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Full-Text Articles in Law
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 …
Culpability And Modern Crime, Samuel W. Buell
Culpability And Modern Crime, Samuel W. Buell
Faculty Scholarship
Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded …
The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie
The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie
Faculty Scholarship
There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …
Do Physicians Respond To Liability Standards?, Michael D. Frakes, Matthew Frank, Seth Seabury
Do Physicians Respond To Liability Standards?, Michael D. Frakes, Matthew Frank, Seth Seabury
Faculty Scholarship
In this paper, we explore the sensitivity in the clinical decisions of physicians to the standards of care expected of them under the law, drawing on the abandonment by states over time of rules holding physicians to standards determined by local customs and the contemporaneous adoption of national-standard rules. Using data on broad rates of surgical interventions at the county-by-year level from the Area Resource File, we find that local surgery rates converge towards national surgery rates upon the adoption of national-standard rules. Moreover, we find that these effects are more pronounced among rural counties.
Keynote Reflections: The Public Governance Duty, Steven L. Schwarcz
Keynote Reflections: The Public Governance Duty, Steven L. Schwarcz
Faculty Scholarship
Firms must take ever greater risks to try to innovate and create value in our increasingly competitive and complex global economy. Corporate governance law generally delegates control over excessive risk-taking to the firm’s investors, principally its risk-seeking shareholders. But this does not cover the type of risk-taking that led to the global financial crisis and that is becoming ever more common - risk-taking that could have systemic consequences to the financial system. I argue for a “public governance duty,” requiring managers of systemically important firms to assess the impact of risk-taking on the public as well as on investors, and …
Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz
Corporate Risk-Taking And The Decline Of Personal Blame, Steven L. Schwarcz
Faculty Scholarship
No abstract provided.