Securities Law Commons^™

Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben

Faculty Works

A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …

Setting Attorneys' Fees In Securities Class Actions: An Empirical Assessment, Lynn A. Baker, Michael A. Perino, Charles Silver

Faculty Publications

(Excerpt)

In 1995, Congress overrode President Bill Clinton's veto and enacted the Private Securities Litigation Reform Act ("PSLRA"), a key purpose of which was to put securities class actions under the control of institutional investors with large financial stakes in the outcome of the litigation. The theory behind this policy, set out in a famous article by Professors Elliot Weiss and John Beckerman, was simple: self-interest should encourage investors with large stakes to run class actions in ways that maximize recoveries for all investors. These investors should naturally want to hire good lawyers, incentivize them properly, monitor their actions, and …

Lawyers In The Shadows: The Transactional Lawyer In A World Of Shadow Banking, Steven L. Schwarcz

Faculty Scholarship

This article examines how the role of transactional lawyers should change in the new world of shadow banking. Although transactional lawyers should consider the potential systemic consequences of their client's actions, their actions should be tempered by their primary duties to the client and by their responsibilities to the l,egal system more broadly.

A Framework For Analyzing Attorney Liability Under Section 10(B) And Rule 10b-5, Gary M. Bishop

The University of New Hampshire Law Review

[Excerpt] “Lawyers who make their living representing securities issuers face a myriad of challenges. Securities lawyers must navigate and master an intricate body of statutory, regulatory, and case law at both the state and the federal level and ensure that their clients comply with the law. The compliance requirement, however, is not limited to the issuer clients. Defrauded investors will often seek recovery of their losses from both the issuer of the failed investment securities and from the lawyers who represent the issuer, which only exacerbates the complexity of the securities lawyer’s work. These securities fraud actions against lawyers raise …

The Challenge Of Optimism And Complexity: Inadequately Addressed By The Fcic's Report, Timothy E. Lynch

Faculty Works

No abstract provided.

Procedure In Eclipse: Group-Based Adjudication In A Post-Conception Era, Myriam E. Gilles

Articles

No abstract provided.

Conflicting Currents: The Obligation To Maintain Inviolate Client Confidences And The New Sec Attorney Conduct Rules, Keith Paul Bishop, James F. Fotenos, Steven K. Hazen, James R. Walther, Nancy H. Wojtas

Pepperdine Law Review

No abstract provided.

Selective Disclosure: The Abrogation Of The Attorney-Client Privilege And The Work Product Doctrine, Zach Dostart

Pepperdine Law Review

No abstract provided.

Codes Of Ethics And State Fiduciary Duties: Where Is The Line?, Z. Jill Barclift

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Private Equity Firms: Beyond Sec Registration As An Investment Adviser How To Build And Administer An Effective Compliance Program, Susan Mosher

Michigan Business & Entrepreneurial Law Review

The Securities and Exchange Commission (the “SEC” or the “Commission”) recently adopted new rules and rule amendments under the Investment Advisers Act of 1940 (the “Advisers Act”) that serve to implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”).1 The new rules and rule amendments under the Advisers Act relate to provisions of Title IV of the Dodd-Frank Act (the Private Fund Investment Advisers Registration Act of 2010) that, among other things, require certain private fund advisers and private equity firms to register with the Commission.2 This article is intended to assist firms that …

Chasing The Greased Pig Down Wall Street: A Gatekeeper’S Guide To The Psychology, Culture And Ethics Of Financial Risk-Taking, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The current financial crisis has once again focused attention on lawyers, corporate directors and auditors as gatekeepers, who are expected to introduce some degree of cognitive independence to the task of risk assessment and risk management in public companies, including financial services firms. This essay examines the psychological and cultural forces that may distort risk perception and risk motivation in hyper-competitive firms, beyond the standard economic incentives associated with agency costs and moral hazards, warning gatekeepers against too easily assuming that all is well when insiders display high levels of intensity, focus and devotion to hard-to-achieve goals. In fact, these …

In Re Cardinal Health, Inc. Securities Litigation, Lucas T. Charleston

NYLS Law Review

No abstract provided.

The Corporate/Securities Attorney As A 'Moving Target' - Client Fraud Dilemmas, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

This Paper analyzes the enhanced responsibilities and liability concerns that corporate/securities attorneys have in the post-Enron era. State ethical rules, SEC pronouncements, and court decisions are addressed. The ramifications of the Sarbanes-Oxley Act with respect to its impact on legal counsel also are explored. The Paper also provides insight focusing on the business attorney's role as counselor and gatekeeper when faced with the prospect of client fraud.

From Lapdog To Watchdog: Sarbanes-Oxley Section 307 And A New Role For Corporate Lawyers, Peter C. Kostant

NYLS Law Review

No abstract provided.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Conscripting Attorneys To Battle Corporate Fraud Without Shields Or Armor? Reconsidering Retaliatory Discharge In Light Of Sarbanes-Oxley, Kim T. Vu

Michigan Law Review

This Note advocates that federal courts should allow attorneys to bring retaliatory discharge claims under SOX. Traditional rationales prohibiting the claims of retaliatory discharge by attorneys do not apply in the context of Sarbanes-Oxley. This Note contends that the Department of Labor and the federal courts should interpret the whistleblower provisions of § 806 as protecting attorneys who report under § 307. Assuring reporting attorneys that they have protection from retaliation will encourage them to whistleblow and thereby advance SOX's policy goal of ferreting out corporate fraud. Part I explores the legal landscape of retaliatory discharge suits by attorneys. This …

Explaining The Value Of Transactional Lawyering, Steven L. Schwarcz

ExpressO

This article attempts, empirically, to explain the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as “transaction cost engineers” and “reputational intermediaries.” This new model not only helps inform contract theory but also reveals a profoundly different vision than existing models for the future of legal education and the profession.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Attorneys As Gatekeepers: Sec Actions Against Lawyers In The Age Of Sarbanes-Oxley, Lewis D. Lowenfels, Alan R. Bromberg, Michael J. Sullivan

ExpressO

Following the enactment of the Sarbanes-Oxley Act on July 30, 2002, the Securities and Exchange Commission has substantially increased the number of actions it has initiated against lawyers. And a substantial number of these recent SEC actions against counsel to public companies (both internal and external) have highlighted the SEC’s resolve to hold lawyers accountable for not performing adequately their SEC-conceived role as “gatekeepers” to prevent fraud and other violations of the federal securities laws. This “gatekeeper” concept has been and is being implemented through SEC actions addressing a wide variety of alleged transgressions in a wide diversity of factual …

Standards Of Practice For Pension Practitioners, 39 J. Marshall L. Rev. 667 (2006), David Pratt

UIC Law Review

No abstract provided.

Inherent Attorney Conflicts Of Interest Under Erisa: Using The Model Rules Of Professional Conduct To Discourage Joint Representation Of Dual Role Fiduciaries, 39 J. Marshall L. Rev. 721 (2006), Paul M. Secunda

UIC Law Review

No abstract provided.

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Sarbanes-Oxley Act, Section 307 - The Price Of Accountability: How Will Section 307 Affect The Role Of The Corporate Attorney, Sara B. Smith

West Virginia Law Review

No abstract provided.

Price, Path & Pride: Third-Party Closing Opinion Practice Among U.S. Lawyers (A Preliminary Investigation), Jonathan C. Lipson

ExpressO

This article presents the first in-depth exploration of third-party closing opinions, a common but curious – and potentially troubling -- feature of U.S. business law practice. Third-party closing opinions are letters delivered at the closing of most large transactions by the attorney for one party (e.g., the borrower) to the other party (e.g., the lender) offering limited assurance that the transaction will have legal force and effect.

Hundreds, if not thousands, of legal opinions are delivered every week. Yet, lawyers often complain that they create needless risk and cost, and produce little benefit. Closing opinions thus pose a basic question: …

Rules Of Or Substantive Law: Who Controls An Individual's Right To Choose A Lawyer In Today's Corporate Environment, 38 J. Marshall L. Rev. 1265 (2005), Joan Colson

UIC Law Review

No abstract provided.

Attorney Liability Under The State Securities Laws: Landscapes And Minefields, Marc I. Steinberg, Chris Classen

Faculty Journal Articles and Book Chapters

Attorneys face significant liability exposure under the state securities laws, and they can be held primarily liable when they are "sellers" of securities, or under some state statutes, like California, when they are experts. Depending on the applicable jurisdiction and counsel's status relative to the subject client, secondary liability may be incurred. In a number of states, counsel has liability exposure based on materially aiding the primary violator with the requisite intent.

This article surveys and analyzes attorney liability under state securities law. After presenting a succinct overview of applicable state law in Part II, the article then provides a …

Gentleman's Agreement: The Antisemitic Origins Of Restrictions On Stockholder Litigation, Lawrence E. Mitchell

ExpressO

A deeply ingrained, seemingly ineradicable, hostility to plaintiffs’ lawyers and especially to plaintiffs’ lawyers in stockholder suits seems to have existed for most of the past century. This hostility is manifest not only in the tone of judicial opinions but in law review articles, the popular press, and, often, in legislation. This article analyzes the circumstances under which the first security-for-expense statute was adopted in New York in 1944, including the contemporaneous justification for the statute, focusing on the demographics of the New York bar at the time and the ethnic sociology of New York. In so doing, it concludes …

Sec Enforcement Of Attorney Up-The-Ladder Reporting Rules: An Analysis Of Institutional Constraints, Norms And Biases, Michael A. Perino

Villanova Law Review (1956 - )

No abstract provided.

Lawyers In The Moral Maze, Mark A. Sargent

Villanova Law Review (1956 - )

No abstract provided.