Going Concern reports that Arlen Specter supports a law which would attempt to overturn the Supreme Court precedent set in Stoneridge Investment Partners LLC v. Scientific-Atlanta Inc. and Central Bank of Denver v. First Interstate Bank of Denver. Specter's proposed bill would allow the imputation of civil liability for an intentional act such as fraud, when the person to be held liable had no intent. In so doing, it threatens to make an innocent party pay for another's bad acts.
"Substantial assistance" in merely providing otherwise legal professional services, without notice of or direct participation in the fraud is not sufficient to meet due process requirements. One of at three situations should be present before liability could attach: Actual or constructive notice that the fraud was occurring; violation of the relevant state's code of professional ethics; or a direct undertaking with the intent of committing or furthering a fraud. There must be a foundational requirement that is satisfied before indirect liability can be imposed in. Especially since we are dealing with a malicious act, like fraud, which requires intent--it doesn't make sense to impose vicarious liability on a party which lacked any form of malice, intent, or even knowledge. Perhaps a negligence standard would be appropriate. Even then, the negligence would have to have been about the fraud itself--i.e., if it would have been reasonable to make further inquiries when something seemed a bit off, or if there was actual notice that fraud had occurred--maybe then liability could attach. At any rate, imposing strict liability on professionals who happen to work for crooks--and extremely convincing crooks at that--creates a fundamentally unfair burden, and one that would have serious chilling effects on business.
Senator Specter would be wise to remember that the lawyers, accountants, and others who worked for Mr. Madoff and Mr. Dreier, were defrauded just as everyone else was--bilked out of millions in fees for services provided, and many of them were investors as well. Further, many good people doing solid work without a clue that they were operating a ponzi scheme are now unemployed. The great evil of both Madoff and Dreier is that they fooled everyone. It would be fundamentally unfair to impose a further burden on indirectly related parties who do not bear culpability, and frequently have also been harmed by the fraud.
Source: http://goingconcern.com/2009/08/arlen-specter-not-pandering-to.php
Wednesday, August 05, 2009
The Nexus of Public and Private in Foreign Direct Investment: An Analysis of IFC, MIGA, and OPIC
My student note from law school:
Abstract:
This Report provides an exposition of the most recent activities of three of the most important public supporters of foreign direct investment (“FDI”): the International Finance Corporation (“IFC”), the Multilateral Investment Guarantee Agency (“MIGA”), and the Overseas Private Investment Corporation (“OPIC”), with a focus on their regional and sectoral investment patterns. While not a panacea to the incredible challenges in achieving reductions in poverty, FDI is an essential element in the overall strategy to ensure successful, sustainable development. It is also an element that, especially in the least developed countries (“LDCs”), has suffered from consistent underperformance.
Part I will provide a background, including a sketch of relevant theories underlying the international law of development (“ILD”), examining their origins and content. It will then discuss FDI as a method to achieve sustainable development, and the unique problems of risk and accountability that are associated with it.
Part II will address existing sources of public support for private sector development through FDI. It will discuss the IFC and MIGA, the private sector branches of the World Bank. It will then look at OPIC, a United States government agency that addresses development in a similar manner.
Part III will examine the three agencies’ most recent activities, with a focus on their annual reports. It will provide regional and industry breakdowns of each agency’s portfolio and evaluate the regional and sectoral exposure of the agencies in light of the concerns of the ILD.
Available on Lexis or Westlaw as 32 Fordham Int'l L.J. 1698.
Page proofs available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1444193
Abstract:
This Report provides an exposition of the most recent activities of three of the most important public supporters of foreign direct investment (“FDI”): the International Finance Corporation (“IFC”), the Multilateral Investment Guarantee Agency (“MIGA”), and the Overseas Private Investment Corporation (“OPIC”), with a focus on their regional and sectoral investment patterns. While not a panacea to the incredible challenges in achieving reductions in poverty, FDI is an essential element in the overall strategy to ensure successful, sustainable development. It is also an element that, especially in the least developed countries (“LDCs”), has suffered from consistent underperformance.
Part I will provide a background, including a sketch of relevant theories underlying the international law of development (“ILD”), examining their origins and content. It will then discuss FDI as a method to achieve sustainable development, and the unique problems of risk and accountability that are associated with it.
Part II will address existing sources of public support for private sector development through FDI. It will discuss the IFC and MIGA, the private sector branches of the World Bank. It will then look at OPIC, a United States government agency that addresses development in a similar manner.
Part III will examine the three agencies’ most recent activities, with a focus on their annual reports. It will provide regional and industry breakdowns of each agency’s portfolio and evaluate the regional and sectoral exposure of the agencies in light of the concerns of the ILD.
Available on Lexis or Westlaw as 32 Fordham Int'l L.J. 1698.
Page proofs available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1444193
Measurement Methodologies for Legal Empowerment of the Poor
Abstract:
In the summer of 2008, following the launch of the Commission on Legal Empowerment of the Poor’s final report, UNDP began to address the specific recommendations of the Report. The question of measurement was a major recurring question. This paper draws on existing methodologies and theoretical frameworks and argues that a narrowly defined, subject-centric approach to measurement of legal empowerment is key to the monitoring of progress towards legally empowering the poor. It argues that broad macroeconomic indicators and top-down assessments are fundamentally incapable of examining important aspects of legal empowerment, and that only by seeking the immediate experiences of those who are the subject of empowerment can we begin to identify the most important barriers to development and analyze their causes.
The complete paper may be found at the UNDP's Oslo Governance Center Website: http://www.undp.org/oslocentre/docs08/Measurement-Methodologies-for-Legal-Empowerement-of-the-Poor.pdf
It is hosted at: http://www.undp.org/oslocentre/overview/legal_empowerement_poor.html
Cite as: Adam L. Masser, Measurement Methodologies for Legal Empowerment of the Poor (UNDP Oslo Governance Center 2009).
In the summer of 2008, following the launch of the Commission on Legal Empowerment of the Poor’s final report, UNDP began to address the specific recommendations of the Report. The question of measurement was a major recurring question. This paper draws on existing methodologies and theoretical frameworks and argues that a narrowly defined, subject-centric approach to measurement of legal empowerment is key to the monitoring of progress towards legally empowering the poor. It argues that broad macroeconomic indicators and top-down assessments are fundamentally incapable of examining important aspects of legal empowerment, and that only by seeking the immediate experiences of those who are the subject of empowerment can we begin to identify the most important barriers to development and analyze their causes.
The complete paper may be found at the UNDP's Oslo Governance Center Website: http://www.undp.org/oslocentre/docs08/Measurement-Methodologies-for-Legal-Empowerement-of-the-Poor.pdf
It is hosted at: http://www.undp.org/oslocentre/overview/legal_empowerement_poor.html
Cite as: Adam L. Masser, Measurement Methodologies for Legal Empowerment of the Poor (UNDP Oslo Governance Center 2009).
Tuesday, August 04, 2009
How to Get a Job at the UN
A friend recently send me an email asking how I got my internship athe UN, so I thought I'd share it with a wider audience The text follows, slightly edited:
Hey man,
Yeah it was really an amazing experience and I'd highly recommend anyone who can get an internship at the UNDP to take one.
Getting it was a bit tricky and took some luck and a lot of persistence. It began at fall On Campus Interviews ("OCI") 2007, at the beginning of my second year at Fordham Law. I skipped 2007 OCI to stay an extra week in Paris, where I was working at the OECD, at the end of my 1L summer. Working at a law firm wasn't something I thought I wanted to do at the time, so I was intent on doing another public interest summer. At any rate, throughout almost my entire second year, I didn't have a job lined up for the summer. Since I knew most application deadlines hadn't even passed, I wasn't nervous--feeling pretty confident I would find something good. I applied to the UN, the World Bank, the IMF, the US Dept. of State, IFC, OPIC, and MIGA, as well as countless other NGOs, IGOs, and GOs.
During my second year, I took three classes with professor Galizzi: International Law of Development, an independent study, and MDG: Ghana, the course that brought me to Ghana for 3 weeks. For the two classes with a lecture component, there were a few guest lecturers, one of whom, Naresh Singh, was the executive director of the Commission on Legal Empowerment of the Poor, an independent commission that was hosted by the UNDP. I volunteered to help out on the UNDP side for the 5th Commission Meeting, spring semester of my second year at Fordham Law. I used this as a networking opportunity--I got to know Naresh quite well and he introduced me to several people, one of whom, Maaike DeLangen, was eventually designated as the person at the UNDP who would be receiving the commission report and start implementing it.
I asked Maaike if she was interested in having an intern. She said she hadn't thought about it, but was open to the possibility. I sent her my resume, a cover letter, and some other supporting documents. She interviewed me, basically told me I was hired but that she had to check with the hierarchy at UNDP. She found out there were some UN internship rules which had to be complied with. The rules stated Maaike had to announce the internship position and receive other applications. I was really anxious at this point, because time was getting short: it was mid April and I STILL didn't have a summer job for my 2nd summer. Maaike eventually got back to me and told me I was hired, after which there was a great deal of paperwork because the UN has so much bureaucracy. The job was very interesting, challenging, and eye-opening. Maaike ended up being a really great person to work with.
And that is the story of how I got my internship at the UNDP.
Take it easy bro.
~a
Hey man,
Yeah it was really an amazing experience and I'd highly recommend anyone who can get an internship at the UNDP to take one.
Getting it was a bit tricky and took some luck and a lot of persistence. It began at fall On Campus Interviews ("OCI") 2007, at the beginning of my second year at Fordham Law. I skipped 2007 OCI to stay an extra week in Paris, where I was working at the OECD, at the end of my 1L summer. Working at a law firm wasn't something I thought I wanted to do at the time, so I was intent on doing another public interest summer. At any rate, throughout almost my entire second year, I didn't have a job lined up for the summer. Since I knew most application deadlines hadn't even passed, I wasn't nervous--feeling pretty confident I would find something good. I applied to the UN, the World Bank, the IMF, the US Dept. of State, IFC, OPIC, and MIGA, as well as countless other NGOs, IGOs, and GOs.
During my second year, I took three classes with professor Galizzi: International Law of Development, an independent study, and MDG: Ghana, the course that brought me to Ghana for 3 weeks. For the two classes with a lecture component, there were a few guest lecturers, one of whom, Naresh Singh, was the executive director of the Commission on Legal Empowerment of the Poor, an independent commission that was hosted by the UNDP. I volunteered to help out on the UNDP side for the 5th Commission Meeting, spring semester of my second year at Fordham Law. I used this as a networking opportunity--I got to know Naresh quite well and he introduced me to several people, one of whom, Maaike DeLangen, was eventually designated as the person at the UNDP who would be receiving the commission report and start implementing it.
I asked Maaike if she was interested in having an intern. She said she hadn't thought about it, but was open to the possibility. I sent her my resume, a cover letter, and some other supporting documents. She interviewed me, basically told me I was hired but that she had to check with the hierarchy at UNDP. She found out there were some UN internship rules which had to be complied with. The rules stated Maaike had to announce the internship position and receive other applications. I was really anxious at this point, because time was getting short: it was mid April and I STILL didn't have a summer job for my 2nd summer. Maaike eventually got back to me and told me I was hired, after which there was a great deal of paperwork because the UN has so much bureaucracy. The job was very interesting, challenging, and eye-opening. Maaike ended up being a really great person to work with.
And that is the story of how I got my internship at the UNDP.
Take it easy bro.
~a
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