Category: Notes

Equity Compensation and Informant Bounties: How Tying the Latter to the Former May Finally Alleviate the Securities Fraud Predicament in America – Note by Justin Tyler Hughes

From Volume 82, Number 5 (July 2009)
DOWNLOAD PDF

Recent Supreme Court decisions, including Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc. and Tellabs, Inc. v. Makor Issues & Rights, Ltd., have brought complex securities fraud issues back into the national limelight. Moreover, growing frustration with the Sarbanes-Oxley Act of 2002 and the current financial catastrophe have further intensified securities concerns. Regardless of which side one supports in the ongoing debate regarding appropriate regulation, one thing is certain: securities fraud continues to purge the American markets of billions of dollars per year. With today’s political disposition favoring increased government oversight of corporate America, and with a new presidential regime, the time for reevaluating America’s procedure for detecting and deterring large-scale securities fraud is swiftly approaching.

 

82_1043

NEPA and CEQA: Effective Legal Frameworks For Compelling Consideration of Adaptation to Climate Change – Note by Katherine M. Baldwin

From Volume 82, Number 4 (May 2009)
DOWNLOAD PDF

As the subject of global climate change occupies an increasingly prominent position in the current social and political discourse, competing voices clamor to predict the future effects of climate change and to propose solutions. While some environmentalists press the public to imagine catastrophic scenarios in which large cities will be inundated with rising seas or landscapes will be parched by persistent drought, some skeptics urge business as usual, insisting that no evidence unequivocally substantiates the existence of global climate change. How should the public react to these varying attitudes? On the one hand, drastically cutting the greenhouse gas (“GHG”) emissions known to cause climate change and enacting every possible precaution to protect against its impacts may be expensive and involve sacrifices in the near term that might ultimately prove unnecessary, given the uncertainty surrounding the future effects of climate change. On the other hand, failure to take action could result in devastation to the human community, irreversible damage to the environment, and astronomical expenses incurred to repair both. Perhaps, both views merit consideration, and the reality lies somewhere between these two extremes. Questions remain, however, concerning how communities should evaluate information regarding the projected impacts of climate change and which adaptive measures offer the best protection from its effects.

 

82_769

The Fraud Exception to the Parol Evidence Rule: Necessary Protection for Fraud Victims or Loophole for Clever Parties? – Note by Alicia W. Macklin

From Volume 82, Number 4 (May 2009)
DOWNLOAD PDF

Consider the following hypothetical: Two businesses—X, a software company, and Y, a retailer—reach a typical agreement regarding a software license. After extended negotiations, a written, integrated agreement finalizes the deal; it states that X will license software to Y and provide related hosting and technical support services. It does not include, nor did the two parties ever discuss, implementation of the software. Some time after the agreement was made, Y attempts to compel X to implement the software. Y later argues in court that X made fraudulent oral promises that induced Y to sign the written agreement. Y claims that X additionally agreed to provide both a total cost of ownership guarantee, including implementation, and the assistance of its consulting and development personnel to implement the software. Y’s lawyers correctly realize that, in California, the courts have allowed extrinsic evidence of fraudulent promises when those promises are consistent with or independent of the written agreement, notwithstanding the Parol Evidence Rule (“PER”). Thus, while X can present its best argument that the promise to implement the software would directly contradict or vary the terms of the limited licensing contract, the outcome in court is still unpredictable. Unsuspecting X is in danger of being forced to bear a substantial burden for which it never intended to contract.

 

82_809

Second Amendment Standards of Review: What the Supreme Court Left Unanswered in District of Columbia v. Heller – Note by Jason T. Anderson

From Volume 82, Number 3 (March 2009)
DOWNLOAD PDF

In June 2008 the Supreme Court issued its opinion in the case of District of Columbia v. Heller, its first directly concerning the Second Amendment since 1939. Heller involved a series of D.C. laws that had the effect of banning the possession of handguns. At the narrowest level, the Court was deciding whether a ban on handguns violated the Second Amendment; however, the broader issue facing the Court concerned the fundamental meaning of the Second Amendment: does the amendment protect a collective or individual right to bear arms? To that question, the Court answered the latter, thus ending an at-times heated debate among legal scholars and those on both sides of the gun control debate. But the Court left the door open for a new debate to begin in the Second Amendment context: what standard of review applies to legislation that restricts an individual’s right to bear arms? Writing for the majority, Justice Scalia noted that “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would fail constitutional muster,” and—unapologetically—failed to identify which standard the majority was using in this case. Justice Breyer’s dissent chided Scalia for this move, claiming that this failure to be more specific “throw[s] into doubt the constitutionality of gun laws throughout the United States.”

 

82_587

Reality’s Kids: Are Children Who Participate on Reality Television Shows Covered Under the Fair Labor Standards Act? – Note by Adam P. Greenberg

From Volume 82, Number 3 (March 2009)
DOWNLOAD PDF

Because Kid Nation was the first reality show to feature minors exclusively, it provides a fitting springboard from which to evaluate whether reality children in general are covered by the FLSA’s child labor provisions. Although FLSA coverage must be determined on a case-by- case basis, a discussion of Kid Nation, and of reality television in general, will illuminate relevant characteristics of the genre and help guide future analysis of this issue. Given the untempered success and growth of reality television, it is unlikely that Kid Nation will be the last program to utilize the services of children. Again, a determination of FLSA coverage will hinge on three questions: (1) Are the children performing work?; (2) Are the children employees?; and (3) Are the children exempt as actors or performers?

 

82_595

Rethinking the Material Adverse Change Clause in Merger and Acquisition Agreements: Should the United States Consider the British Model? – Note by Andrew C. Elken

From Volume 82, Number 2 (January 2009)
DOWNLOAD PDF

The material adverse change (“MAC”) clause is a contract provision that periodically dominates the headlines, usually in the wake of a major financial downturn, and the most recent downturn has not been an exception. A MAC clause dispute typically occurs when one side of an agreement no longer wants to complete a merger or acquisition, and often the stakes are high: in the midst of the credit crisis and economic turmoil that began in 2007, MAC disputes erupted in at least thirteen high-profile transactions—the four largest disputes ranging from $1.5 billion to $25.3 billion. As recently as fifteen years ago, the MAC clause was essentially an uncontroversial boilerplate provision, but the clause has since changed dramatically. This Note explores the modern MAC clause in the United States through a comparative analysis with the United Kingdom, which has effectively prohibited a transformation of the traditional MAC clause.

 

82_291

Depictions of the Pig Roast: Restricting Violent Speech Without Burning the House – Note by Michael Reynolds

From Volume 82, Number 2 (January 2009)
DOWNLOAD PDF

Pornography dominates the discussion about free speech on the Internet. Congress has twice enacted legislation aimed at preventing minors from getting access to online pornography. Federal and local law enforcement agencies have dramatically increased efforts to combat the spread of child pornography. The Department of Justice has renewed attempts to crack down on obscene material after years of lax enforcement.

Yet the debate about online pornography has overshadowed another disturbing Internet phenomenon. The Internet has facilitated growth in the availability of extremely violent images and videos. A little online searching reveals depictions of torture, of both humans and animals; videos depicting murders and executions, including beheadings by Islamic militants; videos of brutal amateur street fights, some consensual, but many not; videos of minors engaged in schoolyard fights and beatings, some posted to humiliate the victims; and videos of cockfighting. Online retailers have sold videos of dog fights and extremely violent video games, including one in which the player is tasked with making graphic snuff videos and another which allows the player to play fetch with dogs using human heads.

 

82_341

Clearing a Path for Digital Development: Taking Patents in Eminent Domain Through the Adoption of Mandatory Standards – Note by Brian Cook

From Volume 82, Number 1 (November 2008)
DOWNLOAD PDF

Though largely unnoticed by the public, March 1, 2007, marked the transition from traditional analog television to digital broadcast television (“DTV”), a move some have characterized as the most significant change to the television broadcast industry since color replaced black and white. On that date, Federal Communications Commission (“FCC”) regulations went into effect mandating that all televisions sold in the United States contain a digital tuner capable of receiving DTV broadcast signals. If consumers are unaware of the change now, it will not escape their attention on February 17, 2009, when their old analog sets go dark as broadcasters comply with further FCC regulations mandating the cessation of all analog television broadcasts. Ultimately, the government intends to profit by auctioning off the additional frequency spectrum freed up by the more efficient digital use of the broadcast spectrum.

 

82_97