Business Organizations and Tribal Self-Determination: A Critical Reexamination of the Alaska Native Claims Settlement Act

In 1971, Congress enacted the Alaska Native Claims Settlement Act. This Act required that Native American groups in Alaska form corporations to receive property and money to settle their claims to the land and resources of the state. The Act represents an unprecedented experiment in Native American law. Because the Act required that Alaska Natives organize corporations, it has been the subject of great debate among Native Americans, scholars, and politicians. This Article explores the benefits and harms of the Settlement Act and provides substantive suggestions if the Act is ever amended or if similar legislation is ever proposed

An Interdisciplinary Analysis of the Use of Ethical Intuition in Legal Compliance Decisionmaking for Business Entities

This article challenges the widely held view in legal education and in practice that what lawyers should be doing in providing legal advice consists solely of engaging in legal research and analytic reasoning. This article suggests that ethical intuition — i.e., the unconscious recognition that a specific action is good, evil, or morally neutral — may have a useful role to play in making legal compliance decisions for business entities. Although largely ignored by the legal academy, scholars in numerous disciplines have acknowledged the role that intuition plays in decision making. Philosophers and religious scholars initially recognized the role of intuition in moral decision making centuries ago. Within the past few decades, neuroscientists have validated these theories through the use of various brain scan technologies, which show that humans often resort to intuition first when making moral decisions. Moral psychologists, behavioral economists, and other scholars have employed the work of neuroscientists to develop sophisticated models of moral decision making that better reflect how people behave when making moral decisions. This article argues that ethical intuition can provide insights into the foundations of law, assist in discovering the law, and help to protect business entities because intuition can give insight into the legal and extra-legal punishments that may be visited upon a business entity as a result of its legal compliance decisions. This is not to claim that legal research and analytic reasoning should play no role in making legal compliance decisions for business entities. Exhaustive legal research should be at the heart of any legal compliance decision. Lessons from philosophy, neuroscience, moral psychology, behavioral economics, however, demonstrate that a dual process approach that incorporates both intuition and analytic reason is best for considering issues relating to a business entity’s compliance with the law. This article argues for such a dual process model approach to legal decision making and offers various methods for incorporating intuition into the legal compliance decision making process

Unearthing Corporate Wrongdoing: Detecting and Dealing with Ethical Breaches in the Business World

Essay from the Project for Law and Business Ethics Symposium: “Unearthing Corporate Wrongdoing: Detecting and Dealing with Ethical Breaches in the Business World

Securities Regulation in Virtual Space

Video games, virtual worlds, virtual reality, and augmented reality are rapidly developing and evolving in exciting ways. As with any technology-related advancement, new legal issues are created as to how to apply and adapt the law. The question regarding the application of federal securities regulation to these virtual realms is an interesting one that has not been addressed. If securities existing entirely within virtual space are securities for purposes of federal securities law, software developers, platform owners, and users become subject to the registration requirements and anti-fraud provisions of that body of law along with the rest of its provisions. Based upon a strict reading of the definition of a security found within the Securities Act and the Exchange Act, securities can exist entirely within virtual space because investment contracts, a type of security, can be created in such space. However, because the definition sections found in the Securities Act and Exchange Act both begin with the prefatory language “unless the context otherwise requires,” an analysis is required to determine whether these securities should be excluded from the application of federal securities law. Based upon the intended scope of federal securities regulation, various constitutional law principles, and concerns about hindering creativity and regulatory experimentation, the virtual context requires that securities existing entirely within virtual space be excluded from the scope of federal securities regulation. Various concerns do exist regarding excluding such securities from the application of federal securities law including that that application of federal securities regulation is necessary for investor protection, to prevent an unworkable patchwork of state regulation, and to ensure that these rapidly developing and evolving virtual environments are properly regulated. Ultimately, however, the arguments for excluding such securities from the application of federal securities law outweigh the arguments for applying it

The Internationalization of Securities Regulation: The United States Government\u27s Role in Regulating the Global Capital Markets

This Article advances the existing scholarship in three main ways. First, it analyzes the United States government’s current approach to international securities law. Second, it advocates that the United States government take a more aggressive approach to the harmonization and centralization of international securities regulation and enforcement. Third, it provides a handful of concrete proposals as to actions that the United States government might take to bring about the harmonization and centralization of international securities law

Confounding Ockham\u27s Razor: Minilateralism and International Economic Regulation

In Minilateralism: How Trade Alliances, Soft Law, and Financial Engineering Are Redefining Economic Statecraft, Professor Chris Brummer embraces the complexity of the global economic system and its regulation by exploring the emerging role and dominance of varying strands of economic collaboration and regulation that he collectively refers to as “minilateralism.” In describing the turn toward minilateralism, Brummer notes a number of key features of this new minilateral system, including a shift away from global cooperation to strategic alliances composed of the smallest group necessary to achieve a particular goal, a turn from formal treaties to informal non-binding accords and other soft law, and the willingness of governments to resort to financial engineering to achieve their goals. While doing so, Brummer’s book explores how and why this shift from multilateralism to minilateralism has occurred, and he discusses the issues associated with managing and shaping the healthy growth and development of this system. He advocates that policymakers and regulators use what he terms “smart minilateralism” to define policy objectives, choose the proper minilateral tools, and legitimize their actions by seeking the support of relevant stakeholders. This Review engages Brummer’s theories, complicates them, and in a variety of instances challenges them. It explores whether the world is merely experiencing the fine tuning of multilateralism, rather than a shift to minilateralism; whether minilateralism is simply better documented today than it has been in the past, rather than the emerging norm; and whether minilateralism is really a new phenomenon. It also challenges Brummer to offer his readers more on how multilateral and minilateral systems interact, how minilateral legitimacy might be achieved, and what role non-governmental entities do and should play in international economic regulation. In addition, this Review suggests that in various contexts minilateralism is doomed to fail and explores the implications of that failure. Thus, in a style of academic criticism, this Review criticizes the excellent and demands an unattainable level of perfection, especially because it would require Brummer to turn his readable and fully formed text into a multi-volume treatise

The Role of the Foreign Corrupt Practices Act and Other Transnational Anti-Corruption Laws in Preventing or Lessening Future Financial Crises

The most recent global financial crisis resulted in part from a failure of international law. Politicians and other regulators in the United States and abroad failed to effectively work together to create a consistent and proper level of regulation for the financial institutions, the mortgage-backed securities, and the credit default swaps that were at the heart of the crisis. As evidenced by the crisis, the globalization of financial markets within the past few decades has created new systemic risk in which national crises can quickly and easily spread across national borders. In the absence of greater coordination by politicians and other regulators in the United States and abroad, global financial crises are likely to occur with greater regularity and severity as the world continues to become more interconnected. Even if a cohesive web of international financial regulation can be developed, enforcement of the various strands of that web of regulation remains a concern. Remarkably, anti-corruption law has largely been ignored as a necessary component of financial regulatory reform. In the voluminous body of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the term “corruption” is not mentioned once, which is extraordinarily troubling. A robust and comprehensive system of transnational anti-corruption law is required to create stable global financial markets. The realities of an increasingly interconnected world precipitated the enactment of the Foreign Corrupt Practices Act to prevent persons and other entities from engaging in activity that would corrupt foreign government officials. The OECD Anti-Bribery Convention, the United Nations Convention Against Corruption, and various other international agreements have helped to spread transnational anti-corruption laws throughout the rest of the world. The adoption and enforcement of these laws, however, remains incomplete. In the absence of a robust and comprehensive system of transnational anti-corruption laws, the global financial markets remain subject to greater risk of future financial crises. This article explores the current global system of anti-corruption law and explore how that system should and must evolve to prevent or lessen future global financial crises