3320 research outputs found
Sort by
Watching Insider Trading Law Wobble: \u3cem\u3eObus, Newman, Salman,\u3c/em\u3e Two \u3cem\u3eMartomas\u3c/em\u3e, and a \u3cem\u3eBlaszczak\u3c/em\u3e
Get PDF“The crime of insider trading,” Judge Jed Rakoff has said, “is a straightforward concept that some courts have managed to complicate.” In the last eight years or so, insider trading law has wobbled visibly (in the Second Circuit in particular) in applying the standard for tipper-tippee liability originally set in the Supreme Court’s Dirks decision in 1983: from Obus (2012) to Newman (2014), with a detour to the Supreme Court in Salman (2016), and then two Martoma opinions (2017 and 2018). Most recently, the court of appeals offered what to many was a major surprise in its Blaszczak decision that could eliminate some or all of what was central to Dirks in criminal prosecutions not brought under Title 15 (the securities laws themselves). This essay is about the wobble, with particular attention to the question addressed in Martoma as to whether a gift of inside information to a stranger satisfies Dirks’ personal benefit test. This essay examines that question from many different angles—text, precedent, judicial archeology, purpose and so on—and comes out in favor of such liability. The main payoff is less from that particular conclusion, however, than from seeing the movement in contemporary insider trading law: shifting theories about to make sense of the doctrine and its creeping criminalization. The essay pays special attention (and homage) to the contributions of Judge Rakoff, whose rulings offer up a series of deep thoughts and lamentations on the subject to his readers (or to the law-gods)
Self-Deportation Nation
Get PDF“Self-deportation” is a concept to explain the removal strategy of making life so unbearable for a group that its members will leave a place. The term is strongly associated with recent state and municipal attempts to “attack every aspect of an illegal alien’s life,” including the ability to find employment and housing, drive a vehicle, make contracts, and attend school. However, self-deportation has a longer history, one that predates and made possible the establishment of the United States. As this Article shows, American colonists pursued this indirect approach to remove native peoples as a prerequisite for establishing and growing their settlements. The new nation then adopted this approach to Indian removal and debated using self-deportation to remove freed slaves; later, states and municipalities embraced self-deportation to keep blacks out of their jurisdictions and drive out the Chinese. After the creation of the individual deportation system, the logic of self-deportation began to work through the threat of direct deportation. This threat burgeoned with Congress’s expansion of the grounds of deportability during the twentieth century and affects the lives of an estimated 22 million unauthorized persons in the United States today.
This Article examines the mechanics of self-deportation and tracks the policy’s development through its application to groups unwanted as members of the American polity. The approach works through a delegation of power to public and private entities who create subordinating conditions for a targeted group. Governments have long used preemption as a tool to limit the power they cede to these entities. In the United States, this pattern of preemption establishes federal supremacy in the arena of removal: Cyclically, courts have struck down state and municipal attempts to adopt independent self-deportation regimes, and each time, the executive and legislative branches have responded by building up the direct deportation system. The history of self-deportation shows that the specific property interests driving this approach to removal shifted after abolition, from taking control of lands to controlling labor by placing conditions upon presence.
This Article identifies subordination as a primary mode of regulating migration in America, which direct deportations both supplement and fuel. It highlights the role that this approach to removal has played in producing the landscape of uneven racial distributions of power and property that is the present context in which it works. It shows that recognizing self-deportation and its relationship to the direct deportation system is critical for understanding the dynamics of immigration law and policy as a whole
Diversity As A Trade Secret
Get PDFWhen we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and other diversity advocates request workforce statistics and related employment information, many companies have responded with virulent attempts to maintain secrecy, including the use of trade secret protection.
In this Article, I use the technology industry as an example to examine the trending legal argument of treating diversity as a trade secret. I discuss how companies can use this tactic to hide gender and race disparities and interfere with the advancement of civil rights law and workplace equity. I argue that instead of permitting companies to hide information, we should treat diversity data and strategies as public resources. This type of open model will advance the goals of equal opportunity law by raising awareness of inequalities and opportunities, motivating employers to invest in effective practices, facilitating collaboration on diversity goals, fostering innovation, and increasing accountability for action and progress
Who Cares About Patents? Cross-Industry Differences in the Marginal Value of Patent Term
Get PDFHow much do market participants in different industries value a marginal change in patent term (i.e., duration of patent protection)? We explore this research question by measuring the behavioral response of patentees to a rare natural experiment: a change in patent term rules, due to passage of the TRIPS agreement. We find significant heterogeneity in patentee behavior across industries, some of which follows conventional wisdom (patent term is important in pharmaceuticals) and some of which does not (it also appears to matter for some software). Our measure is highly correlated with patent renewal rates across industries, suggesting the marginal value of patent term increases with higher expected profits toward the end of term
The President and Nuclear Weapons: Authorities, Limits, and Process
Get PDFThere is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them
\u3cem\u3eTexas v United States\u3c/em\u3e: The Affordable Care Act Is Constitutional and Will Remain So
Get PDFOn December 14, 2018, in a widely reported decision, a federal judge in Texas ruled that the entire Affordable Care Act (ACA) is unconstitutional. The judge reasoned that since the ACA’s “individual mandate” is unconstitutional, the rest of the law cannot stand without it. However, the ACA will remain in place pending appeal, and it is highly unlikely that this ruling will stand
Why the Latest Ruling in the Sandy Hook Shooting Litigation Matters
Get PDFOn March 19, 2019 the Connecticut Supreme Court officially released its opinion in Soto v. Bushmaster Firearms International, LLC. Because the decision greenlights civil discovery and trial for the Sandy Hook plaintiffs seeking compensation from the maker, distributor,and retailer of the gun used by the shooter, the ruling received much attention in the popular press. It is, however, very easy to get the wrong impression about the significance of the Connecticut Supreme Court’s decision and the avenues it creates for both the plaintiffs and the defendants in the litigation. The decision is both more and less significant than it seems at first glance. It opens a serious pathway to liability under the PLCAA and creates a strategic dilemma for the defendant as to whether to appeal or go to trial. Yet the PLCAA remains a bar to most types of civil action to which other product makers and sellers are subject. In the absence of comprehensive congressional regulation, it will remain difficult to require or motivate gun makers to enhance the safety of firearms design and distribution
Envisioning Abolition Democracy
Get PDFFor decades, police in Chicago chained people in their custody to the wall in dark, windowless rooms and subjected their captives to beatings, electric shocks, anal rape, and racial abuse. In July 2016, members of the #LetUsBreathe Collective, created in the aftermath of numerous police killings in Chicago and elsewhere, occupied vacant lots adjacent to the Chicago Police Department’s Homan Square facility — one of the locations where such abuse occurred. The Collective sought justice, not through recourse to the criminal courts or civil litigation, but instead by reconceptualizing justice in connection with efforts to end reliance on imprisonment and policing. The organizers redesignated Homan Square — which shares a name with the Chicago slumlord Samuel Homan — “Freedom Square.” The organizers’ idea was to begin to realize on a small scale what the scholar and activist Professor Angela Davis, echoing the words of W.E.B. Du Bois, has called “abolition democracy.”
Organizers in Freedom Square and across the city amplified the penal-abolitionist platforms of the Movement for Black Lives and Black Youth Project 100 (BYP100), demanding that the state divest from policing and imprisonment and invest in new forms of more equitable and just coexistence. Freedom Square was to be an experiment in which participants would “imagine a world without police,” a world where the 1.4 billion–dollar Chicago police budget would be directed away from detaining human beings and toward a democratic revitalization of public education, employment, restorative justice, mental health, housing, addiction treatment, arts, and nutrition. Before they disbanded, those engaged in the Freedom Square experiment provided meals to hundreds of people each day and offered educational workshops, clothing, books, and play spaces for neighborhood children.
Similar efforts took shape beyond Chicago, from New York City, where organizers launched a protest called “Abolition Square” that same summer, to Los Angeles, where Black Lives Matter activists occupied an area near police headquarters and issued calls to “decolonize City Hall.” Across the country, contemporary movements against the violence of policing have taken up the cause of penal abolition, denouncing caging and minutely controlling human beings while re-envisioning democracy in genuinely liberatory terms. Through these abolitionist efforts — from those of organizers in Chicago confronting the decades of torture perpetrated by police, to those of people struggling together to address the aftermath of sexual assault and homicide, to those of community members organizing to ensure greater economic well-being and security — a new conception of justice has begun to emerge.
Justice in abolitionist terms involves at once exposing the violence, hypocrisy, and dissembling entrenched in existing legal practices, while attempting to achieve peace, make amends, and distribute resources more equitably. Justice for abolitionists is an integrated endeavor to prevent harm, intervene in harm, obtain reparations, and transform the conditions in which we live. This conception of justice works, for example, to eliminate the criminalization of poverty and survival while addressing the criminality of a global social order in which the eight wealthiest men own “the same amount of wealth as” fifty percent of all people on earth. To approach justice in these terms requires what Professor Lisa Guenther, an abolitionist philosopher, describes as “collective resistance and revolution at the scene of ‘crime’ itself.” Such resistance begins by unmasking the illegitimacy of much of what is subject to criminalization — for instance, the prosecution of immigration offenses, which compose at present more than half of the U.S. federal criminal docket. Resistance at the scene of crime itself also entails working to eliminate existing punitive institutions while identifying meaningful forms of accountability and prevention to respond to actual violence and wrongdoing. Finally, such resistance involves addressing how mainstream economic practices and arrangements perpetrate violent theft every day in ways that can be thoroughly redressed only by democratizing political and economic institutions so as to prevent and respond to the highly unequal distribution of resources and life chances
Convening of Academic Medical-Legal Partnership: Law School Clinical Faculty
Get PDFOn September 18, 2019, the Georgetown University Health Justice Alliance (HJA), with generous support from the Winer Family Foundation, brought together a group of clinical law faculty from across the country, all of whom use the medical-legal partnership (MLP) model to teach law students to work interprofessionally to address the health harming legal needs of vulnerable patients. This Report provides background on medical-legal partnerships and the law school clinic model, describes the substance discussed during each session of the convening, and includes a summary of key findings and ideas for innovation as well as areas for future exploration
Reflections on a More “Catholic” Catholic Legal Education
Get PDFI am grateful to Professors Breen and Strang for their thoughtful book about Catholic legal education in the United States. It is an important topic, and their work promises to be a significant contribution to the conversation about the mission of Catholic law schools. My reflections here will focus on Chapter Five.
All of us participating in this symposium are engaged in the collective enterprise of thinking through and implementing what it means to be a Catholic law school. As a historian, personally I am well aware of the value of studying where we have been as part of the conversation about where we should be going, so I welcome this enterprise