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Kill Cammer: Securities Litigation Without Junk Science
Get PDFSecurities litigation is a hotbed of junk science concerning market efficiency. This Article explains why and suggests a way out. In its 1988 decision in Basic v. Levinson, the Supreme Court endorsed the fraud on the market presumption for securities traded in an efficient market. Faced with the task of determining market efficiency, courts throughout the nation embraced the ad hoc speculations of a first-mover district court that proclaimed, in Cammer v. Bloom, how to allege (and presumably prove) facts that would do just that. The Cammer court’s analysis did not rely on financial economics for its notions, but instead regurgitated the assertions of a single plaintiff’s expert affidavit—from a securities law professor, not a financial economist—and a securities law treatise equally uninformed by the relevant field. The result has been thirty years of junk science in securities adjudication. This Article traces the development of the fraud on the market theory from its pre-efficient-markets-hypothesis roots through a brief “gilding the lily” phase where an appeal to social science results on market efficiency was only an ancillary, bolstering argument for already-sufficient precedent for the fraud on the market presumption, to the requirement that litigants plead and prove efficiency using indicia with no support in financial economics. The way out of this embarrassing state of affairs is to return to the roots of fraud on the market in the non-technical notion of “a free and open public market” that inquires only whether the market for the security at issue is open to active buyers and sellers and is not subject to substantial seller lockups or bans on short selling. It is reasonable to presume that prices in such free and open public markets can be distorted by fraud, a presumption that is then rebuttable by establishing (1) that the alleged fraud in fact had no price impact; (2) that there are substantial limits on the ability of active investors to buy and sell in the market, such that the market is not a “free and open public” one; or (3) that the plaintiff would have made their purchase or sale at the affected price even knowing of the falsity of the alleged misrepresentation. This formulation is consistent with all controlling Supreme Court opinions
In Conspicuous Terms-- Arbitration Agreements for the Modern Reasonable App User
Get PDFTwo recent decisions regarding the validity of arbitration agreements in mobile apps have come to opposite conclusions despite utilizing the same legal standard and concerning the same app—Uber. While the Federal Arbitration Act strongly favors the validity and importance of arbitration agreements, it appears that judge’s subjectivity based on common knowledge and understanding of apps is influencing the outcome of cases concerning the validity of these arbitration agreements. To the modern app user, are these terms really inconspicuous? For businesses, this could mean that instead of competing in an already saturated app market by enhancing their design and integrating branding into their mobile app’s user interface, they may have to concern themselves more with compromising their branding strategy to comply with a legal standard that demands the terms to be the most conspicuous standard to include the common knowledge and understanding of app users into the perspective of the reasonable app users that courts use to analyze the conspicuousness of terms. By encompassing this heightened knowledge, reasonable access to terms, rather than the level of conspicuousness of terms, should suffice for putting a user on inquiry notice. Such a standard allowing for reasonable access should both accurately reflect the current knowledge and allow for further item to the user. This Note proposes a potential redefined advancements in the understanding of mobile technology
William & Mary Law School to Honor Professor Henry Smith with Brigham-Kanner Property Rights Prize
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England and the Broader World: Roman Law in the Imagination of Thirteenth-Century Justices
No full textWas Roman Law received into English Law?
English exceptionalism is often a given in narratives of legal history. England went its own way while Continental Europe received and developed a common law based on Roman law.
We have invited two researchers [Professor Thomas McSweeny and Dr hab Łukasz Jan Korporowicz ] to create lectures for the Centre for Legal History to showcase their recent work on the question of the Roman legal tradition\u27s place in the development of English Common Law.
Professor Thomas McSweeney is a professor of law at William and Mary Law School. His research focuses on the early history of the common law. He is particularly interested in the ways the judges and lawyers of the thirteenth century taught and learned the law. His book, Priest of the Law: Roman Law and the Making of the Common Law\u27s First Professionals (OUP), examines the ways in which thirteenth-century justices modeled their practices on those of the jurists of Roman law working in the universities. They assimilated the texts they produced in the English royal courts to genres of legal literature they had encountered in the schools of Roman and canon law in order to make the case that the English common law was part of a pan-European legal culture. He is currently working on a project on the texts that England’s earliest generations of lawyers used to learn the law
After Juliana: A Proposal for the Next Atmospheric Trust Litigation Strategy
Get PDFThe cliffs of California are dissolving.2 Glaciers in Colorado and Montana are dissolving.3 Islands in Louisiana and Alaska are dissolving.4 America as we know it is dissolving; twenty-one youth plaintiffs that face a future with less liberty and independence than generations before them claim that federal government inaction in the face of climate change is to blame.5 Those plaintiffs, in the landmark case Juliana v. United States, sought judicial declaration of a federal public trust and substantive due process right to a stable climate system.6 In proceedings, Judge Anne Aiken of the District Court of Oregon declared a newly recognized fundamental right to a habitable climate and a federal public trust in the atmosphere in favor of the plaintiffs,7 but in a recent two-to-one decision the Ninth Circuit reversed and remanded with instructions to dismiss, holding that the plaintiffs lacked standing before the court.8
Juliana exemplifies just one of the growing number of Atmospheric Trust Litigation suits that have steadily gained recognition throughout the United States (and throughout the world)9 in the past decade.10 Atmospheric Trust Litigation, or ATL, is a litigation strategy that seeks to utilize the courts to compel the government to more effectively regulate and reduce greenhouse gas emissions.11 Specifically, litigants hope to compel reduction of carbon dioxide (“CO2”) emissions to atmospheric levels under 350 parts per million, which scientists believe could minimize the effects of climate change that will otherwise disproportionately impact future generations.12
While the plaintiffs’ loss in Juliana might seem bitter to those who wholeheartedly believe in ATL’s objective, this Note argues that Juliana’s loss might more appropriately be described as bittersweet. A favorable determination under the plaintiffs’ pleadings could conceivably have produced an unwelcome remedy: federal preemption over state public trust doctrines.13 Stemming from the Constitution’s Supremacy Clause, the doctrine of preemption stands for the principle that federal law supplants any state law or regulation that is “inconsistent” with federal law.14 Should a federal public trust be found to exist that is at odds with state definitions of the public trust, many issues of preemption could arise. For example, preemption of state authority over the public trust could hinder cooperative environmental federalism and erode principles of state sovereignty by impairing states’ abilities to regulate traditional state uses of waterways and other public trust resources.15 Furthermore, preemption could prevent individuals from advancing certain common law environmental claims in federal court.16
Therefore, Atmospheric Trust Litigation remains risky if wielded improperly, as Juliana arguably did—but that does not preclude ATL’s beneficial use in future lawsuits. In consideration of the issues raised in Juliana, this Note argues for a revision of the Atmospheric Trust Litigation strategy in federal court. This proposed revision will more effectively protect the common law rights of individuals and preserve state law while simultaneously compelling recognition of a federal substantive due process right to a livable atmosphere through a state special solicitude case.17
In Part I, this Note discusses the principles behind the public trust doctrine and details the current state of Atmospheric Trust Litigation, ending with an analysis of the Juliana decision. Part II argues that the Ninth Circuit ruled correctly in Juliana, because recognition of a federal public trust could endanger principles of federalism and put at risk the more fundamental objective that Atmospheric Trust Litigation plaintiffs fight for. This Note then offers potential revisions to federal Atmospheric Trust Litigation pleadings that could remedy those issues. Part III lays the foundation for a state special solicitude Atmospheric Trust Litigation case, building on what has been learned from Juliana and prior Atmospheric Trust Litigation cases, that would meet the elements of standing after the Juliana decision and could pave the path to a cleaner, healthier atmosphere for current and future generations
Tennis Center Retrofitted For Classes
No full texthttps://scholarship.law.wm.edu/covidimages/1004/thumbnail.jp
Tennis Center Retrofitted For Classes
No full textWilliam & Mary\u27s McCormack-Nagelsen Tennis Center was outfitted as a socially distanced classroom in the Fall of 2020.https://scholarship.law.wm.edu/covidimages/1003/thumbnail.jp
Tennis Center Retrofitted For Classes
No full textWilliam & Mary\u27s McCormack-Nagelsen Tennis Center was outfitted as a socially distanced classroom in the Fall of 2020.https://scholarship.law.wm.edu/covidimages/1002/thumbnail.jp