Digital Commons Network^™

Deficiencies In The Judicial Classification Of Cryptocurrencies Indicating The Need For Legislative Alternatives, Ethan Johnson

Journal of Legislation

The cryptocurrency industry is desperate for regulatory clarification, which would stabilize and secure cryptocurrency and, ultimately, promote increased investment. How the United States ultimately chooses to pursue cryptocurrency regulation has massive implications for future investment and the development of this technology. Disagreement over how to classify cryptocurrency under the investment contract test created in SEC v. Howey, including the recent Second Circuit split, has led to calls for resolving legislation. Cryptocurrency legislation has recently been passed by the European Union, and there are currently proposals for legislation before Congress in the United States.

This Note considers the context surrounding …

The Modern Business Law Practice, Indiana Continuing Legal Education Forum (Iclef)

Indiana Continuing Legal Education Forum 2023

Meeting proceedings of a seminar by the same name, held November 29, 2023.

Privacy Qui Tam, Peter Ormerod

Notre Dame Law Review

Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.

Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.

Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …

Lawyer's Guide To Financial Planning, Indiana Continuing Legal Education Forum (Iclef)

Indiana Continuing Legal Education Forum 2022

Meeting proceedings of a seminar by the same name, held December 1, 2022

A Dual System Of Justice: Financial Institutions And White-Collar Criminal Enforcement, Sebastian Bellm

Notre Dame Law Review

Proposing more severe punishment for white-collar criminals is not a new concept. While many argue for the increased prison time of white-collar offenders, others provide “a counter-perspective on the use of prison sentences.” Other areas of academic publication support the convergence of sentencing guidelines for white-collar and drug-related criminals, particularly in light of utilitarian and retributivist principles. Rather than simply recommending that white-collar criminals should be punished more, this Note proposes two distinct structural solutions that reevaluate the current policies directing the punishment of white-collar criminal conduct. Specifically, this Note argues that the Department of Justice (DOJ) should reconsider the …

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 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 …

Notre Dame Lawyers Connect: April 2020, Notre Dame Law School

Notre Dame Lawyers Connect

Top Story: Covid-19 Update

Leadership: Dean Cole feature in ND Magazine

Community: Faculty, staff donate to support students after Father Mike Show is canceled

Alumni Spotlight: Investigation by Tom Ajamie '85 J.D. was key to Harvey Weinstein's downfall

Staying Connected

• Lifelong friendships from the Class of 1968
• Class of 1975 holds virtual 45th reunion
• NDLA hosts panel discussions with 1Ls over Zoom

Alumni Notes

• Brian Neary
• Monica Bordas Schmucker
• Donovan S. Asmar
• Katherine Coba and Veronica Canton

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.

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 …

Compensation's Role In Deterrence, Russell M. Gold

Notre Dame Law Review

There are plenty of noneconomic reasons to care whether victims are compensated in class actions. The traditional law-and-economics view, however, is that when individual claim values are small, there is no reason to care whether victims are compensated. Rather than compensation deterring wrongdoing is tort law’s primary economic objective. And on this score, law-and-economics scholars contend that only the aggregate amount of money that a defendant expects to pay affects deterrence. They say that it does not matter for deterrence purposes how that money is split between victims, lawyers, and charities. This Article challenges that claim about achieving tort law’s …

$22 Trillion Lost, Zero Wall Street Executives Jailed: Prosecutors Should Utilize Whistleblowers To Establish Criminal Intent, Joseph L. Zales

Notre Dame Journal of International & Comparative Law

The Financial Crisis, which began in the United States on Wall Street in the fall of 2008, cost the global economy trillions of dollars, caused millions of people to lose their jobs, homes, life and retirement savings, and resulted in the collapse or taxpayer-funded government bailout of several century-old, storied financial institutions. Irresponsible risk-taking, fraudulent mortgage and lending practices, and misrepresentations around increasingly complex products are among the many theories that have been put forth as to what caused the Financial Crisis. Importantly, there are numerous state and federal statutes on the books prohibiting and criminalizing such activity. To put …

Yates V. United States: A Case Study In Overcriminalization, Stephen F. Smith

Journal Articles

In Yates v. United States, the Supreme Court will decide whether tossing undersized fish overboard can be prosecuted under the Sarbanes–Oxley Act of 2002, a law aimed at preventing massive frauds of the sort that led to the collapse of Enron and sent shock waves throughout the economy. Although the legal issue is narrow, the case has far-reaching significance. The Yates prosecution is a case study in the dangers posed by “overcriminalization”: the existence of multitudinous, often overlapping criminal laws that are so poorly defined that they sweep within their ambit conduct far afield from their intended target.

The …

Revisiting The "Merger Problem" In Money Laundering Prosecutions Post-Santos And The Fraud Enforcement And Recovery Act Of 2009, Leslie A. Dickinson

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

When Moral Reasoning And Ethics Training Fail: Reducing White Collar Crime Through The Control Of Opportunities For Deviance, Cynthia A. Koller, Laura A. Patterson, Elizabeth B. Scalf

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Privacy In The Federal Bankruptcy Courts, Mary Jo Obee, William C. Plouffe Jr.

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

The Surf Is Up, But Who Owns The Beach - Who Should Regulate Commerce On The Internet, Charles R. Topping

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Sarbanes-Oxley, Kermit The Frog, And Competition Regarding Audit Quality, Matthew J. Barrett

Journal Articles

The regulatory scheme after Sarbanes-Oxley has significantly improved public company audits in the United States, or at least has demonstrated the potential to do so, but the obligation to preserve client confidentially still prevents auditors from competing for new clients on the basis of audit quality. This paper suggests a simple way for the SEC to facilitate such competition within the existing regulatory framework. The SEC should require issuers and registrants to disclose whether their independent audits uncovered any financial fraud and, within specified ranges, the number and amount of all audit adjustments incorporated into the financial statements filed with …

Class Action Criminality, Lisa L. Casey

Journal Articles

This paper examines the criminal prosecution of Milberg Weiss, formerly the most successful plaintiffs’ securities class action firm in the country, for allegedly making undisclosed incentive payments to class representatives. In particular, the article examines the government’s primary charge - that the firm’s practice violated the “honest services” theory of mail and wire fraud. The government’s application of this theory presumes a fiduciary relationship between the class representatives and the class which has never been clearly delineated and, indeed, is against the weight of case law and the realities of class action litigation.

The Article proceeds on two different levels. …

(Self-)Policing The Market: Congress's Flawed Approach To Securities Law Reform, Shannon Rose Selden

Journal of Legislation

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 …

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

Notre Dame Law Review

No abstract provided.

The Sec At 70: Time For Retirement, A.C. Pritchard

Notre Dame Law Review

No abstract provided.

The Securities And Exchange Commission's Pre- And Post-Enron Responses To Corporate Financial Fraud: An Analysis And Evaluation, David Ruder, Yuji Sun, Areck Sycz

Notre Dame Law Review

No abstract provided.

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

Notre Dame Law Review

No abstract provided.

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 …

Legislating Corporate Ethics;Speech, Ralph Nader

Journal of Legislation

No abstract provided.

"Tax Services" As A Trojan Horse In The Auditor Independence Provisions Of Sarbanes-Oxley, Matthew J. Barrett

Journal Articles

This article argues that the failure of the Sarbanes-Oxley Act of 2002 (SOx) to prohibit auditors for public companies from also providing tax services to audit clients or their executives and selling tax shelters to anyone remains a Trojan horse that threatens both the investing public and the auditing profession. Although SOx enacted several reforms designed to enhance auditor independence, the legislation and implementing regulations that the Securities and Exchange Commission (SEC) subsequently promulgated allow an auditor for a publicly traded company to provide tax services to the company as long as the audit committee preapproves the engagement.

As the …

Ndls Update 11/2003-12/2003, Notre Dame Law School

NDLS Update

No abstract provided.