The Virtues Of Common Law Theories And Disclosure Requirements In The Market For Fine Art,
2011
University of Maryland Francis King Carey School of Law
The Virtues Of Common Law Theories And Disclosure Requirements In The Market For Fine Art, Brian D. Tobin
Student Articles and Papers
For centuries common law warranties and fraud theories have regulated misattribution and mistaken provenance in the market for fine art. Scholars have in recent decades proposed theories to supplement protection for unsophisticated buyers transacting with auction houses or dealers. Academia has also proposed the imposition of securities regulations upon auction houses for the purpose of protecting sellers—an argument that can be extended to protect buyers transacting with either auction houses or dealerships. In practice, the theories put forth to protect purchasers may not have an added benefit and will likely disrupt liquidity. The extension of regulations akin to the securities …
United States V. Nacchio: The Tenth Circuit’S Civil Approach To Sentencing For Insider Trading,
2011
University of Oklahoma College of Law
United States V. Nacchio: The Tenth Circuit’S Civil Approach To Sentencing For Insider Trading, Amy Dominick Padgett
Oklahoma Law Review
No abstract provided.
A Behavioral Framework For Securities Risk,
2011
University of Florida Levin College of Law
A Behavioral Framework For Securities Risk, Tom C.W. Lin
UF Law Faculty Publications
This article provides the first critical analysis and redesign of the existing securities risk disclosure framework given new insights from the emerging, interdisciplinary field of behavioral economics. Disclosure is the principle at the heart of federal securities regulation. Beneath that core principle of disclosure is the basic assumption that the reasonable investor is the idealized über-rational person of neoclassical economic theory. Therefore, once armed with the requisite information investors presumably can protect themselves through rational choice. Descriptively, however, real investors are not like their rational, neoclassical kin. This article examines this incongruence between the idealized rational investor and the imperfect …
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 …
Activist Distressed Debtholders: The New Barbarians At The Gate?,
2011
University of Maryland Francis King Carey School of Law
Activist Distressed Debtholders: The New Barbarians At The Gate?, Michelle M. Harner
Faculty Scholarship
The term “corporate raiders” previously struck fear in the hearts of corporate boards and management teams. It generally refers to investors who target undervalued, cash-flush or mismanaged companies and initiate a hostile takeover of the company. Corporate raiders earned their name in part because of their focus on value extraction, which could entail dismantling a company and selling off its crown jewels. Today, the term often conjures up images of Michael Milken, Henry Kravis or the movie character Gordon Gekko, but the alleged threat posed to companies by corporate raiders is less prevalent—at least with respect to the traditional use …
Overwhelming A Financial Regulatory Black Hole With Legislative Sunlight: Dodd-Frank’S Attack On Systemic Economic Destabilization Caused By An Unregulated Multi-Trillion Dollar Derivatives Market,
2011
University of Maryland School of Law
Overwhelming A Financial Regulatory Black Hole With Legislative Sunlight: Dodd-Frank’S Attack On Systemic Economic Destabilization Caused By An Unregulated Multi-Trillion Dollar Derivatives Market, Michael Greenberger
Faculty Scholarship
It is now accepted wisdom that it was the non-transparent, poorly capitalized and almost wholly unregulated over-the-counter (“OTC”) derivatives market that lit the fuse that exploded the highly vulnerable worldwide economy in the fall of 2008.[1] Because tens of trillions of dollars of these financial products were pegged to the economic performance of an overheated and highly inflated housing market, the sudden collapse of that market triggered under-capitalized OTC derivative guarantees of the subprime housing market; and the guarantors’ multi-trillion dollar interconnectedness with thousands of other OTC derivatives’ counterparties within that OTC market (through interest rate, currency, foreign exchange, and …
Will The Cftc Defy Congress's Mandate To Stop Excessive Speculation In Commodity Markets And Aid And Abet Hyperinflation In World Food And Energy Prices: Analysis Of The Cftc's Proposed Rules On Speculative Position Limits,
2011
University of Maryland School of Law
Will The Cftc Defy Congress's Mandate To Stop Excessive Speculation In Commodity Markets And Aid And Abet Hyperinflation In World Food And Energy Prices: Analysis Of The Cftc's Proposed Rules On Speculative Position Limits, Michael Greenberger
Faculty Scholarship
On January 26, 2011, the Commodity Futures Trading Commission issued the Notice of Proposed Rulemaking on Position Limits for Derivatives pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The proposed rules are designed to implement the historic Congressional mandate of the Commodity Exchange Act, as amended by Section 737 of the Dodd-Frank Act, to ban excessive speculation from the derivatives market, i.e., the speculation which exceeds the need for liquidity by commercial handlers hedging price risk in these markets. Section 737 is the result of multi-year consideration by Congress, during which a strong consensus was reached …
A Review Of Recent Derivatives Litigation,
2011
Fordham Law School
A Review Of Recent Derivatives Litigation, John D. Finnerty, Kishlaya Pathak
Fordham Journal of Corporate & Financial Law
The global over-the-counter derivatives market exceeded $33 trillion of gross market value as of year-end 2008, according to the Bank for International Settlements.1 Recent headlines suggest that derivatives – specifically, credit default swaps – pose an enormous potential systemic risk and that they are one of the root causes of the current economic crisis.2
The Collapse Of An Empire? Rating Agency Reform In The Wake Of The 2007 Financial Crisis,
2011
Fordham Law School
The Collapse Of An Empire? Rating Agency Reform In The Wake Of The 2007 Financial Crisis, Elizabeth Devine
Fordham Journal of Corporate & Financial Law
In 1996, Thomas Friedman’s remarks echoed the sentiments of many. The rating agency business was booming, and it seemed like the agencies themselves could do no wrong.
The Flawed State Of Broker-Dealer Regulation And The Case For An Authentic Federal Fiduciary Standard For Broker-Dealers,
2011
Fordham Law School
The Flawed State Of Broker-Dealer Regulation And The Case For An Authentic Federal Fiduciary Standard For Broker-Dealers, Gary A. Varnavides
Fordham Journal of Corporate & Financial Law
THE FLAWED STATE OF BROKER-DEALER REGULATION AND THE CASE FOR AN AUTHENTIC FEDERAL FIDUCIARY STANDARD FOR BROKER-DEALERS
323 Non-Managing Underwriters’ Role In Securities Offerings: Just Eye Candy?,
2011
Fordham Law School
323 Non-Managing Underwriters’ Role In Securities Offerings: Just Eye Candy?, Elena Marty-Nelson
Fordham Journal of Corporate & Financial Law
While there is considerable scholarship on the due diligence defense of lead underwriters in defective corporate securities offerings, there is surprisingly little analysis of the due diligence defense of non-managing underwriters. This article challenges the common perception that lead and non-managing underwriters necessarily “sink or swim” together for purposes of due diligence. An analysis of the statutory structure of Section 11 of the Securities Act of 1933 reveals that non-managing underwriters are not inextricably tethered to the lead. Rather, non-managing underwriters who actively question the lead’s due diligence investigation should be able to meet their own affirmative defense even when …
Deconstructing Corporate Governance: Director Primacy Without Principle?,
2011
Fordham Law School
Deconstructing Corporate Governance: Director Primacy Without Principle?, René Reich-Graefe
Fordham Journal of Corporate & Financial Law
For almost eighty years now, corporate law scholarship has centered around two elementary analytical findings made in what has once been described as the “last major work of original scholarship”within the field.
Morrison V. National Australia Bank: Life After Dodd-Frank,
2011
Fordham Law School
Morrison V. National Australia Bank: Life After Dodd-Frank, Meny Elgadeh
Fordham Journal of Corporate & Financial Law
This Note examines the background of foreign-cubed litigation,1 including its development over the past four decades, its abrogation by the Supreme Court, and its potential future under recently enacted legislation. The Note examines the tests developed by the Court of Appeals in order to determine whether a United States court could adjudicate foreign-cubed litigation. Additionally, it reviews the Supreme Court opinion in Morrison v. National Australia Bank and its ultimate rejection of the predominant Second Circuit test for applicability. Finally, the Note discusses “The Dodd–Frank Wall Street Reform and Consumer Protection Act,” a provision of which was specifically included to …
Another Role For Securities Regulation: Expanding Investor Opportunity,
2011
Fordham Law School
Another Role For Securities Regulation: Expanding Investor Opportunity, Jasmin Sethi
Fordham Journal of Corporate & Financial Law
Securities regulation can be justified on a number of grounds, but furthering the expansion of opportunities for wealth accumulation across sectors of the population has generally not been utilized as an argument for regulation. This article demonstrates how an opportunities-based perspective, informed by the findings from interdisciplinary research, could alter securities policy in four areas: (1) enhancing access to information and financial institutions; (2) requiring disclosures; (3) impacting the behavioral biases of investors; and (4) aligning the incentives of investment professionals to better facilitate the wealth accumulation of their clients. The implications of applying an opportunities-based approach to financial regulation …
Toward A Just Measure Of Repose: The Statute Of Limitations For Securities Fraud.,
2011
Loyola University Chicago
Toward A Just Measure Of Repose: The Statute Of Limitations For Securities Fraud., Michael J. Kaufman
Faculty Publications & Other Works
Statutes of limitations, a long-standing bulwark of civil litigation, mitigate the risk that evidence of meritorious claims will become stale and relieve defendants who might be exposed to claims from unending uncertainty about whether claims will be brought. But these twin rationales are balanced against allowing plaintiffs sufficient time to discover and file meritorious claims. This balance is manifest in the judicial and congressional effort to fashion a statute of limitations for securities fraud claims. The Supreme Court in Merck & Co. v. Reynolds recently attempted to strike that balance in its interpretation of the statute of limitations for securities …
Section 16(B) And Its Limitations Period: The Case For Equitable Tolling.,
2011
Loyola University Chicago, School of Law
Section 16(B) And Its Limitations Period: The Case For Equitable Tolling., Michael J. Kaufman
Faculty Publications & Other Works
No abstract provided.
The Dodd- Frank Wall Street Reform And Consumer Protection Act: What Caused The Financial Crisis And Will Dodd-Frank Succeed In Preventing Future Crises?,
2011
Loyola University Chicago, School of Law
The Dodd- Frank Wall Street Reform And Consumer Protection Act: What Caused The Financial Crisis And Will Dodd-Frank Succeed In Preventing Future Crises?, Charles W. Murdock
Faculty Publications & Other Works
No abstract provided.
Taking Economic Human Rights Seriously After The Debt Crisis.,
2011
Loyola University Chicago
Taking Economic Human Rights Seriously After The Debt Crisis., Steven A. Ramirez
Faculty Publications & Other Works
No abstract provided.
Revisiting The Inadvertent Investment Company,
2011
Fordham Law School
Revisiting The Inadvertent Investment Company, Brian Vito
Fordham Journal of Corporate & Financial Law
While the topic of financial regulation has recently experienced a resurgence in interest, one area that historically has received little attention and continues to exist in relative obscurity is the application of the Investment Company Act of 1940 (the “Company Act”) to commodity pools, as opposed to mutual funds, hedge funds and private equity funds. The purpose of this article is to distinguish the boundary between an investment company, as that term is defined in the Company Act, and a commodity pool, as the term is used to refer to an investment pool not within the auspices of the Company …
Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The “Too-Big-To-Fail” Phenomenon,
2011
Fordham Law School
Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The “Too-Big-To-Fail” Phenomenon, Jesse W. W. Markham, Jr.
Fordham Journal of Corporate & Financial Law
This article examines whether, and the extent to which, antitrust law could contribute to a broader regulatory effort to control the too-big-to-fail problem. The article begins by exploring the nature of the problem. Against this backdrop, it considers antitrust policy and rules to evaluate whether antitrust might play a meaningful role. The article concludes that antitrust law, if vigorously enforced with an emphasis on avoiding too-big-to-fail problems, can be a useful public policy tool to address the problem. However, it can come nowhere near solving it or preventing recurrences of recent systemic failures.
