Over the last two decades, Africa has gone through tremendous economic transformation. It was only in 2004 when the Prime Minister for the UK, Tony Blair, described Africa as the “scar on the conscience of the world” when he was establishing the Commission for Africa. A decade later, he described Africa as “the most exciting continent on the planet because of its opportunities.” Within less than twenty years, the continent has become the world’s most rapidly growing economic region. This economic growth has been attributed largely to the active private sector. Kenya, for example, has realized the highest growth rate in the East African region due to its private sector, which makes a major contribution to the country’s GDP. For this growth rate to continue, African countries need to create competitive legal frameworks that continue to attract investors and protect their interests.One of such is the disqualification framework for company directors that seeks to protect the public by placing a prohibition on a miscreant director from being involved, for a specific period, in the management of companies. An efficient disqualification framework also prevents people without the necessary qualifications from managing companies and deters those who might be tempted to engage in fraudulent activities. Without a strict disqualification framework, investors are unlikely to be attracted to a country, as they risk losing their investments when their companies are managed by incompetent, negligent, or fraudulent directors, especially those with a track record of mismanaging other companies. This philosophy was captured clearly by the Kenyan Government when it enacted the Companies Act 2015 and stated that one of its key objectives was to facilitate commerce, industry, and other socio-economic activities. It is against this backdrop that this Article examines whether the disqualification framework under the Companies Act 2015 is adequate to protect the interests of investors. This framework is contrasted with the one that existed under the repealed Companies Act 1962 with a view to assessing whether the reforms are likely to bring about the desired changes.
{"title":"Disqualification of Company Directors: Safeguarding the Public Interest in the Kenyan Investment Market","authors":"Kiarie Mwaura","doi":"10.5195/JLC.2019.160","DOIUrl":"https://doi.org/10.5195/JLC.2019.160","url":null,"abstract":"Over the last two decades, Africa has gone through tremendous economic transformation. It was only in 2004 when the Prime Minister for the UK, Tony Blair, described Africa as the “scar on the conscience of the world” when he was establishing the Commission for Africa. A decade later, he described Africa as “the most exciting continent on the planet because of its opportunities.” Within less than twenty years, the continent has become the world’s most rapidly growing economic region. This economic growth has been attributed largely to the active private sector. Kenya, for example, has realized the highest growth rate in the East African region due to its private sector, which makes a major contribution to the country’s GDP. For this growth rate to continue, African countries need to create competitive legal frameworks that continue to attract investors and protect their interests.One of such is the disqualification framework for company directors that seeks to protect the public by placing a prohibition on a miscreant director from being involved, for a specific period, in the management of companies. An efficient disqualification framework also prevents people without the necessary qualifications from managing companies and deters those who might be tempted to engage in fraudulent activities. Without a strict disqualification framework, investors are unlikely to be attracted to a country, as they risk losing their investments when their companies are managed by incompetent, negligent, or fraudulent directors, especially those with a track record of mismanaging other companies. This philosophy was captured clearly by the Kenyan Government when it enacted the Companies Act 2015 and stated that one of its key objectives was to facilitate commerce, industry, and other socio-economic activities. It is against this backdrop that this Article examines whether the disqualification framework under the Companies Act 2015 is adequate to protect the interests of investors. This framework is contrasted with the one that existed under the repealed Companies Act 1962 with a view to assessing whether the reforms are likely to bring about the desired changes. ","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73183153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the context of the growth of regional international investment disputes (IIDs) caused by the Belt and Road (B&R) initiative, having a third-party settlement will play an important role in IIDs. Currently, the B&R countries have mostly selected ICSID as the IIDs settlement institution in their Bilateral Investment Treaties (BITs), which makes cases where a B&R country is respondent to be handled by nationals of countries outside the B&R area. Therefore, it is necessary to establish a B&R IIDs Settlement Institution, for the purpose of optimizing the current situation of IIDs settlement in the B&R region, dealing with the constantly-increasing regional IIDs, better protecting geographical investments, and facilitating China to participate in and further guide the reconstruction of international investment regulations. Moreover, the feasibilities in law, platform and resources for its establishment have been available. With respect to the path option, we should take the Asia Infrastructure Investment Bank as a platform to draft a convention, take the ICSID Convention as a reference for structure and system innovation, and devote great efforts to driving B&R countries to conclude the convention.
{"title":"The Establishment of “Belt and Road” International Investment Disputes Settlement Institution","authors":"Yang Lu","doi":"10.5195/jlc.2018.151","DOIUrl":"https://doi.org/10.5195/jlc.2018.151","url":null,"abstract":"In the context of the growth of regional international investment disputes (IIDs) caused by the Belt and Road (B&R) initiative, having a third-party settlement will play an important role in IIDs. Currently, the B&R countries have mostly selected ICSID as the IIDs settlement institution in their Bilateral Investment Treaties (BITs), which makes cases where a B&R country is respondent to be handled by nationals of countries outside the B&R area. Therefore, it is necessary to establish a B&R IIDs Settlement Institution, for the purpose of optimizing the current situation of IIDs settlement in the B&R region, dealing with the constantly-increasing regional IIDs, better protecting geographical investments, and facilitating China to participate in and further guide the reconstruction of international investment regulations. Moreover, the feasibilities in law, platform and resources for its establishment have been available. With respect to the path option, we should take the Asia Infrastructure Investment Bank as a platform to draft a convention, take the ICSID Convention as a reference for structure and system innovation, and devote great efforts to driving B&R countries to conclude the convention.","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75649135","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.
{"title":"Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative","authors":"Ronald A. Brand","doi":"10.5195/JLC.2018.152","DOIUrl":"https://doi.org/10.5195/JLC.2018.152","url":null,"abstract":"In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82281611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Imagine getting in the driver’s seat of your car, setting your destination, then sitting back and watching a movie, answering emails, or even taking a nap during the ride. While this is hardly a new concept for passengers, it is a new phenomenon for the person in the driver’s seat. Now, imagine driving down a winding country road in the middle of the night when a white-tailed deer darts out in front of you. Your instinct is to slam on the brakes and jerk the wheel, an instinct that can often have devastating results for you, your car, and the deer. In a self-driving car, human panic, and therefore human error, is eliminated.Part I of this note begins with a general background on self-driving vehicles and their development to date. Part II provides a description of rural areas, including the classification of rural areas and their demographics. Part III examines current state laws that address self-driving vehicles, focusing on Pennsylvania. Part IV discusses why self-driving vehicles should be introduced to rural areas for testing. Part V reviews car accident statistics in Allegheny County and its rural neighbor Butler County, then compares and discusses these statistics to demonstrate how self-driving cars could have an immediate beneficial effect on rural areas. Part VI addresses the basic logistics of choosing the rural area to test drive and proposes how to select test drivers. Finally, Part VII addresses potential counterarguments to the introduction of self-driving vehicles in rural areas.
{"title":"Self-Driving Cars and Rural Areas: The Potential for a Symbiotic Relationship","authors":"Christiana Chmielewski","doi":"10.5195/JLC.2018.153","DOIUrl":"https://doi.org/10.5195/JLC.2018.153","url":null,"abstract":"Imagine getting in the driver’s seat of your car, setting your destination, then sitting back and watching a movie, answering emails, or even taking a nap during the ride. While this is hardly a new concept for passengers, it is a new phenomenon for the person in the driver’s seat. Now, imagine driving down a winding country road in the middle of the night when a white-tailed deer darts out in front of you. Your instinct is to slam on the brakes and jerk the wheel, an instinct that can often have devastating results for you, your car, and the deer. In a self-driving car, human panic, and therefore human error, is eliminated.Part I of this note begins with a general background on self-driving vehicles and their development to date. Part II provides a description of rural areas, including the classification of rural areas and their demographics. Part III examines current state laws that address self-driving vehicles, focusing on Pennsylvania. Part IV discusses why self-driving vehicles should be introduced to rural areas for testing. Part V reviews car accident statistics in Allegheny County and its rural neighbor Butler County, then compares and discusses these statistics to demonstrate how self-driving cars could have an immediate beneficial effect on rural areas. Part VI addresses the basic logistics of choosing the rural area to test drive and proposes how to select test drivers. Finally, Part VII addresses potential counterarguments to the introduction of self-driving vehicles in rural areas.","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73331733","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Throughout the United States, low-income families are having an increasingly difficult time finding an affordable place to live.[1] Due to high rents, static incomes, and a shortage of housing, local communities, particularly in urban areas, are struggling to fight off this wave of decline and displacement.[2] Currently in the U.S., an estimated 12 million families are now spending more than half of their income on rent.[3] According to Federal Guidelines, “[f]amilies who pay more than 30 percent of their income for housing are considered cost burdened and may have difficulty affording necessities such as food, clothing, transportation, and medical care.”[4]A large reason for this overspending by low-income families is that the supply of affordable housing is shrinking.[5] Landlords and tenants both are adding to the affordable housing problem as “all sides are being squeezed.”[6] Today, most new construction on rental housing is for the high-end market, “not for low and middle-income families.”[7] So while the problem is clear, the cause of the problem is anything but.This note seeks a better understanding of the current housing problems plaguing local communities around the United States. Whether it is attributable to a crisis of societal construction or a shortage in the supply of affordable housing, this note attempts to reconcile current legal scholarship on local government initiatives, and
{"title":"Affordable Housing Crisis or Shortage?: Reconciling Legal Scholarship with Free Market Solutions Over the Use of Eminent Domain for Economic Development","authors":"Anthony W. Cosgrove","doi":"10.5195/jlc.2018.156","DOIUrl":"https://doi.org/10.5195/jlc.2018.156","url":null,"abstract":"Throughout the United States, low-income families are having an increasingly difficult time finding an affordable place to live.[1] Due to high rents, static incomes, and a shortage of housing, local communities, particularly in urban areas, are struggling to fight off this wave of decline and displacement.[2] Currently in the U.S., an estimated 12 million families are now spending more than half of their income on rent.[3] According to Federal Guidelines, “[f]amilies who pay more than 30 percent of their income for housing are considered cost burdened and may have difficulty affording necessities such as food, clothing, transportation, and medical care.”[4]A large reason for this overspending by low-income families is that the supply of affordable housing is shrinking.[5] Landlords and tenants both are adding to the affordable housing problem as “all sides are being squeezed.”[6] Today, most new construction on rental housing is for the high-end market, “not for low and middle-income families.”[7] So while the problem is clear, the cause of the problem is anything but.This note seeks a better understanding of the current housing problems plaguing local communities around the United States. Whether it is attributable to a crisis of societal construction or a shortage in the supply of affordable housing, this note attempts to reconcile current legal scholarship on local government initiatives, and ","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76702834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Overcoming Creditor Misfortune Creatively: Structured Dismissals in Chapter 11 Bankruptcies","authors":"Alessandra Allegretto","doi":"10.5195/JLC.2018.143","DOIUrl":"https://doi.org/10.5195/JLC.2018.143","url":null,"abstract":"No Abstract.","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74227601","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Financing Trademarked Inventory: Considerations for the Asset-Based Lender","authors":"Anthony C. Cianciotti","doi":"10.5195/JLC.2018.145","DOIUrl":"https://doi.org/10.5195/JLC.2018.145","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73263714","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The National Organ Transplant Act of 1984 (hereinafter NOTA) was an attempt to regulate, streamline, and encourage legal organ donation. NOTA has undergone some amendments since its enactment, including attempts to modernize the registry process and create a unified donation and transplant network. However, the regulation on the sale of organs has remained steadfast. We continue to have an organ shortage, and the statistics on the number of individuals dying each day awaiting transplants is only getting worse. An additional amendment to NOTA is necessary to solve our organ donation crisis. This Article identifies the relevant NOTA provisions, identifies some significant court decisions, and explores the policy and economic arguments in support of and against creating a living organ trade in the United States. In addition, this Article explains the Iranian Living- Unrelated donor program, and the government regulations necessary to create a living kidney vendor program in the United States.
{"title":"Is Your Kidney for Sale? An Economic and Policy Perspective on the Legalization of a Living Kidney Vendor Program in the United States","authors":"Kristine D. Kuenzli","doi":"10.5195/jlc.2018.140","DOIUrl":"https://doi.org/10.5195/jlc.2018.140","url":null,"abstract":" The National Organ Transplant Act of 1984 (hereinafter NOTA) was an attempt to regulate, streamline, and encourage legal organ donation. NOTA has undergone some amendments since its enactment, including attempts to modernize the registry process and create a unified donation and transplant network. However, the regulation on the sale of organs has remained steadfast. We continue to have an organ shortage, and the statistics on the number of individuals dying each day awaiting transplants is only getting worse. An additional amendment to NOTA is necessary to solve our organ donation crisis. This Article identifies the relevant NOTA provisions, identifies some significant court decisions, and explores the policy and economic arguments in support of and against creating a living organ trade in the United States. In addition, this Article explains the Iranian Living- Unrelated donor program, and the government regulations necessary to create a living kidney vendor program in the United States. ","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78751776","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Recently, a circuit split has arisen with regard to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The circuit split concerns the question of what it takes for an individual to qualify as a “whistleblower” under the terms of the statute. This circuit split is surprising, as the Dodd- Frank Act purports to answer this question itself by providing a definition of this term, a definition which the Fifth Circuit has treated as being conclusive. Nonetheless, the Second and the Ninth Circuits have held that with respect to some, but not all, of the Dodd-Frank Act, this statutory “whistleblower” definition does not apply. Shortly, the Supreme Court will have the opportunity to resolve the matter when it hears an appeal of the Ninth Circuit’s decision in Somers v. Digital Realty Trust Inc. This article provides three broad reasons why the Supreme Court should reject the Second and Ninth Circuits’ interpretations. First, the interpretation endorsed by the Second and Ninth Circuits is the result of a flawed exercise in statutory interpretation that incorrectly applies principles recently set down by the Supreme Court in King v. Burwell, and Utility Air Regulatory Group v. EPA. Secondly, while the Second and Ninth Circuits rejected the Fifth Circuits’ interpretation on the basis that it withholds the protection of the Dodd-Frank Act from auditors and attorneys, the Second and Ninth Circuits’ preferred interpretations also fail to protect auditors and attorneys. Finally, the policy reasons in favor of extending the Dodd-Frank Act’s whistleblower protections to auditors and attorneys are insufficiently strong to warrant departing from the natural meaning of the statutory language at issue.
最近，围绕《多德-弗兰克华尔街改革与消费者保护法案》(Dodd-Frank Wall Street Reform and Consumer Protection Act)出现了巡回辩论。巡回法院的意见分歧涉及的问题是，根据该法规的规定，个人需要具备什么条件才能成为“举报人”。这种巡回法院的分歧令人惊讶，因为《多德-弗兰克法案》试图通过提供这个术语的定义来回答这个问题，这个定义被第五巡回法院视为结论性的。然而，第二巡回法院和第九巡回法院认为，对于多德-弗兰克法案的部分内容，而不是全部内容，法定的“举报人”定义并不适用。不久，最高法院将有机会在听取第九巡回法院对萨默斯诉数字房地产信托公司一案判决的上诉时解决这个问题。本文提供了最高法院应该拒绝第二和第九巡回法院解释的三个广泛理由。首先，第二和第九巡回法院支持的解释是在法律解释中错误运用的结果，错误地应用了最高法院最近在金诉伯韦尔案和公用事业空气监管集团诉环保署案中确立的原则。其次，虽然第二和第九巡回法院驳回了第五巡回法院的解释，理由是它拒绝了《多德-弗兰克法案》对审计师和律师的保护，但第二和第九巡回法院的首选解释也未能保护审计师和律师。最后，支持将《多德-弗兰克法案》(Dodd-Frank Act)对举报人的保护扩大到审计师和律师的政策理由，不足以让人有理由偏离相关法定语言的自然含义。
{"title":"How Do You Qualify as a Whistleblower Under The Dodd-Frank Act? Blowing the Whistle on a Circuit Split","authors":"Hugo S. W. Farmer","doi":"10.5195/JLC.2018.139","DOIUrl":"https://doi.org/10.5195/JLC.2018.139","url":null,"abstract":" Recently, a circuit split has arisen with regard to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The circuit split concerns the question of what it takes for an individual to qualify as a “whistleblower” under the terms of the statute. This circuit split is surprising, as the Dodd- Frank Act purports to answer this question itself by providing a definition of this term, a definition which the Fifth Circuit has treated as being conclusive. Nonetheless, the Second and the Ninth Circuits have held that with respect to some, but not all, of the Dodd-Frank Act, this statutory “whistleblower” definition does not apply. Shortly, the Supreme Court will have the opportunity to resolve the matter when it hears an appeal of the Ninth Circuit’s decision in Somers v. Digital Realty Trust Inc. This article provides three broad reasons why the Supreme Court should reject the Second and Ninth Circuits’ interpretations. First, the interpretation endorsed by the Second and Ninth Circuits is the result of a flawed exercise in statutory interpretation that incorrectly applies principles recently set down by the Supreme Court in King v. Burwell, and Utility Air Regulatory Group v. EPA. Secondly, while the Second and Ninth Circuits rejected the Fifth Circuits’ interpretation on the basis that it withholds the protection of the Dodd-Frank Act from auditors and attorneys, the Second and Ninth Circuits’ preferred interpretations also fail to protect auditors and attorneys. Finally, the policy reasons in favor of extending the Dodd-Frank Act’s whistleblower protections to auditors and attorneys are insufficiently strong to warrant departing from the natural meaning of the statutory language at issue. ","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82314005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article is a comparative overview of the American Bar Association’s Model Rule 1.6(b) before and after the issuance of the ABA’s Formal Opinion 473, issued on February 17, 2016, which was an attempt to restate and revise the rule’s ethical expectations and to help settle several questions that had plagued the rule’s practical application. A lawyer’s duty of confidentiality to his or her client, and the public policy favoring judicial efficiency and fair disclosure during the discovery phase of litigation, often places lawyers in precarious ethical positions. This article attempts to provide guidance on this issue through an analysis of the rule and the context in which a lawyer’s overarching duty to keep his or her client’s information confidential can be precluded by the lawful compulsion to disclose such information without incurring malpractice liability.
{"title":"The Practical Effect of New Ethics Rules: Responding to Subpoenas and Document Requests About Client Information","authors":"S. Lovett","doi":"10.5195/JLC.2018.141","DOIUrl":"https://doi.org/10.5195/JLC.2018.141","url":null,"abstract":" This article is a comparative overview of the American Bar Association’s Model Rule 1.6(b) before and after the issuance of the ABA’s Formal Opinion 473, issued on February 17, 2016, which was an attempt to restate and revise the rule’s ethical expectations and to help settle several questions that had plagued the rule’s practical application. A lawyer’s duty of confidentiality to his or her client, and the public policy favoring judicial efficiency and fair disclosure during the discovery phase of litigation, often places lawyers in precarious ethical positions. This article attempts to provide guidance on this issue through an analysis of the rule and the context in which a lawyer’s overarching duty to keep his or her client’s information confidential can be precluded by the lawful compulsion to disclose such information without incurring malpractice liability. ","PeriodicalId":35703,"journal":{"name":"Journal of Maritime Law and Commerce","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2018-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79358483","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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