Under the present judicial interpretation of federal securities law, an individual is prohibited from trading on non-public information that has been misappropriated in contravention of a fiduciary duty. Trades made using non-pubIic information that has not been misappropriated are not prohibited by Rule 10b-5, promulgated under the Securities and Exchange Act of 1934. The current requirement of misappropriation to trigger Rule 10b-5 liability creates a gap that permits transactions that are both ethically and economically undesirable. Judicial or legislative reforms are (...) recommended to close the gap and help ensure the fairness and efficiency of securities markets. (shrink)

Abstract:The law of insider trading has progressed from an expansive approach, according to which all trading on nonpublic information was considered illegal, to a constricted approach, under which corporate outsiders are permitted to trade on nonpublic information provided such trading does not breach a fiduciary duty. This article analyzes both the former, expansive theory and the currently utilized constricted theory, within a framework of basic tenets of the American capitalist social contract regarding legitimacy of property claims. The existing constricted approach (...) to the regulation of insider trading is found to be deficient in meeting the expectations of two core components of the social contract: it discourages procedural equality of opportunity, and it endorses claims to property that are not characterized by legitimate methods of acquisition or transfer. Because the old, expansive regulatory interpretation was more consistent with the terms of the social contract in regard to property claims, it served our economic and ethical expectations more effectively than the system presently in place. Accordingly, the article culminates in a recommendation that the expansive approach to regulating insider trading be reestablished under Unites States law. (shrink)

Metaphors from strategic management can be applied effectively to business ethics programs. While effective strategies help implement ethical decisions that are formulated in good faith, ostensibly value-neutral control mechanisms can indirectly affect the substantive nature of policies and decisions themselves. This article examines the effectiveness of various corporate social responsibility implementation strategies. It also addresses the effects of implementation choices on the substantive formulation of ethical decisions and policies.Implementation and evaluation of corporate social responsibility programs through models of responsiveness are (...) integrated into the social policy cycle using four tools: strategic control and performance control approaches, and hierarchical control and contractual control structures. The choices made among these forms of control approaches and structures, which as implementation mechanisms are typically considered to be value-free devices, may affect the substance of corporate social responsibility content. Hierarchical control structures, which use outside directors, tend to be associated with performance control approaches, and are biased towards applying utilitarian approaches to ethical decision making. Contractual control structures are compatable with strategic control approaches, and generally favor the application of principle-based approaches to ethical decision-making. Both the content and the quality of ethical decisions will be affected by differences between hierarchical and contractual control. (shrink)