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Full-Text Articles in Law

Systemic Risk After Dodd-Frank: Contingent Capital And The Need For Regulatory Strategies Beyond Oversight, John C. Coffee Jr. Jan 2011

Systemic Risk After Dodd-Frank: Contingent Capital And The Need For Regulatory Strategies Beyond Oversight, John C. Coffee Jr.

Faculty Scholarship

Because the quickest, simplest way for a financial institution to increase its profitability is to increase its leverage, an enduring tension will exist between regulators and systemically significant financial institutions over the issues of risk and leverage. Many have suggested that the 2008 financial crisis erupted because flawed systems of executive compensation induced financial institutions to increase leverage and accept undue risk. But that begs the question why such compensation formulas were adopted. Growing evidence suggests that shareholders favored these formulas to induce managers to accept higher risk and leverage. Shareholder pressure, then, is a factor that could cause the ...


Federalism And Federal Agency Reform, Gillian E. Metzger Jan 2011

Federalism And Federal Agency Reform, Gillian E. Metzger

Faculty Scholarship

This Article assesses three major preemption decisions from the 2008-2009 Term – Altria Group, Inc. v. Good, Wyeth v. Levine, and Cuomo v. Clearing House Ass'n – for their implications about the role of the states in national administrative governance. The Article argues the decisions are centrally concerned with using state law and preemption analysis to improve federal administration and police against federal agency failure. Federalism clearly factors into the decisions as well, but it does so more as a mechanism for enhancing federal agency performance than as a principle worth pursuing in its own right.

The decisions' framing of state ...


Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott Jan 2011

Rethinking The Laws Of Good Faith Purchase, Alan Schwartz, Robert E. Scott

Faculty Scholarship

This Essay is a comparative economic analysis of the disparate doctrines governing the good faith purchase of stolen or misappropriated goods. We argue that prior treatments have misconceived the problem. An owner will take optimal precautions to prevent theft if she is faced with the loss of her goods; and a purchaser will make an optimal investigation into his seller's title if faced with the loss of the goods. An owner and a buyer cannot both be faced with the full loss, however. This presents a problem of "double moral hazard" and it cannot be solved in a first-best ...


Profiling Originalism, Jamal Greene, Nathaniel Persily, Stephen Ansolabehere Jan 2011

Profiling Originalism, Jamal Greene, Nathaniel Persily, Stephen Ansolabehere

Faculty Scholarship

Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identfy as originalists. We conclude that rule of law concerns, support for politically conservative issue positions, and a cultural orientation toward moral traditionalism and libertarianism are all significant predictors of an individual preference for originalism. Our analysis ...


Stimulus And Civil Rights, Olatunde C.A. Johnson Jan 2011

Stimulus And Civil Rights, Olatunde C.A. Johnson

Faculty Scholarship

Federal spending has the capacity to perpetuate racial inequality, not simply through explicit exclusion, but through choices made in the legislative and institutional design of spending programs. Drawing on the lessons of New Deal and postwar social programs, this Essay offers an account of the specificfeatures offederal spending that give it salience in structuring racial arrangements. Federal spending programs, this Essay argues, are relevant in structuring racial inequality due to their massive scale, their creation of new programmatic and spending infrastructures, and the choices made in these programs as to whether to impose explicit inclusionary norms on states and localities ...


Article Iii, Agency Adjudication, And The Origins Of The Appellate Review Model Of Administrative Law, Thomas W. Merrill Jan 2011

Article Iii, Agency Adjudication, And The Origins Of The Appellate Review Model Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jeny-built model was in place, Congress signaled ...