Keynote Address: A Regulatory Framework For Managing Systemic Risk, 2011 Duke Law School
Keynote Address: A Regulatory Framework For Managing Systemic Risk, Steven L. Schwarcz
Faculty Scholarship
This accessible analysis of systemic risk regulation was delivered as the keynote speech at an October 20, 2011 European Central Bank conference on regulation of financial services. Many regulatory responses, like the Dodd-Frank Act in the United States, consist largely of politically motivated reactions to the financial crisis, looking for villains (whether or not they exist). To be most effective, however, the regulation must be situated within a more analytical framework. In this speech, I attempt to build that framework, showing that preventive regulation is insufficient and that regulation also must be designed to limit the transmission of systemic risk …
Potentially Perverse Effects Of Corporate Civil Liability, 2011 Duke Law School
Potentially Perverse Effects Of Corporate Civil Liability, Samuel W. Buell
Faculty Scholarship
Inadequate civil regulatory liability can be an incentive for public enforcers to pursue criminal cases against firms. This incentive is undesirable in a scheme with overlapping forms of liability that is meant to treat most cases of wrongdoing civilly and to reserve the criminal remedy for the few most serious institutional delicts. This effect appears to exist in the current scheme of liability for securities law violations, and may be present in other regulatory structures as well. In this chapter for a volume on "Prosecutors in the Boardroom," the author argues that enhancements of the SEC's enforcement processes likely would …
The Paradoxes Of Dodd-Frank, 2011 Duke Law School
Securities Class Actions As Public Law, 2011 Duke Law School
Securities Class Actions As Public Law, James D. Cox
Faculty Scholarship
The Political Economy of Fraud on the Market provides a wide-ranging criticism of and thoughtful reforms for securities class actions....However, both their critique of contemporary class actions and their model of the reforms they propose leave unexamined a good many matters relevant to both the criticism and reform of securities class actions....Bratton and Wachter earn high marks for being less passionate and much more thoughtful than others in the chorus calling for reform; indeed, their observations are among the most thoughtful to be found in this area. Nonetheless, their analysis is incomplete in many important areas, and in addition to …
The Insignificance Of Proxy Access, 2011 New York University
The Insignificance Of Proxy Access, Marcel Kahan, Edward B. Rock
All Faculty Scholarship
No abstract provided.
Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, 2011 Case Western University School of Law
Mismatch: The Misuse Of Market Efficiency In Market Manipulation Class Actions, Charles R. Korsmo
Faculty Publications
Plaintiffs commonly bring two distinct types of claims under Section 1(b) of the Securities Exchange Act of 1934: 1) claims of material misrepresentations or omissions; and 2) claims of trade-based market manipulation. Despite the distinctive features of the two types of claims, courts have tended to treat them identically when applying the “fraud on the market” doctrine. In particular, courts have required both types of plaintiffs to make identical showings that the relevant security traded in an “efficient market” in order to gain a presumption of reliance. The reasons for requiring such a showing by plaintiffs in a misrepresentation case …
The Model Business Corporation Act At Sixty: Shareholders And Their Influence, 2011 University of Pennsylvania Carey Law School
The Model Business Corporation Act At Sixty: Shareholders And Their Influence, Lisa Fairfax
All Faculty Scholarship
In the sixty years since the Committee on Corporate Laws (Committee) promulgated the Model Business Corporation Act (MBCA), there have been significant changes in corporate law and corporate governance. One such change has been an increase in shareholder activism aimed at enhancing shareholders’ voting power and influence over corporate affairs. Such increased shareholder activism (along with its potential for increase in shareholder power) has sparked considerable debate. Advocates of increasing shareholder power insist that augmenting shareholders’ voting rights and influence over corporate affairs is vital not only for ensuring board and managerial accountability, but also for curbing fraud and other …
Investors Beware: Assessing Shareholder Derivative Litigation In India And China, 2011 Saint Louis University School of Law
Investors Beware: Assessing Shareholder Derivative Litigation In India And China, Ann M. Scarlett
All Faculty Scholarship
In response to the 2008 financial crisis, the United States government bailed out many business entities in exchange for equity and debt interests in such entities. It also dramatically increased the regulations imposed on businesses. This level of government ownership and intervention in corporations is rare in free-market capitalist systems such as the United States. Government ownership and control, however, are common among historically socialist countries such as India or communist countries such as China. Yet, the United States’ recent actions stand in stark contrast to the trend in India and China, which have both been moving toward more capitalist …
What's In A Name? - The Tale Of Louis Wolfson's Affirmed, 2011 Saint Louis University School of Law
What's In A Name? - The Tale Of Louis Wolfson's Affirmed, Alan M. Weinberger
All Faculty Scholarship
Why would someone choose to name a thoroughbred racehorse "Affirmed" after his conviction for federal securities laws violations had been affirmed on appeal? This inquiry is the basis for exploring the enigmatic life and spectacular career of Louis E. Wolfson, owner and breeder of the last winner of horse racing's Triple Crown.
Perhaps best known as the central figure in the scandal that resulted in the forced resignation of Supreme Court Justice Abe Fortas, Wolfson left a sizable footprint on corporate legal history. He has been described as the original corporate raider, the inventor of the market for corporate control …
Morrison V. National Australia Bank: Defining The Domestic Interest In International Securities Litigation, 2011 Indiana University Maurer School of Law
Morrison V. National Australia Bank: Defining The Domestic Interest In International Securities Litigation, Hannah Buxbaum
Articles by Maurer Faculty
This articles uses the lens of the Morrison v. National Australia Bank to look at domestic and international securities regulation.
The Price Of Pay To Play In Securities Class Actions, 2011 University of Michigan Law School
The Price Of Pay To Play In Securities Class Actions, Adam C. Pritchard, Stephen J. Choi, Drew T. Johnson-Skinner
Articles
We study the effect of campaign contributions to lead plaintiffs—“pay to play”—on the level of attorney fees in securities class actions. We find that state pension funds generally pay lower attorney fees when they serve as lead plaintiffs in securities class actions than do individual investors serving in that capacity, and larger funds negotiate for lower fees. This differential disappears, however, when we control for campaign contributions made to offcials with infuence over state pension funds. This effect is most pronounced when we focus on state pension funds that receive the largest campaign contributions and that associate repeatedly as lead …
When Is It Wrong To Trade Stocks On The Basis Of Non-Public Information?: Public Views Of The Morality Of Insider Trading, 2011 Rutgers School of Law
When Is It Wrong To Trade Stocks On The Basis Of Non-Public Information?: Public Views Of The Morality Of Insider Trading, Stuart P. Green, Matthew B. Kugler
Fordham Urban Law Journal
No abstract provided.
Revitalizing Motive And Opportunity Pleading After Tellabs, 2011 University of Michigan Law School
Revitalizing Motive And Opportunity Pleading After Tellabs, Marvin Lowenthal
Michigan Law Review
Congress passed the Private Securities Litigation Reform Act of 1995 ("PSLRA") to prevent frivolous lawsuits that had been draining resources from businesses. This legislation included provisions for heightening the pleading requirements for the scienter, or state of mind, requirement for securities law violations. Many circuit courts debated whether the motive and opportunity test for scienter, applied initially by the Second and Third Circuits, survived the passage of the PSLRA. This Note argues that while the motive and opportunity test has been discounted by numerous circuits, it not only remains viable for pleading scienter under the PSLRA, but it accomplishes the …
Insider Trading, Congressional Officials, And Duties Of Entrustment, 2011 Indiana University Maurer School of Law
Insider Trading, Congressional Officials, And Duties Of Entrustment, Donna M. Nagy
Articles by Maurer Faculty
This article refutes what has become the conventional wisdom that insider trading by members of Congress and legislative staffers is “totally legal” because such congressional officials are immune from federal insider trading law. It argues that this well-worn claim is rooted in twin misconceptions based on: (1) a lack of regard for the broad and sweeping duties of entrustment which attach to public office and (2) an unduly restrictive view of Supreme Court precedents, which have interpreted Rule 10b-5 of the Securities Exchange Act to impose liability whenever a person trades securities on the basis of material nonpublic information in …
Unreliable Securities For Retirement Income Security: Certifying The Erisa Stock-Drop Class, 2011 Vanderbilt University Law School
Unreliable Securities For Retirement Income Security: Certifying The Erisa Stock-Drop Class, Lauren N. Fromme
Vanderbilt Law Review
Catherine Stevens had built her retirement savings "a dollar at a time over a lifetime of hard work" when it was "reduced to virtually zero" at Enron's collapse. "I feel very strongly that we have all been wronged," she said. Her plans for a secure future had been destroyed. Almost eight years after Enron's failure, stories like Catherine's persist, and employee retirement income security remains as comforting as an imaginary friend. A falling stock market in the wake of financial finagling leaves many employee retirement plans dangerously insecure. Employees like Catherine who bet their futures on their company's stock have …
Chasing The Greased Pig Down Wall Street: A Gatekeeper’S Guide To The Psychology, Culture And Ethics Of Financial Risk-Taking, 2011 Georgetown University Law Center
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 …
The Limits Of National Security, 2011 Georgetown University Law
The Limits Of National Security, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The United States’ National Security Strategy, issued in May 2010, articulates an expansion in U.S. interests that stems from the end of the Cold War. Departing from a policy of industrial growth and military containment in response to geopolitical threats, U.S. national security is now defined in terms of a wide range of potential risks that the country faces. The NSS is not alone in its rather expansive view—one that significantly departs from the perspective adopted at any point in U.S. history. It represents the fourth (and most concerning) epoch in the country’s evolution, and it is beginning to find …
Educational Justice And The Recognition Of Marriage, 2010 Boston College Law School
Educational Justice And The Recognition Of Marriage, Scott Fitzgibbon
Scott T. FitzGibbon
No abstract provided.
Corporate Law Discussion Group On The Dodd-Frank Act, 2010 Boston College Law School
Corporate Law Discussion Group On The Dodd-Frank Act, Renee Jones
Renee Jones
No abstract provided.
Teaching And Learning The Law Of Boats, 2010 Pepperdine University
Teaching And Learning The Law Of Boats, Robert Anderson
Robert Anderson IV
I have taught admiralty and maritime law exactly twice. That experience hardly makes me an expert in training future proctors. What that experience does give me, however, is the perspective that comes from having recently confronted the challenges of learning the field myself. And that perspective has led me to teach the admiralty survey course differently from how I teach any of my other classes and differently from how i perceive other admiralty classes that are taught by more experienced teachers. In this essay, I hope to explain how and why I teach admiralty differently, with the hope of offering …