2019 Symposium Note: Jury Decision Making Processes

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Rebecca Walker[*]

 

This Note outlines a panel discussion that took place at the 2019 symposium, Driven by Data. Professors from across the country explained their empirical research regarding the role of confirmation bias in jury decision making processes; inferences juries make based on their understanding of the “gist”; and the future of comparable case guidance.

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2019 Symposium Note: Panel 1

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Maeve Sullivan[*]

How do jury members make up their minds? That question and others focused on research regarding jury instruction, individual juror decision making, and methods of rooting out juror bias were the focus of the first panel of the Driven By Data, the Denver Law Review’s Spring 2019 Symposium.

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2019 Symposium Note: The Health Care Insurance Market’s Moral Hazard Dilemma

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Chelsea Kelleher[*]

This Note outlines a panel discussion that took place during the 2019 symposium, Driven by Data. Two professors with opposing views regarding the value of the health insurance market described the statistical basis for their conclusions. Ultimately, the professors were divided on whether health insurance incentivizes patients to consume more healthcare than needed.

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2019 Symposium Note: Are Apology Laws and Tort Reform Helping or Hurting?

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Elena Engel[*]

In Part I of this panel, Professor Kip Viscusi addressed whether medical professional apology statutes are an effective tool for reducing medical malpractice liability risk and whether damages caps are effective and desirable. In Part II, Professor Hyman discussed trends litigation. Part III featured plaintiff’s attorney Scott Eldredge and defense attorney Jessie Fischer sharing their perspectives on the previous presentations and on trends in medical practice litigation in general.

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Heavyweight Privacy Battle: California Legislators vs. Tech & Telecom Giants

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Tyler Whitney[*]

The CCPA was passed in mid-2018 and will take its final form when it ultimately goes into effect on January 1, 2020. This article traces the background and history of the CCPA, and discusses the battle between those who support and seek to bolster the law since its passage (which includes privacy advocates) and those who seek to weaken and water it down (which includes many of the world’s largest technology companies).

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The First Step Act: Criminal Justice Reform at a Bipartisan Tipping Point

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Jonathan Feniak[*]

This Article explores the bipartisan support that led to the passage of the FIRST STEP Act, which addresses concerns in the criminal justice system. With a politically divided nation, coercive power, media attention, and creative stakeholder appeals resulted in a step forward for both public safety and constitutional protections—a win on both sides of the isle.

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Abolishing the ICEberg

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Allison Crennen-Dunlap[*]

This Article outlines the evolution of immigration law and immigration enforcement mechanisms, ultimately exploring the abolish ICE movement. Due to the nation’s massive immigration system, the abolition of this small piece of the puzzle would accomplish virtually nothing in literal terms; however, a movement rooted in a deeper understanding of the premises of immigration policy and the historical subordination of certain demographics could prove more valuable.

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Breach Notification Laws in Colorado: A Potential Model for Other States

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Mitchol Dunham[*]

Data breaches are slowly becoming a fact of life. In August 2013, Yahoo’s databases were breached, leaking the information of three billion accounts. At least 868 data breaches occurred in 2017 alone, revealing the records of well over 200 million people. Just recently, on December 11th, 2017, news outlets began to pick up on a list of 1.4 billion passwords in plain text that was circulating the internet. The regularity and cost of these breaches has reignited the drive to reform the laws governing privacy, both on the national and state level.

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Criticism of Attorneys’ Fees Requires Adaptation to a New Market

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Susie Lloyd[*]

In the United States, awarding costs to a prevailing litigant is commonplace. Although governed by state and federal statutes, the “American Rule” is often viewed as an excessive and calculated move by attorneys designed to make the rich richer and leave clients writing the check. It is a battle waged on the ground of attorneys seeking just compensation for their abilities in navigating an often inaccessible system, while clients strive to save costs in fear of spending more than practicable in order to sustain their businesses and prevail in countersuits. The contravening interests result in negative attention toward the legal profession. Simply, clients want more for less. And when attorneys cannot deliver without a high cost, clients are turning to other outlets to address the same needs without the high price tag.

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Lucia v. SEC: Justice Breyer Warns of a Dramatic Expansion of the President's Control Over the Federal Civil Service

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Kirk McGill[*] & Ben K. McGill[*]

The “Appointments Clause” mandates that “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by” the United States Constitution. Thus, the Constitution requires Officers of the United States to receive a commission from a “higher officer.” Accordingly, the President appoints the heads of the “Great Departments” (e.g. cabinet secretaries) with the advice and consent of the Senate, and either these “principal officers,” or the President as Chief Executive, appoint their respective subordinates. This ensures that each officer is accountable to a single superior, and that single superior is either the President or accountable (directly or indirectly) to the President and ultimately to the American electorate. For the first 150 years of the Republic’s history, the vast majority of the Executive Branch consisted of officers, inferior and superior (principal), appointed pursuant to the Constitution and subject to removal by the President or the appointing principal officer at any time and for any reason. In contrast, upon entering office, President Donald Trump had only 554 appointments to make in the Executive Branch out of 2,087,747 nonmilitary Executive Branch employees in Federal Fiscal Year 2017.

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The Burden of the Burden of Proof Under Rule 14a-8

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Elizabeth Trower[*]

Rule 14a-8 (the Rule) serves as vehicle for communications between companies and investors. Considered a fixture of the shareholder governance movement, the Rule to some degree amounts to an extension of ownership rights granted under state law. The Rule affords shareholders of a publicly traded company the right to include proposals in the annual proxy materials. The Rule also includes thirteen substantive grounds to omit a proposal.

The burden of establishing an exclusion generally falls on the issuer. The SEC Staff (Staff), however, has provided little guidance on the level of evidence needed to meet the requirement. Indeed, analysis suggests that, in fact, the Staff often does not require that issuers meet this burden by providing empirical support for factual assertions made in no action letter requests.

This Article seeks to examine the history of the company’s burden of proof under Rule 14a-8. Part II of this Article traces the development of the burden from the first mention in 1954 to the eventual inclusion in the language of the rule. Part III focuses on the modern application of the burden. Finally, Part IV argues that the Staff of the Commission has at times required such little evidence as to effectively render the burden of proof meaningless.

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The State of the State Law Exclusion Under Rule 14a-8(i)(1)

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Maureen McIntee[*]

Rule 14a-8 of the Securities Exchange Act of 1934 (Rule) requires public companies to include stockholder proposals in its proxy statements. The Rule, however, contains thirteen substantive grounds for exclusion. Subsection (i)(1) permits exclusion if “the proposal is not a proper subject for action by shareholders under the laws of the jurisdiction of the company’s organization.”

Regarding the first exclusion inserted into the Rule, the Securities and Exchange Commission (SEC or Commission) originally sought to ensure that the rights of stockholders coincided with state law.  State law, therefore, determined the eligibility of a proposal.  Commonly omitted proposals included those mandating the compensation of officers and directors, infringing on shareholder rights to approve amendments to the articles, and mandating the board take the steps necessary to achieve a sale or merger.  In at least some cases, however, the Commission declined to apply the exclusion to proposals that contained precatory rather than mandatory language.

This article will first examine the administrative history of Rule 14a-8(i)(1).  The next section will focus on staff interpretations through no action letters, particularly those addressing the conflict between mandatory and precatory language in shareholder proposals. The last section will critique the state law exclusion and suggest possible reforms in the SEC staff’s interpretation of the provision.

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Eliminating the Post-Submission Holding Period Under Rule 14a-8

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Megan Herr[*]

Rule 14a-8 (the Rule) allows shareholders to include proposals in the proxy materials of public companies. The Rule, however, also contains a number of eligibility requirements.  Specifically, shareholders must continuously hold “at least $2,000 in market value” or one percent of the company’s voting securities “for at least one year” before submitting a shareholder proposal in a company’s proxy statement.  In addition, the Rule imposes a “post-submission” holding period requiring proponents to continuously retain the shares through the date of the annual meeting.  Violation of the “post-submission” holding period results in a penalty; the proponent cannot submit another proposal to the same company for the following two calendar years.

Initially, the Rule did not contain minimum ownership requirements or mandatory holding periods. The Securities and Exchange Commission (SEC or Commission) added a “post-submission holding period,” first through informal interpretation and later through an amendment to the Rule. In addition, the Commission included a “pre-submission” holding period.  In an effort to ensure that shareholders had “some measured economic stake or investment interest in the corporation” and “curb abuses” in the proxy process, proponents had to own shares for twelve months prior to the submission of the proposal. The two holding periods came into the Rule for related reasons. Yet the Commission never examined the impact of one on the other.

Part I of this Article will discuss the administrative history of the post-submission holding period and the two-year penalty under Rule 14a-8(f)(2). After providing some history on the requirement, Part II will examine the SEC’s interpretation of shareholder eligibility and the obligation to hold shares through the date of the shareholder meeting. Finally, Part III considers the problems presented by the exclusion and suggests some changes to the Rule.

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Limits on the Word Limit Under Rule 14a-8

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Daniel Hamilton[*]

The Securities Exchange Act (Exchange Act or Act) granted the Securities and Exchange Commission (SEC or Commission) the authority to regulate the proxy process.  In exercising that authority, the Commission adopted Rule 14a-8 (Rule).  The Rule requires public companies to include shareholder proposals in their proxy materials.

The original version of the rule imposed a word limitation on supporting statements but not the actual proposal.  As a result, shareholders sometimes submitted excessively long proposals.  Eventually, the Commission imposed a cap of 500-words on the entire submission.  To enforce the requirement, the SEC developed a number of counting rules that addressed the use of numbers, web site addresses, symbols, and hyphenated words.  The counting limit also included words and numbers contained in images and charts.

This article will first review the administrative history of the word limit.  The Commission has amended the word limit on a number of occasions, at least in some instances as a result of issuer complaints.  This article will next analyze the staff’s interpretation of the limit, with a particular focus on the period after 1998.  Finally, the piece will discuss the need for changes to better serve the interests of issuers and investors.

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"Good Cause" for Nonattendance at the Shareholder Meeting Under Rule 14a-8(h)

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Bryston C. Gallegos[*]

Rule 14a-8 grants shareholders of a publicly traded company the right to include their proposals in the annual proxy statements. The Rule, however, also imposes a number of procedural requirements on proponents. Specifically, subsection (h)(1) requires that either the proponent or a “representative who is qualified under state law” attend the meeting and present the proposal. A violation without “good cause” allows the company “to exclude all of [the shareholder’s] proposals from its proxy materials for any meetings held in the following two calendar years.”

The attendance requirement did not appear in the initial version of Rule 14a-8. The Rule assumed that shareholders would attend meetings and personally present their proposals. Eventually, the Commission amended the Rule to require attendance but permitted waiver upon a showing of good cause. In addition, shareholders could appoint a “qualified representative” to present proposals. Administrative interpretations have, however, effectively repealed the good cause exception. Consequently, the failure to present has become a per se ground for exclusion of a shareholder’s proposal in the following two years.

This article will review the administrative history of subsection (h) and the evolution of a procedural requirement that permitted management to omit shareholder proposals for two years following a violation. Next, this article will examine the SEC Staff’s (Staff or Division) interpretation of the requirement through no-action letters (NAL). Finally, the article will analyze the Staff’s interpretation of subsection (h) and explain how the appearance requirement and good cause excuse may be modified to benefit both shareholders and companies.

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The High Cost of Discrimination: DU Pays $2.66 Million to Female Law Professors

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Shannon Warren[*]

“We never thought that an institution dedicated to teaching about justice, equality under the law, and professional ethics would discriminate against us in pay simply because we were women,” said Professor Nancy Ehrenreich in a media conference last month. Professor Ehrenreich was one of the seven female full professors at the University of Denver  Sturm College of Law (the university or the law school) who joined in the pay discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC) against the university.

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Tort Reform Under Constitutional Fire

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Bryston C. Gallegos[*]

Nearly fifty years ago, tort reform was born and states started capping damages for victims of medical malpractice.  In response, injured plaintiffs began challenging noneconomic damage caps on various constitutional grounds—particularly equal protection.  Although equal protection challenges involve varying state statutes and differing factual circumstances, there are common questions woven throughout.  Does a law that treats negligently injured persons differently from those who are less injured by the same negligent conduct deny the first group equal protection of the laws?  If so, does a rational basis exist for such differential treatment?

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A Small but Significant Reform that Could Have Put the Cap Back on Misdemeanor Sentencing for Colorado’s Noncitizens

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Mark Taylor Feero[*]

A power struggle between the states and the federal government has reached a heightened tension in the past year with the United States even filing a lawsuit against the State of California. This heightened tension has been brought on by the conflict between the current administration’s intensified efforts at deporting removable noncitizens and local law enforcement agencies that have instituted various policies to limit their cooperation with federal immigration enforcement agents, more commonly known as “sanctuary cities” or “sanctuary states.” The debate over the permissibility of these policies has largely focused on the intersection between the supremacy of federal immigration law to preempt state laws that “create an obstacle to the full purposes and objectives of Congress” and the federal government’s inability to commandeer state officers to carry out federal commands. Importantly, the states maintain a key power free from potential federal interference, which comes in the form of the power to establish state criminal laws and appropriate sentencing outside of the immigration context. Federal immigration authorities frequently depend on the elements of these state criminal laws and their sentences to determine whether a specific conviction qualifies as a deportable offense.

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