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Reliance, Misplaced: Restoring the Text of the Antifraud Provisions of the Federal Securities Laws in SEC Enforcement Actions
No full textThe antifraud provisions of the federal securities laws are statutory sledgehammers. Those who violate them can face severe sanctions, including ruinous monetary penalties and others that can effectively bar firms and individuals from the securities industries. The Securities and Exchange Commission is authorized to enforce these provisions with the full weight of the federal government. And the SEC does so vigorously.
Even though the antifraud provisions target fraud, for decades lower courts and the Commission have held that the Commission can establish violations of them without any evidence that anyone was misled. They have done so by concluding that, unlike common law fraud or fraud in equity, reliance is never an element in a Commission enforcement action. That position would have some purchase if the federal securities laws that Congress enacted said so. But they don’t. Instead, the idea traces back to snippets of dicta in a 1949 lower court opinion that was attempting to make a different point about a different topic, in a case where the Commission had in fact established reliance.
The Supreme Court has never adopted that categorical view, for good reason. The position that reliance is never relevant conflicts with the statutory text, the background principles against which Congress legislated, the structure of the federal securities laws, the expressed purpose of the antifraud provisions, and Supreme Court precedent. Instead, as this article explains, a straightforward reading of the text and application of now settled interpretative principles and Supreme Court precedent shows that the Commission must prove reliance to establish a violation of some (but not all) of the antifraud provisions of the federal securities laws
Adaptable AI Apprentices: Law Practice Sidekicks
No full textTwo case studies involving motorcycle-accident negligence and administrative law in the context of drone regulation violations explore the transformative potential of generative AI in legal practice. Four AI engines—DeepSeek, Claude, ChatGPT, and Grok—were asked to analyze transcripts of client interviews by identifying legal claims and assessing their strengths and weaknesses.
The results demonstrate that current AI technology effectively processes natural-language client interviews, identifies viable legal theories, and assesses claim strengths and weaknesses in both tort and administrative law contexts. The AI systems demonstrated proficiency in parsing legal theories and citing relevant statutes and administrative regulations, though case citations were frequently inaccurate due to limited access to comprehensive legal databases.
The technology shows promise for junior attorneys who may lack experience in systematic case analysis, though human oversight remains essential for accuracy and ethical compliance. Best practices include anonymizing client data, cross-validating results across multiple platforms, and maintaining rigorous quality control. The findings support a balanced approach: embracing AI’s analytical capabilities while preserving professional judgment and ethical standards.
Misconceptions about AI, such as exaggerated fears of job displacement, concerns about ill-defined “bias,” and vague demands for regulation, should not obscure AI’s potential as a valuable “wingman” rather than a substitute for legal expertise. While AI is unlikely to replace lawyers or originate novel legal theories, it excels in document summarization, brainstorming, and claim identification. Used prudently and cross-validated across platforms, generative AI emerges not as a threat, but as a powerful, practical tool for augmenting modern legal work
The Comstock Act: Will the First Amendment Finally Bury This Zombie Law’s Speech Restrictions?
No full textThe Comstock Act of 1873 is a federal anti-obscenity law that, along with lascivious and filthy literature, explicitly restricts the sending of anything that can be used to procure an abortion—including writing. However, since the decision of Roe v. Wade, the law’s abortion-speech provisions had been considered long-dead—although never officially being overturned. Now that Dobbs v. Jackson Women’s Health Organization has rescinded the right to an abortion, the law appears to be reaching out from its grave. Anti-abortion activists are currently looking to the Comstock Act as a federal abortion ban already on the books because of its ban on mailing items that can be used for an abortion. However, enforcing the abortion provisions of the law also implicates the speech restrictions of the law.
This Note explores what a revival of the Comstock Act’s abortion-speech restrictions may look like through a modern lens. There are two approaches that an administration looking to enforce the abortion-speech restrictions may take. The first is an originalist approach where abortion always falls under the umbrella of obscenity—and is therefore unprotected by the First Amendment. The second is a textual reading, pointing to the plain language of the Comstock Act as restricting abortion speech, and subsequently categorizing it as unprotected incitement of illegal activity or aiding and abetting. However, many factors played into the death of the Act—expanded free speech protections, a society whose attitude on abortion shifted, and an understanding that abortion is a part of healthcare. With these developments today, would the speech regulations be able to survive the muster of strict scrutiny
Derivative Attorney-Client Privilege in Organizations
No full textA lawyer and client must be able to communicate about the client’s legal affairs in confidence for the lawyer to be able to meaningfully advise the client, hence courts’ recognition of the attorney-client privilege. Fundamentally, the very term “attorney-client privilege” seemingly requires a lawyer’s participation in a communication for the privilege to attach. But, in fact, lawyers need not always participate in client communications for the attorney-client privilege to shield the communications from discovery. Clients or their employees’ confidential conversations among themselves with respect to legal matters sometimes deserve privilege protection. This derivative application of the privilege can be crucial where organizations are concerned. As artificial constructs, organizations must communicate with counsel through employees who are empowered to act on their behalf. And whether organizations should seek legal advice or must act on legal advice requires decisions by employees who are entrusted to make them. Often, such decisions or actions require responsible employees to confidentially consult with one another outside the presence of a lawyer for the organization. Recognizing this practical reality, courts generally hold that communications between employees in which a lawyer for the organization is not involved are derivatively protected by the organization’s attorney-client privilege if the communications (1) contain legal advice from a lawyer for the organization or (2) the intent to seek legal advice on the organization’s behalf. This important aspect of the attorney-client privilege is often overlooked or under-appreciated
Two Piecemeal Treatments for a System Addicted to Punishment
Full text linkFor decades, the American criminal legal system has failed to curtail illicit drug use and overdose deaths through punitive and selective enforcement. The federal government has prosecuted people and succeeded in securing many long prison sentences based on drug crimes. In the past two years, two amendments by the United States Sentencing Commission offered a measured reprieve through sentence reductions. Amendment 821 offered the possibility for sentence reductions based on recalculating the guidelines associated with certain prior offenses. Amendment 814 updated policy statements for assessing “extraordinary and compelling reasons” for a sentence reduction. These changes are not revolutionary; however, the amendments are offering thousands of people the opportunity to return to their families sooner.
This Article provides a brief history of American drug criminalization and details statistics on federal drug offenses and sentences in 2023–2024. Then, the Article examines Amendment 821, with a focus on “boat cases,” where individuals are receiving sentence reductions based on their lack of prior criminal record. Next, this Article examines reductions to unusually long drug sentences through 18 U.S.C. § 3582(c). The Article concludes by contextualizing these amendments, which are a significant remedy for thousands of people and their families yet fall short of the change required to address our system’s addiction to punishment
Congressional Tribal Trust Responsibility and the Opioid MDL: A Call to Finish the Work the Judiciary Was Forced to Undertake
Full text linkCongressional inaction has forced Native American Tribes to utilize the judiciary as a last resort to obtain relief from the crippling effects of the opioid epidemic. Tribes have received inadequate funding from settlements to abate the widespread use of prescription opiates on and around their lands of concern. Hundreds of mass tort lawyers have been navigating the In re National Prescription Opiate Litigation (MDL 2804)—one of the largest and most valuable litigation pools in the history of the Republic—in an effort to provide relief for cities and counties, individuals, consumers, hospitals, third-party payors, and federally recognized Tribes. Based on prevailing research, the population most adversely affected by the opioid epidemic is the Native American demographic. This Article will examine the congressional trust responsibility as it applies to Native American Tribes during a public health crisis, like the opioid epidemic, and provide a review of the Opioid MDL and its shortcomings when applied to Native American Tribes. This Article concludes that the judiciary’s limited resources to respond to the opioid epidemic in federally recognized tribal communities necessitates congressional action to fulfill its trust responsibility to Tribes and adequately address the opioid epidemic in Indian Country
Prescription for Failure: Public Nuisance Claims Against the Opioid Industry
Full text linkOpioids have been used both medicinally and recreationally since ancient times. While their recreational functions have long since been denounced, their medicinal value remains legitimate. Yet, since the pain management revolution began in the mid-1990s, many Americans have become opioid-dependent—fueling an illicit drug market and costing many lives. The tragedy that is today’s opioid epidemic has prompted robust federal and state legislative and regulatory interventions in both the legal and illicit opioid markets—albeit with mixed success. As these initiatives have been slow to quell the opioid crisis, public nuisance claims have taken center stage. After the Big Tobacco litigation invoked the common law doctrine and ultimately resulted in the historic Master Settlement Agreement, public nuisance captured the attention of state governmental entities in the firearm and lead paint industries. Those litigations produced varying results among the states. While some courts properly rejected the novel application of public nuisance to the manufacture, sale, and distribution of lawful products, others permitted claims to survive past the motion to dismiss stage, prompting product manufacturers, distributors, and retailers to agree to exorbitant settlements. Perhaps unsurprisingly then, the legal theory has gained popularity in claims against deep-pocketed opioid industry actors. However, like the tobacco, firearm, and lead paint industries, public nuisance does not fit within the historically recognized definition of public nuisance, which has long been understood as being limited to unlawful activities and real property contexts.
In addition to being, at best, unorthodox and novel, and at worst, legally deficient and unsupported by history and precedent, public nuisance is a poor vehicle to address a national, highly political problem—particularly in the legal prescription drug market, which touts many benefits and is already heavily regulated by the duly elected members of the legislative and executive branches of government
