Federal Law & Legal System – Page 185 – Marquette University Law School Faculty Blog

Priorities for the Next President: Securities Regulation

Post author:Edward A. Fallone
Post published:October 9, 2008
Post category:Corporate Law Federal Civil Litigation

The current crisis our nation faces on Wall Street and in the broader economy will be the primary focus of the next President. The crisis is complex, with many facets, and any solution will be equally complex. Issues such as the effectiveness of regulatory oversight versus deregulation, the transparency of specific types of financial transactions and market actors under current law, and the proper accounting rules to ensure an accurate depiction of a banking institution’s financial health will all be part of the debate over how to resolve the present crisis and how to prevent a future recurrence. However, my advice to the next President is that he should not overlook the beneficial role that private civil lawsuits under the securities laws can play in deterring risky market behavior.

Much has been made of the greed and speculative fervor that gripped the investment professionals on Wall Street. Clearly bets were being made with borrowed money that risked the very existence of institutions that are necessary to preserve the liquidity of capital in our markets. Expanding the oversight of the Treasury Department, increasing the transparency of transactions that involve derivatives and hedge funds, and re-examining accounting rules may all be necessary components of a plan to avoid such risk-taking in the future, but they will not be sufficient in and of themselves. From personal experience in the boardroom, I can vouch that nothing deters executive approval of speculative investment strategies as much as the prospect of a potential civil lawsuit if the deal goes sour.

When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

Post author:Michael M. O'Hear
Post published:October 6, 2008
Post category:Legal Scholarship Speakers at Marquette U.S. Supreme Court

That is the question that lurks behind a fascinating new paper by Dan Kahan, David Hoffman, and Donald Braman. The paper responds to Scott v. Harris, 127 S. Ct. 1769 (2007), in which the Supreme Court held that summary judgment was properly granted to a police officer in a § 1983 lawsuit challenging the officer’s decision to ram his police car into the car of a fleeing motorist. One of the paper’s authors, Dan Kahan (pictured at left), is visiting the Law School today to present the paper at a faculty workshop. (Dan will also be delivering the Boden Lecture here late this afternoon.) The paper begins by taking issue with a particular, case-specific assertion by the majority in Scott, but then opens up some much deeper questions about the roles of judge and jury in a culturally diverse democracy.

The majority in Scott relied on a videotape of the fleeing motorist, which purported to show that he was driving in such a dangerous manner as to justify the use of deadly force to stop him. The majority found the videotape sufficiently compelling that, in its view, no reasonable juror could find in favor of the motorist on his claim that the police officer had acted unreasonably in violation of the Fourth Amendment–thus, warranting a grant of summary judgment. Kahan and his coauthors, however, showed the same videotape to a diverse sample of 1,350 Americans, and found evidence of some disagreement with the majority’s view of the case. Thus, had the case been permitted to go to a jury, there is a statistically sound basis for expecting that one or more of the jurors would have had a considerably less positive view of the officer’s conduct than did the members of the Supreme Court.

Priorities for the New President: Restore Parole in the Federal Criminal Justice System

Post author:Michael M. O'Hear
Post published:October 3, 2008
Post category:Criminal Law & Process Federal Criminal Law & Process

This is part of a series of posts this month focusing on priorities for a new presidential administration.

In the area of federal criminal law, the next administration ought to undertake a number of initiatives: polish the Department of Justice’s tarnished image by ensuring that appointments to leadership positions are rigorously merit-based and by avoiding dubious prosecutions that appear politically motivated; make the federal criminal justice system a real leader and innovator in developing community-based alternatives to prison for nonviolent offenders; likewise, make the federal system a leader and innovator in implementing restorative justice and other processes that are more responsive to victim needs than conventional criminal case processing; seek the elimination of mandatory minimum sentencing statutes; and bring greater coherence and transparency to an executive clemency process that was extraordinarily kind to Scooter Libby, but that rarely does anything for offenders who are not politically connected. Although I regard all of these as matters of considerable urgency–and will perhaps blog about some of them at greater length later this month–I might put still another initiative at the top of the list: restore the possibility of parole release for federal prisoners.