Emory Law Journal

Volume 66Issue 6
Articles

The New Market Manipulation

Tom C.W. Lin | 66 Emory L.J. 1253 (2017)

Markets face a new and daunting mode of manipulation. With this new mode of market manipulation, millions of dollars can vanish in seconds, rogue actors can halt the trading of billion-dollar companies, and trillion-dollar financial markets can be distorted with a simple click or a few lines of code. This Article is about this dangerous new mode of market manipulation and the need for pragmatic policies to better address the rising threats to our financial markets. The Article surveys the changing landscape of market manipulation, identifying traditional manipulation methods, as well as new manipulation methods. It explains how new cybernetic market manipulation schemes that leverage modern technologies like electronic networks, social media, and artificial intelligence are more harmful than traditional schemes. This Article recommends three pragmatic proposals for combating the new threats of cybernetic market manipulation by improving intermediary integrity, enhancing financial cybersecurity, and simplifying investment strategies.

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The Reintegrative State

Joy Radice | 66 Emory L.J. 1315 (2017)

Public concern has mounted about the essentially permanent stigma created by a criminal record. This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State. It makes four contributions to the literature on collateral consequences and criminal records. First, it argues that there is a state interest to create a process to remove civil legal disabilities triggered by a conviction. Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety. Third, it critiques current state experiments. Finally, it argues that the state should destigmatize a person with a conviction. To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system. The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society.

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Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law

Alexander Volokh | 66 Emory L.J. 1391 (2017)

The non-delegation doctrine, with its demand that congressional delegations of power be accompanied by an “intelligible principle,” looks like it might impose some constraints on Congress’s delegations of power, but a longstanding and often ignored branch of the doctrine provides that the intelligible-principle requirement is significantly relaxed when the delegate has independent authority over the subject matter. I call this the “Inherent-Powers Corollary.” Even when the delegate lacks independent authority over the subject matter, the intelligible-principle requirement is still relaxed when the subject of the delegation is interlinked with an area where the delegate has independent authority. I call this dubious extension to the Inherent-Powers Corollary the “Interlinking Extension.” The non-delegation doctrine applies to any delegate that Congress may choose, including courts. I argue that, because courts have many inherent or quasi-inherent powers, the Corollary and Extension save many congressional delegations to courts that one might otherwise think suspect.

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Comments

Applying the Common Interest Doctrine to Third-Party Litigation Funding

Jeffrey Schacknow | 66 Emory L.J. 1461 (2017)

Third-party litigation funding is an emerging industry that provides financial backing to plaintiffs. Typically, third-party litigation funders provide money in exchange for a percentage of damage returns. To decide whether a given plaintiff’s claim is a good investment, the third-party litigation funder assesses the claim’s merits by conducting due diligence over a large swath of documents. Often, these documents are protected by attorney–client privilege. Under normal waiver rules for attorney–client privilege, when privileged documents are disclosed to a third party, the privilege holder impliedly waives the privilege protection. Consequently, third-party litigation funders deserve the same protection (afforded to insurers and re-insurers) offered by the common interest doctrine. Recognizing the common interest doctrine to protect documents disclosed to insurers and third-party litigation funders effectuates the policy goal of attorney–client privilege; it enables litigants to most effectively obtain legal counsel.

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Coordination Is Corruption: An Argument for the Regulation of Coordinated Issue Advocacy Under Campaign Finance Law

Amanda R. Schwarzenbart | 66 Emory L.J. 1493 (2017)

This Comment takes a common-sense approach in arguing for the regulability of coordinated issue advocacy. This approach appeals to the experience of most Americans today, who frequently encounter campaign advertisements during elections. To bolster the common-sense approach, this Comment reviews instances of political scandal related to issue advocacy, such as those involving Senator Alan Cranston and Senator Robert Menendez. It also analyzes the federal courts’ limited ventures into defining regulable campaign speech, which reinforce the government’s interest in regulating coordination. This Comment further analogizes to other areas of law, such as bribery and anti-gratuity regulations, to better understand the policy concerns underlying regulable conduct by politicians. This Comment concludes that coordinated issue advocacy should be regulable. Coordination alone is enough to lead to corruptive influence or its appearance, regardless of a communication’s content.

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