8227 research outputs found
Sort by
Inflated Private Offering: Regulating Corporate Insiders and Market Moving Disclosures on Social Media
Get PDFThis Note will explore Regulation FD’s development, from its enactment in 2000 to its status in the age of social media. It will ultimately propose a safe harbor provision that clearly delineates when issuers and corporate insiders are not subject to the regulation’s requirements. Part I provides an overview of Regulation FD’s provisions and enforcement as well as the SEC’s subsequent guidance, which attempts to elucidate the regulation’s application to new technologies. Part II analyzes the specific problems that arise when Regulation FD is applied to information distributed through social media and assesses scholars’ proposed solutions to these problems. Lastly, Part III proposes that a revised Regulation FD should incorporate a social media safe harbor provision to clarify the regulation’s application to corporate insiders’ use of social media to disseminate market-moving information
Shackling Prejudice: Expanding the Deck v. Missouri Rule to Nonjury Proceedings
Get PDFCourts in the United States have traditionally held that criminal defendants have the right to be free from unwarranted restraints visible to the jury during the guilt phase of a trial. The term “unwarranted restraints” refers to the use of restraints on a defendant absent a court’s individualized determination that such restraints are justified by an essential state interest. In Deck v. Missouri, the Supreme Court expanded the prohibition against unwarranted restraints to the sentencing phase of a trial. The law regarding the unwarranted shackling of defendants in nonjury proceedings, however, remains unsettled. The U.S. Courts of Appeals for the Second and Eleventh Circuits have held that courts may validly use restraints on defendants in nonjury proceedings absent a showing of individualized need. Conversely, the Ninth Circuit has determined that the holding in Deck extends to nonjury proceedings, and therefore defendants have a right to be free from unwarranted shackles in jury and nonjury proceedings.
This Note advocates for the Ninth Circuit’s approach and argues that the Supreme Court should expand the rule established in Deck to nonjury proceedings. Unwarranted restraints violate criminal defendants’ due process rights under the Fifth and Fourteenth Amendments regardless of the presence of a jury. This Note then proposes factors for courts to use in conducting individualized shackling determinations and offers further recommendations for implementation of the Deck rule to all court proceedings—jury and nonjury
Plea Bargaining and Collateral Consequences: An Experimental Analysis
Get PDFThe overwhelming majority of convictions in the United States are obtained through guilty pleas. Many of these guilty pleas are a product of plea bargaining, where a defendant enters a guilty plea in exchange for some form of official concessions. Despite its prominence, plea bargaining is subject to limited regulation. One consequence of this limited regulation is that courts generally only require the direct consequences of a guilty plea to be communicated to a defendant. Thus, when a defendant is deciding whether to plead guilty, he is often operating with incomplete information about the costly collateral consequences that may attach to a criminal conviction. The dominant theory of plea bargaining suggests that outcomes will largely mirror trial outcomes because bargaining occurs in the shadow of trial, but this may not be accurate if failure to communicate collateral consequences influences decisions to plead guilty.
Using an experiment, this Note examines the extent to which communicating collateral consequences influences the decision to accept a plea bargain. Results from the experiment demonstrate that communicating collateral consequences decreases the rate of plea acceptance, but the effect of communication dissipates as the difference between the plea bargain sentence and the potential sentence at trial grows larger. Because communicating collateral consequences has an important effect on guilty pleas, this Note suggests that a lawyer’s failure to communicate such consequences to their client should be grounds for an ineffective assistance of counsel claim
What SEILA Law Says about Chief Justice Roberts\u27 View of the Administrative State
Get PDFIn Seila Law LLC v. Consumer Financial Protection Board , the Supreme Court invalidated a statutory provision that protected the director of the Consumer Finance Protection Board (CFPB) from removal by the president except for inefficiency, neglect of duty, or malfeasance in office. Writing for the Court, Chief Justice John Roberts announced a new test for evaluating the constitutionality of for cause restrictions on presidential removal of high-level agency officials. Under this test, the Court asks whether the removal restriction applies to an official who is the head of a single-head agency or to the officials who collectively lead a multimember expert agency, prohibiting the former and permitting the latter. This test is remarkable both because it changes the law and because of how it changes the law: it lets the structure of the agency determine the degree of presidential control over its principal officers
The Case for a Federal Criminal Court System (and Sentencing Reform)
Get PDFIn their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. As they depict it, justice in the federal courts is either delayed or denied, disparity in legal outcomes among circuits is increasing, and the Supreme Court is falling farther and farther behind in resolving circuit splits. While these problems have been around for a while, Menell and Vacca argue they are getting worse and will only continue to worsen if radical action is not taken. Their article provides enough of a factual record to raise the concern that, because of their workload, the federal courts are not resolving cases as capably as they could.
While Menell and Vacca focus on civil litigation in the federal system, this Article looks instead at criminal cases. It first considers whether the problems Menell and Vacca describe on the civil side afflict criminal litigation to the same extent. On the assumption that the problems in the criminal docket are similarly acute, it then considers whether anything can be done about them.
Part I of this Article assesses the efficiency, uniformity, and quality of criminal justice in the federal system. It starts by noting that, while the federal criminal docket is not as overloaded as the civil docket on which Menell and Vacca focus, the number of criminal and prisoner cases commenced in federal court has far outpaced increases in judgeships. Perhaps as a result, resolution of these cases at the district court level has slowed appreciably over the past several decades, and while the rate at which criminal cases are terminated at the appellate level has not changed substantially, that stability appears to have come at a serious cost. Significant circumstantial evidence suggests that the federal appellate courts are not resolving criminal matters as carefully as they once did, in large part because over three-quarters of federal court cases are now handled through decisional shortcuts such as unpublished opinions and surrogate decision-makers, practices that are particularly prevalent in litigation affecting criminal defendants and prisoners. Making matters worse, the Supreme Court has become increasingly less able, or less willing, to resolve circuit court conflicts over criminal law issues
Our Kardashian Court (and How to Fix It)
Get PDFThe Supreme Court is broken. After cataloging its dysfunctions, this Article suggests a contributing cause and proposes a solution. The contributing cause is that Justices have become celebrities, and, like other celebrities, play to their fan base. The solution is to limit their opportunities to use their official status to do so: Congress should pass a law prohibiting concurring or dissenting opinions and requiring each case to be decided by an unsigned opinion that does not disclose the number of Justices who join it. The Article outlines the advantages of such a law and considers possible objections to it, including both constitutional and nonconstitutional objections. It ultimately concludes that it would be constitutional and that although there are significant risks, the probable benefits outweigh the probable costs. And because it is a statutory solution rather than a constitutional one, it can be viewed as an experiment that can easily be terminated if it does not work out. In the current climate, it is a risk worth taking
Grown from the Shadows: How Technology and Taxes Can Bring Private Companies into the Public Light
Get PDFThe initial public offering (IPO) has started to make a comeback, but in forms that require less oversight and at a later point in a company’s lifecycle. These new trends cut main street investors out of early-stage corporate growth and have imperiled the fortunes and retirement funds of a generation. One of the most significant precipitating factors in this new dynamic is electronic private markets that allow sophisticated investors to trade pre-IPO shares. These electronic private markets provide liquidity to institutional investors, which relieves institutional pressure on companies to go public. The current approaches to IPO reform are primarily deregulatory, and they do not address the role of electronic private markets.
This Note proposes a tax incentive that would allow investors to defer capital gains on shares that trade on an electronic private market and then go public within a limited window. Investors would receive tax deferral on these “Opportunity Securities” only if they reinvest their proceeds in another qualifying private company or IPO. These requirements would reignite the IPO pipeline. The incentive would apply to private market investors as well as main street investors who buy shares within one year of the IPO. Opportunity Securities would encourage companies to go public sooner because investors would be motivated to seek this tax deferral and pressure companies accordingly. Unlike other proposals, this solution would encourage IPOs and align the incentives of heterogenous investors without sacrificing disclosure or investor protections
Improvising Intellectual Property in Saigon
Get PDFHow does intellectual property become part of the structure of social practice? The traditional answers are enforcement, education, and incentivized self-interest. This Article challenges that understanding by examining the social field of young engineers in Vietnam. In Ho Chi Minh City, Vietnam, intellectual production is not only about producing the legal commodity we call intellectual property. For many young engineers working with multinational companies, it is not about producing a product at all. It is about improving their position in society. Relying on over a year of qualitative, ethnographic fieldwork from 2012 to 2014, this Article develops a critique of intellectual property scholarship that limits its own remit to the maximization of such product or access to it. Whether such intangible objects as patents, trade secrets, and copyrights are protected by law or left unprotected, the legality of their protection is embedded in social practices that transcend jurisdictional limits. Research participants in this city formerly known as Saigon report the extent to which intellectual property concepts already structure their practice, while at the same time they describe the legal system of Vietnam as socially distant and potentially hostile. They are engaged in improvising a practice with respect to intellectual objects, and in the process they participate in the construction of legality around these objects and around themselves
People v. Robots: A Roadmap for Enforcing California\u27s New Online Bot Disclosure Act
Get PDFBots are software applications that complete tasks automatically. A bot\u27s communication is disembodied, so humans can mistake it for a real person, and their misbelief can be exploited by the bot owner to deploy malware or phish personal data. Bots also pose as consumers posting online product reviews or spread (often fake) news, and a bot owner can coordinate multiple social-network accounts to trick a network\u27s trending algorithms, boosting the visibility of specific content, sowing and exacerbating controversy, or fabricating an impression of mass individual consensus. California\u27s 2019 Bolstering Online Transparency Act (the CA Bot Act\u27) imposes conspicuous disclosure requirements on bots when they communicate or interact with humans in California. Call it Isaac Asimov\u27s fourth Rule of Robotics: A robot may not pretend to be a human being. By requiring bots to self-identify as such, the CA Bot Act is a pioneer in laws regulating artificial intelligence. Most of its criticism points to the act\u27s lack of an enforcement mechanism to incentivize compliance. Accordingly, this Article lays out a map to sanction violations of the act with civil actions under California\u27s Unfair Competition Law and statutory tort law of fraudulent deceit. It outlines what is prohibited, who can be sued, and who has standing to sue, then addresses First Amendment limits on unmasking John Doe defendants via subpoena. For many reasons, attempts to hold CA Bot Act violators liable are most likely to prevail in the commercial arena. But a willful use of bots to undermine a political election or prevent voting might also be a worthy target. Ultimately, the law could be strengthened with an articulated enforcement provision. But if the CA Bot Act aims a first salvo against malicious online bots, this Article hopes to spark the powder
Are Publicly Traded Corporations Disappearing?
Get PDFCorporate law scholars and economists have expressed concern recently about the fact that the number of publicly traded corporations in the United States has declined significantly since a peak in the late 1990s. In this Essay, in honor of the late Professor Lynn Stout, who devoted much of her career to the study of large publicly traded corporations, I show that despite a decline in the number of such corporations in the last two decades, they collectively account for about the same share of total economic activity as they have for the last six decades. While there has been turnover in the ranks of the largest corporations in recent decades, there is no reason to believe that these entities are disappearing or becoming less important