Loyola University Chicago, School of Law: LAW eCommons
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he New Oral Argument: Justices as Advocates
Get PDFThis Article conducts a comprehensive empirical inquiry of fifty-five years of Supreme Court oral argument, showing that judicial activity has increased dramatically, in terms of words used, duration of speech, interruptions made, and comments proffered. The Court is asking no more questions of advocates; instead, the justices are providing conclusions and rebutting their colleagues. In addition, the justices direct more of their comments and questions to the side with whom they ultimately disagree. Furthermore, “losing” justices, be it ideological camps that are outnumbered on the Court or dissenters in specific cases, use oral arguments to push back against the dominant group, reasserting an opposing narrative through oral argument. These forms of judicial behavior constitute advocacy, rather than judging. These are not trends that have gradually emerged over time: rather, we predict and establish that oral arguments changed dramatically in 1995, in response to the rapidly growing political polarization in Congress and the public at large. Partisan division, anger at political opponents, and disappearing middle ground all affect not only political players, but shape how Supreme Court justices behave at oral argument, the one public part of the Court\u27s decision-making process
Taking Laughter Seriously at the Supreme Court
Get PDFLaughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court\u27s serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than nine thousand instances of laughter witnessed at the Court since 1955, this Article shows that the Justices of the Supreme Court use courtroom humor as a tool of advocacy and a signal of their power and status. As the Justices have taken on a greater advocacy role in the modern era, they have also provoked more laughter. The performative nature of courtroom humor is apparent from the uneven distribution of judicial jokes, jests, and jibes. The Justices overwhelmingly direct their most humorous comments at the advocates with whom they disagree, the advocates who are losing, and novice advocates. Building on prior work, we show that laughter in the courtroom is yet another aspect of judicial behavior that can be used to predict cases before Justices have even voted. Many laughs occur in response to humorous comments, but that should not distract from the serious and strategic work being done by that humor. To fully understand oral argument, Court observers would be wise to take laughter seriously
UTC\u27s Duty to Inform and Report at 20 - How Mandatory Is Transparency
No full textIn trust administration, there is often a tugging contest between a settlor\u27s or trustee\u27s desire to limit certain information being released to beneficiaries and beneficiaries\u27 desire for total transparency. While the reasons for limiting information are varied, a common one is autonomy, sometimes emanating from the settlor\u27s or trustee\u27s concern that such information may be harmful to the beneficiary or the family dynamic. Nowhere is this tension more apparent than the interplay between Uniform Trust Code (UTC) Sections 105 (Default and Mandatory Rules) and 813 (Duty to Inform and Report)
Afterlife of the Death Tax
Get PDFMore than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.
This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of wealth. As a result, today\u27s estate tax is functionally a zombie: it accounts for less than one percent of federal revenues and does little to prevent the accumulation of wealth among a small group of citizens. The estate tax largely serves to evoke fear and costly tax planning, but it only manages to bite the largest and slowest estates.
Although the estate tax has proven hard to kill, it is time for Congress to end it definitively and transfer its functions as revenue raiser and impediment to wealth accumulation to the income tax. To effect that transfer, Congress needs to do three things: First, it should treat death as a realization event and tax estates on their assets\u27 unrealized appreciation. Second, it should treat the receipt of an inheritance as gross income in the hands of heirs, thereby requiring heirs to pay income tax on their inheritance. Third, Congress should eliminate the step-up in basis and, instead, assign basis to inherited property under ordinary basis rules. By making these three changes, Congress can put to rest the zombie estate tax, while, at the same time, revivifying taxation at death
The Future of Insider Trading after Salman: Perpetuation of a Flawed Analysis Or a Return to Basics
No full textIn large part due to two poorly reasoned decisions by Justice Powell in the early 1980s, Chiarella v. U. S. and Dirks v. SEC, the development of insider trading law has been constrained, enforcement has been hampered, and insider-trading has grown to the point where hundreds of millions of dollars are at stake. Moreover, Chiarella and Dirks were inconsistent with the Congressional policy that the purpose of the securities laws is to ensure a level playing field where one participant does not have an undue advantage over another participant. A Second Circuit decision, U.S. v. Newman unnecessarily extended Dirks, notwithstanding Congress\u27s caution to constrain the Dirks decision to its unique set of facts. Newman reversed the conviction of hedge fund portfolio managers who made millions of dollars by trading on inside information on the basis that they did not know the benefit that the tippers who provided that information had received in connection with their tips. Newman further cast doubt on whether a benefit can be relational, rather than pecuniary. Recent insider trading prosecutions reflect the fact that insider trading today is big business. Hedge funds are under intense pressure to get an “edge” to enhance their returns, even if it means resorting to a “black edge.” As Sheelah Kolhatkar, the author of Black Edge, a three-year study of the skulduggery that inheres in much of the hedge fund industry, noted the basic problem with Newman “is that it completely misunderstood the way the world actually works.” For the Newman court, defendants\u27 lack of culpability stemmed from the fact that “Newman and Chiasson were several steps removed from the corporate insiders and there was no evidence that either was aware of the source of the inside information.” The Newman court failed to realize that this is the way the game is played. The portfolio manager orders trades, which make millions for the organization and indirectly for the analysts and others who feed information to the portfolio manager. All of these people are aware of the risks of insider trading and, when a dark edge is employed, want to obfuscate insider trading as much as possible. The key for the portfolio manager is to inform the analysts that he wants the best possible information, but does not want to know how they get it. Shortly after Newman, the Supreme Court decided Salman v. U.S., which involved a fairly pedestrian situation in which one family member tipped another. However, the Supreme Court declined to adopt the requirement in Newman that there must be something of a “pecuniary or valuable nature” in a gift to family or friends in order for the gift rationale in insider trading to apply Salman was then followed by U.S. v. Martoma, where SAC Capital Advisors realized 194.6 million in losses by obtaining advance notice that the Alzheimer study was flawed. The portfolio manager who obtained the information from a participant in the study received a $9 million bonus. Martoma, in first analyzing Salman, opined that Salman in effect also rejected Newman\u27s requirement of a “meaningfully close personal relationship” in order to use the gift approach. The Martoma court later amended its opinion and looked at the basis for requiring a “meaningfully close personal relationship,” namely, that there must be evidence of “a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the latter.” This Article provides an extensive analysis of the history of insider trading, and the policies underlying the law, and demonstrates that the pre-Chiarella/Dirks law was much more consistent with the Congressional policy of a level playing field. Hopefully, Salman and Martoma reflect a more realistic approach to the law of insider trading. It is critical for courts to understand the pressures to receive illegal information, the chain through which it travels, where it must end in order to be operational, and the devices employed to disguise the illegal sources that are often used. Courts also need to understand that much of the world operates on networking and relationships, and that people are motivated by factors other than immediate pecuniary gain
