Ramirez

Faculty Publications & Other Works

No abstract provided.

Mission - Combat Fraud: A Survey Of State Mirror False Claims Acts To Prosecute Fraud And Abuse Surrounding The Medicaid Program, Alexa Salcito

Student Works

No abstract provided.

Market Intermediation, Publicness, And Securities Class Actions, Hillary A. Sale, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

Securities class actions play a crucial, if contested, role in the policing of securities fraud and the protection of securities markets. The theoretical understanding of these private enforcement claims needs to evolve to encompass the broader set of goals that underlie the securities regulatory impulse and the publicness of those goals. Further, a clear grasp of the modern securities class action also requires an updated understanding of how the role of market intermediation in securities transactions has reshaped the realities of securities litigation in public companies and the evolution of the fraud cause of action in the context of open-market …

Legislating Morality Progressively - The Contraceptive Coverage Mandate, Religious Freedom, And Public Health Policy And Ethics, Michael J. Deboer

Journal of Law and Health

This Article studies the contraceptive coverage mandate from three different perspectives. First, it provides a historical treatment of the regulatory rules adopted by agencies in the Obama Administration – specifically, the Departments of the Treasury, Labor, and Health and Human Services, which this Article collectively refers to as “the Administration” or “the Departments” – that imposed the mandate, focusing specifically on the rulemaking processes used to develop and promulgate the rules. In performing this historical study, the Article traces the development of the mandate from its root in the ACA to full implementation in legislative (substantive) rules finalized by the …

Traumatic Brain Injury And The Law: Introduction, Sean O'Brien, Kenneth D. Ferguson

Faculty Works

Introduction to UMKC Law Review symposium issue focusing on the intersection of traumatic brain injuries (TBI) and the law.

Is The Price Right? An Empirical Study Of Fee-Setting In Securities Class Actions, Michael A. Perino, Lynn A. Baker, Charles Silver

Faculty Publications

Every year, fee awards enable millions of people to obtain access to justice and strengthen the deterrent effect of the law by motivating lawyers to handle class actions. But little research exists on why judges award the amounts they do or whether they size fee awards correctly. The process remains a black box. Through a detailed study of 431 securities class actions that settled in federal district courts from 2007 through 2012, this Article presents the first empirical study to peer inside that black box. In contrast to prior analyses, this study relies on the actual court filings in each …

Putting The 'Financial Stability' In Financial Stability Oversight Council, Hilary Allen

Scholarly Articles in Law Reviews & Journals

For all the ink that has been spilled on the topic of financial regulation since the financial crisis of 2007-2008, there has been little examination of the competing normative goals of financial regulation. Should the financial system be treated as an end in itself such that the efficiency of that system is the primary goal? Or should financial regulation instead treat the financial system as a means to the end of broader economic growth? This Article argues for the latter approach, and stakes out the controversial normative position that financial stability, rather than efficiency, should be the paramount focus of …

Form Vs. Function In Rule 10b-5 Class Actions, Amanda M. Rose

Vanderbilt Law School Faculty Publications

The Supreme Court’s widely anticipated decision last term in Halliburton Co. v. Erica P. John Fund, Inc. did little to change the fundamental landscape of securities fraud litigation in the United States. Rule 10b-5 class actions premised on the “fraud-on-the-market” presumption of reliance may still be brought, although it is now clear that defendants may present evidence of lack of price distortion to rebut that presumption at the class certification stage. Halliburton does, however, raise a variety of new questions that will keep plaintiffs’ lawyers and defense counsel fighting for years to come. Determining the answers to these questions will …

The Corporate Criminal As Scapegoat, Brandon L. Garrett

Faculty Scholarship

A corporation is no scapegoat, assures the Department of Justice, because the first priority is to prosecute culpable individuals and not artificial entities. Yet, as I document in this empirical study, far more often than not, when the largest corporations settle federal criminal cases, no individuals are charged. High profile failures to prosecute executives in the wake of the Global Financial Crisis have only made the problem more urgent. The corporation appears to be a kind of a scapegoat: impossible to physically jail, but capable of receiving blame and punishment while individual culprits go free. In this Article, I develop …

The Sixth Commissioner, Nadelle Grossman

Georgia Law Review

The federal securities laws grant broad rulemaking authority to the Securities and Exchange Commission (SEC). In promulgating rules, the SEC must not only ensure that its rules protect investors and the public interest, but also consider the effects of its rules on efficiency, competition, and capital formation (the ECCF mandate). However, the SEC's rulemaking authority has been frustrated. In two decisions striking down SEC rules, the D.C. Circuit has required the SEC to conduct a quantitative cost-benefit analysis under the ECCF mandate. This contrasts with the SEC's historic practice of qualitatively assessing the effects of its rules. While these D.C. …

Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman

Faculty Scholarship

This Article examines one year of publicly available criminal judgments from a basic-level rural county court and an intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting State interests, harshly, while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree …