Victim-Offender Mediation in Anchorage

A version of this paper was published as ""Victim-Offender Mediation in Alaska," Alaska Justice Forum 11(2): 1, 5–6 (Summer 1994).Victim-offender mediation programs provide an opportunity for victims to meet the offenders face-to-face in the presence of a trained mediator for the purpose of resolving the injury of the crime in some way. Mediation is offered as a diversion from the justice system which the offender may accept to avoid more formal adjudication. This paper describes a pilot victim-offender mediation program in Anchorage which involves juveniles accused of certain offenses and the victims of those crimes.Victim-Offender Mediation / Development / The Development of Victim-Offender Mediation in Anchorag

Nonrefundable Retainers: Impermissible Under Fiduciary, Statutory and Contract Law

Since the New York Court of Appeals banned nonrefundable retainers, numerous other courts have joined in prohibiting this widespread practice of lawyers charging a fee for services in advance and keeping the fee even if the services are not performed. This may reflect increased judicial recognition of the effect of egregious fee practices on the image of the bar and the role such practices play in the declining esteem in which the legal profession is held. Among the more provocative contributors to this ongoing debate, Professor Steven Lubet recently reviewed our work advocating the ban against nonrefundable retainers and posed a number of questions about the per se prohibition against them. In this Article, we respond to Professor Lubet\u27s questions as well as to those posed by other scholars. In Part I, we discuss the client discharge right, the cornerstone upon which the absolute ban on nonrefundable retainers rests, and respond to a series of arguments concerning its meaning, how it may be impaired, and whether it may be waived. In Part II, we show that legitimate purposes that may be served by nonrefundable retainers cannot avoid impairing the client discharge right, but that other fee arrangements that do not impair that right can easily be designed to serve some of those ends. In Part III, we extend an invitation to address the issues we have identified to all those who believe that a per se ban against nonrefundable retainers is unnecessary to prevent the abuses they generate. We have previously extended this invitation to devise a less inclusive rule that would in a practical and self-effectuating way prohibit the abuses while permitting the attainment of legitimate purposes. Unfortunately for the debate, however, none of the participants have accepted this invitation. We therefore think it bears repeating

The Financial Statement Insurance Alternative to Auditor Liability

These articles evaluate using financial statement insurance (FSI) to reduce the frequency and magnitude of audit failure. The FSI concept was pioneered by Josh Ronen, NYU Accounting Professor, who has modeled its economic aspects. My paper examines FSI’s efficacy from policy and legal perspectives. I conclude that while the model is not perfect, it promises considerable advantages over the current model. While some of the existing system’s imperfections are sustained or reappear in different guises, none of the existing imperfections appears to be aggravated and the rest likely are mitigated significantly. So I prescribe a framework to permit companies, on an experimental-basis and with investor approval, to use FSI as an optional alternative to financial statement auditing backed by auditor liability

A Model Financial Statement Insurance Act

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability, this Article presents the terms of a national enabling statute to implement this concept. The Model Financial Statement Insurance Act uses the architecture of the U.S. Trust Indenture Act of 1939. It authorizes issuer application for qualification, in connection with annual proxy statement filings, of policies of financial statement insurance. The Model FSI Act deems a series of provisions necessary to achieve securities law objectives to be part of all financial statement insurance policies so proposed, and requires insurers to possess characteristics relating to financial capacity, independence from issuers and adequate regulatory supervision. It empowers the U.S. Securities and Exchange Commission to issue stop orders against such applications in cases where insurers lack such qualifications. Qualifying policies are put to security holder vote and become effective when a registered public accounting firm engaged by the insurer issues an unqualified opinion that the financial statements provide a fair presentation in accordance with generally accepted accounting principles. Later-discovered material misstatements result in covered losses under the policy, administered in accordance with terms the Model FSI Act deems included, along with other tailored policy terms not in contravention of the Act. While using a United States template, the Model FSI Act is designed to be adaptable for use in other countries and jurisdictions of the world

Securitizing Audit Failure Risk: An Alternative to Caps on Damages

For several decades, policy analysts have debated whether to establish ex ante caps on damages that audit firms face for violating state or federal law in their audits of public companies. A common argument supporting caps is a claimed inability of audit firms to obtain requisite external liability insurance and need to resort to self-insurance programs. This Article evaluates this claim by assessing existing insurance resources and inquiring into potential additional insurance devices. The assessment suggests that, for auditors, self-insurance is better than external insurance so that the claim does not necessarily support damages caps. Even if the claim were valid, the inquiry concerning additional insurance suggests superior alternatives by using previously-discussed financial statement insurance, to tailor coverage to risks of ordinary audit failure, and the novel innovation of insurance securitization to pool and distribute risks of catastrophic audit failure through capital markets

Law and Accounting: Cases and Materials (Front Matter)

Accounting textbooks for law or business schools invariably provide secondary narrative presentations of materials in the authors’ own words. A better approach to learning this subject is to present thematically arranged original accounting pronouncements. In so designing this innovative book, readers appreciate how accounting is a tool that provides conceptual organization to economic exchange. The tool facilitates analyzing legal, business and public policy aspects of the transactions that accounting addresses. The original accounting standards, as well as SEC enforcement actions, presented in this book illuminate why transactions are pursued and related decisions made, economic aspects of transactions, and the conceptual underpinnings of the activities of measuring, classifying and reporting on them. Law and Accounting thus emphasizes the intersection of the two subjects. It is neither accounting for lawyers nor law for accountants. It is both. It is not accounting qua accounting being presented, but a conception of law and accounting bearing an authentic interdisciplinary sense. Material downloadable from this abstract consists of the book’s front matter: (1) Preface; (2) Summary, Table and Detail of Contents; (3) Table of Cases; and (4) Annotated Table of Accounting and Auditing Standards

Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liabilty

Positioned in a lively current debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This breaks from the existing securities regulation framework to draw directly on insurance markets and law. Based on upon an evaluation of major structural and policy-related features of the concept, the assessment prescribes a framework to permit companies, on an experimental-basis and with investor approval, to use financial statement insurance as an optional alternative to the existing model of financial statement auditing backed by auditor liability. The financial statement insurance concept, pioneered by New York University Accounting Professor Joshua Ronen, promises considerable advantages over traditional financial statement auditing though, as with any proposal, presents its own set of challenges. This Article expands the model first sketched by Dr. Ronen, extending and interpreting it to examine its efficacy, attempting to show how certain limitations can be overcome. A chief challenge is relating state insurance law, the default applicable to insurance policies including FSI, to federal securities regulation. A general method is to develop for financial statement insurance the functional equivalent of the U.S. Trust Indenture Act of 1939 applicable to contracts governing public debt securities. This would allow substantial freedom of contract in policy terms, governed by state law, while mandating certain specific terms and establishing minimum federal parameters for others. Most other hurdles arising from the interplay between state insurance law and federal securities regulation can be overcome using disclosure, while more uncertain are issues associated with preserving insurer solvency if financial statement insurance is placed at the center of the public-company financial reporting system