Law Commons^™

Psychology And Bapcpa: Enhanced Disclosure And Emotion, Richard L. Wiener, Michael Holtje, Ryan J. Winter, Jason A. Cantone

Missouri Law Review

This article describes a program of research that applies social analytic jurisprudence to test some of the assumptions in consumer bankruptcy law and policy.4 Our work first seeks to describe selected provisions from the newly enacted bankruptcy amendments that pertain to enhanced disclosure requirements, and then to locate some of the behavioral assumptions implicit in these provisions. 5 Next, we assess the accuracy of these assumptions based on an experiment that we conducted looking at a simulated online shopping trip that we constructed specifically to test the effects of enhanced disclosure

Criminal Law And Procedure, Marla G. Decker, Stephen R. Mccullough

University of Richmond Law Review

The authors have endeavored to select from the many appellate cases those that have the most significant precedential value. The article also outlines some of the most consequential changes enacted by the General Assembly in the areas of criminal law and procedure.

Corporate Speech, Securities Regulation, And An Institutional Approach To The First Amendment, Michael R. Siebecker

William & Mary Law Review

Does the First Amendment shield politically tinged corporate speech from the compelled disclosure and reporting requirements embedded in the U.S. securities laws? The question arises in the securities regulation context because of an impending jurisprudential train wreck between the Supreme Court's commercial speech doctrine and its approach to corporate political speech. As corporations begin mixing commercial messages with political commentary, First Amendment jurisprudence simply provides insufficient guidance on the role government should play in regulating that speech. Although First Amendment jurisprudence generally counsels against governmental restrictions on corporate political speech without regard to the truth or falsity of the message, …

The Use And Misuse Of Disclosure As A Regulatory System, Paula J. Dalley

ExpressO

Over the past several decades, legislators and regulators have increasingly turned to disclosure schemes, rather than substantive regulation, to accomplish regulatory goals. Most of these schemes are either expressly or impliedly based on the disclosure-based regulatory system established by the securities acts, which is primarily intended to provide information to traders in an established market and thereby to enhance the operation of the market. A secondary purpose of the securities acts is to alter the behavior of firms and individuals through the operation of the market. Other disclosure schemes usually have similar purposes, but they rarely operate in a market …

Saving Trade Secret Disclosures On The Internet Through Sequential Preservation, Elizabeth A. Rowe

ExpressO

When a trade secret is stolen from its owner and posted on the Internet, the default rule is that it becomes a free for all. By virtue of the fact that it has been posted, it becomes public, and consequently loses its trade secret protection. The ensuing result is that independent third parties, including competitors, are entitled to use it, and the trade secret owner, despite years of laudable efforts to maintain the secret, suffers a fatal loss at the hands of a wrongdoer. The apparent injustice in that conclusion does not go unnoticed.

Given that trade secret law is …

Why Do We Know What We Know? Reevaluating The Economic Case Against Pre-Contractual Disclosure Duties And For Break-Up Fees, Barak Medina, Ofer Grosskopf

ExpressO

The economic analysis of contract law offers influential arguments against pre-contractual disclosure duties and for break-up fees, based on the presumption that pre-contractual duties are (or should be) set to provide sufficient incentives to optimally invest in acquiring information at the negotiation stage. We suggest, however, that the existing analysis is flawed, since it overlooks an important incentive for investing in information gathering.

According to the conventional wisdom, a negotiating party will be motivated to invest resources in information gathering only on the basis of its expectation to extract the contractual surplus that the investment may generate. As a result, …

8th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2006, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Why We Need Global Standards For Corporate Disclosure, Allen L. White

Law and Contemporary Problems

After two years of gradual revelations concerning undisclosed information on suicidal risks to children on antidepressants, a federal advisory committee in Sep 2004 recommended that such drugs be labeled to alert physicians and consumers of this risk. The antidepressant story is noteworthy in its own right, shedding light on the tangled web of legal, regulatory, economic, and ethical issues surrounding disclosure practices in the pharmaceutical industry. The complex interworkings of an emerging global economy make it necessary for corporate standards for disclosure to be established and enforced.

Sometimes The Silence Can Be Like The Thunder: Access To Pharmaceutical Data At The Fda, Peter Lurie, Allison Zieve

Law and Contemporary Problems

Those committed to the free exchange of scientific information have long complained about various restrictions on access to the FDA's pharmaceutical data and the resultant restrictions on open discourse. A review of open-government procedures and litigation at the FDA demonstrates that the need for transparency at the agency extend well beyond the reach of any clinical trial registry.

The People’S Agent: Executive Branch Secrecy And Accountability In An Age Of Terrorism, Sidney A. Shapiro, Rena I. Steinzor

Law and Contemporary Problems

Shapiro and Steinzor apply the agency theory to the question of how much secrecy is too much. They use the theory to evaluate the impact of burgeoning secrecy in the likelihood that the executive branch officials will engage in faithful and forceful implementation of statutory materials, particularly in the arenas of protecting public health, safety, and natural resources.

Transparency And Innuendo: An Alternative To Reactive Over-Disclosure, Scott M. Lassman

Law and Contemporary Problems

Lassman examines the tension between transparency and other public health interests in the context of the FDA's proposed Drug Watch web site. He argues that although the FDA proposal seeks to achieve a laudable goal--the prompt communication of important useful safety information about drug products to physicians and patients-- it fails to properly balance transparency and other legitimate public health interests.

Open Secrets: The Widespread Availability Of Information About The Health And Environmental Effects Of Chemicals, James W. Conrad Jr.

Law and Contemporary Problems

Conrad discusses the point of view of the chemical industry concerning when and how access to health effects information may be affected by financial interests. He argues that no qualitative distinction can be drawn between the financial and other incentives that might affect disclosure by for-profit entities and the incentives that might affect disclosure by other entities that may conduct, sponsor, or opine on scientific research.

Dialectical Regulation, Robert B. Ahdieh

Faculty Scholarship

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

The "Duty" To Be A Rational Shareholder, David A. Hoffman

David A Hoffman

How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important. As I establish through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, judicial findings of immateriality are remarkably common, and have been stable over time. Materiality's scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a reasonable investor. Thus, materiality …

Democratizing Credit: Examining The Structural Inequities Of Subprime Lending, Cassandra Jones Havard

All Faculty Scholarship

This Article critiques the current regime of mortgage lending, which favors economic subordination. Minorities and low-and moderate income persons, regardless of their creditworthiness, are receiving higher loan rates. This is due to three market phenomena- the dominance of sub-prime lenders in the market in which prime lenders are more restricted to lend, the segmentation of the market so that certain products are offered to certain consumers, and the liquidity of the secondary market, which encourages lenders to make loans that are easily sold, but which may be inappropriately and impermissibly priced. Only by incorporating some transparency into the process will …

Do Ask And Do Tell: Rethinking The Lawyer’S Duty To Warn In Domestic Violence Cases, Margaret B. Drew, Sarah Buel

Faculty Publications

Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers’ lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from …

Transparency In International Commercial Arbitration, Catherine A. Rogers

Journal Articles

Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards.

In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …

Harnessing And Sharing The Benefits Of State-Sponsored Research: Intellectual Property Rights And Data Sharing In California's Stem Cell Initiative, Rebecca S. Eisenberg, Arti K. Rai

Articles

This Article discusses data sharing in California's stem cell initiative against the background of other data sharing efforts and in light of the competing interests that CIRM is directed to balance. We begin by considering how IP law affects data sharing. We then assess the strategic considerations that guide the IP and data policies and strategies of federal, state, and private research sponsors. With this background, we discuss four specific sets of issues that public sponsors of data-rich research, including CIRM, are likely to confront: (1) how to motivate researchers to contribute data; (2) who should have access to the …

When Confidentiality Is Not Essential To Mediation And Competing Interests Necessitate Disclosure, Patrick Gill

Journal of Dispute Resolution

Mediation is a process where a neutral intervener helps disputing parties develop a mutually beneficial resolution. Confidentiality is an established element of mediation. In general, confidentiality furthers the ability of the parties to seek mutually beneficial outcomes to disputes that would otherwise customarily produce a win/lose result. Confidentiality encourages parties to explore their underlying interests, without fear of the repercussions of revealing such information. Arguments are asserted that mediation will not succeed without the assurance that communications will be protected by a confidentiality privilege. The Uniform Mediation Act (UMA) has attempted to clarify the various confidentiality protections afforded by individual …

Lobbying Disclosure: A Recipe For Reform, William Luneburg, Thomas Susman

Articles

In deterring corruption in lobbying, both disclosure and regulation may be appropriate tools. The 1995 federal Lobbying Disclosure Act, however, should be overhauled if it is to meet its objective of providing “effective public disclosure of the identity and extent of the efforts of paid lobbyists to influence Federal officials.” Recommendations for reform include increasing the amount of usable information reported (including reporting spending for grassroots lobbying), improving enforcement of the LDA, and enhancing public availability of lobbying information.

Disclosure Protection: Franchises And Food Court Leases, James R. Cataland

Cleveland State Law Review

The shopping center industry continues to enjoy relative freedom from governmental regulation and operates within the framework of a long term, well established body of favorable commercial landlord/tenant law. Conversely, certain "'unfair and deceptive practices" in the sale of franchises have led to comprehensive consumer protection legislation at both the state and federal level. In 1978, the Federal Trade Commission promulgated a series of uniform disclosure requirements that a franchise or business opportunity seller must make when soliciting a prospective buyer. Often, the prospective buyer of a fast food franchise is an unsophisticated husband and wife, owner/operator, commonly referred to …

The "Duty" To Be A Rational Shareholder, David A. Hoffman

All Faculty Scholarship

How and when do courts determine that corporate disclosures are actionable under the federal securities laws? The applicable standard is materiality: would a (mythical) reasonable investor have considered a given disclosure important. As I establish through empirical and statistical testing of approximately 500 cases analyzing the materiality standard, judicial findings of immateriality are remarkably common, and have been stable over time. Materiality's scope results in the dismissal of a large number of claims, and creates a set of cases in which courts attempt to explain and defend their vision of who is, and is not, a reasonable investor. Thus, materiality …

People V. Williams, David A. Smiley

NYLS Law Review

No abstract provided.

The Dangers And Drawbacks Of The Disclosure Antidote: Toward A More Substantive Approach To Securities Regulation, Susanna K. Ripken

Susanna K. Ripken

This article analyzes and critiques the federal securities laws' reliance on disclosure as the primary method of protecting investors and regulating the securities markets. Since the inception of the federal securities law seventy years ago, the policy has always been that, as long as corporations disclose all material information about their operations and their stock, public investors can make their own informed investment decisions. The unprecedented number of corporate frauds, scandals, and bankruptcies in recent years has revealed weaknesses in the traditional disclosure strategy of regulation. Disclosure rules did not protect American investors from the damages they suffered when large …