Insider Trading

Leonard Simon, a partner of the San Diego law office, Millberg Weiss Berhard Hynes & Lerach, L. L. P., which is also a member of the National Association of Securities and Commercial Law Attorneys (NASCAT), a public policy voice for over 100 law firms who commit to a strong federal and state legal system which protects investors and consumers. The firms has been involved in such cases like Lincoln Savings, Washington Public Power Supply System, Prudential Insurance, MiniScribe, Executive Life, Crazy Eddie, and ZZZZ Best, as well as Bre-X, Bennett Funding, and Centennial Technologies. While NASCAT primarily represents private investors, they do represent federal and local governmental entities, institutional investors, and corporate defendants. Simon's best known case is the Lincoln Savings case in which he was appointed co-lead counsel with Joseph Cotcheft of Burlingame, California for the defrauded investor. Then were several people who lost their investments, or in cases, their life savings. Most of the victims were senior citizens in Southern California who were targets of Charles Keating who saw them as "weak, meek, or ignorant." Investment losses totaled around $250 million. The jury verdict was about $1 billion for some defendants, and they were still seeking collections of certain amounts from Charles Keating and a few others. Because the Private Securities Litigation Reform Act of 1995 is still new, there are no new trials or appellate decisions that have decided on the new law. Should passage of this law show no unclear way for investors to recover their losses, state remedies should still be a way for investors to seek relief. The Securities and Exchange Commission Chairman Arthur Levitt recognizes that it may take time to address the PSLRAs impact on court decisions regarding interpretation. The problem addressing organized crime on Securities Markets are essential to the capital formation process and the economic well being of America. NASD and the SEC work together with law enforcement agencies to protect investors and their markets from fraud, abuse of any kind, and organized crime. America's securities markets are the strongest, the safest, and best regulated markets in the world. While most people in the securities market are generally honest and ethical in their profession, there are the few who are dishonest in this profession. There may be several reasons why a particular industry is targeted for organized crime. One reason is inexperienced investors looking for a quick get-rich scheme, easily fall victim to these unscrupulous and dishonest predators. Newly capitalist businesses in non-listed or over-the-counter have also increased. These new businesses are susceptible to unscrupulous people and their manipulative conduct. The securities regulators help to adopt a "zero tolerance" approach to organized crime. They are continually looking at ways to improve the efforts of protecting investors and consumers from being victims of organized crime. References Congressional Testimony. (1997, October). Securities Litigation: Leonard B. Simon. Retrieved from http://elibrary.bigchalk.com.ezp-00rrw.lim.net. Congressional Testimony. (2000, September). Organized Crime on Wall Street: Mr. Barry R. Goldwater. Retrieved from http://elibrary.bigchalk.com.ezp-00rrw.lim.net.

Case Brief

CASE BRIEF YOUNGSTOWN SHEET & TUBE CO. V. SAWYER 343 U. S. 579 (1952) MR. jUSTICE BLACK FACTS Steel management workers unions had a dispute over wages and other conditions. As a result., they could not reach a collective bargaining agreement. The Federal Mediation and Conciliation Service and Federal Wage Stabilization Board attempted unsuccessfully to settle the dispute. The workers' union gave notice of intent to strike. The indispensability of steal as a component of substantially all weapons and other war materials led the President to believe that the work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these consideration for his action, the President, a few hours before the strike was to begin, issued executive order 10340. The order directed the Secretary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own orders, calling upon the Presidents of the various seized companies to serve as operating managers for the United States . . . . The next morning, the President sent a message to Congress reporting his action . . . . Congress never took action . . . . The companies complied, but filed suit in federal court seeking an injunction prohibiting the order from being enforced . . . . The companies prevailed in the district court. ISSUE Did President Truman act within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the nation's steel mills? JUDGMENT (HOLDING) . . . . Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress . . . . 1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate . . . . If his act is held unconstitutional under the federal government as an undivided whole, it lacks power. A seizure executed by the President pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. 2. When the President acts in the absence of either a Congressional grant or denial of authority, he can only rely upon his own independent powers. But there is a zone of twilight in which he and Congress may have concurrent authority of, in which its distribution is uncertain. Therefore, Congressional inertia, indifference or acquiescence may sometimes, at least in practical matters, enable, if not invite, presidential matters. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter. . . . RATIONALE The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of the office, the President cannot even act to preserve legislature programs from destruction so that Congress will have something left to act upon. . . . CONCURRING OPINIONS MR. JUSTICE BURTON . . . . The present situation is not comparable to that of an imminent invasion or threatened attack. . . . We do not face the issue of what might be the President's constitutional power to meet such catastrophic situations nor is it claimed that the current seizure is in nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threatened with, total war. MR. JUSTICE CLARK The Constitution does grant to the President extensive authority in times of grace and imperative national emergency. In fact, to my thinking, such a grant may well be necessary to the very existence of the Constitution itself. As Lincoln aptly said, "Is it possible to lose a nation and yet preserve the Constitution?" . . . . DISSENTING OPINION MR. CHIEF JUSTICE VINSON WITH WHOM MR. JUSTICE REED AND MR. JUSTICE MINTON JOIN The President of the United States directed the Secretary of Commerce to take temporary possession of the nation's steel mills during an existing emergency because a work stoppage would immediately jeopardize and imperil our national defense and the defense of those joined with us in resisting aggression, and would aid to the continuining danger of our soldiers, sailors, and airmen engaged in combat in the field." . . . . MY ASSESSMENT Had the workers' union strike caused a work stoppage that would have jeopardized our national defense, it seems the President would have been within his constitutional powers to seize the nation's steel mills.

The Power of Treaty Making With the President

Obama Presses For US-Russia Nuclear Pact President Obama hopes to have ratified with U. S. Congress, a new START treaty between the United States and Russia. The President met with Russian President, Dmitry Medvedev, where the tow signed a new Strategic Arms Reduction Treaty that is supposed to cut back on nuclear weapons stock piles by as much as a third (States News Service). The Power of Treaty Making With The President The Constitution empowers the President to make treaties if two-thirds of Senate approve. Even with treaty-making being a shared power, the President is responsible for negotiating with other nations. He decides which nations are to be negotiated with, what the matter should be, and who will represent the nation in the process. With Congressional approval, the President can appoint any person to represent the country in negotiations. The President can send a Professional Diplomatic Corps (Foreign Service Personnel), members of Congress, prominent businesspersons, and even former presidents when negotiating with other nations. Treaties can either ber executory or self-executing. If the treaty is executory, it is not yet performed, completed, fulfilled, or carried out; in other words, it si not performed, either wholly or in part not yet executed. A self-executory treaty is self-acting, meaning, it goes into effect without the need of further action. Presidents may also enter into executive agreements with foreign powers. These are agreements with foreign governments that are made by the President, who acts within his or her own executive powers, whereas, treaties must be approved by the Senate. Executive agreements can also be called Memorandum of Understanding, Memorandum of Arrangements, and Technical Agreements. There are three types of exective agreements: the first is called the treaty-authorized executive agreements. This executive agreement, like a treaty, is usually approved by the Senate. The second type is a Congressionally-authorized executive agreement. Congressional approval occurs with a majority vote in both houses and after the agreement is concluded and executed. The third type is the Solely Executed Agreement. This is used by the President's approval. Justice Jackson gave a three-part analysis to determine when presidential power is applied to executive aggreements: if the President enters into a solely executive agreement where a subject is exclusively executive, Congress may not interfere. If a subject is one where the President and Congress share powers, Congress can and may amend or abolish the agreement. References Obama Presses for US-Russia Nuclear Pact, States News Service, 14 Nov. 2010, Academic One File. Web, March 27, 2012. Hall, Daniel E. and Feldmeier, John P. Constitutional Law: Governmental Powers and Individual Freedoms. Pearson Education Group. 2nd Ed.

Pre-Emption

PRE-EMPTION Pre-emption is when Congress expressly states that it intends to pre-empt state regulation. There are three ways of pre-emption: when a state law is inconsistent with public law, when Congress has enacted a legislature scheme that comprehensively regulates a field. The first type of pre-emption is through public law. The second type can pre-empted by several factors considered by the courts: historically, state or federal, a need for uniformity, it conflicts in administration of state or federal programs, and is persuasiveness of federal regulatory scheme. The third type is when Congress sufficiently occupied by a field where the states could not supplement federal law. Congress can pre-empt policy of all state laws, including those consistent with federal law, are void. Congress can express the attitude of pre-emption, if the courts do not consider implicit pre-emption. Reference In the Gade v. National Solid Waste Management Association, 505 U. S. 88.

The Three Branches of Government

THE THREE BRANCHES OF GOVERNMENT There are three branches of government in the United States. The executive branch, the legislative branch, and the judicial branch. The executive branch holds the offices of the President and its executive and inferior officers for most federal agencies. The legislative branch holds the offices of Congress and House of Senate and Representatives and the state legislatures, which are typically bicameral. The judicial branch holds the federal courts, which include Article III, the Supreme Courts, the Appeals Courts, the Trial Courts, and the State Courts, which include the highest courts, the intermediate appeal, and trial courts. When the three branches were established, there was a checks and balances put into place to provide accountability to each of the branches and the people. It also was put into place to prevent tyranny and the usurpation of state sovereignty. In the executive branch, Congress makes the laws, while the president has the authority to veto legislation. Congress also has the authority to override any veto by the president with a 2/3 majority vote. Congress enacts the laws, but the president enforces the laws. The president conducts foreign affairs and negotiates treaties, while Congress usually must ratify treaties. The president is commander-in-chief of the military, but Congress also has authority over the military and usually makes the rules that regulate military and is responsible for declaring war. The president delegates authority to nominate federal judges and other government officers and the Senate approves the nomination. Congress holds authority over impeachment proceedings. The judiciary branch also checks the president's actions for constitutionality. For judiciary judges, the president nominates them which are approved by the Senate. Congress has the authority to remove cases where appellate jurisdiction in the Supreme Court and limits the lower courts. Because the lower courts are inferior to the Supreme Court that were created by Congress, they can be abolished by Congress. The States and Congress (or the people) can check for constitutional pronouncements of court through the amendment process. The House of Representatives are elected by the people and the Senators by state legislatures. Later, in the Seventeenth Amendment (1913), both houses were changed to be selected by direct election. The president is elected by electoral college -- or a small group of people who are chosen at the state level nationwide. Federal judges are nominated by the president and approved by the Senate, as well as federal officials such as diplomats and cabinet officials. The three branches of government are executive, legislative, and judicial. Checks and balances and separation of powers were put into place to check each branch of government. This keeps each government official from the president to the judges to be held in accountability.

The U. S. Court System

THE U. S. COURT SYSTEM

The Supreme Court sits at the apex of the judiciary of the U. S. court system. It exercises appellate jurisdiction with the authority of one court to review proceedings of another court or an administrative agency. Sometimes the Supreme Court operates as a court of original jurisdiction by cases that come to it by appeal, instead of being initiated in Supreme Court.

The Judiciary Act of 1789 allowed Congress to create inferior courts: three circuit court of appeals, thirteen district courts, each having one district judge and two Supreme Court justices. There are eleven geographical circuits each with a court of appeals. There are two additional court of appeals: the District of Columbia and one for a federal court. These include appeals courts, district courts, specialty courts, and administrative tribunal courts. There are several types of jurisdiction the federal court has. Diversity jurisdiction gives the federal court jurisdiction that arises from the diversity of citizenship when jurisdictional amount is set.

Federal Jurisdiction (Federal Question Jurisdiction) is based on the judicial power that grants Article III of the Constitution by federal statutes. Courts of limited jurisdiction are limited to civil cases of certain types, such as limited amount of money, jurisdiction in criminal cases, confined petty offenses, and preliminary hearings. These types of courts are also called courts of special jurisdiction.

The court of general jurisdiction, or trial court, has jurisdiction for trying all types of classes of civil and criminal cases except those heard only by a court of limited jurisdiction. An advisory opinion is jurisdictional interpretation of legal question that is requested by the legislative and executive and executive branch of governments. The courts don't prefer to give advisory opinions and the federal courts are sometimes prohibited from rendering advisory opinions. In diversity of citizenship, it invokes original jurisdiction of the federal court on the basis of jurisdiction by being in existence of controversy between citizens of different states. In pendent jurisdiction, the federal court has a right to exercise jurisdiction over state matters if it arises out of the same transaction if it already exists in federal court, even if there is no diversity of citizenship. It can either be a removal of case, where it can be transferred from proceedings, a new trial, or a new entry of judgment with the order of an appellate court.

The Supreme Cout has original jurisdiction according to Article III, Section 2 which means that cases affect Ambassadors, other Public MInisters and Consuls, and also those which the States shall be a Party. Statute 28 U. S. C. - 1251 says that the Supreme Couret is required to hear cases between two or more states.

The Supreme Court also has appellate jurisdiction, according to Article III, Section 2, Clause 2 where it provides that all cases which the Supreme Court doesn't have original jurisdiction but has federal jurisdiction power, the Supreme Court has appellate jurisdiction and is subject to the "regulations" and "exceptions" by Congress. It is usually reviewed by the Rule of Four, an internal rule of the Supreme Court, where cases can be reviewed by the court if four justices wish the case to be reviewed.

Article III courts are also inferior courts that are established by Congress. These courts ensure its justices lifetime tenure and no reduction in pay. They are selected and nominated by the president and confirmed by the Senate. There are also Article I and Article II courts that are non-constitutional that Congress may establish in order to relieve the burden of Article III court justices. They are not guaranteed lifetime tenure and their pay may and can be reduced while in office. They are not selected by nomination or confirmation process. These types of courts include the U. S. Bankruptcy courts, U. S. Magistrate judges, military courts, territory courts, Claims court, Tax court, and some District of Columbia courts.

Article I judges are not delegated to perform the essential judicial functions. They may not render final decisions in cases nor preside over critical stages of proceedings.

REFERENCE Hall, Daniel E. and Feldmeier, John P. Constitutional Law: Government Powers and Individual Freedoms. Pearson Education Group, 2nd Ed., Pp. 70-102.