Journal article
Desperately Seeking a Justice Stevens Who Cares about the Securities Laws
Rutgers Law Journal, Vol.27, pp.627-1253
01 Apr 1996
Abstract
A few years ago Professor Branson and I co-authored an article entitled "The Supreme Court's Literalism and the Definition of 'Security' in the State Courts." n1 The subject of that article was the Supreme Court's recent approach to interpreting the definition of the term "security" in the federal securities statutes. The content of that definition is central to the interpretation of the federal securities laws because the term defines the jurisdictional ambit for the federal regulation. If a transaction involves a "security," the federal securities statutes apply. If it does not, the statutes are not relevant, and the parties must resort to common law or some other statutory basis to pursue any claim of fraud or misrepresentation. In the article, Professor Branson and I critiqued what we saw as an increasingly literalist or formalistic approach by the United States Supreme Court to crafting the definition of "security." n2 We saw this as an abandonment of the historical, purposive approach in which the Court would evaluate the application of the statute to the facts at hand based on the purpose and policies underlying the law. We concluded that recent decisions evidence a priority in the Court's analysis for certain meta issues unrelated to the sound development of the regulatory scheme under the federal securities laws. These meta issues include concerns for federalism, concerns for the separation of powers, and an increasingly literalist approach to statutory interpretation as a response to these institutional issues. n3 In our discussion we bemoaned this ...
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Details
- Title
- Desperately Seeking a Justice Stevens Who Cares about the Securities Laws
- Creators
- Karl Shumpei Okamoto
- Publication Details
- Rutgers Law Journal, Vol.27, pp.627-1253
- Publisher
- Rutgers School of Law - Camden Rutgers Law Journal
- Resource Type
- Journal article
- Language
- English
- Academic Unit
- Thomas R. Kline School of Law
- Identifiers
- 991021866422204721