Date of Publication:
Tim Kaye, The Confusion of Perspectives, Policies and Practices in Wal-Mart v. Dukes, in Wal-Mart v. Dukes: Class Actions Under Scrutiny (Tricia Gorman ed., West, 2011)Clicking on the button will copy the full recommended citation.
Date of Publication:
Cynthia Hawkins DeBose and Darryl Wilson, Mastering Property Law (Carolina Academic Press, 2011)Clicking on the button will copy the full recommended citation.
Date of Publication:
Ciara Torres-Spelliscy and Kathy Fogel, Shareholder-Authorized Corporate Political Spending in the United Kingdom, 46 U.S.F.L. Rev. 525 (2011)Clicking on the button will copy the full recommended citation.
The U.S. is facing the advent of unfettered corporate political expenditures as a result of the U.S. Supreme Court’s Citizens United decision. This decision sets precedence to allow publicly-traded corporations to use vast amounts of corporate treasury money to fund political advertisements in federal election campaigns without any sort of disclosure or shareholder consent. Similar policy concerns have been addressed by U.K. laws in 2000. In this paper, we present evidence on the effect of the 2000 and 2006 Amendments to Companies Act of the United Kingdom that provide shareholders with the ability to consent or object to future corporate political spending and a new dual disclosure system that requires companies to report political spending to shareholders in annual reports, while the political parties to report the source of their funding to the voting public through the Electoral Commission.
We obtain data on management proposals requesting shareholder voting on future corporate political expenditure by Britain’s publicly traded companies and the actual corporate political spending. We show that the U.K. Companies Act has not acted as a ban on corporate political spending. To the contrary, companies that seek approval of political budgets nearly always get them approved by shareholders. However, the political budgets that are sought by managers and approved by shareholders are typically modest – ranging from £50,000 to £100,000. In addition, actual corporate political spending for publicly-traded companies in the U.K. is far below the overall shareholder-authorized amounts. Lastly, our data reveal that since the 2000 Amendments, political spending appears to have migrated from publicly-traded companies to privately-held companies in the past decade.
Date of Publication:
Louis J. Virelli, Constitutional Traditionalism in the Roberts Court, 73 U. Pitt. L. Rev. 1 (2011)Clicking on the button will copy the full recommended citation.
The debate over the role of traditionalism in constitutional interpretation has itself become a tradition. It remains a popular and controversial topic among constitutional scholars and presents normative questions that are as divisive, difficult, and important today as at the Founding. Missing from the discussion, however, is a comprehensive account of how the Supreme Court has employed traditionalism - an approach that looks for meaning in present manifestations of longstanding practices or beliefs - in its constitutional jurisprudence. This project is the first to fill this significant gap in the literature by providing an exhaustive and systematic analysis of the Court’s use of constitutional traditionalism. This Article focuses on the Roberts Court’s first five terms to provide an empirical foundation that will not only offer previously unavailable insights into the Court’s current traditionalist practices, but will also set forth a useful framework for the ongoing normative debate over traditionalism.
This project uses content analysis of key terms to identify every instance in which the Roberts Court employed traditionalism to interpret the Constitution. More specifically, this project set out to answer the following three questions: first, how frequently does the Roberts Court employ traditionalism in its constitutional jurisprudence?, second, how robust is the Court’s use of traditionalism (i.e., is it used to interpret a broad or narrow range of constitutional provisions)?, and finally, how often and in what contexts do individual justices on the Roberts Court rely on traditionalism in their own constitutional opinions? The research provided here suggests answers to all three of these questions. First, the data indicate that traditionalism has been relied upon regularly by the Roberts Court, appearing in nearly half of the Court’s constitutional cases. Second, traditionalism is frequently applied to a wide variety of constitutional provisions: two-thirds of the constitutional provisions considered by the Roberts Court were subjected to a traditionalist analysis, and ranged from provisions pertaining to government power and structure to individual rights. Finally, the data show that although traditionalism is used more frequently by conservative justices, it is nevertheless employed by all members of the Court in a wide variety of contexts. Although there is more to learn about traditionalism’s role in the Court’s constitutional jurisprudence, this evidence makes clear that notwithstanding the normative controversy surrounding traditionalism, any future study of the workings of this Court, its members, or of the future direction of constitutional law in general must take traditionalism into account.
Date of Publication:
Will Bunting, The Trouble with Investment Banking: Cluelessness, Not Greed, 48 San Diego L. Rev. 993 (2011)Clicking on the button will copy the full recommended citation.
We assume that the set of marketable financial instruments can be divided into two distinct categories: (1) easy-to-price and (2) difficult-to-price, and then isolate two behavioral effects as most important with respect to securities trading in difficult-to-price securities; specifically, the house-money-effect and the earned-money-effect. It is shown that these behavioral effects discourage profitable investment in research effort.
We then argue that the Private Securities Litigation Reform Act (“PSLRA”) safe harbor should not apply to investment banks that issue/underwrite difficult-to-price securities. We also advocate for the return of the private investment banking partnership as the most sensible way in which to get the relevant behavioral incentives right vis-à-vis the bank and its investor-clients and propose two regulatory measures designed to induce such banks to structure themselves as private partnerships where they are otherwise free to publicly incorporate.
Finally, we suggest that fiduciary responsibilities owed to investors by investment advisers/broker-dealers transacting in these kinds of securities must be strengthened/weakened, respectively. Current reform proposals blur the distinction between these two financial actors. We argue that the line must be drawn as bright as possible in order to make as salient as possible to investors in whom they can repose their trust and confidence. Moreover, instead of passing legislation designed to eliminate or reduce proprietary transactions, this Article argues for just the opposite – that legislation be passed to make the incentives facing broker-dealers and registered investment advisers (and investment banks as well) look more like those of the typical hedge fund – not less.
Date of Publication:
Ellen S. Podgor, Foreward – Overcriminalization 2.0: Developing Consensus Solutions, 7 J.L. Econ. & Pol'y 565 (2011)Clicking on the button will copy the full recommended citation.
This is the Introduction to the Symposium issue of the Journal of Law, Economics and Policy on Overcriminalization 2.0. This introduction sets the stage of the overcriminalization movement and provides a roadmap of the papers in this volume.
Date of Publication:
Royal C. Gardner, The Ramsar Convention, in Wetlands - Integrating Multidisciplinary Concepts (Ben A. LePage ed., Springer, 2011)Clicking on the button will copy the full recommended citation.
Date of Publication:
Ellen S. Podgor, 100 Years of White Collar Crime in “Twitter”, 30 Rev. Litig. 534 (2011)Clicking on the button will copy the full recommended citation.
Despite the fact that Twitter did not exist when the term “white collar crime” was coined in 1939, it is an interesting exercise to highlight the last 100 years of white collar criminal activity using “tweets.” In so doing, this Essay tries to capture some of the key events that have been prominent in the white collar world.
This Essay first examines corporate criminal liability, looks next at individual liability, and then discusses key statutes and crimes that have been used in the prosecution of white collar criminal activity. In this regard, mail fraud, RICO, and perjury are examined. Sentencing issues and how they have influenced the treatment of white collar crime are tweeted. The ultimate goal of this fictional presentation is to demonstrate a historical overview of white collar crime happenings and is so doing evaluate its progression over time.
Date of Publication:
Ellen S. Podgor, Pleading Blindly, 80 Miss. L.J. 1633 (2011)Clicking on the button will copy the full recommended citation.
In the criminal area, discovery violations are a continual concern. Recently, the Department of Justice (DOJ) was caught with discovery violations that reflected prosecutorial misconduct and improprieties. To its credit, the DOJ issued three Memos that sought to affirmatively promote office compliance with discovery obligations. The three Memos of former Deputy Attorney General David W. Ogden, however, fall short in an important area, discovery for defendants prior to entering into plea agreements.
This Essay places this discussion in the backdrop of existing legal scholarship and existing precedent, most importantly the Supreme Court opinion in United States v. Ruiz, that provides little support for mandating discovery to defendants prior to entering into a plea agreement. Protecting the importance of a voluntary and knowing plea cannot be overlooked in assuring an efficient system of justice. Unique concerns are also noted when the government is entering into a deferred prosecution agreement with a corporation or other entity. This Essay advocates for a more forceful response than merely having DOJ guidelines to remedy discovery violations that may influence the entering of a plea.
Date of Publication:
Cynthia Hawkins DeBose, Book Review: Children, Tribes, and States: Adoption and Custody Conflicts Over American Indian Children, by Barbara Ann Atwood, 21 Law & Pol'y Book Review 354 (2011)Clicking on the button will copy the full recommended citation.