The Arithmetic of Justice: Calculating Restitution for Mortgage Fraud
The Mandatory Victims Restitution Act requires restitution for federal crimes involving property. In particular, the defendant is required to return any property taken, or, if return is impossible, to pay for the victim’s loss, which may be offset by a partial return of the property. In mortgage fraud cases, this usually entails calculating the lender’s loss — an unpaid loan — and offsetting that loss by the value of the collateral for the loan, which the lender recovers. The circuits disagree about how to value the recovered collateral as an offset to restitution: Should its value be determined by its appraised fair market value or, conversely, by its final foreclosure price when the victim-lender sells it? This Note concludes that courts should presumptively use the foreclosure price, except when that price can be shown not to approximate the value at the date of return.
Cause for Concern: Causation and Federal Securities Fraud
The Supreme Court's decision in Dura Pharmaceuticals dramatically changed federal securities fraud litigation. The Dura decision itself said little, but counseled lower courts to fashion new requirements of causation and harm modeled upon common law tort principles. These instructions have led lower courts to craft a series of confusing and inconsistent decisions that incorporate little of the reasoning upon which the common law principles are based.This Article accepts the Dura challenge and examines both common law causation principles and their applicability to federal securities fraud. In so doing, the Article identifies the failure of the federal courts properly to confront the complex causation challenges presented by securities fraud and the extent to which common law approaches to multiple and indeterminate causation offer guidance. Common law causation analysis further highlights the critical issue of harm specification. The Article demonstrates how, from Basic to Dura, the Supreme Court has refused to address the issue of what constitutes an appropriate economic loss, despite the fact that this determination is a necessary predicate to formulating a causation requirement. The Article goes on to show how, in Basic, the Court shifted the nature of actionable harm and, in so doing, exacerbated the complexity of causation analysis.Defining the appropriate harm involved in securities fraud is challenging. Drawing upon tort law principles, the Article considers several alternatives, ranging from artificial price inflation and ex post stock drop, to increased investment risk. The choice among these alternatives reflects policy judgments about the appropriate goals of private securities fraud litigation. In its final section, the Article considers current critiques of securities fraud litigation and demonstrates how these concerns should influence the scope of the private right of action.
European Consumer Access to Justice Revisited
Part I. Setting the Stage: Access to Justice 2.0: 1. At the very outset 2. Access to justice 2.0: breaking it into pieces Part II. Procedural Law: The Traditional Pillar of Access to Justice 2.0: 3. A brief outline of the developments at the pan-EU level 4. Prime examples 5. Compensatory collective redress: the next step? 6. Where to go from here? Part III. Substantive Law: Complementing Access to Justice 2.0: 7. Widening the scope of the value-oriented justice discussion 8. Substantive consumer law-making in the course of time 9. Recent trends and developments 10. The common European sales law 11. Summarising comments on the defragmentation of substantive consumer laws in the context of the CRD and the CESL Part IV. Consumer Access to Justice 2.0: A Multidimensional Framework: 12. From the current state of consumer law to consumer access to justice 2.0 13. The justice debate and consumer legislation 14. (Responses to) counter-arguments to third-party intervention 15. Consumer empowerment 16. Lessons to be drawn.