ARTICLES & CITATIONS

Law Review Articles

ILEP’s mission has been to generate academic scholarship to help guide courts in securities fraud, consumer protection, and class action related matters. The breadth of that scholarship is reflected in the publications below.

Harvard Business Law Review, Volume 12 (2022)
Mechanisms for Corporate Accountability (2022)

Articles provided by Harvard Business Law Review

• Framing the Issues: Board Diversity and Corporate Purpose
• Should Labor Abandon Its Capital? A Reply to Critics
• Social Good and Litigation Risk
• Monitoring Facebook
• Wage Wars: The Battle Over Human Capital Accounting
• Does Mandatory Board Gender-Balancing Reduce Firm Value?
• Board Committee Charters and ESG Accountability

Texas Law Review, Volume 99, Issue 7
Governance Wars: Contesting Power and Purpose in the 21st Century Corporation (2021)

Articles provided by Texas Law Review

• Validation Capital
• A Revised Monitoring Model Confronts Today’s Movement Toward Managerialism
• Should Corporations Have a Purpose?
• Corporate Adolescence: Why Did “We” Not Work?
• The Promise of Diversity, Inclusion, and Punishment in Corporate Governance
• The History and Revival of the Corporate Purpose Clause
• ESG and Climate Change Blind Spots: Turning the Corner on SEC Disclosure

Fordham Law Review: Volume 89, Number 2
Securities and Consumer Litigation – Pathways and Hurdles (2020)

Articles provided by Fordham Law Review

• Measuring the Impact of SEC Enforcement Decisions
• Whitman and the Fiduciary Relationship Conundrum
• Objector Blackmail Update: What Have the 2018 Amendments Done
• Unwaivable: Public Enforcement Claims and Mandatory Arbitration
• Class Action Objectors: The Good, the Bad, and the Ugly
• Watching Insider Trading Law Wobble: Obus, Newman, Salman, Two Martomas , and a Blaszcak

ARTICLES:

• Congressional Overspeech
• Th Executive Branch Anticanon

NOTES:

• Programmed Defamation: Applying § 230
• Proactive Regulation of Prosectors’ Offices: Strengthening Disciplinary Committees’ Oversight of Prosecutors’ Offices Across the United States with ABA Model Rule 5.1
• Does the Patent Trial and Appeals Board’s Precedential Opinion Comport with Due Process?
• Who Will Watch the Watchers?: Enacting a Corporate Observing Board to Increase Consideration of Stakeholder Interests
• Withdrawing from Congressional-Executive Agreements with the Advice and Consent of Congress

Vanderbilt Law Review: Volume 72, Number 6
Corporate Accountability (2019)

Articles provided by Vanderbilt Law Review

• Introduction: Professor Randall Thomas’s Depolarizing and Neutral Approach to Shareholder Rights
• Mootness Fees
• Automating Securities Class Action Settlements
• The Case for Individual Audit Partner Accountability
• Lead Plaintiff Incentives in Aggregate Litigation
• After Corwin: Down the Controlling Shareholder Rabbit Hole
• Corporate Oversight and Disobedience
• Calculating SEC Whistleblower Awards: A Theoretical Approach
• The Other Janus and the Future of Labor’s Capital
• Taking Laughter Seriously at the Supreme Court
• Antitrust in Digital Markets
• The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance
• You Get What You Pay For: An Empirical Examination of the Use of MTurk in Legal Scholarship
• Can and Should Universal Injunctions Be Saved?
• Reestablishing a Knowledge Mens Rea Requirement for Armed Career Criminal Act “Violent Felonies” Post-Voisine
• David Williams II, in Memoriam 1948-2019

North Carolina Law Review: Volume 96, Number 3
Secrecy (2017)

Articles provided by North Carolina Law Review

• A2J/A2K: Access to Justice, Access to Knowledge, and Economic Inequalities in Open Courts and Arbitrations
• The Black Hole of Mandatory Arbitration
• Protecting Consumer Data Privacy with Arbitration
• Confidentiality and Whistleblowing
• Confidential Witness Interviews in Securities Litigation
• Why Do Prosecutors Say Anything? The Case of Corporate Crime
• Non-Prosecution of Corporations: Toward a Model of Cooperation and Leniency
• Revolution v. Evolution in Class Action Reform

Duke Law Journal, Volume 66, Number 3
Vindicating Virtuous Claims (In Honor Of James D. Cox) (2016)

Articles provided by Duke Law Journal

• James D. Cox: The Shareholders’ Best Advocate
• How Understanding the Nature of Corporate Norms Can Prevent Their Destruction by Settlements
• Using the False Claims Act to Remedy Tax-Expenditure Fraud
• Adaptive Financial Regulation and RegTech: A Concept Article on Realistic Protection for Victims of Bank Failures
• The Role of Blue Sky Laws After NSMIA and the JOBS Act
• The Knowledge Gap in Workplace Retirement Investing and the Role of Professional Advisors
• Regulating Public Offerings of Truly New Securities: First Principles
• Detecting Good Public Policy Rationales for the American Rule: A Response to the Ill-Conceived Calls for “Loser Pays” Rules
• “We Believe”: Omnicare, Legal Risk Disclosure and Corporate Governance

Washington University Law Review, Volume 93, Issue 2
New Directions for Corporate And Securities Litigation (2015)

Articles provided by Washington University Law Review

• Corporate Law and the Limits of Private Ordering
• Mandatory Disclosure and Individual Investors: Evidence From the Jobs Act
• Distortion Other Than Price Distortion
• Market Intermediation, Publicness, and Securities Class Actions
• Event Studies in Securities Litigation: Low Power, Confounding Effects, and Bias
• Paving the Delaware Way: Legislative and Equitable Limits On Bylaws After ATP
• The Intersection of Fee-Shifting Bylaws and Securities Fraud Litigation
• Federal Securities Fraud Litigation as a Lawmaking Partnership
• Price Impact, Materiality, and Halliburton II

Arizona Law Review, Volume 57, Number 1
Business Litigation and Regulatory Agency Review in the Era of the Roberts Court (2014)

Articles provided by Arizona Law Review

• Securities Litigation in the Roberts Court: An Early Assessment
• Judgment Day for Fraud-on-the-Market: Reflections on Amgen and the Second Coming of Halliburton
• The Problem of Reliance in Securities Fraud Class Actions
• Searching for Market Efficiency
• The Efficiency Criterion for Securities Regulation: Investor Welfare or Total Surplus?
• The Costs of Mandatory Cost–Benefit Analysis in SEC Rulemaking
• The End of Class Actions?
• Shareholder Litigation Without Class Actions
• Forum-Selection Bylaws Refracted Through an Agency Lens
• Why Expanding Director Power Over Corporate Bylaws Could Undermine Core Stockholder Rights: Comments on Three Scary Predictions of the Future

Vanderbilt Law Review, Volume 66, Number 6
The Economics of Aggregate Litigation (2013)

Articles provided by Vanderbilt Law Review

• Screening Legal Claims Based on Third-Party Litigation Finance Agreements and Other Signals of Quality
• Setting Attorney’s Fees in Securities Class Actions: An Empirical Assessment
• Understanding Causation in Private Securities Lawsuits: Building on Amgen
• The Fraud-on-the-Market Tort
• Fee Shifting and the Free Market
• Duty in the Litigation-Investment Agreement: The Choice Between Tort and Contract Norms when the Deal Breaks Down
• How Much Is That Lawsuit in the Window? Pricing Legal Claims
• What Should We Do About Multijurisdictional Litigation in M&A Deals?

Washington University Law Review, Volume 90, Issue 3
Hodge O’Neal Corporate and Securities Law Symposium: The Future of Class Actions (2012)

Articles provided by Washington University Law Review

• The History of the Modern Class Action, Part I: Sturm Und Drang, 1953 – 1980
• The 9/11 Litigation Database: A Recipe for Judicial Management
• Disaggregating
• Assembling Class Actions
• The Decline of Class Actions
• Bankruptcy and the Future of Aggregate Litigation: The Past as Prologue?
• The Trouble with Basic: Price Distortion after Halliburton
• Lies Without Liars? Janus Capital and Conservative Securities Jurisprudence
• Merger Class Actions in Delaware and the Symptoms of Multi-Jurisdictional Litigation

Law & Contemporary Problems, Volume 75, Number 1
Access to Justice: Investor Suits in the Era of the Roberts Court (2011)

Articles provided by Law & Contemporary Problems

• 17th Annual Institute for Law and Economic Policy Conference Access to Justice: April 7, 2011
• Foreword: Access to Justice
• Pleading as Information-Forcing
• Taming Twombly: An Update After Matrixx
• The Judicial Access Barriers to Remedies for Securities Fraud
• A Modest Proposal for Securities Fraud Pleading After Tellabs
• Arbitration Of Investors’ Claims Against Issuers: An Idea Whose Time Has Come?
• Rhetoric Versus Reality in Arbitration Jurisprudence: How the Supreme Court Flaunts and Flunks Contracts
• Remedies for Foreign Investors Under U.S. Federal Securities

University of Pennsylvania Law Review, Volume 158, Issue 7
Protection of Investors in the Wake of the 2008-2009 Financial Crisis (2010)

Articles provided by University of Pennsylvania Law Review

• Lying and Getting Caught: An Empirical Study of the Effect of Securities Class Action Settlements on Targeted Firms
• Paying for Long-Term Performance
• Rethinking the Regulation of Securities Intermediaries
• Do Class Action Lawyers Make Too Little?
• Credit Default Swap Spreads as Viable Substitutes for Credit Ratings
• Reading Stoneridge Carefully: A Duty-Based Approach to Reliance and Third-Party Liability Under Rule 10b-5
• The Multienforcer Approach to Securities Fraud Deterrence: A Critical Analysis

Journal of Corporation Law, University of Iowa Law School, Volume 35, Number 1
Recoveries for Victims of Securities Fraud (2009)

Articles provided by Journal of Corporation Law

• Regulating Broker-Dealers and Investment Advisers: Demarcation or Harmonization?
• Estimating Financial Fraud Damages with Response Coefficients
• Personal Jurisdiction over Foreign Directors in Cross-Border Securities Litigation
• Securities Litigation and the Housing Market Downturn
• Distribution of Funds in Class Actions – Claims Administration
• Judging Admissibility
• Proper Event Study Analysis in Securities Litigation
• Reputational Damages in Securities Litigation
• Compared to What? Econometric Evidence and the Counterfactual Difficulty
• Coming to Terms with Loss Causation After Dura: A Response to Professors Partnoy, Ferrell, and Saha
• Ratings Recall: Will New Reform Proposals Make Lasting Impact?
• Direct Harm, Special Injury, or Duty Owed: Which Test Allows for the Most Shareholder Success in Direct Shareholder Litigation?

Wisconsin Law Review, Volume 2009, Number 2
The Continuing Evolution of Securities Class Actions (2008)

Articles provided by Wisconsin Law Review

• Basic at Twenty: Rethinking Fraud on the Market
• Counterfactual Keys to Causation and Damages in Shareholder Class-Action Lawsuits
• The “Innocent Shareholder”: An Essay on Compensation and Deterrence in Securities Class-Action Lawsuits
• Why Civil Liability for Disclosure Violations When Issuers Do Not Trade?
• Confronting the Circularity Problem in Private Securities Litigation Scheme Liability: Does It Have a Future After Stoneridge?
• Do Differences in Pleading Standards Cause Forum Shopping in Securities Class Actions?: Doctrinal and Empirical Analyses 
• A Scotch Verdict on “Circularity” and Other Issues 
• Transnational Litigation and Global Securities Class-Action Litigation 
• Pleading After Tellabs
• Pleading and the Dilemmas of “General Rules”

Vanderbilt Law Review, Volume 61, Number 2
Institutional Investor Activism (2007)

Articles provided by Vanderbilt Law Review

• The Evolving Role of Institutional Investors in Corporate Governance and Corporate Litigation
• On Beyond CalPERS: Survey Evidence on the Developing Role of Public Pension Funds in Corporate Governance
• There Are Plaintiffs and . . . There are Plaintiffs: An Empirical Analysis of Securities Class Action Settlements
• The Forgotten Derivative Suit
• Hands-Off Options
• Proxy Contests in an Era of Increasing Shareholder Power: Forget Issuer Proxy Access and Focus on E-Proxy
• A Fresh Look at Director “Independence”: Mutual Fund Fee Litigation and Gartenberg at Twenty-Five
• The Lead Plaintiff Provisions of the PSLRA After a Decade, or “Look What’s Happened to My Baby”
• Small Claim Mass Fraud Actions: A Proposal for Aggregate Litigation Under RICO
• Are an Empty Head and a Pure Heart Enough? Mens Rea Standards for Judge-Imposed Rule 11 Sanctions and Their Effects on Attorney Action
• Increasing the Effectiveness of the Security Council’s Chapter VII Authority in the Current Situations Before the International Criminal Court
• Why Ratify? Lessons from Treaty Ratification Campaigns

Columbia Law Review, Volume 106, Number 7
A Ten Year Retrospective on Litigation Reform (2006)

Articles provided by Columbia Law Review

• PRIVATE SECURITIES LITIGATION REFORM ACT: Securities Litigation and Its Lawyers: Changes During the First Decade After the PSLRA
• PRIVATE SECURITIES LITIGATION REFORM ACT: Reforming The Securities Class Action: An Essay on Deterrence and Its Implementation
• PRIVATE SECURITIES LITIGATION REFORM ACT: Does The Plaintiff Matter? An Empirical Analysis of Lead Plaintiffs in Securities Class Action
• SARBANES-OXLEY ACCOUNTING ISSUES: Cataclysmic Liability Risk Among Big Four Auditors
• SARBANES-OXLEY ACCOUNTING ISSUES: Too Big to Fail: Moral Hazard in Accounting and the Need to Restructure the Industry Before It Unravels
• SARBANES-OXLEY GOVERNANCE ISSUES: The Policy Foundations of Delaware Corporate Law
• SARBANES-OXLEY GOVERNANCE ISSUES: Federal Corporate Law: Lessons from History
• CLASS ACTION FAIRNESS ACT: Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Act
• CLASS ACTION FAIRNESS ACT: Aggregation and Its Discontents: Class Settlement Pressure, Class-Wide Arbitration, and CAFA
• CLASS ACTION FAIRNESS ACT: Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy

Washington University Law Quarterly, 2005, Volume 83, Number 4
Mutual Funds, Hedge Funds & Institutional Investors (2005)

Articles provided by Washington University Law Review

• Do Institutions Matter? The Impact of the Lead Plaintiff Provision of the Private Securities Litigation Reform Act
• Mutual Fund Expense Disclosures: A Behavioral Perspective
• The Scope and Jurisprudence of the Investment Management Regulation
• Private Litigation To Enforce Fiduciary Duties In Mutual Funds: Derivative Suits, Disinterested Directors and The Ideology Of Investor Sovereignty
• Enhanced Corporate Governance For Mutual Funds: A Flawed Concept That Deserves Serious Reconsideration
• Comments on Martin Lybecker’s Enhanced Corporate Governance 
• Common Themes and Unintended Consequences In Class Action Reform
• Should Investment Companies Be Subject To A New Statutory Self-Regulatory Organization?
• Class Actions and Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment of Disputes
• Health Care For Undocumented Immigrant Children: Special Members of an Underclass
• Looks Sell, But Are They Worth The Cost?: How Tolerating Looks-Based Discrimination Leads to Intolerable Discrimination
• “Banking” On Law Enforcement: Advocating A New Balancing Test for DNA Storage After United States v. Kincade
• Injecting Fairness Into The Doctrine Of Forfeiture By Wrongdoing 

Vanderbilt Law Review, Volume 57, Number 5
Protecting the Public: The Role of Private and Public Attorneys General (2004)

Articles provided by HeinOnline.org

• The Evidence on Securities Class Actions
• The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues
• The Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law
• The Muddled Duty to Disclose Under Rule 10b-5
• Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes
• The Public and Private Faces of Derivative Lawsuits
• File Early, Then Free Ride: How Delaware Law (Mis)Shapes Shareholder Class Actions
• Growing Pains: The Scope of Substantive Due Process Rights of Parents of Adult Children
• Mid-Decade Congressional Redistricting In a Red and Blue Nation

Duke Law Journal, Volume 53, Number 2
Government Agencies, Economic Justice, and Private Initiatives (2003)

Articles provided by Duke Law Journal

• “Vacation” at Sea: Judicial Remedies and Equitable Discretion in Administrative Law
• Outsourcing Government Regulation
• Remarks on the Presentations by Professors Shapiro and Levin
• Shareholder Value and Auditor Independence
• Some Thoughts on an Agenda for the Public Company Accounting Oversight Board
• The Qualified Legal Compliance Committee: Using the Attorney Conduct Rules to Restructure the Board of Directors
• “Mediation-Only” Filings in the Delaware Court of Chancery: Can New Value Be Added by One of America’s Business Courts?
• Managed Care’s Crimea: Medical Necessity, Therapeutic Benefit, and the Goals of Administrative Process in Health Insurance
• State Regulation of Medical Necessity: The Case of Weight-Reduction Surgery
• Perspectives on State and Federal Antitrust Enforcement
• SEC Enforcement Heuristics: An Empirical Inquiry

NOTES:

• Preventing Defendants from Mooting Class Actions by Picking off Named Plaintiffs
• The Pervasive Problem of Court-Sanctioned Secrecy and the Exigency of National Reform
• Exporting U.S. Corporate Governance Standards through the Sarbanes-Oxley Act: Unilateralism or Cooperation?

Washington University Law Review, Volume 80, Issue 3
Litigation in a Free Society (2002)

Articles provided by Washington University Law Review

• The Roles of Litigation
• Beware of Numbers (and Unsupported Claims of Judicial Bias)
• Seven Dogged Myths Concerning Contingency Fees
• Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts
• Human Rights and Civil Litigation in United States Courts: The Holocaust-Era Cases
• Leaving Money on the Table: Do Institutional Investors Fail to File Claims in Securities Class Actions?
• Who Cares?
• The Questionable Case for Using Auctions to Select Lead Counsel
• Reform Through Rulemaking?

TABLES:

• Tables for Beware of Numbers (and Unsupported Claims of Judicial Bias)
• Tables for Seven Dogged Myths Concerning Contingency Fees

NOTES:

• Disposing of Leaks and Spills: Passive Disposal of Hazardous Wastes Under CERCLA
• The Missing Piece of the Mosaic: Improving Regulation FD
• Class Actions and Rule 10b-5: A Critique of Newton v. Merrill Lynch

Washington University Law Review, Volume 79, Issue 2
Corporate Accountability (2001)

Articles provided by Washington University Law Review

• Director Accountability and the Mediating Role of the Corporate Board
• Seeking Sunlight in Santa Fe’s Shadow: The SEC’s Pursuit of Managerial Accountability
• Barbarians at the Gatekeepers?: A Proposal for a Modified Strict Liability Regime
• The SEC, the Audit Committee Rules, and the Marketplaces: Corporate Governance and the Future
• Litigating Challenges to Executive Pay: An Exercise in Futility?
• Credibility and Information in Securities Markets After Regulation FD

NOTE:

• Protecting the Privacy of Sexual Harassment Plaintiffs: The Psychotherapist-Patient Privilege and Recovery of Emotional Distress Damages Under the Civil Rights Act of 1991

Law & Contemporary Problems, Volume 64, Number 2 & 3
Complex Litigation at the Millennium (2000)

Articles provided by Law & Contemporary Problems

• Pleading Securities Fraud
• Aggregation, Auctions, and Other Developments in the Selection of Lead Counsel Under the PSLRA
• The Nontrial Adversarial Model
• A Comparison of Trading Models Used for Calculating Aggregate Damages in Securities Litigation
• Beyond “It Just Ain’t Worth It”: Alternative Strategies for Damage Class Action Reform
• Loser-Pays – or Whose “Fault” is it Anyway: A Response to Hensler-Rowe’s “Beyond ‘It Just Ain’t Worth it'”
• Contingent Fees and Tort Reform: A Reassessment and Reality Check
• Ulysses Tied to the Generic Whipping Post: The Continuing Odyssey of Discovery “Reform”
• Confronting the Future: Coping with Discovery of Electronic Material
• A Modest Reform for Federal Procedural Rulemaking
• Upsetting the Balance Between Adverse Interests: The Impact of the Supreme Court’s Trilogy on Expert Testimony in Toxic Tort Litigation
• Scientific Misconceptions Among Daubert Gatekeepers: The Need for Reform of Expert Review Procedures
• Kumho and How We Know

Columbia Law Review, Volume 99, Number 5
The Living Legacy of William Cary (1999)

Articles provided by HeinOnline.org

• Introduction: William L. Cary and his Living Legacy
• Federalism and Corporate Law: The Race to Protect Managers from Takeovers
• Regulatory Duopoly in U.S. Securities Markets
• Corporate Law and Social Norms
• The Scope of Private Securities Litigation: In Search of Liability Standards for Secondary Defendants
• Rereading Cady, Roberts: The Ideology and Practice of Insider Trading Regulation
• English Child Custody Law, 1660-1839: The Origins of Judicial Intervention in Paternal Custody

Arizona Law Review, Volume 40, Number 3
Courts on Trial (1998)

Articles provided by Arizona Law Review

• An Oil Strike in Hell: Contemporary Legends About the Civil Justice System
• From Barefoot to Daubert to Joiner: Triple Play or Double Error?
• A More Complete Look at Complexity
• The Performance of the American Civil Jury: An Empirical Perspective
• What Juries Can’t Do Well: The Jury’s Performance as a Risk Manager
• The (Cloudy) Future of Class Actions
• Contracting Access to the Courts: Myth or Reality? Boon or Bane?
• Recent Judicial and Legislative Developments Affecting the Private Securities Fraud Class Action
• New Wineskins for New Wine: The Need to Encourage Fairness in Mandatory Arbitration
• Consumer Arbitration of Statutory Claims: Has Pre-Dispute [Mandatory] Arbitration Outlived Its Welcome?
• Securities Arbitration: Issues of Interest
• Elements of a Fair and Efficient Securities Arbitration System
• Closing Remarks

Law & Contemporary Problems, Volume 60, Number 3 & 4
Deterring Corporate Misconduct (1997)

Articles provided by Law & Contemporary Problems

• Foreword
• Crime and Custom in Corporate Society: A Cultural Perspective on Corporate Misconduct
• The Role of Criminal Law in Policing Corporate Misconduct
• Comment on Lynch
• Comment on Lynch
• Punitive Damages, Social Norms, and Economic Analysis
• Damages, Deterrence, and Antitrust – A Comment on Cooter
• Of Characterization and Other Matters: Thoughts about Multiple Damages
• Corporate Compliance and the Antitrust Agencies’ Bi-Modal Penalties
• Federalism and Investor Protection: Constitutional Restraints on Preemption of State Remedies for Securities Fraud
• The Role of State Law in an Era of Federal Preemption: Lessons from Environmental Regulation
• Preempting Unintended Consequences
• Evaluating the Preemption Evidence: Have the Proponents Met Their Burden?
• Enforcement Policy and Corporate Misconduct: The Changing Perspective of Deterrence Theory

Arizona Law Review Volume 39 No. 2
Class Actions at the Crossroads (1996)

Articles provided by Arizona Law Review

• Introduction
• An Enforcement Official’s Reflections on Antitrust Class Actions
• The Constitutional Limits of Judicial Rulemaking: The Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23
• Making Securities Fraud Class Actions Virtuous
• Class Action Reform: Lessons from Securities Litigation
• Civil Rights Class Actions: Procedural Means of Obtaining Substance
• The Defensive Use of Federal Class Actions in Mass Torts
• The Constitutionality of the Proposed Rule 23 Class Action Amendments
• The New Securities Class Action: Federal Obstacles, State Detours
• The Past and Future of Defendant and Settlement Classes in Collective Litigation
• Remarks to the Institute for Law and Economic Policy