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Alito and Securities Law: Part II

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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9 Responses

  1. Kaimi says:

    Dave,

    Nice thoughts. I think you’re completely right about the effects of ECMH. Fraud-on-the-market is such a weapon in plaintiff arsenals that if it could be undermined by behavioral work, it would be a huge coup for defendants. If Alito keeps FOM alive as an option, then he’s a net win for plaintiffs. (And discovery as truth-seeking? My goodness, when did you become such a big plaintiffs’-sider?)

    A few questions/thoughts:

    -What do you take from the fact that this case comes from 1996, which was a particularly interesting year for Bespeaks Caution? After all, it comes down one year after the PSLRA. If judges are supposed to be being business-friendly (however that is defined) at any point in time, it should be in 1996, after the extensive committee findings about perceived securities class action abuse.

    -What’s your take on Alito’s likely impact on the interplay between ECMH and loss causation? Has he written anything on the topic? In particular, anti-ECMH and “noise” arguments are potentially _huge_ when it comes to loss causation. If he’s a true believer in ECMH, then does it remove some of the teeth from the relatively new loss causation provisions of the PSLRA? Do we have any indication what he thinks of loss causation?

  2. Brainwidth says:

    Bush Nominates Alito

    President Bush nominated Judge Samuel Alito, Jr. from the Third Circuit to the Supreme Court yesterday. Judge Alito has a reputation as a solid conservative, and Democrats are predictibly rushing to criticize the nomination. Here’s a roundup of…

  3. SCOTUSblog says:

    Blog Round-Up – Tuesday, November 1st

    In nomination news: PrawfsBlawg has this post on “Deconstructing Scalito” and this post on Alito, business and contract law. Opinio Juris has this post on Judge Alito and Internationalism. Opinio Juris also has this post on Alito and forced abortions…

  4. Ted says:

    Are these really exceptional decisions? Even Judge Easterbrook isn’t willing to give blanket protections for the forward-looking statement safe harbor. Asher v. Baxter Int’l Inc. (7th Cir. 2004).

  5. Dave Hoffman says:

    Ted: All I can say is that based on my research, many judges are applying the BC doctrine uncritically. I didn’t say these were “exceptional” decisions, but I do think they provide a counter-point to your claim that business interests necessarily “win” if Judge Alito were to be confirmed. However, given that the sample size of Judge Alito’s business related opinions is tiny, and given that he had no prior business litigation experience, prediction here is risky.

    Kaimi: I had a theory that judges should have reacted to the PSLRA by *increasing* securities law enforcement, as a part of a dynamic process to encourage optimal disclosure. At least in my preliminary research, however, I found no significant shifts in materiality win percentages based on changes in the governing law. But a follow-on project currently underway may change that result.

  6. IPTAblog says:

    Blawg Review #31

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  7. IPTAblog says:

    Blawg Review #31

    Welcome to Blawg Review #31, the weekly guide to the best posts in the legal blog world. This week, Blawg Review will fall in love, geek out, go online, get some useful advice and maybe even engage in some light…

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  9. “Merit-Based Judging”

    Senator John Cornyn has an excellent piece in NRO decrying the media tendency to view judicial decision-making as results-oriented and akin to the legislative process. A perfect example is the Supreme Court’s recent decision in Lincoln Property v. Roch…

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