The SEC’s recent—and controversial—choice to make more frequent use of internal enforcement actions has raised several questions. Some have asked whether the SEC has attempted to advantage itself by prosecuting in-house; others have asked whether the SEC’s internal enforcement scheme is unconstitutional. This Note asks a largely overlooked threshold question: Do—and just as importantly, should—federal district courts have parallel subject matter jurisdiction over constitutional challenges to an SEC internal proceeding while this proceeding is underway?
If exercise of parallel jurisdiction is not expressly prohibited by statute, Thunder Basin Coal Co. v. Reich instructs Article III courts to presume claims are not confined to administrative channels if (1) jurisdictional preclusion would prevent “meaningful judicial review,” (2) the suit is “wholly collateral” to a statute’s review apparatus, and (3) the claims are “outside agency expertise.” In Tilton v. SEC, a split Second Circuit panel considered an attempted parallel constitutional challenge to the SEC’s internal enforcement scheme and concluded jurisdiction was indeed precluded. In doing so, Tilton followed a line of recent cases interpreting Thunder Basin to suggest that “meaningful judicial review” is satisfied if a scheme provides any eventual judicial review.
This Note argues that this equating of meaningful and eventual judicial review under Thunder Basin unwisely limits the ability of Article III courts to monitor agency constitutionality, deprives parties of truly meaningful review, and undercuts the SEC’s legitimacy. This Note proposes two responses: Legislatively, the SEC—or ideally, Congress—should promulgate binding forum selection guidelines granting Article III courts jurisdiction over constitutional challenges to SEC proceedings; doctrinally, Article III courts should employ standard injunction analysis, exercising jurisdiction over constitutional claims and gauging their likelihood of success on the merits.
According to the recent opinions in In re Trados (Trados) and In re Nine Systems (Nine Systems), both cases involved the peculiar corporate law equivalent of a burglary in which nothing was stolen. In Trados, the board of directors–––composed mostly of representatives from venture capital (VC) firms holding preferred stock–––voted in favor of a $60 million merger in which preferred stockholders received $52.2 million, management (pursuant to an incentive plan designed to encourage a near-term sale) received $7.8 million, and common stockholders received exactly “nothing.” In Nine Systems, a similarly conflicted and VC-dominated board effected a largely covert recapitalization whereby common stockholder equity was sharply diluted from around 26% to around 2%. The Nine Systems recapitalization ultimately entitled preferred VC stockholders to receive around $150 million in connection with a sale of the company while common stockholders received in total around $3 million. In both Trados and Nine Systems, the courts determined the boards of directors faced clear conflicts that manifested in grossly unfair processes favoring the VC preferred stockholders. And yet, both courts also found common stockholders failed to demonstrate any damage from the challenged transactions and were thus not entitled to recovery beyond possible shifting of attorneys’ fees.
Some have defended, or at least accepted, the reasoning in Trados and Nine Systems; others have focused on the practical implications of these cases for counsel advising preferred-appointed directors; still others have ambitiously argued that the doctrinal framework governing VC-held preferred stock is conceptually unstable and in need of reimagining–––this Comment opts for a more modest approach. Rather than posit a procedural strategy to satisfy the Delaware courts or question the overarching doctrine, this Comment argues that Trados and Nine Systems overlooked the damage incurred upon common stockholders. In other words, Trados and Nine Systems were not victimless breaches: Something was taken from common stockholders.
Specifically, this Comment asserts that the Delaware courts in Trados and Nine Systems failed to recognize that the controlling preferred VC stockholders deprived common stockholders of the option to continue operating the firm in the hopes of performance improving. Far from a nebulous species of damage, this Comment observes that “underwater” options akin to those seized from common stockholders in Trados and Nine Systems can be, and routinely are, valued by financiers and economists. The question of which group–––the VC-held preferred or common stockholders–––has the right to capture the value of this option is one of policy and has been obscured by Trados and Nine Systems. This Comment fills a gap by drawing the policy tension into the light and squarely asking which party should have the contractual burden of specifying the right to capture the value of the option.
This essay explores the enactment of the polemic against for two important contemporary novelists: Cynthia Ozick and Ronald Sukenick. It articulates the polemic that these novels have retrieved in very different ways, and addresses some implications of taking Ozick and Sukenick literally. ********** In this essay, I argue that what Lionel Kochan, in his book Beyond the Graven Image: A Jewish View, calls the Judaic polemic against idolatry constitutes an urgent critical logic that can be rendered accessible in secular terms: insofar as it presents itself an argument addressed to humanity, as it already does in the Hebrew Bible, and not merely a localized belief, it is always already accessible in such terms. In this case we can, as Kochan, contends, expound the Biblical argument against in the Bible's own terms, and also in those elaborated by later thinkers, rabbis and philosophers (1). Here, I examine Ronald Sukenick's Mosaic Man and Cynthia Ozick's The Puttermesser Papers as attempts to take the polemic against literally. Both texts put the polemic against to work in broader epistemological and moral terms, accounting for the relationship between modes of representation and the demand for justice. Furthermore, as innovative works of fiction, these books provide promising test cases for exploring the implications of the second commandment for contemporary cultural critique. Kochan singles out the following elements of the argument against graven or alien worship: the rejection of symbolic intermediaries between the human and the divine (the imagination) in favour of symbolic action imitating God and re-enacting the human-divine relationship; a privileging of direct, pedagogical, oral transmission of memories over monuments claiming to represent the original event; a proscription of realistic human images, as indirect attempts to fix the reality of God; a concept of time as in flux, always beginning, rather than divided into discrete sections; and, finally, an egalitarian ideal of social justice. According to Kochan, the rejection of entails a demythologizing approach to the world but not, contra Max Weber, a disenchanting one: its purpose is to open the world to applications of Jewish law, aimed at enacting and renewing creation and revelation. While Kochan touches on some affinities between the polemic and post-representational thinkers like Jacques Derrida, Leora Batnitzky's study of Franz Rosenzweig, Idolatry and Representation: The Philosophy of Franz Rosenzweig, provides a more helpful way of articulating the polemic with contemporary discussions. Batnitzky distinguishes between two contending definitions of in Judaism. One, associated with the medieval Jewish philosopher Maimonides and the German Jewish philosopher Hermann Cohen, views as worship of the wrong object: that is, involves a mistaken conception (anthropomorphic, in particular) of God. The other, associated with the medieval thinker and poet Judah Ha-Levi and Rosenzweig, sees simply as worship that has not been commanded by God. From this latter perspective, the whole question of what kinds of images are prohibited is misguided: what matters is the terms of sanctification within which the image is addressed. For Rosenzweig, is a denial of God's freedom to enter human reality however He chooses, and denies the possibility of authentic divine-human encounters (which must always be figured in some way--and, moreover, not simply as a compromise with our inability to imagine the unimaginable, but because the encounter is a distinctive event, to which form/content distinctions do not apply). Batnitzky uses the two German words for representation to clarify the distinction: Vorstellung, representation in the sense of establishing a relationship between sign and object (a question of knowledge), is the type of relationship that concerns Maimonides and Cohen. …
This chapter presents an account of contemporary anti-Semitism in terms of Eric Gans's originary hypothesis regarding the origin of language and culture. Antisemitism, for Gans, is ultimately predicated upon the paradox of the Jewish discovery of monotheism. The term has a direct competitor on today's ideological and political market for designating hate, one which, if it was not, could very easily have been designed to undermine attempts to identify antisemitism. The chapter also adds a brief critique of the concept of Islamophobia to the author's paper because that concept has become an essential part of contemporary antisemitism. There is, ultimately, within the victimary framework that sees the West/White/Capitalist as intrinsically oppressive, a perfect identity between accusations of antisemitism and Islamophobia (even if people are accusing Western leftists, they are only doing so because they defend the Islamists, making even that critique indirectly Islamophobic). Keywords: anti-Semitism; Eric Gans; Islamophobia; Jewish people; narrative monotheism; origin of culture; origin of language; victimary era
At a time when there is an evident socio-economic, political and cultural structural shift in the processes and practices associated with contemporary manifestations of antisemitism globally, it is important to explore its origins and examine whether the circumstances of its genesis can shed light on its longevity and adaptability. Few scholars are more qualified to undertake such a task than the authors of this volume, who have done so much to develop and advance the discipline of generative anthropology. In this study their groundbreaking hypothesis on the singular event that gave rise to human language and by extension human culture finds a fascinating parallel in the Jewish people's discovery/invention of monotheism, giving rise to historical resentments and hostility. The volume will be of interest to scholars working in the field of anti-discrimination and antisemtitism, as well as human rights scholars and cultural historians in general.
Narrative Thinking and Experiential Knowledge:The Example of Ronald Sukenick Adam Katz Post-humanist discourses, by undermining the disinterested subject as the basis for conceptual knowledge, have brought narrative to the forefront of political thinking. Indicative of the revaluing of narrative thinking is the increasing prominence of the work of Hannah Arendt, for whom storytelling is the primary task of political theory and the source of political concepts.1 For Arendt, though, rather traditional notions of narrative still prevail. As Robert C. Pirro shows in his Hannah Arendt and the Politics of Tragedy, the structure of Greek tragedy informs Arendt's narrative strategies and perhaps her political thinking as a whole in fundamental ways. However, Eric B. Gorham, in The Theater of Politics: Hannah Arendt, Political Science and Higher Education, suggests that Arendt's notion of political freedom might be at least as well served through the appropriation of other, more innovative modes of storytelling. Noting that Arendt's assumption of the validity of traditionally "plotted" narratives relies upon her claim that the creation of the work of art involves the concealment of the act of creation itself, Gorham contends that "self-conscious writing [Gorham refers specifically to Mario Vargas Llosa and Paul Auster] suggests that the creative artist can also display publicly the freedom experienced in the act of creation." Such "plural texts," Gorham suggests—albeit briefly, in a footnote—which "require the reader to insert him or herself in the beginning and/or creation of the text" (43) might be important components of any genuine "spaces of appearance" in today's world. Julia Kristeva's recent Hannah Arendt: Life Is a Narrative, meanwhile, addresses Arendt's engaged but often reductive reading of major modern writers: "We can lament the fact that Arendt does not appreciate the intrapsychic but also historical need for revolt that led the avant-gardes of this century to re-evaluate without precedent the structures of narrative, of the word, and of the Self" (41). At stake in Arendt's ambivalent relation to [End Page 189] challenges to traditional modes of storytelling is her insistence upon the recovery and articulation of "actor" and "spectator" politics and thinking. For Arendt, these capacities are both autotelic and hence the "highest" modes of activity. They are also interdependent, even mutually constitutive: political action finds its meaning in the spectators, who transform action into a lasting story, capable of crystallizing into new, courageous acts. Both politics and thinking, as fundamental modes of experience, finally, are in equally urgent need to be retrieved from the rise of "homo laborans" in the modern world. Arendt's insistence on firm differentiations and boundaries between these modes of activity, then, is an attempt to preserve the distinctiveness of each along with the possibility of empowering relations between them. Innovative fiction's focus on the way in which storytelling is a mode of action in its own right, based on its claim to initiate something new and not simply represent, is, then, clearly a challenge to Arendt's articulation of thinking and politics.2 However, Arendt's interest in precisely those modern writers who interrogated most thoroughly the bankruptcy of traditional forms of authority, subjectivity, and discourse (Brecht, Benjamin, Celine, Kafka, Proust, among others) derives from her conviction that the catastrophic collapse of metaphysics and the traditional authority it underwrote also liberated fundamental elements of experience from accumulated conceptual distortions. In this case, Arendt's ambivalence towards post-traditional narrative might open a productive site of inquiry. Pursuing the implications of Arendt's retrieval of action and thinking, and of her sense of the fragility of this retrieval, might enable us to examine how the boundaries between them have become (perhaps necessarily and productively) problematic. Debra Malina, in her Breaking the Frame: Metalepsis and the Construction of the Subject, foregrounds the politics of metaleptic narrative (i.e., the violation of narrative boundaries separating narrator, character, and reader) by contending that "metalepsis in innovative texts has a transformative effect," insofar as "the metalepsis in fictional texts bears a mimetic relation to subject-construction processes in our own world" (9).3 Paradoxically, the rigorous enactment and exploration of the artificiality of narrative boundaries is closer to...
