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Personal Benefit Has No Place in Misappropriation Tipping Cases
Get PDFThe Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended as well to tipping cases based on the misappropriation theory. And there is nothing in the language of Chiarella, Dirks, and O’Hagan – the earlier seminal Supreme Court cases relating to the reach of Rule 10b-5’s prohibitions on insider trading – that calls for doing so. The lower courts, however, have split on the issue, and in recent years a number of them, through a set of statements unaccompanied by reasoned analysis, seem to be sleepwalking into inserting the personal benefit requirement into misappropriation-theory-based tipping cases. We show that this recent drift is seriously misguided as a matter of both doctrine and policy. Allowing this errant doctrine to become firmly lodged in the law would needlessly leave many socially undesirable trades unpunished and hence undeterred
Citizens of the State
Get PDFAccording to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty of a state.
In particular, beginning in the mid-1830s, abolitionist lawyers in Boston who confronted the limits of inherited arguments based on national citizenship turned to the Constitution’s clause guaranteeing the privileges and immunities of state citizenship. By pairing this Article IV clause with the then-prevailing norm of a state’s sovereign duty to protect its citizens, these lawyers argued that failure on the part of Massachusetts to intervene in the police laws of the southern coastal states targeting free blacks would imperil the state’s beleaguered standing. These arguments in turn became the basis for the country’s first challenge to the laws of the southern states that stripped black men of their liberty without due process, as lawmakers in Boston organized an Article IV lawsuit with the aim of vindicating the state’s coequal sovereign status. Propelled by this convergence of interests, state citizenship remained a distinct status for the drafters of the Fourteenth Amendment who envisioned that states would continue to play a role in the protection of individual rights.
By excavating this neglected history, this Article reveals a constitutional terrain defined not by a feuding North and South, but by an ever-shifting number of jurisdictions, bound in a domestic economy rooted in race-based slavery. At the same time, this Article unearths a robust precedent for current state initiatives to extend protections to individuals denied national citizenship. In doing so, it offers a more expansive definition of state sovereignty: one premised not simply on a state’s autonomy from the national government, but also on a state’s duty to protect its citizens
Counter-Critical Theory: An Intervention in Contemporary Critical Thought and Practice
Get PDFWalter Benjamin and Bertolt Brecht\u27s short-lived project for a critical theory journal, Krise und Kritik, foundered in 1931 on the shoals of positivism. Since then, a series of anti-foundational challenges to traditional critical theory has fragmented the landscape of critical theory and, especially, critical praxis, leaving us disarmed today, in these unprecedented times. This essay offers a way forward by means of what it calls “counter-critical theory”: a critical method that indexes the original impulse of critical theory, but liberates it from its foundation in order to allow for a more open-ended and permanent re-examination of how power circulates and recirculates throughout society. Counter-critical theory is a pure theory of illusions and calls for a strategic, ecumenical practice of political disobedience, accompanied by an unrelenting and resolute deployment of interpretation and resignification
Naked Open Market Manipulation and Its Effects
Get PDFMore than 80 years after US federal law first addressed stock market manipulation, there is still dispute about manipulation law’s foundational principles; this chapter aims to provide clarity by offering an analytical framework for understanding a specific manipulation. There has been a sharp split among the federal circuits concerning manipulation law’s central question: Can trading activity alone ever be considered illegal manipulation? Economists and legal scholars do not agree on whether manipulation is possible in principle, let alone on how to address it properly in practice. The framework offered by this chapter aims to help clarify federal law and may guide regulators in successfully prosecuting financial law’s most intractable wrong. We draw on the tools of microstructure economics and the theory of the firm to provide an analysis of a particular form of manipulation, identify who is harmed by it, and evaluate the social welfare effects
Whose Lands? Which Public? The Shape of Public-Lands Law and Trump\u27s National Monument Proclamations
Get PDFPresident Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. If President Trump’s shrinkages stand, they will be the largest removal of public lands from protected status in U.S. history, and will put the remaining national monuments on the chopping block.
This Article advances a novel theory showing that the President lacks the power to revise or revoke monuments. The Antiquities Act gives a power only to protect public lands, not to remove them from protection. Arguments developed so far in litigation and scholarship fail to recognize a general feature of public- lands law: It consistently denies the President the power unilaterally to remove lands from statutorily protected categories once they are placed within those categories. The Antiquities Act should be read to be consistent with this field- wide pattern
L’évolution des Actions en Justice Climatique aux États-Unis, de George W. Bush à Donald Trump
No full textLes États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait trop peu. À l’heure actuelle, ces demandeurs intentent de nombreuses poursuites contestant les efforts déployés par l’administration Trump pour abroger les règlements existants et pour aider à la production de combustibles fossiles. En outre, plusieurs procès ont été intentés par les villes et les comtés contre les grandes compagnies pétrolières et gazières cherchant une compensation monétaire pour les dommages causés par la combustion des combustibles fossiles qu’ils produisent. Des cas sont en suspens affirmant que l’ancienne doctrine de la confiance publique fait implicitement partie de la Constitution des États-Unis et exige que le Gouvernement fédéral prenne davantage de mesures contre le changement climatique. De nombreuses poursuites prétendent que les impacts des projets proposés auraient dû être analysés dans les déclarations d’impact environnemental préparées en vertu de la loi nationale sur la politique environnementale de 1970. De nombreuses poursuites contestent la construction ou l’exploitation d’installations qui extraient des combustibles fossiles (mines de charbon et pétrole, puits de gaz), les transportent (comme les pipelines) et les brûlent (comme les centrales électriques). Les autorités gouvernementales enquêtent également sur plusieurs grandes sociétés concernant l’exactitude de leurs divulgations aux actionnaires et aux régulateurs gouvernementaux
The Corruption and Human Rights Connection: Government Acquiescence in Torture
Get PDFCorruption has human rights consequences. That was the conclusion of a 2009 study by the International Council on Human Rights Policy and Transparency International and it is a conclusion that the 9th Circuit implicitly reached in Parada v. Sessions, a review of a dismissal of asylum case decided on August 29th, 2018. Despite the fact that such a conclusion enjoys widespread support, courts have been slow to recognize the relationship between corruption and human rights abuses. Parada v. Sessions represents an effort by the 9th Circuit to give legal cognizance to the corruption-human rights link. The holding of the case creates a blueprint that could have broad application outside of 9th Circuit immigration law jurisprudence
Profile in Public Integrity: Karl Racine
Get PDFAttorney General Karl A. Racine is the first elected Attorney General of the District of Columbia. With his inauguration at the beginning of 2015, the Office of the Attorney General (OAG) began an era of independence for the agency and accountability to District residents. As the chief legal officer for the District of Columbia, Attorney General Racine relies on his prior legal and leadership experience as a public defender and the first African-American managing partner of a top-100 US law firm, Venable LLP, to advise the Mayor and District agencies, defend the city in court and use the law to advance the public interest
Corruption by Card: How Police Association Cards Allow Law Enforcement to Cloak Self-Dealing as Discretion
Get PDFLaw enforcement abuse their discretion by providing favorable treatment to individuals that demonstrate a relationship to the law enforcement community. Private organizations affiliated with law enforcement have capitalized on this by creating association cards which are distributed by members to friends, family members, and others. Card holders present the card during encounters with law enforcement to signal that they have a relationship with law enforcement, with the expectation that they will receive favorable treatment. Though the cards have no formal authority behind them, strong norms in the law enforcement community punish officers that fail to honor them. Because the cards are distributed and honored on the basis of an individual’s official position and are used in a non-transparent way, the practice raises ethical and legal questions about whether it is corrupt. This paper explores the nature of the card system, its ethical and legal implications, and ways to end it, with a focus on New York State
Transparency\u27s Ideological Drift
Get PDFIn the formative periods of American open government law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make government smaller and less egregious.
This Article traces transparency\u27s drift in the United States from a progressive to a more libertarian, or neoliberal, orientation and offers some reflections on the causes and consequences and on the possibility of a reversal. Many factors have played a part, including corporate capture of freedom of information laws, the exponential growth in national security secrecy, the emergence of the digital age and associated technologies of disclosure, the desire to facilitate international trade and investment, and the ascendance of market-based theories of regulation. Perhaps the most fundamental driver of this ideological drift, however, is the most easily overlooked: the diminishing marginal returns to government transparency. As public institutions became subject to more and more policies of openness and accountability, demands for transparency became more and more threatening to the functioning and legitimacy of those institutions and, consequently, to progressive political agendas. Coming to terms with transparency law\u27s ambivalent legacy is the first step toward redeeming its promise in the present day