Digital Commons Network^™

Identifying And Managing Systemic Risk: An Assessment Of Our Progress, Steven L. Schwarcz

Faculty Scholarship

Although a chain of bank failures remains an important symbol of systemic risk, the ongoing trend towards disintermediation—or enabling companies to directly access the ultimate source of funds, the capital (i.e., financial) markets, without going through banks or other financial intermediaries—is making these failures less critical than in the past. While banks and other financial institutions remain important sources of capital, companies today are able to obtain most of their financing through financial markets without the use of intermediaries. As a result, financial markets themselves are increasingly central to any examination of systemic risk.

Amicus Brief Of Antitrust Professors And Scholars, Hosanna-Tabor Evangelical Lutheran Church And School V. Eeoc, Barak D. Richman, Harry First

Faculty Scholarship

Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related lawsuits” …

The Loophole That Would Not Die: A Case Study In The Difficulty Of Greening The Internal Revenue Code, Lawrence A. Zelenak

Faculty Scholarship

Congress and the Treasury have commissioned the National Academy of Sciences (NAS) “to undertake a comprehensive review of the Internal Revenue Code of 1986 to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects.” The hope of the proponents of the NAS carbon audit is that Congress, once informed of the results of the audit, will respond by “greening” the Internal Revenue Code. This Essay cautions that a more environmentally friendly Code will not necessarily follow from the legislative consciousness-raising of …

Showcasing: The Positive Spin, Katharine T. Bartlett

Faculty Scholarship

This Commentary outlines the positive case for showcasing diversity. Patrick Shin and Mitu Gulati criticize showcasing on the grounds that appointing women and minorities to board directorships is unreliable as a sign of true commitment to diversity and, further, that showcasing is detrimental to women and minorities because it treats them as objects or “prized trophies.” Drawing on social psychology, this Commentary highlights the mechanisms through which showcasing, despite the negative features emphasized by Shin and Gulati, also reinforces diversity values and strengthens the existing societal consensus in favor of diversity.

Rollen Und Rollenverständnisse Im Transnationalen Privatrecht [Roles And Role Perceptions In Transnational Private Law], Ralf Michaels

Faculty Scholarship

Downloadable Document is in German

Summary

1. The private lawyer’s role is inseparably connected with the paradigms and doctrines of private law. This is so because the role played by private lawyers constitutes a large part of their understanding of the discipline. At the same time, the shared understanding of the discipline has necessary consequences for the roles played by lawyers in it.

2. Roles and role perceptions in private law are contingent upon space and time. The most important factor affecting private lawyers today is the growing detachment of private law from the state, through globalization, Europeanization, and privatization …

Defining International Law Librarianship In An Age Of Multiplicity, Knowledge, And Open Access To Law, Richard A. Danner

Faculty Scholarship

Many law librarians are experts in international law and legal research. The concept of ‘international law librarianship’, however, encompasses something more than a field of study in which a group of experts practise their profession. In the broader sense, the idea suggests a common calling, similar interests, and goals shared by librarians with a range of specialties beyond international law, working in all types of law libraries. What commonalities create and sustain the concept of international law librarianship? This paper suggests that they can be found in: law librarians’ common need to respond to the ‘multiplicity’ of information sources facing …

Keynote Address: A Regulatory Framework For Managing Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

This accessible analysis of systemic risk regulation was delivered as the keynote speech at an October 20, 2011 European Central Bank conference on regulation of financial services. Many regulatory responses, like the Dodd-Frank Act in the United States, consist largely of politically motivated reactions to the financial crisis, looking for villains (whether or not they exist). To be most effective, however, the regulation must be situated within a more analytical framework. In this speech, I attempt to build that framework, showing that preventive regulation is insufficient and that regulation also must be designed to limit the transmission of systemic risk …

Firm Survival And Industry Evolution In Vertically Related Populations, John M. De Figueiredo, Brian S. Silverman

Faculty Scholarship

This paper examines how the density and governance of vertically related populations affect the life chances of organizations. We integrate the literatures on organizational ecology and vertical integration to develop a theory of how 1) specialized upstream industries affect downstream survival rates 2) the prevalence of different governance forms among upstream and downstream organizations moderates this relationship, and 3) different forms of governance exert differential competitive pressures on focal organizations. We find evidence supporting our hypotheses in an empirical examination of the downstream laser printer industry and upstream laser engine industry.

Patent Settlements, Risk, And Competition, Mark R. Patterson

Faculty Scholarship

PowerPoint presentation delivered at the session, Patent Settlements: The Issues Beyond the "Reverse Payment" Cases at the ABA 59th Annual Antitrust Spring Meeting, March 30, 2011.

Property's Morale , Nestor M. Davidson

Faculty Scholarship

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled demoralization costs. Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

Taming Or Protecting The Modern Corporation? Shareholder-Stakeholder Debates In A Comparative Light, Martin Gelter

Faculty Scholarship

In this article, I provide a comparative historical account on the debate of whether corporations should exclusively be run by the company in the interest of shareholders, or whether managers should be permitted or required to take the interests of others groups (stake-holders) into account. The comparison focuses on the US, Germany and France and traces the debates through the most important formative periods of these countries’ corporate governance systems. It is generally assumed that shareholder primacy has a stronger following in the US and the UK than in Continental Europe, where the stakeholder view is thought to be more …

States And Networks In The Formation Of International Law, Moria Paz

Faculty Scholarship

No abstract provided.

The Due Diligence Process And Its Impact On The Deal: A Primer On Bayoneting The Wounded, Alex Ritchie, A. John Davis

Faculty Scholarship

In earlier times of more rationale schedules, reasonable billing rates, and less client scrutiny over bills and efficiency, an associate could learn due diligence with a partner looking over her shoulder, offering wisdom and encouragement. In the modern age of instantaneous information, excessive billing rates, and unrealistic expectations, transactional firms devote too little attention to due diligence processes and training. The stresses, tensions and risks associated with due diligence only multiply in the context of the big deal – the high-stakes, all-asset, equity and merger transactions. This article seeks to provide insight into the due diligence process, particularly the big …

The Genesis Of The Gats (General Agreement On Trade In Services), Juan A. Marchetti, Petros C. Mavroidis

Faculty Scholarship

The Uruguay Round services negotiations saw the light of day amidst pressures from lobbies in developed countries, unilateral retaliatory actions, and ideological struggle in the developing world. The final outcome, the GATS, certainly characterized by a complex structure and awkward drafting here and there, is not optimal but is an important first step towards the liberalization of trade in services. This article traces the GATS negotiating history, from its very beginning in the late 1970s, paying particular attention to the main forces that brought the services dossier to the multilateral trading system (governments, industries, and academics), and the interaction between …

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Through beat reporting and investigative journalism, reporters monitor the foundational institutions of our society. This reporting has value even to those who never buy a newspaper or read a website. For example, subscribers and nonsubscribers alike benefit when government officials respond to a critical news story by eliminating an abusive practice. Yet unfortunately, the professional press is experiencing a severe economic crisis. Layoffs are pervasive, and news organizations across the nation are on the brink of insolvency. As a result, a number of commentators have proposed government subsidies for the press. Yet if the press becomes financially dependent on the …

Juvenile Incarceration And The Pains Of Imprisonment, Jeffrey Fagan, Aaron Kupchik

Faculty Scholarship

After legislatures criminalized a major portion of juvenile delinquency in the 1980s and 1990s, large numbers of incarcerated youth began serving their sentences in adult correctional facilities. To understand the ramifications of this practice, prior research studies compared the correctional experiences of youth in juvenile and adult facilities. Yet this research often minimized the pains of imprisonment for youth in juvenile facilities, based on the contrast to adult facilities and the toxic conditions of confinement within them. In this Article, we contribute to this literature by analyzing data from interviews with 188 young men incarcerated in juvenile and adult facilities …

Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West

Faculty Scholarship

New research has identified the consequences of high rates of incarceration on neighborhood crime rates, but few studies have looked beyond crime to examine the collateral effects of incarceration on the social and economic well being of the neighborhoods themselves and their residents. We assess two specific indicia of neighborhood economic well-being, household income and human capital, dimensions that are robust predictors of elevated crime, enforcement and incarceration rates. We decompose incarceration effects by neighborhood racial composition and socio-economic conditions to account for structural disadvantages in labor force and access to wealth that flow from persistent patterns of residential segregation. …

Buried Treasure Or Buried Hope? The Status Of Mexico-U.S. Transboundary Aquifers Under International Law, Gabriel E. Eckstein

Faculty Scholarship

Transboundary aquifers found along the 2,000 mile-long border between Mexico and the United States are not governed by any treaty. Yet, these aquifers are the primary source of water for many of the twelve million people who live in this parched region. The region’s groundwater, however, is being over-exploited and contaminated, which is threatening the very life that it currently sustains. As populations continue to expand and current rates of haphazard development persist, the absence of an agreement for the management and allocation of this critical resource could lead to bi-national economic, social and environmental tragedies. This study reviews groundwater …

Law Library Budgets In Hard Times, Taylor Fitchett, James Hambleton, Penny Hazelton, Anne Klinefelter

Faculty Scholarship

This article begins by looking at the environment of the academic law library of the twenty-first century, followed by an analysis of the current economic climate and an assessment of how these difficult economic times will affect academic law libraries. The next section discusses strategies a law library director can marshal to manage a multimillion-dollar budget in face of reduced resources. Focusing in on the institution's own budget and accounting framework, creative thinking, and planning for use of resources can have successful and innovative outcomes for law libraries and the schools they support. Finally tools and strategies that can help …

In The Name Of Watergate: Returning Ferpa To Its Original Design, Mary Margaret Penrose

Faculty Scholarship

This article seeks to proffer an improved definition for “education records” without altering the legislation's original design. Part I provides a historical account of Watergate's climate to illustrate why privacy rights blossomed during the 1970s and provided an atmosphere conducive to the passage of FERPA. Part II details FERPA's legislative history. Part III presents the statute's current definition of “education records” and evaluates how courts interpret FERPA. Part IV suggests a modernized definition that considers the computerization of education and, correspondingly, education records. The section begins with a comparison of FERPA and the Privacy Act of 1974. Thereafter, it exposes …

Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. Not only is this picture not essential to Coase’s purpose, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to the Coase corollary: in a world of zero transaction costs, the nature of property does not matter to allocative efficiency. However, as with the Coase theorem, the real implication is for our world of positive transaction costs: we need to subject the notion of property to a comparative institutional …

The Institutional Configuration Of Deweyan Democracy, William H. Simon

Faculty Scholarship

After more than two decades of effort to recover and adapt John Dewey’s thought for a reformed liberal politics, the institutional implications of his ideas remain elusive. This essay argues that a distinctive set of modern business practices and an incipient public policy architecture embody key precepts of Dewey’s political theory. The practices and architecture have developed independently of Dewey’s ideas, but they elaborate the ideas implicitly, and they are illuminated by them.

Taxation Of Financial Products: Options For Fundamental Reform, Alex Raskolnikov

Faculty Scholarship

The following is testimony to the joint hearing of the House of Representatives Committee on Ways and Means and the Senate Committee on Finance. The testimony discusses three benchmarks for evaluating the taxation of capital income in general and financial instruments in particular, summarizes three broad-based approaches to reforming the tax treatment of financial products, evaluates the impact of other fundamental reforms on the urgency of reforming the taxation of derivatives, and urges Congress to encourage the IRS to make detailed tax return data available for empirical research of revenue costs and other losses arising from derivatives-based tax planning.

Private Rights In Public Lands: The Chicago Lakefront, Montgomery Ward, And The Public Dedication Doctrine, Joseph D. Kearney, Thomas W. Merrill

Faculty Scholarship

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois, growing out of struggles over the use of land along the margin of Lake Michigan in that city. Yet Chicago's premier park – Grant Park, sitting on that land in the center of downtown Chicago – owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, …

Governmental And Private Liability For Flooding, Michael B. Gerrard

Faculty Scholarship

In recent years the frequency and severity of heavy precipitation and floods in parts of the United States, including the Northeast, have been increasing to a statistically significant degree, and this trend is expected to worsen. Events such as last August’s Hurricane Irene have caused widespread loss of life and property damage.

This article summarizes some of the liability issues that result from floods, and efforts to control them.

Ratings Reform: The Good, The Bad, And The Ugly, John C. Coffee Jr.

Faculty Scholarship

Although dissatisfaction with the performance of the credit rating agencies is universal (particularly with regard to structured finance), reformers divide into two basic camps: (1) those who see the "issuer pays" model of the major credit ratings firms as the fundamental cause of inflated ratings, and (2) those who view the licensing power given to credit ratings agencies by regulatory rules requiring an investment grade rating from an NRSRO rating agency as creating a de facto monopoly that precludes competition. After reviewing the recent empirical literature on how ratings became inflated, this Article agrees with the former school and doubts …

How Constitutional Theory Matters, Jamal Greene

Faculty Scholarship

It is impossible to understand the present moment in progressive constitutionalism without engaging a stock narrative given iconic articulation more than a decade ago by originalist scholar Randy Barnett. According to this narrative, conservatives in the 1980s, prodded by Edwin Meese III's Justice Department, rallied around originalism, and particularly "original intentions" originalism, as a politically congenial and intellectually satisfying approach to constitutional interpretation. They were defeated in the courts of academic and political opinion due in part to a series of unanswerable criticisms from liberal legal scholars such as Paul Brest and H. Jefferson Powell, and in part to the …

Minimalism And Experimentalism In The Administrative State, Charles F. Sabel, William H. Simon

Faculty Scholarship

This Article identifies and appraises the two most promising alternatives to the "command-and-control" style of public administration that was dominant from the New Deal to the 1980s but is now in disfavor The first – minimalism – emphasizes public interventions that incorporate market concepts and practices while also centralizing and minimizing administrative discretion. The second – experimentalism – emphasizes interventions in which the central government affords broad discretion to local administrative units but measures and assesses their performance in ways designed to induce continuous learning and revision of standards. Minimalism has been prominent in legal scholarship and in the policy …

Is Internet Exceptionalism Dead?, Tim Wu

Faculty Scholarship

Is there such a thing as Internet exceptionalism? If so, just what is the Internet an exception to? It may appear technical, but this is actually one of the big questions of our generation, for the Internet has shaped the United States and the world over the last twenty years in ways people still struggle to understand. The question is not merely academic. The greatest Internet firms can be succinctly defined as those that have best understood what makes the Internet different.

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.