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Unflexed Muscle: SEC Enforcement and Officer SOX Section 302 Certifications
No full textThis Article represents the first work to analyze the Securities and Exchange Commission’s (SEC) neglect in its enforcement of the chief executive officer (CEO) and chief financial officer (CFO) Sarbanes-Oxley certification requirement. The Article addresses the appropriate construction of the statute’s reach, the enforcement proceedings instituted by the SEC under this provision, and the Commission’s failure to fulfill its legislative directive to adequately enforce this statute and Rule 13a-14 promulgated thereunder. In its implementation of the CEO and CFO certification requirement, the SEC has brought relatively few enforcement actions during over a two-decade period. Its enforcement with respect to CEOs and CFOs of S&P 500 companies is nearly nonexistent. Indeed, the SOX certification requirement, as implemented by Rule 13a-14, has become a supplement or add-on claim in SEC enforcement actions. Thus, the Commission’s failure to adequately enforce this mandate suggests a regulator that generally refrains from pursuing CEOs and CFOs of publicly-held companies for their misconduct, and particularly so with respect to CEOs and CFOs of S&P 500 companies. The Article supports these assertions by means of thorough empirical data that provides ample support for the findings reached
The Times They \u3cem\u3eMay\u3c/em\u3e Be A–Changin’: A Look into Cuba’s Future for Property Rights and Restitution Through 3 Lenses
No full textAfter the 1959 Cuban Revolution, Fidel Castro took power and instituted a new regime that formed itself into a communist stronghold of the global south. With this new government came curtailment of private property rights, effectuated in government confiscation and limitation in private ownership opportunity. As many Cubans and foreign persons/entities had their residential, rural/agricultural, and commercial/industrial property confiscated, demands for restitution over the years has grown, particularly through US–led efforts. As Cuba has begun to soften to the idea of private property, as evidenced in its new 2019 Constitution, this Note seeks to analyze how property rights in Cuba would be impacted, for restitution seeking parties and current possessors/owners, if Cuba were to shed its current government for one of three potential regimes. First, would be a regime fully adopting Cuba’s 1940 Constitution, the form of government Fidel Castro himself promised to re–institute after Fulgencio Batista’s coup. Second, a government modeled after those of the post–Soviet/Socialist Eastern European nations who were once in a position familiar to modern–day Cuba. Lastly, a regime akin to that of China, rather than a full “regime change” it would be an evolution that would adapt Cuban communist characteristics to modern globalized markets. Though not offering a definitive answer on what would be best, this Note will show what the future may hold for Cuba
Winding Authority: Consent by Registration and the Legal Singularity
Full text linkMore than forty years ago, the Pennsylvania legislature enacted a uniquely broad and explicit statute directed at out-of-state corporations: registration as a foreign corporation constitutes consent to general personal jurisdiction in the Commonwealth. Pennsylvania\u27s consent-by-registration statute has faced Fourteenth Amendment due process challenges in state and federal courts alike, rising all the way to both the Supreme Court of Pennsylvania and the U.S. Supreme Court. This Article first tracks the myriad challenges to the Pennsylvania statute, culminating in the U.S. Supreme Court\u27s opinion in Mallory v. Norfolk Southern Railway Co. in 2023. The Article then argues that the statute\u27s zigzagging path through the court system reveals cracks in the lower tiers of the judicial hierarchy. Rather than binding authority arising from stare decisis, the Pennsylvania law exemplifies a winding authority that invites every court to determine for itself whether the statute violates or comports with due process. Reflecting a legal singularity, the correct law lies in all directions. Each new judge shines a new light through the cracks
Strategic Insights From Antarctic MPAs: Navigating the Future Framework for High Seas MPAs Under the BBNJ Agreement
Full text linkCurrent area-based management systems regulate only about 1.18% of the high seas, leaving highly migratory fish species at risk of overexploitation. As a result, new legal mechanisms are essential for protecting and managing high seas fisheries. In recent decades, stakeholders have debated how to balance competing interests while ensuring equitable and sustainable access to areas beyond national jurisdiction. One proposed solution is the establishment of Marine Protected Areas (MPAs). However, creating and managing high seas MPAs is a complex process. The Parties to the Convention on the Conservation of Antarctic Marine Living Resources have undertaken this effort, establishing two MPAs under the treaty’s regulatory framework. More recently, UN member states adopted the Agreement on Biodiversity Beyond National Jurisdiction, which includes provisions for high seas MPAs, under the auspices of the UN Convention on the Law of the Sea. This Comment evaluates this new agreement under the lens of the Convention on the Conservation of Antarctic Marine Living Resources to identify the most effective strategies for establishing high seas MPAs, with a particular focus on their role in preserving high seas fish stocks
Human Masters/Robot Servants: Highly Automated Vehicle Design, Intoxicated Drivers & Vicarious Liability
No full textA traditional engineering role is to design a safe product. Safety engineering is an exercise in harm avoidance ex ante. In contrast, liability attribution is an exercise to compensate for loss post hoc — traditionally viewed as a legal matter. We observe that, when a natural person incurs liability for a loss that exceeds insurance coverage, economic ruin can follow. Neither engineering nor law focus on the loss suffered by defendants considering law as a safety risk. The highly automated vehicle (HAV) design space, however, provides an opportunity to prevent this kind of economic harm from occurring ex ante just as attention to safe design can prevent loss from physical injury and property damage. Including legal outcomes as design specifications allows engineers to create a product with physical features that achieve legal outcomes for consumers. It also allows for identification of legal risks that corporate management can target for law reform, leading to changes in the design of the legal system. Importantly, the legal system is malleable in ways that physical systems are not.
This Article explains why HAV manufacturers and developers should consider law during the design process for an AV intended as \u27fit-for-purpose to transport intoxicated persons. It suggests that management, marketing, engineering and legal functions collaborate to develop product requirements and specifications that shield owner/occupants from criminal liability for DUI manslaughter, negligent homicide and similar charges, as well as guard against civil liability. This collaboration should occur for HAV deployments in any state of the United States.
Beyond addressing HAV feature design, this Article recommends that the HAV industry pursue a legislative agenda, as an adjunct to feature design, to expressly provide legal protection from liability in various scenarios in which the mere capability to control the HAV or mere ownership of the HAV can result in liability without fault on the part of an occupant or owner. The specific recommendation consists of a series of amendments to federal law to protect owner occupants of HAVs much as the Graves Amendment provides protection to car rental companies from liability for accidents caused by their customers
Crypto in the Courtroom: A Legislative Framework for Managing Crypto Assets in Bankruptcy
No full textThe rapid rise and subsequent collapse of the cryptocurrency market exposed a critical shortcoming of bankruptcy law: the absence of clear guidelines for the treatment of crypto assets. The Bankruptcy Code—which predates the invention of crypto—fails to account for the unique complexities of crypto assets. Although several crypto bills have been introduced, they fall short of adequately confronting the complex and evolving challenges of crypto bankruptcies. The lack of guidance has forced courts to make consequential decisions with no clear direction, leading to inconsistent outcomes in areas such as crypto asset ownership, valuation, and customer protections.
This Note examines bankruptcy courts’ responses to the downfall of major crypto platforms in 2022 and analyzes the inconsistent rulings that resulted. It further evaluates a proposed crypto bill—the CLARITY Act of 2025—demonstrating its inadequacy in addressing the distinct challenges posed by crypto bankruptcies. Ultimately, this Note argues that comprehensive legislation governing crypto assets in bankruptcy is essential to resolve key challenges and ensure greater predictability. In doing so, it proposes a legislative framework designed to clarify critical issues, provide clear guidance to courts, and protect the interests of all stakeholders in future crypto bankruptcies