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Proportionality As A Principle Of Limited Government, Alice Ristroph

Duke Law Journal

This Article examines proportionality as a constitutional limitation on the power to punish. In the criminal context, proportionality is often mischaracterized as a specifically penological theory-an ideal linked to specific accounts of the purpose of punishment. In fact, a constitutional proportionality requirement is better understood as an external limitation on the state's penal power that is independent of the goals of punishment. Proportionality limitations on the penal power arise not from the purposes of punishment, but from the fact that punishing is not the only purpose that the state must pursue. Other considerations, especially the protection of individual interests in …

Eliminating The Below-Cost Pricing Requirement From Predatory Pricing Claims, Ari Lehman

Cardozo Law Review

No abstract provided.

Maine Law Magazine - Issue No. 83, University Of Maine School Of Law

Maine Law Magazine

Contents:

• Feature Article: Maine Law: A Place of Great Opportunity
• Around Campus: Dean Pitegoff
• Coffin Lecture: Eliot Spitzer
• Commencement 2005
• Faculty Notes
• Focus on Alums: Alice Persons ’86 and Nancy Henry ’86
• Class News

The International Review | 2005 Fall, Michael Rhee

The International Review Newsletter

Interpreting the U.S. Constitution via International Law?

Legal Efforts Against Terrorist Financing: Opportunities and Obstacles

The United Nations in Control of the Internet

Implosion of the Nuclear Nonproliferation Treaty

End of the European Union Constitution?

Law School: A cure for foreign competition?

While the U.S. barely passes the Central American Free Trade Agreement ...

... the outcome of ongoing WTO talks remains uncertain

Undermining the Kyoto Protocol?

A WTO open to the public?

Fighting Fraud On Faith: Federal Securities Regulation And The Limits Of Disclosure, Shannon R. Selden

ExpressO

In the past ten years, Congress passed three major reform acts to address two diametrically opposed concerns: It first restrained what it believed was an excess of securities fraud litigation, then responded to an explosion of securities fraud. This Article contends that despite the competing provocations and ambitions of the reforms, they share an unwarranted adherence to the principle of disclosure as the best means to attack market malfeasance: The Article examines the basis for and consequences of that undeserved legislative fidelity. Applying behavioral economics and cultural theory to the recent legislation and its underpinnings, the Article concludes that a …

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

Buffalo Law Review

No abstract provided.

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

European Law On Capital Markets – Quo Vadis?, Daniela Huemer

Cornell Law School Inter-University Graduate Student Conference Papers

The occurrence of more than a dozen accounting scandals in the United States over the past few years have deeply shaken the capital market and have led some to believe that “corporate and legal culture has lost all sense of right and wrong.” Scandals at companies such as Enron and Worldcom have cost thousands of employees their jobs and caused thousands of investors to lose their investments completely. Similar scandals have happened in Europe as well, such as at Parmalat and Lernout & Hauspie, which has caused an increasing reluctance among investors to trust companies with their dollars.

These circumstances …

Where There’S At-Will, There Are Many Ways: Redressing The Increasing Incoherence Of Employment At Will, Scott A. Moss

ExpressO

Employment at will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as “essential to free enterprise” and “central to the free market,” but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two …

Accounting Consolidation Versus Capital Calculation: The Conflict Over Asset-Backed Commercial Paper Programs, Lee Gilliam

North Carolina Banking Institute

No abstract provided.

Notre Dame Lawyer - Spring 2005, Notre Dame Law School

Notre Dame Lawyer

London Law Centre: A Reexamined Profession Historic buildings with ornate fi replaces have housed this unique year-long study abroad program for Notre Dame law students, several of whom reflect on the influence the program has had on their careers.

Chilé: From Oppression to Freedom Jeff Hall, ’06 J.D. writes about his experience as an intern at the Chilean law firm of Aylwin Abogados (headed by Pedro Alywin, ’92 LL.M.). Hall finds the country’s beauty to be matched only by its people’s resilience.

Reflections on Making a Difference Ana Perez-Arrieta, ’05 J.D. considers her first experience with being “a different kind …

There Ought To Be A Law: The Disclosure Focus Of Recent Legislative Proposals For Nonprofit Reform, Dana Brakman Reiser

Chicago-Kent Law Review

This Article explores and evaluates the disclosure focus of recent legislative proposals for nonprofit reform. It begins by describing legislative proposals under consideration in various states and the U.S. Senate Finance Committee. This summary demonstrates the emphasis these proposals place on disclosure as a technique for enhancing nonprofit accountability. The Article then evaluates the ability of such disclosure mechanisms to achieve nonprofit accountability gains by improving the behavior of nonprofit actors, facilitating nonprofit enforcement by regulators or others, or both. Unfortunately, due to the structure and characteristics of nonprofit organizations and the resources available for nonprofit enforcement, this analysis reveals …

The Federal Government Lawyer's Duty To Breach Confidentiality, James E. Moliterno

Faculty Publications

The lawyer's duty of confidentiality springs from the lawyer-client relationship and its parameters are determined by the nature of that relationship. The federal government lawyer's client is like no other. The uniqueness of representing the United States calls for a unique approach to the duty of confidentiality. Unlike the private individual client, the government as a client does not speak with a single, unmistakable voice. Unlike the private entity client, the federal government has a paramount interest in the public good, including the public's right to know about government (the entity's conduct), especially its misconduct. The result is a client …

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

The Sec At 70: Let's Celebrate Its Reinvigorated Golden Years, Harvey J. Goldschmid

Notre Dame Law Review

No abstract provided.

How To Be Good: The Emphasis On Corporate Director's Good Faith In The Post-Enron Era, Thomas Rivers

Vanderbilt Law Review

The "irrational exuberance"' of the late 1990s, marked by frenzied stock trading and risky investment strategies, fueled aggressive accounting practices that exaggerated real achievements and camouflaged setbacks. During that time, investors accepted business practices that measured performance by revenue, rather than earnings or cash, and by the number of "eyeballs hitting Internet sites." According to Federal Reserve Chairman Alan Greenspan, "when greed swept through our nation, we were not prepared to address it." The result was accounting scandals at Enron, WorldCom and other organizations, in which directors failed to ask "questions of management to determine whether the stock was rising …

The Sec And Accounting, In Part Through The Eyes Of Pacioli, Matthew J. Barrett

Journal Articles

As part of a symposium marking the seventieth anniversary of the creation of the Securities and Exchange Commission, this article pulls together two threads, namely Luca Pacioli's prominence in accounting and the importance of the Management's Discussion and Analysis (MD&A) requirements that seek to give investors an opportunity to view a public company through the eyes of management, to evaluate the SEC's record on certain accounting issues. Because writers in legal journals have largely ignored Pacioli's efforts, the article begins by highlighting some of the friar's contributions to accounting precepts. The article next applies some of those precepts in a …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Smart Public Policy: Replacing Imprisonment With Targeted Nonprison Sentences And Collateral Sanctions, Nora V. Demleitner

Scholarly Articles

None available

Organization Misconduct: Beyond The Principal-Agent Model, Kimberley D. Krawiec

Florida State University Law Review

No abstract provided.

Realizing The Dream Of William O. Douglas: The Securities And Exchange Commission Takes Charge Of Corporate Governance, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Rules Of Or Substantive Law: Who Controls An Individual's Right To Choose A Lawyer In Today's Corporate Environment, 38 J. Marshall L. Rev. 1265 (2005), Joan Colson

UIC Law Review

No abstract provided.

State Court Class Actions In Mississippi: Why Adopt Them Now, David W. Clark

MC Law Review

No abstract provided.

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

Faculty Scholarship

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Playing With "Monopoly Money": Phony Profits, Fraud Penalties And Equity, Craig M. Boise

Minnesota Law Review, Vols. 1-106:1 (1917-2021)

No abstract provided.

Financial Literacy Education: Panacea, Palliative, Or Something Worse?, Karen Gross

Saint Louis University Public Law Review

No abstract provided.

Corporate Responsibility: Ensuring Independent Judgment Of The General Counsel - A Look At Stock Options, Z. Jill Barclift

Faculty Scholarship

Recent corporate scandals and allegations of corporate fraud in public companies have most people asking how things went so wrong. When looking to assess blame for corporate malfeasance, many ask, “Where were the lawyers?” In several high-profile corporate fraud investigations, outside and in-house lawyers were criticized for not doing more to prevent corporate executives from violating the law, and several general counsels were charged with criminal misconduct by state and federal authorities. Why would the general counsel of a public corporation risk his or her career, reputation, and criminal prosecution to assist executives in perpetuating corporate fraud? The answer may …

Corporate Responsibility: Ensuring Independent Judgment Of The General Counsel - A Look At Stock Options, Z. Jill Barclift

North Dakota Law Review

No abstract provided.

There Ought To Be A Law: The Disclosure Focus Of Recent Legislative Proposals For Nonprofit Reform, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

In Re Adelphia Communications Corp. (Decided Dec. 5, 2003), Phillip Mahoney

NYLS Law Review

No abstract provided.