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Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. McCall 2015 University of Oklahoma College of Law

Gambling On Our Financial Future: How The Federal Government Fiddles While State Common Law Is A Safer Bet To Prevent Another Financial Collapse, Brian M. Mccall

Brian M McCall

Many politicians and commentators agree that credit default swaps (CDS) played a significant role in the financial crisis of 2008. Yet, few who observe this role are aware that CDS were set loose on the economy by the federal pre-emption of thousands of years of public policy. Since the time of Aristotle law, philosophy and public policy have been hostile to gambling. Viewed as a socially unproductive zero sum wealth transfer, the law has generally refused to permit parties to use the courts to enforce wagers. Courts and legislatures worked in harmony to control and in some cases punish financial ...


When Is A Dog’S Tail Not A Leg?: A Property-Based Methodology For Distinguishing Sales Of Receivables From Security Interests That Secure An Obligation, Steven L. Harris, Charles W. Mooney Jr. 2014 University of Pennsylvania Law School

When Is A Dog’S Tail Not A Leg?: A Property-Based Methodology For Distinguishing Sales Of Receivables From Security Interests That Secure An Obligation, Steven L. Harris, Charles W. Mooney Jr.

Faculty Scholarship

There are two principal ways in which a firm that is owed money payable in the future but needs the money now may use its rights to payment (“receivables”) to obtain the needed financing. It might sell its receivables, or it might borrow and use the receivables as collateral to secure the loan. Different legal consequences follow depending on whether the transaction is a true sale or is a security interest that secures an obligation (a “SISO”).


These legal consequences are particularly salient when the firm enters bankruptcy. If the transaction is a sale, then the buyer can collect the ...


Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding 2014 SelectedWorks

Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding

Dillon A Redding

This note argues that the preservation of Antarctica for peaceful research and internationally cooperative activity as envisioned originally by the Antarctic Treaty in 1961 has gone unrealized amid growing international interest in the strategic advantages offered by Antarctica, including the possibility of large swathes of mineral deposits and optimal locations for satellite stations. Part 1 describes the motivations behind the Antarctic Treaty System (ATS) and outlines the relevant provisions of the Antarctic Treaty. Part 2 examines the military advantages to a state presence in Antarctica and the ways in which the ATS allows for such a presence to be carried ...


Contract Resurrected! Contract Formation: Common Law ~ Ucc ~ Cisg, Sarah H. Jenkins 2014 SelectedWorks

Contract Resurrected! Contract Formation: Common Law ~ Ucc ~ Cisg, Sarah H. Jenkins

Sarah H Jenkins-Hobbs

Contract Resurrected!

After the promulgation of the Restatement (Second) of the Law of Contracts with its expanded theory of Section 90, quasi-contract and promissory estoppel were hailed as the only theories needed for recovery. Contract was dead! This was the dominant prospective regarding the continued efficacy of contract and contract law. The contract theorists were wrong. The mushrooming global interdependency among nations demands legal rules and principles to govern exchanges between businesses and reaffirms the value of contract as a juridical tool. The United Nations Convention on Contracts for the International Sale of Goods as a recent promulgation reaffirms the ...


Cvm Set To Reduce Costs And Bureaucracy For Equity Offerings, Luiz Rafael de Vargas Maluf, Nair Veras Saldanha Janson 2014 SelectedWorks

Cvm Set To Reduce Costs And Bureaucracy For Equity Offerings, Luiz Rafael De Vargas Maluf, Nair Veras Saldanha Janson

Luiz Rafael de Vargas Maluf

No abstract provided.


The Law Of Guarantees: Balancing The Interests Of The Parties, John Phillips, Michelle Chen 2014 Singapore Management University

The Law Of Guarantees: Balancing The Interests Of The Parties, John Phillips, Michelle Chen

Jones Day Professorship of Commercial Law Lecture

The guarantor has often been viewed as being in a vulnerable position, deserving of the law's protection. Certainly there need to be legal mechanisms to protect the guarantor’s interests. But this presentation also argues that some aspects of the law of guarantees, as well as some relevant contractual principles, operate unfairly against the interests of lenders and others who seek to enforce a contract of guarantee. An analysis will be made of some of the defences that may be raised by guarantors, for example, as a result of circumstances surrounding the execution of the guarantee, or upon a ...


Making Do In Making Drugs: Innovation Policy And Pharmaceutical Manufacturing, W. Nicholson Price II 2014 Boston College Law School

Making Do In Making Drugs: Innovation Policy And Pharmaceutical Manufacturing, W. Nicholson Price Ii

Boston College Law Review

Despite increasing recalls, contamination events, and shortages, drug companies continue to rely on outdated manufacturing plants and processes. Drug manufacturing’s inefficiency and lack of innovation stand in stark contrast to drug discovery, which is the focus of a calibrated innovation policy that combines patents and FDA regulation. Pharmaceutical manufacturing lags far behind the innovative techniques found in other industries due to high regulatory barriers and ineffective intellectual property incentives. Among other challenges, although manufacturers tend to rely on trade secrecy because of the difficulty in enforcing patents on manufacturing processes, trade secrecy provides limited incentives for innovation. To increase ...


Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo 2014 SelectedWorks

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.


The Fifth Circuit Lays Economic Protectionism To Rest In St. Joseph Abbey, Elizabeth Trafton 2014 Boston College Law School

The Fifth Circuit Lays Economic Protectionism To Rest In St. Joseph Abbey, Elizabeth Trafton

Boston College Law Review

On March 20, 2013, the U.S. Court of Appeals for the Fifth Circuit in St. Joseph Abbey v. Castille held that the economic protection of a discrete interest group does not constitute a legitimate state interest under rational basis review. In so holding, the court split from the Tenth Circuit, which held the opposite almost a decade earlier. This Comment argues that courts should follow the Fifth Circuit’s decision and deem economic protectionism an illegitimate state interest. Recognizing economic protectionism as a legitimate state interest, as the Tenth Circuit did, is inconsistent with U.S. Supreme Court precedent.


Financial Innovation In East Asia, Ross P. Buckley, Douglas W. Arner, Michael Panton 2014 Seattle University School of Law

Financial Innovation In East Asia, Ross P. Buckley, Douglas W. Arner, Michael Panton

Seattle University Law Review

Finance is important for development. However, the Asian financial crisis of 1997–1998 and the global financial crisis of 2008 highlighted the serious risks associated with financial liberalization and excessive innovation. East Asia’s strong focus on economic growth has necessitated a careful balancing of the benefits of financial liberalization and innovation against the very real risks inherent in financial sector development. This Article examines the role of regulatory, legal, and institutional infrastructure in supporting both financial development and limiting the risk of financial crises. The Article then addresses a series of issues with particular developmental significance in the region ...


Evaluating The Performance And Accountability Of Regulators, Colin Scott 2014 Seattle University School of Law

Evaluating The Performance And Accountability Of Regulators, Colin Scott

Seattle University Law Review

The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. The global financial crisis came in the wake of significant reforms to the structures, processes, powers, and rules of the regulatory regimes for financial markets in many of the countries adversely affected by the crash. In this Article, I follow the logic of an argument that regulation necessarily has political dimensions, even where it may appear technical. I am asking questions about how we might ...


Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien 2014 Seattle University School of Law

Culture Wars: Rate Manipulation, Institutional Corruption, And The Lost Normative Foundations Of Market Conduct Regulation, Justin O'Brien

Seattle University Law Review

The global investigations into the manipulation of the London Interbank Offered Rate (Libor) have raised significant questions about how conflicts of interest are managed for regulated entities contributing to benchmarks. An alternative framework, which brings the management of the rate process under direct regulatory supervision, is under consideration, coordinated by the International Organization of Securities Commissions taskforce. The articulation of global principles builds on a review commissioned by the British government that suggests rates calculated by submission can be reformed. This paper argues that this approach is predestined to fail, precisely because it ignores the lessons of history. In revisiting ...


The Timing And Source Of Regulation, Frank Partnoy 2014 Seattle University School of Law

The Timing And Source Of Regulation, Frank Partnoy

Seattle University Law Review

The distinction between specific concrete rules and general abstract principles has engaged legal theorists for decades. This rules–principles distinction has also become increasingly important in corporate and securities law, as well as financial market regulation. This Article adds two important variables to the rules–principles debate: timing and source. Although these two variables are relevant to legal theory generally, the specific goal here is not to address and engage the rules versus principles literature directly. Rather, the goal here is to ask whether the debate about financial market regulation might benefit from a more transparent analysis of temporal and ...


The New Policing Of Business Crime, Rachel E. Barkow 2014 Seattle University School of Law

The New Policing Of Business Crime, Rachel E. Barkow

Seattle University Law Review

The central goal of this Article is to describe the burgeoning turn to new policing techniques in the business crime context and to offer some initial thoughts on the promises and limits of the approach. Part II begins by explaining the traditional or “old policing” of business crime. After implementing an initial strategy that focused on pursuing individuals, the government turned its attention to the organizations where those individuals operated. It increased the sanctions for violators and sought to target companies in an effort to prompt them to adopt internal compliance pro-grams. The focus on company compliance programs was designed ...


Deferred Prosecutions In The Corporate Sector: Lessons From Libor, Justin O'Brien, Olivia Dixon 2014 Seattle University School of Law

Deferred Prosecutions In The Corporate Sector: Lessons From Libor, Justin O'Brien, Olivia Dixon

Seattle University Law Review

Since 2008, the global economic downturn has significantly in-creased operating pressures on major corporations. Additionally, there has been a corresponding increase in corporate tolerance for corruption, which has coincided with a marked preference by regulators in settling, rather than litigating, enforcement actions. This Article argues that the expansion of prosecutorial authority without appropriate accountability restraints is a major tactical and strategic error. It evaluates whether the mechanism can be made subject to effective oversight. It argues that the current frame-work in the United States is highly problematic, leading to settlements that generate newspaper headlines but not necessarily cultural change. It ...


Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper 2014 Seattle University School of Law

Are Defined Contribution Pension Plans Fit For Purpose In Retirement?, Jeremy R. Cooper

Seattle University Law Review

This Article considers the historical basis for the shift from defined benefit plans to defined contribution plans, the structural and practical shortcomings of defined contribution plans, alternate pension models, and adjustments to existing retirement plan models that may offer a degree of protection to plan contributors. Like the United States, Australia is now realizing the limitations of a defined contribution retirement system insofar as it relates the provision of reliable retirement income for a population with increasing life expectancy. Unlike defined contribution plans, defined benefit plans provide a benefit based typically on time served and a predetermined proportion of either ...


Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?, Greg Golding 2014 Seattle University School of Law

Australia’S Experience With Foreign Direct Investment By State Controlled Entities: A Move Towards Xenophobia Or Greater Openness?, Greg Golding

Seattle University Law Review

Over the last few years, there has been considerable debate in Australia as to the appropriate regulation of foreign direct investment by entities affiliated with foreign governments. During that time, Australia has been a significant beneficiary of investment by sovereign wealth funds from many foreign jurisdictions, particularly by Chinese state owned enterprises. The Australian government, similar to governments of many developed Western countries, has struggled to properly calibrate its policy settings for regulating this type of investment activity. This Article considers the Australian regulatory regime and assesses Australia’s experience in regulating those investment flows during this period.


Enhancing The Transparency Dialogue In The “Santiago Principles” For Sovereign Wealth Funds, Adam D. Dixon 2014 Seattle University School of Law

Enhancing The Transparency Dialogue In The “Santiago Principles” For Sovereign Wealth Funds, Adam D. Dixon

Seattle University Law Review

The financial crisis ultimately caused Western governments to welcome sovereign wealth fund (SWF) investment as a way to put a floor under collapsing markets and to provide a set of voluntary principles that would underwrite SWFs’ claim to legitimacy in the international community. In the autumn of 2007, then U.S. Treasury Secretary Henry Paulson, in conjunction with the International Monetary Fund, convened the International Working Group of SWFs (IWG) to draft a set of generally accepted principles and practices. These principles are referred to as the “Santiago Principles.” The implicit objective of these twenty-four voluntary principles is to promote ...


Dirty Debts Sold Dirt Cheap, Dalie Jimenez 2014 SelectedWorks

Dirty Debts Sold Dirt Cheap, Dalie Jimenez

Dalie Jimenez

This Article examines the sale and purchase of consumer debts (e.g., delinquent credit card debts) through the lens of a rare collection of contracts. It finds that in many instances, sellers disclaim all warranties about the underlying debts sold or the information transferred, sometimes as far as specifically refusing to stand by “the accuracy or completeness of any information provided.” The Article argues that the collection of consumer debts sold through these transactions violates the Fair Debt Collection Practices Act’s prohibition against using deceptive or misleading representations in connection with the collection of a debt. After considering potential ...


Hollywood Deals: Soft Contracts For Hard Markets, Jonathan Barnett 2014 BLR

Hollywood Deals: Soft Contracts For Hard Markets, Jonathan Barnett

University of Southern California Law and Economics Working Paper Series

Hollywood film studios, talent and other deal participants regularly commit to, and undertake production of, high-stakes film projects on the basis of unsigned “deal memos”, informal communications or draft agreements whose legal enforceability is uncertain. These “soft contracts” constitute a hybrid instrument that addresses a challenging transactional environment where neither formal contract nor reputation effects adequately protect parties against the holdup risk and project risk inherent to a film project. Parties negotiate the degree of contractual formality, which correlates with legal enforceability, as a proxy for allocating these risks at a transaction-cost savings relative to a fully formalized and specified ...


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