Interpretive Guidance Research Articles

Lawyers on the Auction Block: Evaluating the Selection of Class Counsel by Auction

The lead counsel auction has recently achieved increased visibility as a possible way of improving the selection and compensation of plaintiffs' counsel in class action litigation. Supporters of the auction approach, including judges who have used lead counsel auctions, claim that the lead counsel auction introduces competitive market forces into the selection process, and that these forces can address many existing problems with class action procedures and the jurisprudence of fee awards. The benefits of the auction, they claim, include lower legal fees and better representation of the plaintiff class. These claims have not been subject to careful scrutiny. Indeed, auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, limitations of the auction procedure hamper its ability to function as an effective method of selecting class counsel. In particular, auctions are poor tools for selecting firms based on multiple criteria, such as price and quality, auctions potentially compromise the judicial role, and lead counsel auctions are unlikely to produce reasonable fee awards. Although the existing record in auction cases is insufficient to permit a rigorous empirical evaluation, early results raise concerns. This article therefore considers an alternative method for selecting and retaining lead counsel: negotiation by an empowered lead plaintiff. The article describes recent developments in institutional activism under the Private Securities Litigation Reform Act of 1995, and argues that these developments demonstrate that client empowerment is a more effective way of incorporating market forces into the selection and compensation of class counsel. The article concludes with interpretive guidance for the courts to facilitate further development of the PSLRA model and with an analysis of how the empowered lead plaintiff model can be extended beyond securities litigation.

Commentary on the Quality Improvement Case Study

This commentary focuses on federal regulations and companion interpretive guidance relating to physician supervision of resident medical care, physician visits to the resident, and the role of medical director in implementing resident care policies and coordinating medical care in the facility as highlighted by Dr. Weinberg's case study. 1 Weinberg AD Quality improvement case study: Issues involving an attending physician's obligation to document physical exam findings in nursing home residents. J Am Med Dir Assoc. 2001; 2: 00-00 Google Scholar

Commentary on the Quality Improvement Case Study

This commentary focuses on federal regulations and companion interpretive guidance relating to physician supervision of resident medical care, physician visits to the resident, and the role of medical director in implementing resident care policies and coordinating medical care in the facility as highlighted by Dr. Weinberg's case study. 1 Weinberg AD Quality improvement case study: Issues involving an attending physician's obligation to document physical exam findings in nursing home residents. J Am Med Dir Assoc. 2001; 2: 00-00 Google Scholar

A field-based population model for the sediment toxicity test organism Leptocheirus plumulosus: II. Model application

A stage-structured population model has been developed for the estuarine amphipod Leptocheirus plumulosus to provide interpretive guidance for sediment toxicity tests with this species. This time-varying, field-based model includes several matrices to reflect seasonal changes in demographics. In this paper, we conduct sensitivity analysis of the model to identify which life history parameters have the greatest potential impact on population growth rate ( λ). Results indicate seasonal variability in the relative demographic importance of vital rates. Over winter, annual population growth is most sensitive to the persistence of juveniles and adults and growth from the juvenile to the adult stage. In spring and fall, changes in fecundity are likely to have large effects on population dynamics. In addition, we demonstrate the applicability of the model by using it to interpret toxicological data from an assessment of sediment contamination in Baltimore Harbor, MD. The model was parameterized with survival data from acute toxicity tests with L. plumulosus to project effects on population growth rate ( λ). Results of these model simulations indicate that relatively small changes in survival can result in large changes in λ, indicating high risk to benthic populations. Furthermore, population projections mirror observed abundances of L. plumulosus at the test sites. These analyses provide a first indication of the usefulness of the Leptocheirus population model as a tool for exploring ecological effects of sediment contamination.

Practical Effects of the Sutton Decision: Mitigation, Deference, and the EEOC

This Article will focus on the Court's decision in Sutton v. United Air Lines, Inc., which addressed mitigation of disabilities under the ADA and the accompanying regulations and Interpretive Guidance issued by the EEOC.

Original Intent and Legal Interpretation

This paper offers a close analysis of intentionalism -- the idea that the meaning or proper application of written law is determined by certain historical facts about the mental states of those who made the law, at the time they did so. Unrestricted intentionalism faces deep-seated problems: it offers no guidance for resolving its own ambiguities, it almost certainly generates contradictions, and it almost certainly implies that some meaningful laws lack meaning or proper application. On purely theoretical grounds, therefore, the unrestricted theory is almost certainly untenable. I suggest further that there's little prospect of refining intentionalism so that it might provide interpretive guidance; and finally that a type of seemingly intentionalist reasoning is better seen as proposing justifying rationales for laws -- an approach for which there is a plausible justifying rationale (but which, I note, is essentially limited by the availability of genuine justifications).

Effects of Chironomus tentans larval growth retardation on adult emergence and ovipositing success: implications for interpreting freshwater sediment bioassays

A laboratory study was conducted with Chironomus tentans to assess the significance of growth retardation of third-to fourth-instar larvae over a 10-d test period on long-term survival, adult emergence, and ovipositing success. Data were intended to provide interpretive guidance for the commonly used growth endpoint in 10-d sediment bioassays with C. tentans. Larval growth was controlled by using six feeding levels ranging from 0.2 to 5.9 mg dry weight Tetrafin® fish food per day. Mean 10-d survival was ≥88% at all feeding levels, but larval growth decreased significantly (p<0.05) with each decrease in feeding level. Cumulative successful emergence of adult C. tentans decreased significantly with decreasing larval growth. Mean times to emergence always increased with decreasing growth rates and effects were generally more pronounced for females than males. At the lowest 10-d mean growth where successful emergence occurred (0.27 mg), the times to emergence doubled relative to the times observed at the highest 10-d mean growth (1.03 mg). Ten-day larval growth retardation was strongly correlated with reduction in adult emergence success (r 2 = 0.96). Growth retardations ≥64% resulted in 86–100% reductions in adult emergence. Growth retardation in the range of 35 to 50% equated with comparable percent reductions in adult emergence success. Although fewer females successfully emerged at 10-d growths of 0.37 and 0.74 mg relative to the highest 10-d growth (1.03 mg), ovipositing success of these females did not appear to be adversely affected by either their slower growth rates or their lower mean dry weights (0.62 and 0.99 mg, respectively). Growth of second generation larvae did not appear to be affected by maternal growth rate, but rather appeared to be solely correlated with their own feeding level.

Newt Gingrich, Dynamic Statutory Interpreter

Dynamic Statutory Interpretation marks the culmination of a decade of Professor William Eskridge's prolific scholarship. In his book, Eskridge develops his own theory of how current political values influence the interpretation of statutes enacted under different conditions in earlier periods - a theory of dynamic statutory interpretation. Ironically, Eskridge published his book just as Newt Gingrich ascended to the Speaker of the House after the 1994 congressional elections. Gingrich and the new Republican majority present challenges to Eskridge's hope for a theory of statutory interpretation influenced by current policy preferences. In this essay, I seek to counter two of Eskridge's central claims. First, Eskridge repeatedly claims that originalist approaches are just as indeterminate and no more constraining than dynamic approaches. This is an overstatement. Originalist statutory interpretation is not inevitably dynamic. Although originalist approaches are not completely determinate, it is demonstrably wrong to maintain that they are just as malleable as a dynamic approach. Second, by offering few interpretive constraints and encouraging reliance on current congressional values, Eskridge's normative argument for dynamic statutory interpretation leaves all statutes at the mercy of the current Congress for interpretive guidance.

The relationship between growth and reproduction in the marine polychaete Nereis ( Neanthes) arenaceodentata (Moore): Implications for chronic sublethal sediment bioassays

The polychaete worm, Nereis ( Neanthes) arenaceodentata (Moore), has historically been used to evaluate the acute lethality of sediments. More recently, a longer term (28-day) sediment bioassay has been proposed for this species in which the sublethal endpoint, growth, is also examined. However, interpretive guidance for the growth endpoint is lacking. To provide that guidance the quantitative relationship between diminutions in growth and subsequent reproduction was determined. Juvenile N. arenaceodentata were exposed to five geometrically decreasing food rations. Growth, as individual worm wet weight, was measured after 3, 6 and 9 wk. Worm growth increased significantly with increasing food ration. Eggs were first observed in the coelom of female worms at the 6-wk interval. Subsequent reproduction, measured as fecundity and number of juveniles produced, closely mirrored the reduced growth rates. No significant effect on either survival or reproduction was observed when somatic growth rate (measured between 0 to 6 wk) was ≥ 0.65 mg/day. Growth rates ≤0.45 mg/day resulted in significant reductions in reproduction. Low growth rates (0.05 mg/day) were associated with a nearly complete cessation of reproduction and very poor survival (5–11%). The importance of distinguishing somatic growth from gametic growth in chronic sublethal sediment bioassays with N. arenaceodentata is discussed.

1991 SEC form 10-K checklist

Because of the many and varied reporting requirements that are imposed on public companies, a checklist is a useful tool in complying with applicable rules and regulations. Frequently, companies will use a financial statement checklist to cover the generally accepted accounting principles, but will need an additional checklist for SEC reporting requirements. The following checklist includes accounting-related SEC rules for the Form 10-K. Although it generally covers only the codified SEC rules, certain common reporting problems cited recently by the SEC staff, such as on the statement of cash flows, are also addressed. The MD&A section of the checklist includes the interpretive guidance issued in Financial Reporting Release No. 36 in 1989.

Management's discussion and analysis: New interpretive guidance

Management's discussion and analysis: New interpretive guidance