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Articles 31 - 60 of 113
Full-Text Articles in Entire DC Network
How May The United States Leverage Its Fatca Iga Bilateral Process To Incentivize Good Tax Administrations Among The World Of Black Hat And Grey Hat Governments? A Carrot & Stick Policy Proposal, William Byrnes
Faculty Scholarship
Professor William Byrnes examines whether it is prudent for taxpayers to trust the governments of the 117 countries that scored a fifty or below on Transparency International’s corruption index. The complete information system invoked by the Foreign Account Tax Compliance Act (FATCA) encourages, even prolongs, the bad behavior of black hat governments by providing fuel (financial information) to feed the fire of corruption and suppression of rivals. Professor Byrnes recommends that the United States leverage a “carrot-stick” policy tool to incentivize bad actors to adopt best tax administration practices.
Reconceptualizing The Whistleblower’S Dilemma, Miriam H. Baer
Reconceptualizing The Whistleblower’S Dilemma, Miriam H. Baer
Faculty Scholarship
Since its inception in August 2011, the SEC’s whistleblowing program has received over 18,000 tips and has distributed over thirty awards. The Commission’s Enforcement Division has lauded the program, emphasizing its recoveries (over $500 million in the aggregate) as well as its generous bounties (over $100 million total). Nevertheless, an agency focused on deterrence must pay attention to the volume of credible reports it receives from insiders, particularly because deterrence has been shown to rest so strongly on the putative wrongdoer’s perceived probability of detection. From that perspective, the program’s success is more ambiguous: twenty-six covered actions (some involving more …
Duties To Organizational Clients, William H. Simon
Duties To Organizational Clients, William H. Simon
Faculty Scholarship
Loyalty to an organizational client means fidelity to the substantive legal structure that constitutes it. Although this principle is not controversial in the abstract, it is commonly ignored in professional discourse and doctrine. This article explains the basic notion of organizational loyalty and identifies some mistaken tendencies in discourse and doctrine, especially the "Managerialist Fallacy" that leads lawyers to conflate the client organization with its senior managers. The article then applies the basic notion to some hard cases, concluding with a critical appraisal of the rationale for confidentiality with organizational clients.
Ev'ry American Experiment Sets A Precedent: Why One Florida State Court's Bitcoin Opinion Is Everyone's Business, Meg Holzer, Allison Caffarone
Ev'ry American Experiment Sets A Precedent: Why One Florida State Court's Bitcoin Opinion Is Everyone's Business, Meg Holzer, Allison Caffarone
Faculty Scholarship
No abstract provided.
Corporate Governance In An Era Of Compliance, Sean J. Griffith
Corporate Governance In An Era Of Compliance, Sean J. Griffith
Faculty Scholarship
Compliance is the new corporate governance. The compliance function is the means by which firms adapt behavior to legal, regulatory, and social norms. Formerly, this might have been conceived as a typical governance matter to be handled at the discretion of the board of directors. Compliance, however, does not fit traditional models of corporate governance. It does not come from the board of directors, state corporate law, or federal securities law. Compliance amounts instead to an internal governance structure imposed upon the firm from the outside by enforcement agents. This insight has important implications, both practical and theoretical, for corporate …
Perspectives On Regulating Systemic Risk, Steven L. Schwarcz
Perspectives On Regulating Systemic Risk, Steven L. Schwarcz
Faculty Scholarship
This book chapter, which synthesizes several of the author’s articles, attempts to provide useful perspectives on regulating systemic risk. First, it argues that systemic shocks are inevitable. Accordingly, regulation should be designed not only to try to reduce those shocks but also to protect the financial system against their unavoidable impact. This could be done, the chapter explains, by applying chaos theory to help stabilize the financial system. The chapter then focuses on trying to prevent excessive corporate risk-taking, which is one of the leading triggers of systemic shocks and widely regarded to have been a principal cause of the …
The Metamorphosis Of Corporate Criminal Prosecutions, Brandon L. Garrett
The Metamorphosis Of Corporate Criminal Prosecutions, Brandon L. Garrett
Faculty Scholarship
Corporate criminal enforcement has exploded in this country. Billion dollar fines are now routine across a range of industries, where they were unimaginable a decade ago. We have federal prosecutors and the Department of Justice, together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice. Yet deep concerns remain that corporate prosecution settlements offer lenient and non-transparent deals that fail to hold either the corporations or the culpable individuals adequately accountable. Now, the DOJ has begun to rethink the evolving corporate prosecution approach through the adoption …
The Rise Of Bank Prosecutions, Brandon L. Garrett
The Rise Of Bank Prosecutions, Brandon L. Garrett
Faculty Scholarship
Before 2008, prosecutions of banks had been quite rare in the federal courts, and the criminal liability of banks and bankers was not a topic that received much public or scholarly attention. In the wake of the last financial crisis, however, critics have begun to ask whether prosecutors adequately held banks and bankers accountable for their crimes. In this Essay, I describe the remarkable rise in the number of bank prosecutions in recent years, as well as the still steeper rise in criminal penalties imposed on banks. 2015 was the year that bank prosecutions finally came into their own, both …
Excessive Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz
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 …
The Corporate Criminal As Scapegoat, Brandon L. Garrett
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 …
Leniency In Chinese Criminal Law? Everyday Justice In Henan, Benjamin L. Liebman
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 …
The Duty To Manage Risk, A. Christine Hurt
Negotiating Bribery: Toward Increased Transparency, Consistency, And Fairness In Pretrial Bargaining Under The Foreign Corrupt Practices Act, Peter Reilly
Faculty Scholarship
This article will explore the factors that contribute to less-than-optimal transparency, consistency, and fairness in pre-trial bargaining under the Foreign Corrupt Practices Act. The article will conclude with recommendations to strengthen the current system and make it more fair.
The article is divided into four Parts: Part I will discuss the extent of the bribery problem worldwide; the history of the FCPA; and the reasons behind the recent dramatic increase in FCPA enforcement.
Part II will discuss the elements that make up FCPA ‘jurisprudence’ given that so few cases are litigated in court; the history of using DPAs and NPAs …
Corporate Headhunting, Daniel C. Richman
Corporate Headhunting, Daniel C. Richman
Faculty Scholarship
A wide range of commentators – including some pretty sophisticated ones – have raked through the ruins of the 2008 financial collapse, confident that there are significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to bring them. Their confidence that blockbuster criminal cases could have been made rests on shaky grounds. So, too, does their faith that the hunting of heads is a socially productive response to the collapse. If anything, a focus on headhunting will only distract from, and reduce the pressure for, efforts to explain the collapse and …
Cleaning Up The Financial Crisis Of 2008: Prosecutorial Discretion Or Prosecutorial Abdication?, David J. Reiss, Bradley T. Borden
Cleaning Up The Financial Crisis Of 2008: Prosecutorial Discretion Or Prosecutorial Abdication?, David J. Reiss, Bradley T. Borden
Faculty Scholarship
No abstract provided.
Unregulated Corporate Internal Investigations: Achieving Fairness For Corporate Constituents, Bruce A. Green, Ellen S. Progdor
Unregulated Corporate Internal Investigations: Achieving Fairness For Corporate Constituents, Bruce A. Green, Ellen S. Progdor
Faculty Scholarship
This article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief …
Regulatory Effectiveness & Offshore Financial Centers, Andrew P. Morriss, Clifford C. Henson
Regulatory Effectiveness & Offshore Financial Centers, Andrew P. Morriss, Clifford C. Henson
Faculty Scholarship
Onshore jurisdictions, such as the United States, United Kingdom, France and Germany, are critical of offshore financial centers (OFCs), such as Bermuda, the Cayman Islands, and the Channel Islands. Arguments against OFCs include claims that their regulatory oversight is lax, allowing fraud and criminal activity. In this article, we present cross-jurisdictional data, showing that OFCs are not lax. We also provide qualitative analyses of regulatory effectiveness, demonstrating that input-based measures of regulation are inappropriate metrics for comparing jurisdictions. Based on both quantitative input measures and a qualitative assessment, we reject the onshore critique of OFCs as bastions of laxity.
Federal White Collar Sentencing In The United States: A Work In Progress, Daniel C. Richman
Federal White Collar Sentencing In The United States: A Work In Progress, Daniel C. Richman
Faculty Scholarship
At first blush, it seems odd for an American contributor to an international conference on sentencing to focus on "high end" federal white collar sentencing. After all, federal cases make up a relatively small part of the U.S. criminal justice system. (Between October 2005 and September 2006, about 1,132,290 people were sentenced for a felony in state courts, and 73,009 in federal courts.) Even within the federal system, white collar cases of all sorts are a relatively small part of a criminal docket dominated by immigration, drug, and gun cases, which together comprised nearly 73% of all federal cases in …
Risk-Shifting Through Issuer Liability And Corporate Monitoring, Martin Gelter
Risk-Shifting Through Issuer Liability And Corporate Monitoring, Martin Gelter
Faculty Scholarship
This article explores how issuer liability re-allocates fraud risk and how risk allocation may reduce the incidence of fraud. In the US, the apparent absence of individual liability of officeholders and insufficient monitoring by insurers under-mine the potential deterrent effect of securities litigation. The underlying reasons why both mechanisms remain ineffective are collective action problems under the prevailing dispersed ownership structure, which eliminates the incentives to moni-tor set by issuer liability. This article suggests that issuer liability could potentially have a stronger deterrent effect when it shifts risk to individuals or entities holding a larger financial stake. Thus, it would …
Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman
Overcriminalization For Lack Of Better Options: A Celebration Of Bill Stuntz, Daniel C. Richman
Faculty Scholarship
The unity of Bill Stuntz's character – his profound integrity – makes it easy to move from a celebration of his friendship (which I’ve treasured since we first met back in 1985) to one of his scholarship, for creativity, wisdom, and humility are strengths not just of Bill himself but of his work. Even as his broad brush strokes have fundamentally advanced our understanding of the interplay between substantive criminal law, criminal procedure, and criminal justice institutions over time, Bill's work – like Bill himself – welcomes and endures sustained engagement. Humility is appropriate for me, too, as I offer …
Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott
Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott
Faculty Scholarship
No abstract provided.
The Consumer Indebtedness Crisis: Law School Clinics As Laboratories For Generating Effective Legal Responses, Peggy Maisel, Natalie Roman
The Consumer Indebtedness Crisis: Law School Clinics As Laboratories For Generating Effective Legal Responses, Peggy Maisel, Natalie Roman
Faculty Scholarship
For the legal system to operate effectively, it must address problems arising from the absence of needed laws, or, if enacted, of laws that have been drafted poorly or are not being implemented in a fair and just manner. Since law schools are generally part of a larger university community, they are uniquely placed to serve as laboratories to find solutions to such problems, perhaps nowhere more so than in their legal clinics. The latter have in fact often played the role of legal innovators, but their contributions to the law and therefore to society at large have been little …
Mapping The American Shareholder Litigation Experience: A Survey Of Empirical Studies Of The Enforcement Of The U.S. Securities Law, James D. Cox, Randall S. Thomas
Mapping The American Shareholder Litigation Experience: A Survey Of Empirical Studies Of The Enforcement Of The U.S. Securities Law, James D. Cox, Randall S. Thomas
Faculty Scholarship
In this paper, we provide an overview of the most significant empirical research that has been conducted in recent years on the public and private enforcement of the federal securities laws. The existing studies of the U.S. enforcement system provide a rich tapestry for assessing the value of enforcement, both private and public, as well as market penalties for fraudulent financial reporting practices. The relevance of the U.S. experience is made broader by the introduction through the PSLRA in late 1995 of new procedures for the conduct of private suits and the numerous efforts to evaluate the effects of those …
Lying And Getting Caught: An Empirical Study Of The Effect Of Securities Class Action Settlements On Targeted Firms, James D. Cox, Lynn Bai, Randall S. Thomas
Lying And Getting Caught: An Empirical Study Of The Effect Of Securities Class Action Settlements On Targeted Firms, James D. Cox, Lynn Bai, Randall S. Thomas
Faculty Scholarship
The ongoing Great Recession has triggered numerous proposals to improve the regulation of financial markets and, most importantly, the regulation of organizations such as credit rating agencies, underwriters, hedge funds, and banks, whose behavior is believed to have caused the credit crisis that spawned the economic collapse. Not surprisingly, some of the reform efforts seek to strengthen the use of private litigation. Private suits have long been championed as a necessary mechanism not only to compensate investors for harms they suffer from financial frauds but also to enhance deterrence of wrongdoing. However, in recent years there has been a chorus …
Enforcing International Corrupt Practices Law, Paul D. Carrington
Enforcing International Corrupt Practices Law, Paul D. Carrington
Faculty Scholarship
This Essay strives to advance the current international movement to
deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in “developing” nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.
Let The Securities And Exchange Commission Outsource Enforcement By Litigation: A Proposal, Tamar Frankel
Let The Securities And Exchange Commission Outsource Enforcement By Litigation: A Proposal, Tamar Frankel
Faculty Scholarship
The stories of Stanford's suspected Ponzi scheme, and Madoff s proven scheme, as well as the Securities and Exchange Commission's lenient settlements with very large suspected violators, and its focus on the numerous, small accused, have raised questions about the Commission's enforcement resources. This Article suggests that the Commission outsource civil cases against very large defendants when the examination of the defendant finds signs of wrongdoing under the securities acts. The Commission already outsources two types of legal services and the United States government practices extensive outsourcing. This article suggests that with appropriate limitations and controls outsourcing of enforcement litigation …
Evil Has A New Name (And A New Narrative): Bernard Madoff, A. Christine Hurt
Evil Has A New Name (And A New Narrative): Bernard Madoff, A. Christine Hurt
Faculty Scholarship
No abstract provided.
Governing Corporate Compliance, Miriam H. Baer
Governing Corporate Compliance, Miriam H. Baer
Faculty Scholarship
No abstract provided.
Securities Laws In Soap Operas And Telenovelas: Are All My Children Engaged In Securities Fraud?, Elena Marty-Nelson
Securities Laws In Soap Operas And Telenovelas: Are All My Children Engaged In Securities Fraud?, Elena Marty-Nelson
Faculty Scholarship
Securities law images are broadcast to millions worldwide through soap operas and telenovelas. Doctors, and professionals in other fields, have recognized the power of dramatic serials. They have generated a rich body of scholarship demonstrating how these mediums of popular culture impart health messages or effect social change. This author describes some of those empirical studies and suggests that legal scholars conduct similar empirical or ethnographic studies, particularly on the impact of portrayals of complex legal issues such as securities fraud in serials. The author explains differences and similarities between telenovelas and soap operas and compares portrayals of legal issues …
Governing Corporate Compliance, Miriam H. Baer
Governing Corporate Compliance, Miriam H. Baer
Faculty Scholarship
In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number …