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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.
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Cynthia Hawkins DeBose and Darryl Wilson, Mastering Property Law (Carolina Academic Press, 2011)Clicking on the button will copy the full recommended citation.
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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.
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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.
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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.
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Jason Bent, The Telltale Sign of Discrimination: Probabilities, Information Asymmetries, and the Systemic Disparate Treatment Theory, 44 U. Mich. J.L. Reform 797 (2011)Clicking on the button will copy the full recommended citation.
The systemic disparate treatment theory of employment discrimination is in disarray. Originally formulated in United States v. International B’hood of Teamsters, 431 U.S. 324, 360-61 (1977), the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a “pattern or practice” of discrimination. While the Court and scholars have recently given substantial attention to the disparate impact theory, they have not adequately analyzed the contours of the systemic disparate treatment theory. For example, there are currently disputes about whether the systemic disparate treatment theory can be utilized by plaintiffs in (1) ADEA cases, (2) ADA cases, (3) hostile work environment cases, and (4) private individual (non-class) discrimination cases brought under any of the antidiscrimination statutes. The development of a coherent approach to systemic disparate treatment law is becoming increasingly important. Since 2006, the EEOC has made pursuit of its “Systemic Initiative” a top priority in its enforcement strategy. Thus, difficult questions about the application of the systemic disparate treatment theory will continue to surface.
In this paper, I take a first step toward bringing order to the systemic disparate treatment theory. I return to the foundations of the systemic disparate treatment theory in order to formulate a set of guiding principles for resolving the issues listed above. Drawing upon economic models of optimal allocation of burdens of proof in civil litigation and an application of Bayesian probability analysis, I argue that the proper extent of the systemic disparate treatment theory depends on three critical considerations: (1) the background prevalence (or prior probability) of the type of discrimination alleged; (2) the relative strength of the evidentiary signal provided by the proffered statistical evidence; and (3) the parties’ relative access to evidence on the element of discriminatory intent. Applying the principles I develop in this article, I conclude that the Teamsters systemic disparate treatment theory should be available to plaintiffs in ADEA, ADA, and individual (non-class) cases, but not in hostile work environment cases.
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Elizabeth Berenguer, The Invisible Man: How the Sex Offender Registry Results in Social Death, 2 Journal of Law and Social Deviance 92 (2011)Clicking on the button will copy the full recommended citation.
This Article establishes that over-criminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits which arise when over-criminalization exists, and further shows how these characteristics and traits are present with respect to the sex offender registry. This Article offers critical insight into the relationship between over-criminalization and repressive control systems and concludes that over-criminalization exists when repressive governmental controls seize power and render non-existent informal social controls. It follows that the sex offender registry is a repressive governmental control that has concentrated power in the government and criminal laws while shifting power away from informal social controls to result in the social death of those unwanted, those labeled sex offender.
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Ciara Torres-Spelliscy, Has the Tide Turned in Favor of Disclosure? Revealing Money in Politics After Citizens United and Doe v. Reed, 27 Ga. St. U. L. Rev. 1057 (2011)Clicking on the button will copy the full recommended citation.
This article will cover a short but tumultuous period in the history of campaign finance disclosure law from 2007 to 2010 to highlight the dramatic 180 degree turn that the law has taken on the issue of the constitutionality of disclosure within the past four years. First, I will explore the hostility that many lower courts were exhibiting in the short window between the Supreme Court’s decision in Wisconsin Right to Life II (WRTL II) in 2007 and the Supreme Court’s decision in Citizens United v. FEC in 2010. Basically these lower courts made the mistake of applying WRTL II to disclosure laws. This mistake was corrected by the Supreme Court in Citizens United and Doe v. Reed in 2010. After Citizens United and Doe, lower courts all over the country have adopted the Supreme Court’s view that disclosure and disclaimers can be constitutionally applied to advertisements that feature candidates for office directly before an election. And lower courts have gone further to endorse disclosure around ballot measure fights as well. In other words, in the nation’s courts the tide has turned in favor of disclosure of the sources of money in politics.
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Elizabeth Berenguer, From Innocent Boys to Dirty Old Men: Why the Sex Offender Registry Fails, 47 Criminal Law Bulletin 1067 (2011)Clicking on the button will copy the full recommended citation.
This article surveys the requirement of registration as a sex offender and ultimately concludes that the registry fails to protect children and society from individuals who commit sex-related crimes; furthermore, it concludes that the registry fails to prevent sex crimes from occurring. The author studies the legislative history of various Acts related to sex crimes as well as statistics on sex crimes to surmise that Congress in large part relied on myths about sex offenders in enacting legislation like the Adam Walsh Act. As a result, the registry is incapable of preventing the commission of sex offenses. The author further resolves that the registry endorses and perpetuates hatred toward sex offenders by creating a stigma whereby sex offenders are unable to reintegrate into society and lead productive lives. The article concludes by proposing that the registry is counterproductive as it causes great harm to individuals without offering a greater positive benefit to society as a whole.
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Ciara Torres-Spelliscy, Hiding Behind the Tax Code, the Dark Election of 2010 and Why Tax-Exempt Entities Should Be Subject to Robust Federal Campaign Finance Disclosure Laws, 16 Chapman Journal of Law and Public Policy 59 (2011)Clicking on the button will copy the full recommended citation.
If the past is prologue, we should anticipate a marked increase in the use of non-profits to mask for-profit money in politics. History shows that for-profit corporations spend through non-profits to enjoy their anonymity while spending without accountability from shareholders or customers. And Citizens United may only expand this corporate habit of spending through intermediaries. If for-profit corporations are purposefully using non-profits to hide the true source of their funds, then it is possible that the degree of disclosure required of non-profits in the future may have an impact on whether for-profits give money to ideological and politically active non-profits.
Citizens United changed many aspects of American campaign finance law. The Supreme Court’s decision ended decades-old restrictions on the use of union and corporate treasury funds to pay for independent expenditures and electioneering communications. But the one area where the Citizens United Court increased the ability of Congress to regulate was the disclosure of the sources of money in politics. Indeed, the Supreme Court found that the Bipartisan Campaign Reform Act of 2002’s (BCRA’s) disclaimer and disclosure provisions could be constitutionally applied to the plaintiff in Citizens United, a 501(c)(4) organization, as well as to its ads and its film entitled “Hillary: The Movie.”
As Citizens United reaffirms, in order for voters to make informed choices at the ballot box, they must know who is paying for each side of a political fight. Campaign finance disclosure and disclaimer laws should be adopted at the federal level to achieve this end, regardless of the tax status of the spender. Yet the question remains, how expansive is this governmental right to mandate disclosure? And in particular, what types of disclosure can non-profit social welfare organizations or trade associations be subject to in the future once they purchase political advertisements? These are the questions that this article will endeavor to answer.