Law Commons^™

Bankruptcy Or Bailouts?, Kenneth Ayotte, David Skeel

Kenneth Ayotte

The usual reaction if one mentions bankruptcy as a mechanism for addressing a financial institution’s default is incredulity. Those who favor the rescue of troubled financial institutions, and even those who prefer that their assets be promptly sold to a healthier institution, treat bankruptcy as anathema. Everyone seems to agree that nothing good can come from bankruptcy. Indeed, the Chapter 11 filing by Lehman Brothers has been singled out by many the primary cause of the severe economic and financial contraction that followed, and proof that bankruptcy is disorderly and ineffective. As a result, ad-hoc rescue lending to avoid bankruptcy …

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations

David Gamage

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

More than 77 million Americans have a debt in collections. Many of these debts will be sold to debt buyers for pennies, or fractions of pennies, on the dollar. This Article details the perilous path that debts travel as they move through the collection ecosystem. Using a unique dataset of 84 consumer debt purchase and sale agreement, it examines the manner in which debts are sold, oftentimes as simple data on a spreadsheet, devoid of any documentary evidence. It finds that in many contracts, sellers disclaim all warranties about the underlying debts sold or the information transferred. Sellers also sometimes …

Daniel Kelly And Peg Brinig Were Featured In A Productive Partnership: Notre Dame’S New Law And Economics Program Is Much In Demand – Notre Dame Lawyer (Spring 2011), Daniel Kelly, Margaret Brinig

Daniel B Kelly

Daniel Kelly and Peg Brinig were featured in A Productive Partnership: Notre Dame’s new Law and Economics Program is much in demand – Notre Dame Lawyer (spring 2011), page 12.

A PRODUCTIVE PARTNERSHIP

Notre Dame’s new Law and Economics Program is much in demand

by Mark A. Cohen

The Institutional Framework For Cost Benefit Analysis In Financial Regulation: A Tale Of Four Paradigms?, Robert Bartlett

Robert Bartlett

This paper, written for a Conference on Cost-Benefit Analysis (CBA) of Financial Regulation held at the University of Chicago in October 2013, analyzes the institutional framework that has historically governed the CBA of financial regulation. Although U.S. financial regulators are often portrayed as being immune from CBA, the paper shows how each major regulator has historically used CBA under one of four distinct institutional paradigms. The existence of these distinct paradigms highlights that a formal CBA requirement need not lead to regulatory paralysis as opponents of CBA often contend, but the uneven application of CBA they engender provides reason to …

Medical Paternalism And The Rule Of Law: A Reply To Dr. Relman, Charles Baron

Charles H. Baron

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctor-patient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not …

La Preconfiguración Del Contrato: Una Propuesta De Definición De Las Reglas Predeterminadas En El Derecho De Contratos, Daniel A. Monroy

Daniel A Monroy C

The History And Rationale For A Separate Bank Resolution Process, Thomas Fitzpatrick, Moira Kearney-Marks, James Thomson

James B Thomson

Everyone recognizes the need to have a credible resolution regime in place for fi nancial companies whose failure could harm the entire financial system, but people disagree about which regime is best. The emergence of the parallel banking system has led policymakers to reconsider the dividing line between fi rms that should be resolved in bankruptcy and firms that should be subject to a special resolution regime. A look at the history of insolvency resolution in this country suggests that a blended approach is worth considering. Activities that have potential systemic impact might be best handled administratively, while all other …

On Tax Increase Limitations: Part I - A Costly Incoherence, David Gamage, Darien Shanske

David Gamage

In this essay, the first of a series, we explore the theoretical implications of one particular type of fiscal limitation on state legislatures - namely, special rules limiting tax increases. In this first essay we will explore the analytic soundness of these tax increase limitations (TILs). In future essays in this series we will analyze some of the consequences of TILs and in particular how they can be 'evaded.' We will argue over the course of this series of essays that because there is no meaningful content to the term 'tax increase' as it is used in TILs, legislative majorities …

Resolving Large, Complex Financial Firms, Thomas Fitzpatrick, Mark Greenlee, James Thomson

James B Thomson

How to best manage the failure of systemically important fi nancial fi rms was the theme of a recent conference at which the latest research on the issue was presented. Here we summarize that research, the discussions that it sparked, and the areas where considerable work remains.

Through The Looking Glass: Understanding Social Science Norms For International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins

Susan D. Franck

When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than 20 new tests that were still unable to ascertain the existence of a reliable relationship between development status and outcomes on the basis of …

Sailing A Sea Of Doubt: A Critique Of The Rule Of Reason In U.S. Antitrust Law, Jesse W. Markham Jr.

Jesse Markham

The purpose of the article is to offer a critique of the rule of reason, tracing its disintegration from its original articulation 100 years ago in Standard Oil Co. v. United States, 221 U.S. 1, 60 (1911). The article then describes a construct for restoring transparency and content to the rule of reason. The rule of reason is the default standard for assessing restraints under the Sherman Act. The role for the rule of reason has expanded in recent years as the Supreme Court has reversed a number of per se rules, thus relegating additional categories of restraints to the …

Wikicódigocivil Y La Recodificación Del Ordenamiento Jurídico En El Siglo Xxi, Francisco Villalón Ezquerro

Francisco Villalón Ezquerro

Como un sistema de incentivos y sistema de comunicación, el Derecho privado decisivamente hace posible que sean las personas que poseen información las que tomen las decisiones, y las personas que tienen incentivos las que emprendan las acciones, dentro de la economía.

Lessons For Competition Law From The Economic Crisis: The Prospect For Antitrust Responses To The 'Too-Big-To-Fail' Phenomenon, Jesse Markham

Jesse Markham

This article explores the failure of antitrust law to prevent or intercede to remedy the catastrophic failures of large enterprises. Given the historic focus of antitrust on problems relating to the dangers of out-sized business enterprise, the failure of antitrust in this regard raises interesting questons about whether its mission has drifted from the law's original intent. The article explores the current relationship between antitrust rules and "bigness" and offers a modest proposal for reviving antitrust as a public policy tool that might help to address the too-big-to-fail phenomenon.

Commentary On Predicting Crime, Tom Bell

Tom W. Bell

The market mechanisms proposed in Predicting Crime offer many virtues. The authors describe several of these—unbiased information collection; incentives that encourage disclosure; opinions weighted by conviction; information aggregation; instantaneous and continuous feedback—and convincingly argue that these structural features stand to help prediction markets outperform alternative institutions in forecasting the interplay of crime rates and crime polices. In that, Predicting Crime adopts an economic point of view and speaks in terms of practical experience. After all, similar structural features have already appeared in other successful prediction markets, such as those offering trading in claims about the weather, flu outbreaks, or box …

¡Que Fácil!, Manuel Ayau

Manuel Ayau (1925-2010)

No abstract provided.

Un Nuevo Código Civil Para El Siglo Xxi: Un Ejercicio Académico, Juan Javier Del Granado, Alejandro Guzmán Brito, Alfredo Bullard González, Bruno Meyerhof Salama, Carlos Pablo Márquez, Crispulo Marmolejo Gonzáles, Dante Haro Reyes, Eduardo Andrés Caamaño Rojo, Eduardo Andrés Pigretti, Félix Huanca Ayaviri, Fernando Castillo Cadena, Francisco González De Cossío, Francisco Reyes Villamizar, Hugo Alejandro Acciarri, Luciano Bennetti Timm, María Del Pilar Bonilla, Mateo Miró, Maximiliano Marzetti, Mónika Infante Henríquez, Pablo Alejandro Iannello, Rafael Mery Nieto, Santiago Montt

Rafael Mery Nieto

Legal scholars in the Anglo-American common law can overlook the connection between particular ordinances and the underlying framework of justice or order. A concrete embodiment of the fruits of basic law and economics scholarship, in a codified system of rules, may be necessary for the economic approach to be fully appreciated by legal scholars grounded in the civil law. A new-generation law and economics code will restate, and squarely face the need to deconstitutionalize, private law in Latin American countries within a tried and tested legal framework of Roman law.

The Short And Puzzling Life Of The “Implicit Minority Discount” In Delaware Appraisal Law, Lawrence A. Hamermesh, Michael L. Wachter

Lawrence A. Hamermesh

Contributions Legal Scholars Can Make To Development Economics: Examples From China, Joyce Palomar

Joyce Palomar

No abstract provided.

Economic Assistance, The World Bank, And Nonbinding Instruments, David Wirth

David A. Wirth

No abstract provided.