{"id":4298,"date":"2016-11-26T01:05:07","date_gmt":"2016-11-26T06:05:07","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hblr\/?page_id=4298"},"modified":"2025-08-19T12:55:18","modified_gmt":"2025-08-19T16:55:18","slug":"hblr-online-volume-7","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-7\/","title":{"rendered":"Volume 7 (2016\u20132017)"},"content":{"rendered":"\n
TAXATION<\/h5>\n\n\n\n

WHEN THE IRS PREFERS NOT TO: WHY DISPARATE REGULATORY APPROACHES TO SIMILAR DERIVATIVE TRANSACTIONS HURTS TAX LAW<\/a>
<\/strong><\/i><\/h3>\n\n\n\n
Leon Dalezman and Philip Lenertz<\/i><\/h6>\n\n\n\n

This Article examines decisions made by the Internal Revenue Service on whether to promulgate regulations pursuant to three different but related provisions of the Internal Revenue Code: sections 1259, 1260, and 871(m). This Article concludes that when there is a statutory imperative to regulate, the use of softer methods\u2014methods other than issuing new regulations, such as creating listed transactions\u2014has a negative effect on tax law, slowing its evolution. While clear regulatory lines almost always invite new forms of tax planning, this Article argues that this is better than a regime where legitimate tax planners are unfairly faced with uncertainty and where enforcement against egregious abuse is often less than forthcoming.<\/p>\n\n\n\n

\n\n\n\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n\n\n\n

TRADING IN SUBSTITUTE SECURITIES: LIABILITY UNDER RULE 10B-5
<\/strong><\/a><\/h3>\n\n\n\n
Cody Donald<\/i><\/h6>\n\n\n\n

A trade in a substitute security occurs when a trader with inside information, typically an employee, trades\u2014not in the securities of the company that is the subject and source of the information\u2014but in the securities of another company whose stock would be affected if such inside information were to become public. The main academic literature on this topic is Ian Ayres and Joe Bankman\u2019s article, Substitutes for Insider Trading. This Article builds on that work by providing a more in-depth analysis of liability for insider trading on substitute securities under Rule 10b-5 promulgated under the Securities Exchange Act of 1934. In contrast to Ayres and Bankman, this Article concludes that trading in substitute securities is presumptively illegal under the misappropriation theory pursuant to Rule 10b-5.<\/p>\n\n\n\n

\n\n\n\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n\n\n\n

STUCK WITH STECKMAN: WHY ITEM 303 CANNOT BE A SURROGATE FOR SECTION 11<\/strong><\/a>
<\/i><\/h3>\n\n\n\n
Aaron Jedidiah Benjamin<\/i><\/h6>\n\n\n\n

Item 303 of SEC Regulation S-K requires companies to disclose “known trends and uncertainties” in certain public filings. Item 303 provides no private right of action. However, Steckman v. Hart Brewing Co. held that an Item 303 violation automatically states a claim under section 11 of the 33 Act, short-circuiting any separate consideration under the statute. This Article examines the Steckman decision and contends that it was wrongly decided. Given that (i) an Item 303 violation cannot sufficiently establish Basic materiality, and (ii) Basic materiality is required under section 11, it follows that an Item 303 violation cannot be sufficient to state a claim under section 11.<\/p>\n\n\n\n

\n\n\n\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n\n\n\n

AGE BEFORE EQUITY? FEDERAL REGULATORY AGENCY DISGORGEMENT ACTIONS AND THE STATUTE OF LIMITATIONS<\/strong><\/a>
<\/i><\/h3>\n\n\n\n
Michael Columbo and Allison Davis<\/i><\/h6>\n\n\n\n

At what point may a person rest assured that the government will not confiscate her money due to a past alleged regulatory infraction? In Kokesh v. SEC, the Supreme Court is poised to resolve a three-way split among the federal circuit courts of appeals over whether the statute of limitations in 28 U.S.C. \u00a7 2462 applies to federal regulatory actions seeking disgorgement of a person\u2019s funds for long-past alleged regulatory infractions. The Supreme Court should reverse the Tenth Circuit\u2019s decision and hold that the statute of limitations categorically applies to actions seeking confiscation of funds for past regulatory infractions, regardless of whether the government seeks the funds through forfeiture or disgorgement.<\/p>\n\n\n\n

\n\n\n\n
INVESTING & ASSET MANAGEMENT<\/h5>\n\n\n\n

A FEDERAL FIDUCIARY STANDARD UNDER THE INVESTMENT ADVISERS ACT OF 1940: A REFINEMENT FOR THE PROTECTION OF PRIVATE FUNDS<\/strong><\/a>
<\/i><\/h3>\n\n\n\n
Tyler Kirk<\/i><\/h6>\n\n\n\n

The appropriate role of the fiduciary standard in the financial industry has garnered a lot of attention of late. However, what has gotten lost in the debate is the astonishing fact that Article III courts have barely begun to interpret one of the oldest federally established fiduciary relationships, that of the investment adviser and its client. This Article argues that an investment adviser’s liability under section 206\u2013when acting as the agent for a private fund\u2013should be determined under a federally established uniform framework, and should not be contingent upon the application of state fiduciary law.<\/p>\n\n\n\n

\n\n\n\n
MERGERS & ACQUISITIONS<\/h5>\n\n\n\n

INCREASED ANTITRUST MERGER ENFORCEMENT: CONSIDERATIONS FOR YOUR NEXT DEAL<\/strong><\/a>
<\/i><\/h3>\n\n\n\n
Michael B. Bernstein, Justin P. Hedge, and Francesca Pisano<\/i><\/h6>\n\n\n\n

Antitrust merger enforcement has become increasingly aggressive in recent years with the Federal Trade Commission and Antitrust Division of the Department of Justice demonstrating that they are ready to litigate to block deals they believe will harm competition. While an increasing number of mergers have been challenged and blocked in federal court, some are prevailing at trial or managing to find a path to clearance without litigation. This Article reviews the trends that have emerged in federal merger enforcement and discusses some key differences between deals that have been cleared and those that have faced government opposition.<\/p>\n\n\n\n

\n\n\n\n
TECHNOLOGY & INNOVATION<\/h5>\n\n\n\n

BITCOIN AND VIRTUAL CURRENCIES: WELCOME TO YOUR REGULATOR<\/strong><\/a>
<\/i><\/h3>\n\n\n\n
Matthew Kluchenek<\/i><\/h6>\n\n\n\n

Among all the U.S. regulators interested in regulating Bitcoin and virtual currencies, the Commodity Futures Trading Commission (CFTC) is determined to be at the forefront. Since the announcement by CFTC Chairman Timothy Massad in late 2014 that Bitcoin derivatives should fall within the scope of the CFTC\u2019s jurisdiction, the CFTC has been aggressive in addressing not only wrongful conduct involving Bitcoin derivatives, but also wrongful conduct involving certain spot Bitcoin transactions. The CFTC\u2019s actions are a clarion call for market participants to understand the broad breadth of the CFTC\u2019s jurisdiction, and to take notice of the requirements that may apply both to derivatives and to certain physical transactions involving Bitcoin and other virtual currencies.<\/p>\n","protected":false},"excerpt":{"rendered":"

TAXATION WHEN THE IRS PREFERS NOT TO: WHY DISPARATE REGULATORY APPROACHES TO SIMILAR DERIVATIVE TRANSACTIONS HURTS TAX LAW Leon Dalezman […]<\/p>\n","protected":false},"author":6,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"footnotes":""},"class_list":["post-4298","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/PgKEUK-17k","jetpack-related-posts":[{"id":5256,"url":"https:\/\/journals.law.harvard.edu\/hblr\/taxation\/","url_meta":{"origin":4298,"position":0},"title":"Taxation","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 11 \u2022 COLUMNS RETHINKING TAX FOR THE DIGITAL ECONOMY AFTER COVID-19 Tarc\u00edsio Diniz Magalh\u00e3es and Allison Christians Before COVID-19 arrived, policymakers from around the world were busy working on the makings of a new global tax consensus to reflect structural changes in the world economy as a result of\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4232,"url":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-5\/","url_meta":{"origin":4298,"position":1},"title":"Volume 5 (2014-2015)","author":"ehansen","date":"July 31, 2016","format":false,"excerpt":"SECURITIES & FINANCIAL REGULATION NEW MARGIN REQUIREMENTS FOR UNCLEARED SWAPS Craig Stein One of the fundamental changes that the Dodd-Frank Wall Street Reform and Consumer Protection Act (\u201cDodd-Frank Act\u201d) made in the financial markets has been to force most over-the-counter swap transactions onto exchanges and impose regulations on transactions that\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5247,"url":"https:\/\/journals.law.harvard.edu\/hblr\/business-corporations\/","url_meta":{"origin":4298,"position":2},"title":"Business & Corporations","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 14 \u2022 ISSUE 1 \u2022 PRINT RETHINKING COMMERCIAL LAW'S UNCERTAIN BOUNDARIES Steven L. Schwarcz Although it is an essential part of business law, commercial law has uncertain boundaries. That uncertainty creates significant legal ambiguities and inconsistencies, confusing lawyers and courts and causing misinterpretations that disrupt commerce and reduce efficiency.\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4373,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-7-issue-1\/","url_meta":{"origin":4298,"position":3},"title":"Volume 7, Issue 1 (2017)","author":"ehansen","date":"June 3, 2017","format":false,"excerpt":"TAXATION THE STATE ADMINISTRATION OF INTERNATIONAL TAX AVOIDANCE Omri Marian This Article documents a process in which a national tax administration in one jurisdiction is consciously and systematically assisting taxpayers to avoid taxes in other jurisdictions. The aiding tax administration collects a small amount of tax from the aided taxpayers.\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5073,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-13-issue-2\/","url_meta":{"origin":4298,"position":4},"title":"Volume 13, Issue 2","author":"wgu","date":"March 27, 2024","format":false,"excerpt":"BANKING BANKING ON A CURVE: HOW TO RESTORE THE COMMUNITY REINVESTMENT ACT Peter Conti-Brown and Brian D. Feinstein\u00a0 This Article suggests that the federal government\u2019s primary financial-regulatory tool for combating wealth inequality is broken. Intended to push banks towards deeper engagement with lower-income and minority communities, the Community Reinvestment Act\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5255,"url":"https:\/\/journals.law.harvard.edu\/hblr\/politics-economics\/","url_meta":{"origin":4298,"position":5},"title":"Politics & Economics","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 15 \u2022 COLUMNS THICKER THAN ARTIFICIAL INTELLIGENCE Olivia Schwartz Saudi Arabia and the United States have a strong history together. As Saudi Arabia implements Vision 2030, it may do so in a way that jeopardizes this longstanding relationship. Saudi Arabia is in the midst of creating an artificial intelligence\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/4298","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/comments?post=4298"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/4298\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/media?parent=4298"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}