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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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Roy Balleste, Persuasions and Exhortations: Acknowledging Internet Governance and Human Dignity for All, 38 Syracuse J. Int'l L. & Com. 227 (2011)Clicking on the button will copy the full recommended citation.
The title of the article sums up the author’s desire to communicate and advocate on the importance of Internet governance. Internet governance is concerned with the laws and regulations related to the management of the Domain Name System (DNS), all Top Level Domains (TLDs), the Internet’s Root Zone, and other related subjects. The article provides background information on the subject before considering its importance to freedom of expression, corporate responsibility abroad, state responsibility and the rule of law under international law. The subject stands to identify Internet operations and the forces that manage those operations. The Internet, an Information and Communication Technology (ICT), has created a juncture that potentially equalizes governments, businesses, and civil society at the discussion table. The first part of the article considers that if Internet governance is to be understood, then it must be explored and studied by all academics in the legal field. The second part of the article presents a tribute to the efforts of those individuals that have participated on the common goal to discuss and discover international internet management standards that would be influential in the promotion of democracy, education, and ultimately human development.
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Roberta Flowers, Witness Preparation, Regulating the Profession’s Dirty Little Secret, 38 Hastings Const. L.Q. 1007 (2011)Clicking on the button will copy the full recommended citation.
Witness preparation is considered by most criminal attorneys to be an essential part of trial advocacy. This paper addresses the ethical restraints on this common practice. It looks at whether the ABA Model Rules of Professional Conduct and/or the proposed ABA Criminal Justice Standards give sufficient regulation and guidance. It then suggests several factual scenarios where the current standards and rules give very little guidance. This paper suggests that the American Bar Association’s Criminal Justice Standards should include guidelines that direct the criminal attorney to avoid conduct that may not be intended to influence the witness to testify falsely, but which by its nature may have the potential to create false testimony. Additionally, the standard should contain a list of attorney conduct that could unintentionally produce false testimony. Finally, this paper proposes two standards that might provide some guidance in this important area of trial preparation that is routinely practiced, hidden from view, and many times difficult to expose.
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Ellen S. Podgor, Introduction – Corporate Criminal Liability, 41 Stetson L. Rev. 1 (2011)Clicking on the button will copy the full recommended citation.
This is the Introduction to Stetson University's College of Law Symposium Issue on Corporate Criminal Liability. The papers from this symposium came from a discussion forum held as part of the Southeastern Association of Law Schools (SEALS) conference. This Introduction provides an overview of corporate criminal liability and also a roadmap of the papers that are part of this volume.
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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.
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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.