The Consequences today of the United States\u27 Brutal Post-9/11 Interrogation Techniques

Penetrating the minds and souls of alleged terrorists while still upholding the constitution, federal law, and the human rights obligation to treat the suspects with dignity and without torture or cruel, inhuman, and degrading treatment was not the immediate objective for high-ranking American officials and military interrogators in the early years following the attacks on the World Trade Center in New York and the Pentagon in Washington, D.C. on September 11, 2001. Although the United States was a party to the Geneva Conventions (GC), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT)—all three of which prohibit torture and cruel, inhuman, and degrading treatment (CIDT)—the U.S. chose to ignore the restrictions of these documents.4 Propelled by the fear of another attack comparable to that of September 11th,5 the administration violated these treaties, focusing instead on the short-term goal of obtaining intelligence at any cost to deter another major attack.6 Today, anyone who has followed the evolution of U.S. interrogation methods post-9/11 knows all too well that the United States pursued an admitted policy of harsh treatment, which has been defined by many commentators as comparable to CIDT and torture.7 And the devastating consequences of our unlawful behavior have become evident over the years

The Case for Individual Audit Partner Accountability

Despite repeated regulatory interventions, accounting failures continue to persist in companies around the world. In this Article, I explain why regulatory oversight, private enforcement, and firm-level reputational sanctions are unlikely to induce accountants to take optimal levels of care when auditing corporate financials. Instead, our best chance for improving audit quality lies in establishing a market for individual audit partners’ brands—a market that can hold individual auditors responsible for their mistakes. The Article begins by identifying four key benefits to this approach. First, forcing auditors to be publicly associated with any audit failures occurring on their watch will induce them to increase their effort in order to avoid the stigma of failure. Second, now that a significant portion—frequently more than half—of audit hours are performed overseas, holding a single individual publicly accountable for any audit failures will improve monitoring of auditors in other jurisdictions. Third, in light of significant evidence of variation in the quality of audit partners—even partners within the same firm—exposing that heterogeneity will empower members of audit committees and investors to choose auditors more carefully. Finally, commoditizing individual auditors could increase industry competition without the need for aggressive regulatory action. The Article then argues that, in order to spur the development of a market in auditor reputation, lawmakers should encourage the development of Auditor Scorecards. To do so, regulators should require the disclosure of additional auditor-level information and ensure useful information is provided through enforcement actions. Although there are costs to these changes, those costs are likely to be outweighed by giving investors the information they need to develop a common Scorecard for auditor quality. Such Scorecards will help boards and investors make better use of the legal tools already at their disposal to hold auditors accountable when they fail in their gatekeeping function

Quieting the Sharholders\u27 Voice: Empirical Evidence of Pervasive Bundling in Proxy Solicitations

The integrity of shareholder voting is critical to the legitimacy of corporate law. One threat to this process is proxy “bundling,” or the joinder of more than one separate item into a single proxy proposal. Bundling deprives shareholders of the right to convey their views on each separate matter being put to a vote and forces them to either reject the entire proposal or approve items they might not otherwise want implemented. In this Paper, we provide the first comprehensive evaluation of the anti-bundling rules adopted by the Securities and Exchange Commission (“SEC”) in 1992. While we find that the courts have carefully developed a framework for the proper scope and application of the rules, the SEC and proxy advisory firms have been less vigilant in defending this instrumental shareholder right. In particular, we note that the most recent SEC interpretive guidance has undercut the effectiveness of the existing rules, and that, surprisingly, proxy advisory firms do not have well-defined heuristics to discourage bundling. Building on the theoretical framework, this Article provides the first large-scale empirical study of bundling of management proposals. We develop four possible definitions of impermissible bundling and, utilizing a data set of over 1,300 management proposals, show that the frequency of bundling in our sample ranges from 6.2 percent to 28.8 percent (depending on which of the four bundling definitions is used). It is apparent that bundling occurs far more frequently than indicated by prior studies. We further examine our data to report the items that are most frequently bundled and to analyze the proxy advisors’ recommendations and the voting patterns associated with bundled proposals. This Article concludes with important implications for the SEC, proxy advisors, and institutional investors as to how each party can more effectively deter impermissible bundling and thus better protect the shareholder franchise

Unfairness in Access to and Citation of Unpublished Federal Court Decisions

An unfair system has evolved over the past fifteen years in the federal courts. The federal courts changed the concept of stare decisis. In 1972, the Judicial Conference of the United States decided that they needed to reduce the increasing workload of the federal judges. The best way to do so, they thought, was to distinguish between decisions. Some would be worthy of publication and some would not be. Thus, federal judges were instructed to separate out those rulings which would be useful to future litigants or which did more than merely repeat and mechanically apply well-settled rules of law. These decisions would be published. If a judge felt that a decision would not have precedential value, the decision and accompanying opinion would not be published. Although this seemed like a sensible solution at the time, it has created several unfavorable consequences. Since more than fifty per cent of all federal opinions are no longer published, a significant body of unpublished case law has developed. And the unfavorable consequences are directly tied to the non-publication of these decisions

Unfairness in Access to and Citation of Unpublished Federal Court Decisions

An unfair system has evolved over the past fifteen years in the federal courts. The federal courts changed the concept of stare decisis. In 1972, the Judicial Conference of the United States decided that they needed to reduce the increasing workload of the federal judges. The best way to do so, they thought, was to distinguish between decisions. Some would be worthy of publication and some would not be. Thus, federal judges were instructed to separate out those rulings which would be useful to future litigants or which did more than merely repeat and mechanically apply well-settled rules of law. These decisions would be published. If a judge felt that a decision would not have precedential value, the decision and accompanying opinion would not be published. Although this seemed like a sensible solution at the time, it has created several unfavorable consequences. Since more than fifty per cent of all federal opinions are no longer published, a significant body of unpublished case law has developed. And the unfavorable consequences are directly tied to the non-publication of these decisions

The Surprising Benefits of Mandatory Hedge Fund Disclosure

Regulators have long disagreed whether regulation would reduce hedge funds’ financial misreporting. On the one hand, critics have stated that hedge funds are unlikely to misreport because their investors are highly sophisticated financial players who can detect and deter financial misconduct. On the other hand, recent changes in the composition of hedge funds’ investors have led many to question this argument. In this paper, I test whether hedge fund regulation reduces misreporting by using a quasi-natural experiment in which a subset of hedge funds was regulated, deregulated, and then regulated again. Unique features of the setting permit me to study not only whether hedge fund regulation reduces financial misreporting—but, if so, why the regulation reduces misreporting. The results show that regulation reduces misreporting at hedge funds and that the imposition of disclosure requirements, even without other concurrent changes in regulation, can reduce hedge funds’ misreporting. The result seems surprising, because hedge funds’ investors are commonly thought to have access to far more information than is required by disclosure rules. Further inquiries suggest that disclosure requirements led funds to make changes in their internal governance, and that these changes in governance induced funds to report their financial performance more honestly and accurately

Mandatory Disclosure and Individual Investors: Evidence From the Jobs Act

One prominent justification for the mandatory disclosure rules that define modern securities law is that these rules encourage individual investors to participate in stock markets. Mandatory disclosure, the theory goes, gives individual investors access to information that puts them on a more equal playing field with sophisticated institutional shareholders. Although this reasoning has long been cited by regulators and commentators as a basis for mandating disclosure, recent work has questioned its validity. In particular, recent studies contend that individual investors are overwhelmed by the amount of information required to be disclosed under current law, and thus they cannot—and do not—use that information to analyze the companies that they own. Using a recent change in the law that allows firms to disclose less information before their initial public offering (“IPO”), we examine whether reduced disclosure leads to less trading by individual investors. Our results show that, immediately following the IPO, individual investors are less likely to trade in the stocks of the firms that provide less disclosure—but that this difference disappears after two weeks of trading. Our findings have important implications for the lawmakers now examining whether, and how, to change the mandatory disclosure rules that have served as the basis of federal securities law for generations

PERSPECTIVAS SOBRE O DESENVOLVIMENTO DA ASSISTÊNCIA À SAÚDE NO BRASIL

From the reading of the works of Menicucci (2007) and Braga (2018), this article seeks to present a brief overview of the history of healthcare in Brazil since the mid-twentieth century - with special emphasis on the ambiguous relations observed between the public sectors and private in the period - in order to build a broad view on the processes that constituted Brazilian health as a whole and, more particularly, on the formation and implementation of the Unified Health System. Although supported by distinct theoretical references (neo-institutionalist and gramscian views, respectively), if combined, both analyzes can bring important interpretations to the constitution of the current Brazilian health system, which the authors call dual or hybrid. In the case of the constitution of the Unified Health System, they show how the effects of "path dependence" and "feedback" of previous policies severely limited its implementation and, subsequently, how the formation and strengthening of corporate health entities have acted in a process of guaranteeing interests compared to those provided for in the 1988 Constitution.Al leer los trabajos de Menicucci (2007) y Braga (2018), este artículo busca presentar una breve descripción de la historia de la atención médica en Brasil desde mediados del siglo XX, con especial énfasis en las relaciones ambiguas observadas entre los sectores públicos y privado en el período, con el fin de buscar construir una visión amplia sobre los procesos que constituyeron la salud brasileña en su conjunto y, más particularmente, sobre la formación e implementación del Sistema Único de Salud. Aunque respaldados por distintas referencias teóricas (puntos de vista neoinstitucionalistas y gramoscianos, respectivamente), si se combinan, ambos análisis pueden aportar interpretaciones importantes a la constitución del sistema de salud brasileño actual, que los autores llaman dual o híbrido. En el caso de la constitución del Sistema Único de Salud, muestran cómo los efectos de "path dependence" y "feedback" de políticas anteriores limitaron severamente su implementación y, más tarde, cómo la formación y el fortalecimiento de las entidades de salud corporativas han actuado en un proceso de garantía intereses en comparación con los previstos en la Constitución de 1988.A partir da leitura das obras de Menicucci (2007) e Braga (2018), o presente artigo busca apresentar um breve panorama da história da assistência à saúde no Brasil desde meados do século XX - com ênfase especial nas ambíguas relações observadas entre os setores público e privado no período - para assim buscar construir uma visão ampla sobre os processos que constituíram a saúde brasileira como um todo e, mais particularmente, sobre a formação e a implementação do Sistema do Único de Saúde.  Ainda que apoiadas em referenciais teóricos distintos (visões neo-institucionalista e gramsciana, respectivamente), se combinadas, ambas as análises podem trazer importantes interpretações para a constituição do atual sistema de saúde brasileiro, que as autoras chamam de dual ou híbrido. No caso da constituição do Sistema Único de Saúde, mostram como os efeitos de "path dependence" e "feedback" das políticas anteriores limitaram severamente sua implantação e, posteriormente, como a formação e fortalecimento das entidades empresariais de saúde têm atuado num processo de garantir seus interesses frente aos previstos na Constituição de 1988