Habermas, Proceduralism and the Private Cause of Action under Rule 10b-5: The Implications for Democracy
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Authors
McInerney, Thomas F. III
Issue Date
1998
Volume
31
Issue
Type
Journal Article
Language
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Abstract
INTRODUCTION|Since the United States Supreme Court gave its imprimatur to the notion of an implied cause of action under Section 10(b) ("Section 10(b)") of the Securities and Exchange Act of 1934 ("1934 Act") and Rule 10b-5 ("Rule 10b-5") promulgated thereunder, the Supreme Court, lower courts, and Congress have attempted to clarify the scope of this cause of action. The 10b-5 implied cause of action, as well as other implied causes of action, have received criticism from those persons viewing such implications as judicial legislation or, worse yet, anti-democratic. Others have argued that judicial decisions articulating the implied cause of action under Rule 10b-5 represent the necessary work of the courts, and that the exercise of such power by the courts was the explicit intent of the Congress in enacting Section 10(b). As such, these authors contend that no usurpation of legislative authority has occurred through the development of the implied cause of action under Section 10(b). Both sides of the argument take an overly static view of the development of the legal architecture under Rule 10b-5. Specifically, both positions rest on the assumption that either Congress may act and then no additional work by the courts may be done to draw the implications of such congressional actions, or once Congress has acted, any additional work may be merely handed off to the courts to conclude the public policy-making process...
Description
Citation
31 Creighton L. Rev. 805 (1997-1998)
Publisher
Creighton University School of Law