Insider Trading’s Legality Problem

Last year, when the Supreme Court revisited the topic of insider trading in Salman v. United States, scholars rehearsed a familiar debate: Should Congress enact a statute that explicitly defines insider trading? Or should it stick with the status quo, wherein the Court periodically clarifies previous holdings in cases such as Dirks, Chiarella, and O’Hagan? Defenders of the status quo argue that a statutory definition would simply encourage traders to find—and leap through—legal loopholes. Critics respond just as robustly that statutory language provides notice and restrains prosecutorial overreach.

In Insider Trading’s Legality Problem, I explore an additional … Read more

When the Corporation Investigates Itself

There may have been a time – say, four or five decades ago – when the internal corporate investigation was viewed with suspicion, if not outright distaste. Today, however, the corporate internal investigation is the norm. Corporations investigate themselves for a host of reasons – to comply with laws and regulations, to garner favor from prosecutors and enforcement agencies, or to demonstrate “good corporate governance” to the company’s various constituents, including its shareholders, consumers, and employees.

Investigations are frequent, run the gamut from small inquiries to massive undertakings, and have fueled a lucrative industry among white-collar attorneys and their respective … Read more

Confronting the Two Faces of Corporate Fraud

The following post comes to us from Miriam H. Baer, Associate Professor at Brooklyn Law School. It is based on her recent paper entitled “Confronting the Two Faces of Corporate Fraud,” which is forthcoming in the Florida Law Review and is available here.

Some people hurt others by failing to follow through on their best-laid plans. Corporate managers who sincerely promise to implement new programs, but then welsh on their promises several months later fall into this category.  These individuals harm society, both by failing to execute their plans, and often by attempting to hide these failures.

Other individuals … Read more