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The Future Of Shareholder Democracy In The Shadow Of The Financial Crisis, Alan Dignam Mar 2013

The Future Of Shareholder Democracy In The Shadow Of The Financial Crisis, Alan Dignam

Seattle University Law Review

This Article argues that the U.K. regulatory response to the financial crisis, in the form of “stewardship” and shareholder engagement, is an error built on a misunderstanding of the key active role shareholders played in the enormous corporate governance failure represented by the banking crisis. Shareholders’ passivity, rather than activity, has characterized the reform perception of the shareholder role in corporate governance. This characterization led to the conclusion that if only they were more active they would be more responsible “stewards” of the corporation. If, as this Article argues, shareholder activity was part of the problem in the banks, then …


Limits Of Disclosure, Steven M. Davidoff, Claire A. Hill Mar 2013

Limits Of Disclosure, Steven M. Davidoff, Claire A. Hill

Seattle University Law Review

One big focus of attention, criticism, and proposals for reform in the aftermath of the 2008 financial crisis has been securities disclosure. Many commentators have emphasized the complexity of the securities being sold, arguing that no one could understand the disclosure. Some observers have noted that disclosures were sometimes false or incomplete. What follows these issues, to some commentators, is that, whatever other lessons we may learn from the crisis, we need to improve disclosure. How should it be improved? Commentators often lament the frailties of human understanding, notably including those of everyday retail investors—people who do not understand or …


The Market For Corporate Control: New Insights From The Financial Crisis In Ireland, Blanaid Clarke Mar 2013

The Market For Corporate Control: New Insights From The Financial Crisis In Ireland, Blanaid Clarke

Seattle University Law Review

In an ever-changing legal and economic environment, it is incumbent on us to subject all such premises to scrutiny in order to consider their continued application. This Article considers the effect of the MCC on the management of Irish credit institutions in the run-up to the financial crisis. Part II sets the background by explaining how the MCC has become an integral part of takeover regulation in Europe. The weaknesses in the efficient market hypothesis, which underlie the MCC and are summarized in Part III, appear not to have undermined the theory’s credibility in the minds of public policy makers …


Banking And Competition In Exceptional Times, Brett Christophers Mar 2013

Banking And Competition In Exceptional Times, Brett Christophers

Seattle University Law Review

This Article has two main aims: to provide a critical consideration of this contemporary antitrust “revival” from an explicitly political–economic perspective and to point toward some theoretical resources that might facilitate such an assessment.Part II looks backward at the evolution and application of competition law in the banking sector over the relatively longue durée. In this Part, I invoke the concept of “exception” to understand how antitrust policy has developed, and my chief interlocutors are the perhaps unlikely figures of Giorgio Agamben and Karl Marx. Part III looks forward and considers the central question around which the recent resurgence of …


Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner Mar 2013

Conceptions Of Corporate Purpose In Post-Crisis Financial Firms, Christopher M. Bruner

Seattle University Law Review

American “populism” has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose—that is, the aims toward which society expects corporate decision-making to be directed. In this Article, I assess the impact of American populism upon prevailing conceptions of corporate purpose, contrasting its unique expression in the context of financial firms with that arising in other contexts. I then examine its impact upon corporate governance reforms enacted in the wake of the financial …


Shareholders And Social Welfare, William W. Bratton, Michael L. Wachter Mar 2013

Shareholders And Social Welfare, William W. Bratton, Michael L. Wachter

Seattle University Law Review

This Article addresses the questions of whether and how shareholders matter for social welfare, finding that different and contrasting answers have prevailed during different periods of recent history. Observers in the mid-twentieth century believed that the socioeconomic characteristics of real-world shareholders were highly pertinent to social welfare inquiries. But those observers went on to conclude that there followed no justification for catering to shareholder interest, for shareholders occupied elite social strata. The answer changed during the twentieth century’s closing decades, when observers came to accord the shareholder interest a key structural role in the enhancement of economic efficiency even as …


Central Bank-Led Capitalism?, Andrew Bowman Et Al. Mar 2013

Central Bank-Led Capitalism?, Andrew Bowman Et Al.

Seattle University Law Review

Since the first acute episode of financial crisis in autumn 2008, the world has manifestly changed in dramatic ways that reinforce skepticism and challenge the old assumptions of political economy. Hence this Article about central banks, whose pivotal role in post-crisis capitalism has not been adequately politically or theoretically addressed in any existing literature and can now be opened up by a conjunctural analysis that recognises uncertainty and mutability. There are several reasons why this is an intellectually and politically interesting task. Central banks have become an object of controversy and public attention after being pivotally involved in crisis management, …


Making Money: Leverage And Private Sector Money Creation, Margaret M. Blair Mar 2013

Making Money: Leverage And Private Sector Money Creation, Margaret M. Blair

Seattle University Law Review

Contrary to the beliefs of most macroeconomists, the financial sector in the United States has grown too large in the last few decades as a consequence of financial innovation that has encouraged the use of too much “leverage” (financing with debt) by financial institutions (as well as by consumers and other borrowers). In Part II, I connect the dots between excessive leverage, risk, and financial market volatility. In Part III, I explore the role that the “shadow-banking sector” has had in driving leverage. In Part IV, I explain why leverage at the level of financial institutions matters for the macroeconomy. …


The Governance And Disclosure Of The Firm As An Enterprise Entity, Yuri Biondi Mar 2013

The Governance And Disclosure Of The Firm As An Enterprise Entity, Yuri Biondi

Seattle University Law Review

During recent decades, the rapid pace of financial markets involving new modes of management, governance, and regulation has framed business firms. This corporate drift toward financialization is summarized under the “shareholder value” label. What do financial markets do? Unequivocally, they organize trading on shares that are securities: tradable financial entitlements established by law, which formalize expectations, and claims of financial rents paid by the issuing company. Actually, how continued quotation on share exchanges came to be the barometer of economic or social welfare is a different matter. The latter adoption has required quite a great leap from “the euthanasia of …


Rationales And Designs To Implement An Institutional Big Bang In The Governance Of Global Finance, Emilios Avgouleas Mar 2013

Rationales And Designs To Implement An Institutional Big Bang In The Governance Of Global Finance, Emilios Avgouleas

Seattle University Law Review

The colossal challenges facing international finance pertain to both its governance system and its dual utility and speculative functions, which have become ever more intertwined with the advent of financial innovation. In the aftermath of the Global Financial Crisis (GFC), a number of significant reforms are under way to address the second issue, including additional capital and liquidity requirements for banks, measures to battle interconnectedness in the financial sector, new resolution regimes that would allow banks to fail more easily, and stricter frameworks for bank supervision and monitoring of systemic risk. Yet limited progress has been made with respect to …


Framing Address: A Framework For Analyzing Financial Market Transformation, Steven L. Schwarcz Mar 2013

Framing Address: A Framework For Analyzing Financial Market Transformation, Steven L. Schwarcz

Seattle University Law Review

The title of this Symposium originally was “Rethinking Financial and Securities Markets.” It is, of course, somewhat presumptuous for scholars to try to rethink financial markets per se. Markets, including financial markets, are driven primarily by supply and demand. But scholars can and should try to influence the future of financial markets by rethinking their fundamental aspects. This Symposium presents work from leading scholars in the fields of law, economics, finance, and accounting. I will try to frame the discussion from the perspectives of these four disciplines. First, however, we need to identify what it is about financial markets that …


Race Bias And The Importance Of Consciousness For Criminal Defense Attorneys, Andrea D. Lyon Apr 2011

Race Bias And The Importance Of Consciousness For Criminal Defense Attorneys, Andrea D. Lyon

Seattle University Law Review

This Article will begin with a discussion of race bias and will examine who in the criminal justice system has such biases. These concepts will provide a backdrop to the next Part, where I will turn to an analysis about the need for criminal defense lawyers to be conscious of race bias. I focus on two specific circumstances in which awareness of one’s own racial bias is imperative: interacting with clients and voir dire. But first, we must come to an understanding about the nature of race bias itself.


Law Clerks Gone Wild, Parker B. Potter, Jr. Aug 2010

Law Clerks Gone Wild, Parker B. Potter, Jr.

Seattle University Law Review

This Article grows out of my delight in seeing fellow law clerks break through the paper curtain and onto the pages of the Federal Reporter, the Federal Supplement, or some other compendium of judicial opinions. While my fascination with law clerks as the subjects rather than the instruments of judicial writing is probably not universal, I have selected the opinions I discuss in this Article with an eye toward entertaining—and maybe even instructing, if only slightly—the clerkigentsia and the judiciary. So, with that audience in mind, I set off in search of law clerks who had gone wild …


Ethics As Self-Transcendence: Legal Education, Faith, And An Ethos Of Justice, Patrick Brown Jan 2009

Ethics As Self-Transcendence: Legal Education, Faith, And An Ethos Of Justice, Patrick Brown

Seattle University Law Review

Ethics is fundamentally about ethos, attitude, one's grounded stance or existential orientation, not the extrinsicism of concepts or the formalism of rules. Ethics concerns not just any orientation, but that intimate and demanding form of personal development manifested in the experience and practice of self-transcendence. Conversely, the neglect of ethics as self-transcendence introduces deep distortions into the way we socialize students into notions of ethics and professionalism. It introduces subsequent distortions into the conditions of legal practice. It encourages a superficial and extrinsic minimalism. It encourages, in effect, the disastrous conception of legal ethics as ethical legalism. I begin by …


The Practice Of Law As Response To God's Call, Susan J. Stabile Jan 2009

The Practice Of Law As Response To God's Call, Susan J. Stabile

Seattle University Law Review

Legal practice, like all human work, is a religious calling, a vocation. Section I of this Article will focus on work as a calling. Although I refer in my title to the practice of law as a response to God's call, I suggest that even those who are uncomfortable with the use of religious language can share a notion of law as a calling. Section II will address the need to discern one's place in the legal profession. Implicit in the notion of a calling is that our professional decisions are not merely internally driven, but are in response to …


Deception In Undercover Investigations: Conduct-Based Vs. Status-Based Ethical Analysis, Barry R. Temkin Jan 2008

Deception In Undercover Investigations: Conduct-Based Vs. Status-Based Ethical Analysis, Barry R. Temkin

Seattle University Law Review

As part of the public school system, online schools “have a responsibility to provide equal access to [their] educational opportunities[,] and restricting access to these opportunities can be problematic, if not illegal.” Given the rapid growth of online education in Washington, legislators must examine whether online schools that receive public education funding are benefiting the entire public or are benefiting merely a select group of students. Part II of this Comment briefly discusses the history of online schools in Washington, including how they receive funding within Washington's unique statutory and regulatory framework. Part III then examines how online schools discriminate …


Washington's New Rules Of Professional Conduct: A Balancing Act , Johanna M. Ogdon Jan 2006

Washington's New Rules Of Professional Conduct: A Balancing Act , Johanna M. Ogdon

Seattle University Law Review

Part II begins by exploring the history of the Rules of Professional Conduct. Part II then briefly turns to the origins of the modern debate over candor and confidentiality and focuses on two of the most essentially opposed and well known scholars on the issue, Judge Marvin Frankel and Professor Monroe Freedman. Part III dissects Washington's newly adopted RPC, focusing on Rules 1.6 and 3.3. Part IV suggests that although the new rules mostly balance a client's interest in confidentiality with a court's interest in candor, attorneys should be given the discretion to reveal client confidences when necessary. In conclusion, …


The Code For Corporate Citizenship: States Should Amend Statutes Governing Corporations And Enable Corporations To Be Good Citizens, Elisa Scalise Jan 2005

The Code For Corporate Citizenship: States Should Amend Statutes Governing Corporations And Enable Corporations To Be Good Citizens, Elisa Scalise

Seattle University Law Review

Corporations are important social actors. They are created by law and create products, services, jobs, and wealth upon which modem societies rely. Investments injected by corporations bring jobs, capital, and technology to communities, thereby raising living standards and creating derivative rights such as education, health and housing, and political freedoms. Modem corporations allow entrepreneurs to raise massive amounts of capital for large projects and research, which results in innovation and a wide range of products and services. However, these same corporations can also cause social harm. They are structured in such a way that it is possible for agents in …


Misuse Of The Grand Jury: Forcing A Putative Defendant To Appear And Plead The Fifth Amendment, Aaron M. Clemens Jan 2005

Misuse Of The Grand Jury: Forcing A Putative Defendant To Appear And Plead The Fifth Amendment, Aaron M. Clemens

Seattle University Law Review

This article considers the propriety of an indictment of a person who was subpoenaed to testify before a grand jury at which the person invoked the Fifth Amendment privilege against self-incrimination on any questions relevant to the investigation and where the government knew that this person would assert the privilege. Part I explores the prosecutor's power to secure evidence and present it the grand jury. Part II describes how the Fifth Amendment's privilege against self-incrimination limits the prosecutor's power to secure evidence and present it to the grand jury. Part III applies the privilege to a situation where a prosecutor …


The Practical Soul Of Business Ethics: The Corporate Manager's Dilemma And The Social Teaching Of The Catholic Church, Leo L. Clarke, Bruce P. Frohnen, Edward C. Lyons Jan 2005

The Practical Soul Of Business Ethics: The Corporate Manager's Dilemma And The Social Teaching Of The Catholic Church, Leo L. Clarke, Bruce P. Frohnen, Edward C. Lyons

Seattle University Law Review

This Article focuses on and attempts to dispel an overly narrow view of the moral responsibilities of corporations and their managers. Many businessmen and lawyers, relying on prevailing approaches to business ethics, labor under the misperception that the moral ladder in the business world has only one rung: "Be honest." Americans, however, should, can and do expect more from the managers of our large corporations, and virtually every Fortune 100 company publicly espouses a "social responsibility" far exceeding mere honesty. Further, as is demonstrated, American jurisprudence is consistent with those expectations. This Article's thesis is that Catholic Social Teaching provides …


Gambling With Ethics And Constitutional Rights: A Look At Issues Involved With Contingent Fee Arrangements In Criminal Defense Practice, Adam Silberlight Jan 2004

Gambling With Ethics And Constitutional Rights: A Look At Issues Involved With Contingent Fee Arrangements In Criminal Defense Practice, Adam Silberlight

Seattle University Law Review

This Article attempts to shed light on the use of a contingent fee arrangement in criminal defense, and offers differing views pertaining to this topic. First, this Article will generally describe what a contingent fee is. Second, the role and potential application of the contingent fee in both criminal and civil settings will be discussed. Third, problems associated with such an arrangement in criminal defense practice will be addressed, as will certain positive aspects of such an arrangement. Finally, this article will discuss how lawmakers could address this issue to ensure that contingency arrangements cannot be abused.


Rethinking Attorney Liens: Why Washington Attorneys Are Forced Into "Involuntary" Pro Bono, Zach Elsner Jan 2004

Rethinking Attorney Liens: Why Washington Attorneys Are Forced Into "Involuntary" Pro Bono, Zach Elsner

Seattle University Law Review

After a brief discussion of the history of the attorney lien in Part II, Part III discusses the basic rules governing the attorney lien in Washington. Part IV of this Comment discusses the various limitations on attorney liens and how those limitations have discouraged use or encouraged misuse of the statute. Part IV begins with a discussion of general professional responsibility concerns and continues with withdrawal and termination as they relate to attorney liens. Part IV concludes the Comment with a discussion of the inconsistencies of the retaining lien and a discussion of the various limitations on the charging liens.


The "Watchman For Truth": Professional Licensing And The First Amendment, Robert Kry Jan 2000

The "Watchman For Truth": Professional Licensing And The First Amendment, Robert Kry

Seattle University Law Review

This Article addresses a particular aspect of many kinds of professional practice: the rendering of advice to clients. Drawing on their knowledge and experience, professionals may recommend a certain course of action to their clients in the course of their practice. The client may then assess the recommendation and decide whether or not to act on it. This aspect of professional practice involves a speech-related activity, so government regulation might raise at least a colorable First Amendment issue. This Article also focuses on a particular aspect of the regulation of professional advice, namely, licensure. When professional advice rendering activities are …


The Ethics Of Advocacy For The Mentally Ill: Philosophic And Ethnographic Considerations, Bruce A. Arrigo, Christopher R. Williams Jan 2000

The Ethics Of Advocacy For The Mentally Ill: Philosophic And Ethnographic Considerations, Bruce A. Arrigo, Christopher R. Williams

Seattle University Law Review

In this Article, we critically address several philosophical underpinnings of ethical decision-making that impact persons with psychiatric disorders. We focus our attention, however, upon an admittedly limited target area. Thus, we canvass a select number of significant issues that pose unique problems for humanity. The purpose of these excursions is that of reflection. In brief, we will speculatively examine: (1) the relationship between human rights and the law; (2) the relationship between mental illness and the law (i.e. the rights of the mentally ill); (3) the ethics of involuntary confinement (i.e., taking away and giving back rights to the mentally …


Legal Ethics And A Civil Action, Kevin E. Mohr Jan 1999

Legal Ethics And A Civil Action, Kevin E. Mohr

Seattle University Law Review

This Article shows how A Civil Action can be used to supplement a course in Professional Responsibility. A Civil Action contains many events that can similarly be used to introduce students to ethical dilemmas they will confront when they enter the profession. These events can breathe life into otherwise dry discussions of acceptable ethical behavior as set out in ethical codes. In accord with the Lessons from Woburn Project's goal to make A Civil Action and its associated materials into a powerful teaching tool, the book's events vividly illustrate the ethical parameters within which a lawyer must operate, ethical parameters …


Family Matters: Nonwaivable Conflicts Of Interest In Family Law, Steven H. Hobbs Jan 1998

Family Matters: Nonwaivable Conflicts Of Interest In Family Law, Steven H. Hobbs

Seattle University Law Review

The hypotheticals prepared for this special symposium issue ask if a lawyer can provide legal services to a family when one family member yields major decision-making authority to another family member. At stake is the disposition of significant individual and family assets. The traditional model of legal representation would require each family member to have an advocate protecting and promoting his or her individual interests while negotiating a reasonable accommodation of the other family members' interests. The challenge presented by the hypotheticals is whether an attorney can simultaneously represent apparent multiple interests without violating ethical provisions.


Love Among The Ruins: The Ethics Of Counseling Happily Married Couples, Teresa Stanton Collett Jan 1998

Love Among The Ruins: The Ethics Of Counseling Happily Married Couples, Teresa Stanton Collett

Seattle University Law Review

This Article explores the professional tension experienced by lawyers when clients embrace an ideal of marriage as "the two shall become as one," in a legal system that has repudiated this understanding in favor of the "reality" of marriage as an association dedicated to the individual fulfillment of the man and woman involved. Part II describes the three purposes of estate planning that define the parameters of any proposed representation. Estate planning lawyers assist clients in minimizing taxes, directing gifts to particular beneficiaries, and insuring the continuing care of loved ones. The decision to accept or reject proposed representation often …


The Morality Of Choice: Estate Planning And The Client Who Chooses Not To Choose, Janet L. Dolgin Jan 1998

The Morality Of Choice: Estate Planning And The Client Who Chooses Not To Choose, Janet L. Dolgin

Seattle University Law Review

The Symposium focuses around two hypotheticals. The question posed about each-whether it is ethical for an estate lawyer to represent spouses, one of whom chooses subservience to the interests of the other-provokes discussion of a broad set of concerns about the scope and meaning of the contemporary family, and about the appropriate parameters of legal representation of family members.


Dependency And Delegation: The Ethics Of Marital Representation, Naomi Cahn, Robert Tuttle Jan 1998

Dependency And Delegation: The Ethics Of Marital Representation, Naomi Cahn, Robert Tuttle

Seattle University Law Review

The two hypotheticals for this symposium concern a lawyer who is asked to represent a married couple in which one spouse would like to cede decision-making authority to the other. As we have examined the lawyer's ethical responsibilities, we have identified two distinct, but conceptually related, issues of legal ethics. The first, a threshold question, deals with the nature of marital representation: May a lawyer simultaneously represent both husband and wife? And if so, how should the representation be structured? The second adds an additional layer of complexity: If a lawyer represents both husband and wife, may the lawyer accept …


The Power Of Narrative: Listening To The Initial Client Interview, Raven Lidman Jan 1998

The Power Of Narrative: Listening To The Initial Client Interview, Raven Lidman

Seattle University Law Review

As I thought about the hypothetical situations posed for consideration by this symposium, I envisioned distinct individuals in context, speaking particular words. I decided to write the initial consultation out as a dialogue to see what happened to the ideas and the interactions as these three, the lawyer, husband, and wife, explored them. I, thus, chose to turn a hypothetical into a real situation. By selecting this format, I was only able to focus on the first hypothetical. This one was perhaps the most challenging for me personally. As a feminist and a family law lawyer, I have struggled and …