Archive for ‘Uncategorized’

April 23, 2014

Perino Publishes Chapter in Cambridge Handbook of Institutional Investment and Fiduciary Duty

Cambridge University Press has just published the Cambridge Handbook of Institutional Investment and Fiduciary Duty. Michael Perino, Dean George W. Matheson Professor of Law, contributed a chapter to the book titled “Have institutional fiduciaries improved securities class actions? A review of the empirical literature on the PSLRA’s lead plaintiff provision.”  Here’s an abstract of the chapter:

In 1995, Congress substantially revamped the governance of securities class actions when it created the lead plaintiff provision as part of the Private Securities Litigation Reform Act. This paper reviews the empirical literature evaluating that provision. The story that emerges from these studies is of a largely successful statutory innovation that has markedly improved the conduct of these cases. There is little doubt that passage of the PSLRA spurred institutions to become more active in securities class actions. Overall, the results of that participation are positive. Existing studies demonstrate that cases with institutional lead plaintiffs settle for more and are subject to a lower rate of dismissal than cases with other kinds of lead plaintiffs, although some questions remain regarding whether these results are driven by institutional self-selection of higher quality cases. One study has shown that institutional participation is correlated with at least some improvements in corporate governance. Institutional lead plaintiffs have had their largest impact on attorneys’ fees. Not only is institutional participation correlated with lower fees and greater attorney effort, but there is evidence to suggest that institutions have created an economically significant positive externality – a reduction in fee awards even in cases without institutional plaintiffs. Institutional participation, however, has not been an unalloyed good. Other studies suggest that institutional investors are subject to their own agency costs, particularly in the form of pay-to-play arrangements with plaintiffs’ law firms. Those arrangements appear to eliminate some of the beneficial effects associated with institutional service as lead plaintiffs.



April 22, 2014

Wade Writes on Schools and For-Profit Prisons

Dean Harold F. McNiece Professor of Law Cheryl L. Wade wrote “Schools, Prisons and Profit” on the Corporate Justice Blog in response to a recent NYT editorial.  Here’s an excerpt:

Will the incarcerated suffer so that shareholders can profit?  Will students’ education suffer so that shareholders can profit?  Can for-profit companies make money for shareholders and do what is best for students and prisoners?  Yesterday’s New York Times editorial calls for strengthening the connection between criminal justice systems and public schools.  When you add to this the likelihood of the involvement of for-profit prison companies like CCA in the lives of public schoolchildren, I am afraid that shareholders will win/profit at the expense of schoolchildren who are treated like criminals.  


April 20, 2014

Facciolo Authors Article on Fiduciary Duties and Financial Advice

Francis “Jay” Facciolo, Assistant Director of the Securities Arbitration Clinic and Professor of Legal Writing, has posted a new article on SSRN, titled “Do I Have a Bridge for You: Fiduciary Duties and Financial Advice.”  The article will be published in the Pennsylvania Journal of Business Law.  Here’s a abstract:

The debate about financial advice in the United States has taken a wrong turn. Instead of focusing on particular practices and the potential that these practices raise for conflicts of interest between advisers and their clients, the debate has focused recently on whether brokers, advisers to municipal and state issuers, and advisers to employee benefit plans regulated by ERISA should be held to a fiduciary duty standard. A fiduciary standard implies, in the words of Justice Cardozo, that “[a] trustee is held to something stricter that the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” The thought is that brokers and ERISA advisers will be more attentive to their clients’ needs if such a fiduciary standard applies. Certainly, this is the basis upon which the Department of Labor is currently considering rules that apply fiduciary standards to ERISA advisers.

This article argues that this reliance on fiduciary duties is misplaced. In part, this is because most fiduciary duties that arise with respect to financial advice can be modified by an agreement between the fiduciary and the beneficiary. There are procedural limits to ensure that a beneficiary has both the capacity and the information necessary to enter into a particular arrangement. But fiduciary duties turn out to be just a more punctilious version of contract law, with a few exceptions. This general contractual principle applies to both state fiduciary duties and to federal fiduciary duties that arise under statutes such as the Investment Advisers Act of 1940, the Investment Company Act of 1940 and ERISA.


April 18, 2014

Center for Law and Religion Launches Podcast Series  

The Center for Law and Religion Forum has started a podcast series analyzing important law and religion cases and issues.  Center Director Mark Movsesian and Associate Director Marc DeGirolami have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case argued at the Supreme Court in the fall.  The podcast provides an introduction to the issue of legislative prayer and detailed analysis of and commentary about the oral argument.  In their most recent podcast, Movsesian and DeGirolami discuss last month’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case.  The podcast addressed the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve.  Movsesian and DeGirolami also predict how the Justices will ultimately rule.

Mark Movsesian

Mark Movsesian


April 17, 2014

Lazaro and Facciolo Published in “Revolution in the Regulation of Financial Advice” Symposium Issue

Christine Lazaro’s article, The Future of Financial Advice: Eliminating the False Distinction between Brokers and Investment Advisers, appears in the recently published St. John’s Law Review symposium issue that memorializes the Revolution in the Regulation of Financial Advice: The U.S., the U.K. and Australia symposium.  Christine Lazaro is the Director of the Law School’s Securities Arbitration Clinic.  Professor Francis “Jay” Facciolo, Assistant Director of the clinic, contributed the introduction to the volume.   Both Facciolo and Lazaro chaired the symposium’s organizing committee.

Here’s an excerpt of Facciolo’s introduction:

This Symposium brought together legal academics, practicing lawyers and business people to discuss new directions in the regulation of financial advice to retail investors. Recently, this has been the subject of many initiatives around the world. The Symposium examined three of these initiatives in the United States, the United Kingdom and Australia. In the U.S., the approach historically has been based on disclosure to manage conflicts of interest. Although the U.K. and Australia have not done away with disclosure, they have moved to banning certain practices, especially in the area of compensation to investment advisers from product providers that can result in conflicts of interest between an investment adviser and its clients.

Here’s an excerpt of Lazaro’s article:

The individuals who effectuate securities transactions and offer financial advice to the public are regulated at several levels – by federal statute, by state law, and by rules of federal regulators, including the Securities and Exchange Commission (“SEC”) and self-regulatory organizations. Following the stock market crash of 1929, Congress began to enact a federal framework of regulation of the securities markets and the individuals working within the securities markets. Initially, Congress focused on brokers, the individuals who were paid to effectuate securities transactions. Next, Congress focused on investment advisers, the individuals who were paid for the advice they gave in connection with securities transactions.

The SEC is responsible for implementing the regulatory schemes for both brokers and investment advisers. The SEC directly regulates investment advisers.  Brokers are indirectly regulated by the SEC and primarily regulated by the Financial Industry Regulatory Authority (“FINRA”), one of the self-regulatory organizations for which the SEC has oversight responsibility.

The regulatory schemes associated with the SEC and FINRA are separate and distinct. The standard of care applicable to brokers is limited in scope and time to the transaction they are effectuating. Pursuant to rules promulgated by FINRA, brokers must make suitable recommendations to their clients, execute orders promptly, disclose certain material information, charge prices reasonably related to the prevailing market, and fully disclose any conflict of interest.


Christina                  jay



April 14, 2014

Sovern Quoted by LexisNexis’s Law360

Professor Jeff Sovern was quoted by the Lexis/Nexis’s Law360 in an article titled, CFPB Sets Sights On Payday Lending ‘Cycle Of Debt.’  According to the article:

Payday borrowing is like alcohol in that it is a positive for some and an utter disaster for others, said St. John’s University School of Law professor Jeff Sovern. The CFPB’s challenge is to come up with rules that enable those for whom payday borrowing is a positive to have access to it while keeping those for whom it is a disaster away.

jeff sovern

April 11, 2014

Sheff Presents at the Inaugural ABA IP Law Section Meeting

Last week,  Professor Jeremy Sheff presented his work-in-progress, Dilution at the Patent and Trademark Office, at the American Bar Association’s Intellectual Property Law Section’s Spring Meeting.  His was one of three papers presented at the Section’s inaugural Scholarship Symposium.  Slides from the presentation are available here.

Jeremy Sheff

Jeremy Sheff


April 11, 2014

Montana Publishes Book, Navigating Law School’s Waters: A Guide to Success

Patricia Grande Montana, Professor of Legal Writing and Director of the Street Law Program at the law school has published a bookNavigating Law School’s Waters: A Guide to Success, in Vandeplas Publishing.  This is Professor Montana’s first book.  Here’s a synopsis and review of the text:

Law school, particularly the first year, can be a rather intimidating and challenging experience for many students. This book is designed to give students the tools they need to successfully navigate their way through it. It introduces students to the fundamentals of legal analysis and writing and teaches them how to read and brief cases, outline, study, master law school exams, and care for their physical and emotional well-being. In short, it prepares students for every aspect of their journey through law school.

Unlike other introduction to law school texts, this book is unique in that it takes a cognitive approach to its instruction. It is premised on the belief that students learn new information best when they have a “schema” or framework that allows them to think logically about the information. Thus, it routinely draws on non-legal examples when introducing new topics and skills, and spends substantial time explaining why law students are expected to read and brief cases, outline, study, and write exam answers the way they are. Additionally, this book builds upon the same core problems throughout, including the chapter exercises, so that students can more easily master the relevant skills. Every concept is illustrated and every chapter includes exercises that encourage students to apply what they have just learned. Accordingly, this book provides more than just written instructions on how to navigate law school’s waters. It shows law students how to do so, thereby allowing them to sail smoothly through the experience with great skill and confidence.

Patricia Montana


April 10, 2014

Lazaro Receives Legal Society Distinguished Service Award at the College of Professional Studies’ Division of Criminal Justice

Last night, Director of the Law School’s Securities Arbitration Clinic Christine Lazaro received the Legal Society Distinguished Service Award at the College of Professional Studies’ Division of Criminal Justice, Legal Studies and Homeland Security’s Annual Honor Societies Induction and Awards Dinner.  The award was for “leadership, service, and dedication to the students of the Legal Studies Program” and came about as a result of the partnership between the Securities Arbitration Clinic and the Legal Studies Program.  Students from the program intern each semester as paralegals in the Clinic.  The Legal Studies undergraduates gain experience working in a legal setting, while the Clinic students learn delegation and supervision skills.



April 10, 2014

Subotnik Speaks on Fair Use Before Nassau County Bar Association Intellectual Property Committee

Today, Thursday, April 10, Professor Eva Subotnik spoke at the invitation of the Nassau County Bar Association Intellectual Property Committee on fair use in copyright law. Professor Subotnik’s scholarship and research interests focus on copyright law and policy in the context of changing notions of the professional and amateur in the digital age. 

Eva Subotnik

Eva Subotnik






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