Law Commons^™

Law In Finance, Katharina Pistor

Faculty Scholarship

Law’s relevance to finance is by now well recognized, in no small part due to the literature on "law and finance" (La Porta et al. 1998; La Porta, Lopez-de-Silanes, and Shleifer 2008) celebrated in this journal ten years ago under the heading "the new comparative economics" (Djankov et al. 2003). There will always be some debate as to whether a specific law or regulation distorts or supports markets, but few would argue today that law is irrelevant to financial markets or that they could operate entirely outside it.

This special issue takes the debate about the relation between law and …

Regulatory Capabilities: A Normative Framework For Assessing The Distributional Effects Of Regulation, Katharina Pistor, Fabrizio Cafaggi

Faculty Scholarship

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic …

A Legal Theory Of Finance, Katharina Pistor

Faculty Scholarship

This paper develops the building blocks for a legal theory of finance. LTF holds that financial markets are legally constructed and as such occupy an essentially hybrid place between state and market, public and private. At the same time, financial markets exhibit dynamics that frequently put them in direct tension with commitments enshrined in law or contracts. This is the case especially in times of financial crisis when the full enforcement of legal commitments would result in the self-destruction of the financial system. This law-finance paradox tends to be resolved by suspending the full force of law where the survival …