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Boston College Law School

Banking and Finance Law

Law and Economics

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Full-Text Articles in Law

The Failure Of Private Ordering And The Financial Crisis Of 2008, Brian J.M. Quinn Apr 2009

The Failure Of Private Ordering And The Financial Crisis Of 2008, Brian J.M. Quinn

Boston College Law School Faculty Papers

This Article analyzes the Financial Crisis of 2008 in the context of failures by market participants to engage in private ordering thus leading to opportunistic behavior at the expense of market stability. The Financial Crisis of 2008 offers a decidedly negative verdict on a decades-long project to deregulate financial markets and rely on private ordering mechanisms, including securitization and default swaps, to mitigate opportunistic behavior and improve market efficiency. Although the regulatory approach of the past two decades, which relied in great measure on private parties fending for themselves, helped to generate a number of innovations and positive developments in ...


Holding Charities Accountable: Some Thoughts From An Ex-Regulator, Catharine P. Wells Dec 2006

Holding Charities Accountable: Some Thoughts From An Ex-Regulator, Catharine P. Wells

Boston College Law School Faculty Papers

This paper recounts a number of lessons learned in the course of serving as the Director of Public Charities for the Commonwealth of Massachusetts. It incorporates these lessons into a discussion of the proper analysis of charitable organizations. Should charities be analogized to for-profit firms or are they something that is essentially different? The paper argues that they lack many of the attributes of Coasian firms and that they should be considered as “consumption groups” that have different methods of accountability.


Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham Sep 2006

Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Large audit firms may believe that they are too big to fail. Arthur Andersen’s 2002 criminal indictment reduced their number from five to four, and the government decided in 2005 to avoid indicting KPMG for crimes it admitted committing. If audit firms interpret the government’s reluctance to indict as signaling aversion to tough action against them, moral hazard arises. This offsets auditing improvements mandated by the Sarbanes-Oxley Act of 2002 that are designed to strengthen auditors’ reputations with managers for thoroughness and improve financial statement reliability. Neutralizing this moral hazard requires a credible alternative industry structure so that ...


The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown May 2006

The Gratuities Debate And Campaign Reform – How Strong Is The Link?, George D. Brown

Boston College Law School Faculty Papers

The federal gratuities statute, 18 USC § 201(c), continues to be a source of confusion and contention. The confusion stems largely from problems of draftsmanship within the statute, as well as uncertainty concerning the relationship of the gratuities offense to bribery. Both offenses are contained in the same statute; the former is often seen as a lesser-included offense variety of the latter. The controversy stems from broader concerns about whether the receipt of gratuities by public officials, even from those they regulate, should be a crime. The argument that such conduct should not be criminalized can be traced to, and ...


Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham May 2006

Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

Boston College Law School Faculty Papers

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML’s social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML’s advantages while minimizing risks, this Article envisions creating ...


Who Owns The Local Church? A Pressing Issue For Dioceses In Bankruptcy, Catharine P. Wells Nov 2005

Who Owns The Local Church? A Pressing Issue For Dioceses In Bankruptcy, Catharine P. Wells

Boston College Law School Faculty Papers

The recent bankruptcies of Catholic Dioceses are unprecedented. For the first time, Bankruptcy Courts must deal with the difficult question of who owns the parish church. In this paper, I will explore two possible sources of confusion about this question. The first is the non- commercial, charitable nature of the Church. The second is its organizational complexity. Resolving the confusion requires a familiarity with various different sources of law including charities law, bankruptcy law, trust law, and Canon Law. In this paper I address this issue by: 1. discussing why the equities and policies that govern charitable bankruptcies are different ...


A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield Jun 2005

A Bridle, A Prod And A Big Stick: An Evaluation Of Class Actions, Shareholder Proposals And The Ultra Vires Doctrine As Methods For Controlling Corporate Behavior, Adam Sulkowski, Kent Greenfield

Boston College Law School Faculty Papers

Written for the recent conference at St. John’s University Law School on “People of Color, Women, and the Public Corporation,” this paper evaluates recently applied methods of influencing corporate behavior on employment practices and recommends that a dormant legal doctrine be revitalized and added to the “tool box” of activists and concerned shareholders. The methods of influencing corporate behavior that are evaluated include class action lawsuits and shareholder proposals to amend corporate policy. In both contexts, there are procedural hurdles to achieving success. Even when success is achieved, there are limits to the actual changes in organizational behavior that ...


Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham Jan 2005

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

Boston College Law School Faculty Papers

Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance's futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by ...


One Nation Among Many: Policy Implications Of Cross-Border Tax Arbitrage, Diane M. Ring Dec 2002

One Nation Among Many: Policy Implications Of Cross-Border Tax Arbitrage, Diane M. Ring

Boston College Law School Faculty Papers

Cross-border tax arbitrage arises where a transaction is subject to two or more countries’ differing tax regimes. Conflicts between the tax rules create unique opportunities for the parties to engage in profitable tax planning – opportunities that would not be available if the transaction occurred entirely domestically in one of the countries. These opportunities have been a growing feature of the multi-jurisdictional business world and have raised issues concerning whether and how countries, such as the United States, should respond. This Article examines cross-border tax arbitrage in the context of both domestic tax policy and of other international tax issues, and ...


Taxing Personhood: Estate Taxes And The Compelled Commodification Of Identity, Ray D. Madoff Jun 1998

Taxing Personhood: Estate Taxes And The Compelled Commodification Of Identity, Ray D. Madoff

Boston College Law School Faculty Papers

In this Article, Professor Madoff explores the ways in which the blunt tools of the wealth tax, and in particular the estate tax, uses a one-size-fits-all system to impose a tax on all property interests owned at the time of one’s death. Professor Madoff illustrates the ways in which these blunt tools can produce problematic results by examining their application to the right of publicity, a newly recognized property interest. Professor Madoff suggests that the imposition of the estate tax can force the commodification of an individual’s identity, regardless of one’s desire to refrain from marketing their ...


Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine P. Wells Jan 1995

Pragmatism, Feminism, And The Problem Of Bad Coherence, Catharine P. Wells

Boston College Law School Faculty Papers

In this Article, Professor Wells reviews Professor Margaret Jane Radin’s book, Reinterpreting Property. Professor Wells considers Radin’s work a rich repository of original insight, lucid analysis, and sharp debate and particularly appreciates the substantive introduction to the book, which analyses Radin’s ten-year project on property law in terms of the insights and methodological commitments of philosophical pragmatism. Professor Wells explores the contribution of Radin’s pragmatism to ongoing questions about the role of law in achieving social transformation and organizes her comments around the nature of Radin’s pragmatism, its connection to her feminism and what Radin ...


Negotiability, Property, And Identity, James S. Rogers Dec 1990

Negotiability, Property, And Identity, James S. Rogers

Boston College Law School Faculty Papers

In this Article, Professor Rogers challenges the assumption that securities transfer law has always been based on negotiable certificates and suggests that the reign of negotiability is a relatively recent, and brief, phase in the long history of investment securities trading. Professor Rogers posits that the difficulties currently facing the law of securities transfers are in large part due to the transition from paper to electronic representations of investments. To place these challenges into perspective, Professor Rogers first surveys the history of securities trading and then examines the theoretical underpinnings of the law of securities transfers.


Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen Jan 1990

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Boston College Law School Faculty Papers

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.