Justifications, Excuses, and Affirmative Defenses

2018 ◽  
Author(s):  
Murat C. Mungan
Keyword(s):  
Affirmative Defenses

scholarly journals An Accounting Liability Heuristic

2015 ◽  
Vol 11 (4) ◽  
pp. 189-224
Author(s):  
Timothy B. Lewis ◽  
Jeffrey N. Barnes
Keyword(s):  
Legal Liability ◽  
Thought Processes ◽  
Affirmative Defenses

This article traces the thought processes involved in understanding and managing accountants’ legal liability which is sometimes broadly called “professional malpractice.” The cumulative nature of potential liability is demonstrated.  The various legal theories of liability are discussed along with the most prominent potential affirmative defenses against liability. Unique to this paper is the decision heuristic providing a framework for assessing potential accountants’ legal liability.  This discussion is useful for both student and practitioner.

SEC publishes final rules amending the rules of practice for administrative proceedings

2016 ◽  
Vol 17 (4) ◽  
pp. 54-60
Author(s):  
Joan McKown ◽  
Henry Klehm III ◽  
Harold Gordon ◽  
David Woodcock ◽  
Daniel Bradley
Keyword(s):  
Financial Services ◽  
Content Type ◽  
The Us ◽  
Administrative Proceeding ◽  
Affirmative Defenses ◽  
Administrative Proceedings ◽  
The Right ◽  
Hearsay Evidence ◽  
Practical Impact ◽  
Practical Implications

Purpose To explain and evaluate amendments to the rules of practice governing the US Securities and Exchange Commission’s (SEC’s) Administrative Proceedings that were adopted by the Commission on July 13, 2016. Design/methodology/approach Describes SEC’s increased pursuit of enforcement actions in APs, criticisms of the AP process, and corrective legislation. Describes the July 2016 amendments covering expansion of the prehearing period, allowance of depositions, timing for completion of document production in discovery phase, required disclosure of affirmative defenses, permitted dispositive motions, and admissibility of hearsay evidence. Assesses the practical impact of the amendments. Makes recommendations concerning advanced preparation for APs, depositions and witness-interview strategies, particular care concerning statements in Wells submission, availability of investigative record to defense counsel, admissibility of hearsay evidence, and defenses based on reliance on counsel. Findings The amended rules are a step in the right direction but do not fully correct the numerous and severe imbalances that exist in the Commission’s administrative enforcement process with respect to the availability of various discovery mechanisms, the timeline for trying a case, and more. Practical implications Every entity or individual that is involved in an SEC enforcement investigation, or that may become a respondent in an SEC Administrative Proceeding, should take certain practical steps such as those recommended in this article to minimize the structural disadvantages it will face and to maximize the benefits conferred by these latest amendments to the rules of practice. Originality/value Practical background and guidance from experienced enforcement, litigation, securities and financial services lawyers.

scholarly journals A Matter of Intent: A Social Obligation to Improve Criminal Procedures for Individuals with Dementia

2020 ◽  
Vol 48 (2) ◽  
pp. 318-327 ◽  
Author(s):  
Jalayne J. Arias ◽  
Lauren S. Flicker
Keyword(s):  
Criminal Behavior ◽  
Psychiatric Illness ◽  
Health Care Systems ◽  
Criminal Liability ◽  
Clinical Syndrome ◽  
Cognitive Domains ◽  
Social Obligation ◽  
Care Systems ◽  
Affirmative Defenses ◽  
The Relationship

The relationship between dementia and criminal behavior perplexes legal and health care systems. Dementia is a progressive clinical syndrome defined by impairment in at least two cognitive domains that interferes with one's activities of daily. Dementia symptoms have been associated with behaviors that violate social norms and constitute criminal actions. A failure to address a gap in policies that support appropriate management of individuals with dementia reflects a failure in our social obligation to care for those who are most vulnerable amongst us. Categorical protections, informed by precedent models applied to juveniles and individuals with psychiatric illness, could help meet a social obligation to provide protections to individuals with dementia. We propose an approach that integrates affirmative defenses to mitigate criminal liability and sentencing restrictions to prevent cruel and unusual punishment.

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