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Trust Your Broker: Suitability, Modern Portfolio Theory, and Expert Witnesses
No full textThe death of the dot coms in the late 1990\u27s left many investors questioning investment advice. Specifically, they began to question the direction, interests, and professional competence of their stockbrokers. Investors who felt their stockbrokers failed them are increasingly resorting to litigation, pursuing what has become known as suitability claims, claims based on the argument that brokers recommended or purchased securities that were not suitable for an investor\u27s profile. The issues in and surrounding suitability claims are complex, yet surprisingly little has been written on this topic. This article seeks to foster a much needed discussion and will examine the legal and ethical rules that govern stockbroker portfolio decisions, the causes of actions that clients may bring against their brokers based on suitability, and the use of expert witnesses in suitability litigation. There are two central components in this article, the Suitability Doctrine, and Modem Portfolio Theory. The Suitability Doctrine requires that stockbrokers know their clients and that any investment portfolio they create is suitable to their client\u27s specific objectives and circumstances. Modem Portfolio Theory ( MPT ) is a set of formulas used to determine, objectively, whether a portfolio is suitable for a particular client\u27s objectives and circumstances
International Implications of the Alien Tort Statute
No full textIn this article, we briefly review the history and development of ATS (Alien Tort Statute) case law, including the expansive reading courts have applied to the statute. Then we discuss potential ATS target countries and estimate the damage to foreign direct investment and trade with those countries. We conclude that unless the Supreme Court narrows the statute\u27s scope, the Congress must amend the ATS to avert its potentially devastating effects on international trade and investment
Corporate Social Responsibility, Unmasked
No full textThe scope and future of the Alien Tort Claims Act ( ATCA ) may well be decided this term by the Supreme Court in Alvarez-Machain v. United States. However that case is decided, the review process has exposed an extremely critical issue that has great significance to the future of the global economy. The major international business organizations in the United States, including the National Foreign Trade Council ( NFTC ), the U.S. Chamber of Commerce, the U.S. Council for International Business and the U.S. Business Roundtable, collectively filed an amicus curiae brief in Alvarez-Machain ( NFTC Brief ) that explicitly states what those of us working in the area of corporate social responsibility have long suspected. Rather than embracing the binding norms of the ATCA as the foundation for meaningful corporate responsibility, the brand names of the global economy collectively asserted that the ATCA should be nullified by the Supreme Court because its application to U.S.-based multinational corporations placed them at a competitive disadvantage in the global economy. The Alvarez-Machain case itself posed no issue directly related to any multinational company. Rather, it simply presents the first opportunity for Supreme Court review of the interpretation of the ATCA, beginning with Filartiga v. Pena-Irala, and then consistently applied by every court that has considered the issue since then, that the ATCA creates a right to sue for violations of the law of nations. Unhappy with the fact that several multinationals had themselves been sued under the ATCA for human rights violations, the business community simply could not resist going after the ATCA at full bore at the first opportunity to nip in the bud any prospect that U.S. companies could possibly be held accountable for human rights violations committed in the course of their international operations. The implications for this position extend far beyond the specific result of Alvarez-Machain. The essential assumptions of the architecture of the global economy are necessarily called into question if the collective U.S. business community claims the need to be freed from the constraints of the ATCA to gain competitive advantage. Since World War II,U .S. foreign policy has included as a major component the promotion of U.S. business interests abroad. This was perhaps tolerable as a major subsidy for U.S. business at taxpayer expense if legitimate societal interests were directly advanced. The myth was that U.S. business promoted American values, such as democracy, freedom and respect for the rule of law. However, this myth is absolutely shattered when U.S. companies now claim the need to be free of the ATCA\u27s prohibition of slavery, torture, extra-judicial killing, genocide, war crimes, crimes against humanity and arbitrary detention in order to increase profits. A second major implication is that this profits first position reveals the lack of good faith in the much-touted voluntary codes of conduct movement. The already questionable idea of trusting corporations to self-police compliance with their broad codes of conduct is rendered ridiculous, given the aggressive refusal of these same companies to accept being bound to the minimal constraints of the ATCA. Virtually all of the firms represented in the NFTC Brief participate in some form of a corporate social responsibility initiative and pledge to comply with social standards that far exceed the minimum standards of fundamental human rights under the ATCA. Unless these companies are misrepresenting their compliance with their own standards, their assertion that the ATCA is a hindrance to their economic competitiveness is simply incredible. The focus of the remainder of this article will be on examining just how radical, and legally unsupportable, the position is that the ATCA should be judicially repealed in order to free U.S. companies from the competitive disadvantage of the ATCA\u27s minimal constraints. The ATCA, as interpreted today, is simply one source in a body of law that includes the Nuremberg Tribunals and various other federal laws that place clear, universally recognized limits on the conduct of corporations and individuals. Indeed, if the ATCA does not survive the Supreme Court\u27s review, the position of the business community in the case exposes the clear need to develop some other mechanism to constrain corporate profitseeking behavior. In collectively seeking the repeal of the ATCA, the U.S. multinational business community has repudiated the public trust
The C Word: Collegiality Real or Imaginary, And Should It Matter in A Tenure Process
No full textFor over two thousand years, since the times of Jesus Christ, society has valued collegiality as one of its pillars in advancing human relationship: Now I plead with you, brethren, by the name of our Lord Jesus Christ, that you all speak the same thing, and that there be no divisions among you, but that you be perfectly joined together in the same and in the same judgment. Collegiality is cooperative interaction among colleagues. Put another way, collegiality results when two or more individuals who are willing to engage in a common enterprise (the cooperative component), actually engage or participate in the enterprise (the interaction component), thus achieving a common goal (the colleagues component). Others call it \u27work[ing] well with colleagues,\u27 \u27demonstrat[ing] good academic citizenship,\u27... \u27contribut[ing] to a collegial atmosphere,\u27 ... and \u27get[ting] along,\u27 [or] \u27fit[ting] in\u27 . . . . While these and dozens of other definitions contour the boundaries of a seemingly simple principle, in the end, what collegiality is rests on the subjective interpretation of the inquirer. Each of us decides - depending on our individual interpretative mechanisms - whether being collegial means having a personality that suits ours, being able to disagree without being disagreeable, or having to forfeit one\u27s contrary opinion to another\u27s for the sake of keeping the peace. Subjectivity can be a very difficult adversary for anyone who seeks to define a general concept over which reasonable minds can readily disagree. Subjectiveness is fertile ground for misunderstandings that eventually lead to unintended but harmful consequences. Curiously and despite its operational breadth, particularly as within our inherently imperfect language, a majority of higher education institutions use collegiality as a criterion, but fail to define collegiality as an objective criterion when determining a professor\u27s eligibility for tenure. The most common reason advanced is that standardizing objective definitions stifle freedom of speech and dissent. Additionally, critics are quick to pull the race/sex/religion card. They claim that subjective discriminatory animus ultimately seeps into the objective conscious decision-making process. Ironically, the majority of institutions openly allow the subjective use of collegiality as a determinative factor. Accordingly, due to its nature, collegiality cannot be an objective criterion, only a subjective one. Thus, collegiality can be (subjectively) considered as long as its results are not acknowledged as having resulted from such consideration. Ostriches hide their heads in the sand because they believe that it makes them disappear from a predator\u27s view even though it is clear that their entire body is visibly not in the hole. But unlike an ostrich, this article will show that the results sought to be avoided by keeping collegiality a subjective rather than an objective criterion can be better achieved precisely by the inverse. By objectively defining collegiality, one will speak one\u27s mind without the fear of being branded un-collegial. That is, the speaker will know, as everyone else will, that disagreeing on a point of discussion, without being disagreeable, advances collegiality. Collegiality, as in achieving the common goal of seeking the truth, after all, depends on the free exchange of ideas. Hence, freedom to disagree and to dissent are integral parts of collegiality. This article will also show that an objective definition of collegiality squashes discriminatory pretext. Not defining a criterion admittedly used to make a determination permits the use of just about any definition that fits the facts. Further, relying on any definition that fits the facts ultimately yields a greater spectrum of available definitions. Thus, the greater the spectrum of definitions, the more choices exist, and the easier it is to come up with a definition that masks discriminatory intent. Clearly, the result is a greater use of collegiality as pretext to exercise discrimination. Such greater use, however, remains generally unknown - or better said, unacknowledged - because one is not supposed to rely on it objectively, only subjectively. On the other hand, however, an objective definition of collegiality would significantly reduce discriminatory pretext abuse because it would unquestionably decrease any subjectivity, and establish the specific circumstances under which collegiality would or would not exist. Any other circumstances not defined or established would fall outside the objective characteristics, and would thus be unavailable as pretext for discrimination. The fewer subjective opportunities that exist, the harder it becomes to discriminate and the easier it is to detect any parasitical discrimination. This result is, precisely, what opponents of segregating and defining collegiality want. So, why isn\u27t collegiality, as a separate and defined criterion, used to determine whether a professor is eligible for tenure
Review in Name Alone: The Rise and Fall of Comparative Proportionality Review of Capital Sentences by the Supreme Court of Florida
No full textThe history of life on this planet has been one of change. In fact, the very word \u27history\u27 implicitly carries within it the notion of change. Thus, it should come as no surprise that the history of law, like culture, politics, religion, and other institutions of humanity is also one of change. In fact, when one examines the history of U.S. law in its constituent parts, that is, legal rules and decisions, it becomes apparent that these rules and decisions have been subject to mutation, expansion, retraction, abandonment, and creation. Occasionally, although a court purports to be applying a legal rule or decision in the exact fashion and manner that it has in the past, it is in fact either applying the rule or decision in a different manner or applying a different rule or decision altogether. It is to this last phenomenon, that of \u27silent\u27 legal changes, that this article is directed. For the past thirty years, the Supreme Court of Florida\u27s comparative proportionality review of capital sentences has been hailed by commentators as a leading example of what is possible, in terms of limiting arbitrariness and excessiveness in the administration of the death penalty, when a court undertakes comparative proportionality review in a meaningful, vigorous, and principled manner. In fact, this longstanding and wide-scale praise has led many scholars to labor under the assumption that the Supreme Court of Florida\u27s comparative proportionality review currently continues to operate in this praise-worthy manner. Of course, the continued adherence to this assumption is entirely understandable since the Supreme Court of Florida still proclaims to be undertaking comparative proportionality review in exactly the same manner as it had during the period that resulted in this wide-scale praise. This article, however, seeks to challenge the assumption that the Supreme Court of Florida is still undertaking a meaningful, vigorous, and principled review of capital sentences. In order to accomplish this goal, this article presents a critical, legal and empirical analysis of the Supreme Court of Florida\u27s comparative proportionality review over the last fifteen years (1989-2003). The empirical study is aimed at identifying trends in the court\u27s comparative proportionality review, while the legal analysis explains the determinants of those trends. Section II offers an overview of the Supreme Court of Florida\u27s system of comparative proportionality review, including a description and appraisal of the court\u27s practice, methodology, and goals. Section III presents the methodology, research design, and measures employed in the empirical study of the Supreme Court of Florida\u27s comparative proportionality review. Section IV provides an overview, through an empirical lens, of the disposition of death sentences by the Supreme Court of Florida undertaking comparative proportionality review. Section V then applies the methodology, research design, and measures to the Supreme Court of Florida\u27s proportionality review in order to empirically demonstrate the effect that defendant culpability has had on the court\u27s comparative proportionality review decisions. Section VI discusses evidence of a possible decrease in consistency and selectivity in the Florida capital punishment system as a whole due to the demise of the Supreme Court of Florida\u27s policy of meaningful, vigorous, and principled comparative proportionality review. Section VII then offers possible explanations for the demise of the Supreme Court of Florida\u27s comparative proportionality review. Section VIII concludes
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 16, Issue 3, Spring 2004
Of the Worshipful Warrior: Sanctuary and Punishment in the Middle Ages
No full textPart One discusses the traditional account of sanctuary and suggests ways in which it is problematic. Part Two offers an alternative understanding of sanctuary that stresses its kinship with the entire panorama of procedural and moral forces that together composed early medieval law. In Part Three attention is given to the juridical and canonical arguments that led to sanctuary\u27s eventual renunciation
MPDLS Is Not a Disease: A Proposition for a Model Punitive Damage Limiting Statute in Light of the Constitutional Guideposts from BMW and State Farm
No full textWhat would a football game be without the first down marker? Perhaps it would result in confusion, frustration and ultimately an arbitrary decision by a referee to determine what is and what is not a first down. In the same vein as a football game played without first down markers, a court attempting to impose punitive damages without clear and distinguished markers will likely render inconsistent and perhaps even unfair decisions. The United States Supreme Court in State Farm v. Campbell\u27 ignored an opportunity to establish a bright-line test for lower courts to confidently impose punitive damages without running afoul of due process. As a result of the decision in State Farm, lower courts were provided only marginally enhanced clarity for imposing punitive damages than were previously discussed at length in BMW v. Gore. Punitive damage limitation has been discussed and debated at length for many years. However, only recently has the Supreme Court entered the arena with a Constitutional game face. By establishing guideposts in Gore and subsequently addressing the guideposts again in State Farm, the Court, without clarifying the essential elements of an effective punitive damage limiting jury instruction or limiting statute, basically forces lower courts and legislatures to play a guessing game as to what may or may not fall within due process. A potential solution to the elusive bright line due process test is to create a model punitive damage limiting statute that combines intelligible guidelines present in some states statutes while attempting to stay within the parameters of the Constitutional mile markers the Supreme Court has set forth
Protecting the Privileges of Citizenship: Founding, Civil War, and Reconstruction
No full textBook: Challenges to the American Founding: Slavery, Historicism, and Progressivism in the Nineteenth Century
Ronald J. Pestritto\u27s and Thomas G. West\u27s earlier volume The American Founding and the Social Compact addressed the nature of the thought and philosophy of the men who shaped the American founding. In this second volume in a trilogy, Pestritto and West examine the fate of the founders\u27 principles in the nineteenth century, when these principles faced their first great challenges. Support of slavery, culminating in secession and civil war, came from the South; and after the war came positivism, relativism, and radical egalitarianism, which originated in Europe and infiltrated American universities, where intellectuals repudiated the founders\u27 views as historically obsolete and insufficiently concerned with true human liberation. In ten chapters covering major thinkers in nineteenth-century American political thought, contributors discuss the rise and resolution of ideological conflicts in the early generations of the American republic. In Challenges to the American Founding Pestritto and West have compiled an invaluable resource for the roots of the twentieth-century departure in American politics from the political vision of the American founders.https://scholarship.stu.edu/faculty_book_chapters/1047/thumbnail.jp
The Terminator Patent and Its Discontents: Rethinking the Normative Deficit in Utility Test of Modern Patent Law
No full textFor clarity of analysis, this article is divided into three parts. In the first part, I introduce the technologies of GURTs (Genetic Use Restriction Technologies) and their main characteristics. In the second part, I examine the origins and policy foundations of the patent system, particularly how the courts in various jurisdictions have defined the concept of utility. The second part also explores the evolution of the requirement of utility and its contemporary emergence as a secular, technical test with emphasis on mechanical operability of inventions. The third part of this article explores the nature of GURT patents vis-a-vis their compatibility with the stated policy imperatives of the patent regime. In addition, the third part evaluates the propriety of GURT patents in the context of international law on biodiversity protection and the precautionary approach to release of genetically modified life forms into the environment