Trends in Issuance: Underlying Factors and Implications

Trends in debt issuance have changed significantly over the past decade, both prior to the financial crisis and subsequently. This article provides an update on these trends in Canada relative to those in other capital markets and, where possible, analyzes the impact of the crisis on Canadian corporate issuance. The author examines trends in capital markets in Canada and other regions over the past ten years, focusing on three areas: the issuance of financial and non-financial corporate bonds, the issuance of financial and non-financial corporate equity, and securitization. The increased use of innovative and riskier financing prior to the crisis was less pronounced in Canada, and future refinancing needs are more in line with historical issuance levels.

The Cost of Equity in Canada: An International Comparison

This paper calculates an implied cost of equity for 19 developed countries from 1991 to 2006. During this period, there has been a decline in the cost of equity of about 10-15 bps per year, which can be partially attributed to declining government yields and declining inflation. Analyst forecast inaccuracy, a proxy for firm-level earnings opacity, is positively related to the cost of equity. If this variable captures differences in disclosure across firms, then improvements in disclosure regulation may benefit firms by lowering their cost of equity. I also include countrylevel variables that measure disclosure requirements, director liability, and the ability for shareholders to sue directors. Higher levels of these measures are associated with a lower cost of equity. Previous studies [e.g., Hail and Leuz (2006a)] have found a similar relation, but my study is unique in that it uses a different measure of investor protection, which may better reflect regulatory differences across countries, and it shows this relation holds for developed countries. After controlling for the characteristics of firms that analysts choose to cover in each country, differences in the properties of analyst forecasts across countries, and differences in accounting standards across countries, Canada’s cost of equity is statistically different from a handful of countries and is about 20 to 40 bps higher than that of the United States. Lowering Canadian firms' cost of equity by this amount would have large economic benefits given the size of Canada's capital markets.Financial markets; International topics

Consentability, Autonomy, and Self-Actualization

This essay evaluates several competing principles underlying consent, such as self-interest, self-sovereignty, and self-actualization. Witmer-Rich argues that the nature of consent depends heavily on which of these underlying values consent is believed to serve and concludes that “self-actualization—the ongoing human project of creating and embodying coherent and meaningful values and choices—is the most fundamental good of autonomy and is the good that society should seek to further in the law of consent.

It\u27s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explains how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s ‘‘self-interest’’ conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s ‘‘sovereign autonomy’’ conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances. I resolve this dilemma by explaining that Raz’s ‘‘autonomy is good’’ conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s‘‘self-interest’’ conception, or Feinberg’s ‘‘sovereign autonomy’’ conception

The Rapid Rise of Delayed Notice Searches, and the Fourth Amendment “Rule Requiring Notice”

This article documents the rapid rise of covert searching, through delayed notice search warrants, and argues that covert searching in its current form presumptively violates the Fourth Amendment’s “rule requiring notice.” Congress authorized these “sneak and peek” warrants in the USA Patriot Act, in 2001, and soon after added a reporting requirement to monitor this invasive search technique. Since 2001, the use of delayed notice search warrants has risen dramatically, from around 25 in 2002 to 5,601 in 2012, suggesting that “sneak and peek” searches are becoming alarmingly common. In fact, it is not at all clear whether true “sneak and peek” searches are on the rise. The data are confounded with other types of searches and thus are failing to capture what Congress intended. This article proposes an amendment to the reporting requirement to fix this problem and allow adequate monitoring of “sneak and peek” searches. To date, most courts have concluded that delayed notice search warrants raise no Fourth Amendment concerns. This article argues to the contrary. As a matter of Fourth Amendment first principles, covert searches infringe on the privacy and sanctity of the home. Moreover, history shows that delayed notice warrants are a modern procedural innovation, and did not exist at common law in the years leading up to the drafting of the Fourth Amendment in 1791. Instead, covert searches presumptively violate the Fourth Amendment “rule requiring notice” — a principle deeply rooted in the history of search and seizure law, and meant to protect against many of the dangers created by covert, delayed notice searching

It\u27s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explains how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s ‘‘self-interest’’ conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s ‘‘sovereign autonomy’’ conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances. I resolve this dilemma by explaining that Raz’s ‘‘autonomy is good’’ conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s‘‘self-interest’’ conception, or Feinberg’s ‘‘sovereign autonomy’’ conception

Corporate Complicity Claims: Why There Is No Innocent Decison-Maker Exception to Imputing an Officer\u27s Wrongdoing to a Bankrupt Corporation

This Article evaluates the innocent decision-maker exception in light of the doctrinal foundations of the in pari delicto defense and the Wagoner rule, general principles of agency law, and the lower court decisions that address these issues. It concludes that the innocent decision-maker exception is a doctrinal error, traceable to the logical misstep of a single lower court whose decision continues to be mistakenly followed. The innocent decision-maker exception is inconsistent with the basic principles of agency law that underlie imputation in the context of in pari delicto and the Wagoner rule. No court of appeals has explicitly addressed the innocent decision-maker exception, but one can predict that a court of appeals would reject the exception if squarely presented with the issue. Part II of this Article describes, in more detail, the substance of corporate complicity claims and explains how the doctrines of in pari delicto-an affirmative defense-and the Wagoner rule-a rule of standing-pose obstacles to such claims. Part III describes the legal exceptions to the general rule of imputing the wrongdoing of corporate officers to the corporation: First, the narrow adverse interest exception, and second, the recently-articulated innocent decision-maker exception. Part III goes on to show that the innocent decision-maker exception began as a doctrinal error by one federal district court, which was subsequently repeated by other lower courts, and then highlights one court\u27s decision that correctly exposes this error and rejects the existence of the innocent decision-maker exception. Part IV discusses the general principles of agency law that undergird imputation rules and examines how imputation operates in contexts like in pari delicto outside of corporate bankruptcies, corporate liability for damages based on wrongful intent, and corporate criminal liability. Part IV shows that an innocent decision-maker exception has no foundation in agency law and has not been recognized in any other legal context. Finally, Part V considers whether the innocent decision-maker exception, apart from its flawed origins, is desirable as a matter of policy, concluding that continued recognition of the exception is not vindicated by the underlying policies put forth by the courts

Arbitrary Law Enforcement is Unreasonable: \u3ci\u3eWhren\u3c/i\u3e\u27s Failure to Hold Police Accountable for Traffic Enforcement Policies

Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article— the prohibition against arbitrary search and seizure. Part III explains how arbitrariness applies to Whren, and to police enforcement policies. Part IV describes pretextual traffic stops as a form of entrapment. Part V addresses the Whren Court’s concern that the Fourth Amendment should not vary from place to place. Part VI notes that arbitrariness is distinct from discrimination, and acknowledges that ending arbitrariness would not necessarily end discriminatory law enforcement

Arbitrary Law Enforcement is Unreasonable: \u3ci\u3eWhren\u27s\u3c/i\u3e Failure to Hold Police Accountable for Traffic Enforcement Policies

Whren v. United States is surely a leading contender for the most controversial and heavily criticized Supreme Court case that was decided in a short, unanimous opinion. The slip opinion is only thirteen pages long, and provoked no dissents or even concurring opinions. Critical reaction has been overwhelmingly negative. Criticism not withstanding, the Court has not retreated from Whren, but continues to repeat its core holding. Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article—the prohibition against arbitrary search and seizure. Part III explains how arbitrariness applies to Whren, and to police enforcement policies. Part IV describes pretextual traffic stops as a form of entrapment. Part V addresses the Whren Court’s concern that the Fourth Amendment should not vary from place to place. Part VI notes that arbitrariness is distinct from discrimination, and acknowledges that ending arbitrariness would not necessarily end discriminatory law enforcement