Law Commons^™

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

The Moral Undercurrent Beneath The Regulatory Regime Of Investor Protection, Huhnkie Lee

Huhnkie Lee

No abstract provided.

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

Daniel J.H. Greenwood

Business corporations are critical institutions in our democratic republican market-based economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply …

The Proposed Inheritance Tax And Its Impact On China's Economy, Michael Steve

Michael Steve

No abstract provided.

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

In Defense Of, Or Offensive To Farms? Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Shi-Ling Hsu

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would also normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of larger farms. But these laws are not widely observed and not rigorously enforced, upsetting this balance and giving large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture …

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations

David Gamage

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

Hospital Chargemaster Insanity: Heeling The Healers, George A. Nation Iii

George A Nation III

Hospital list prices, contained in something called a chargemaster are insanely high, often running 10 times the amount that hospitals routinely accept as full payment from insurers. Moreover, the relative level of a particular hospital’s chargemaster prices bears no relationship to either the quality of the services the hospital provides or, to the cost of the services provided. The purpose of these fictitious list prices is to serve as a starting point or anchoring point, for negotiations with third-party payers regarding the amount that they will actually pay the hospital for it’s goods and services.

Ironically, there is widespread agreement, …

Optimized Theft: Why Some Controlling Shareholders “Generously” Expropriate From Minority Shareholders, Sang Yop Kang

Sang Yop Kang

Although controlling shareholder agency problems have been well studied so far, many questions still remain unanswered. In particular, an important puzzle in a bad-law jurisdiction is: why some controlling shareholders (“roving controllers”) loot the entire corporate assets at once, and why others (“stationary controllers”) siphon a part of corporate assets on a continuous basis. To solve this conundrum, this Article provides analytical frameworks exploring the behaviors and motivations of controlling shareholders. To begin with, I reinterpret Olson’s political theory of “banditry” in the context of corporate governance in developing countries. Based on a new taxonomy of controlling shareholders (“roving controllers” …

"Renounce And Enjoy": The Pursuit Of Happiness Through Gandhi's Simple Living And High Thinking, Nehal A. Patel

Nehal A. Patel

TABLE OF CONTENTS

INTRODUCTION 2

I. SIMPLICITY AND NON-HARM BOTH ARISE FROM AN INTENSE IDENTIFICATION WITH ALL THINGS 2

II. CONSUMPTION AND ITS DISCONTENTS 8

III. HAPPINESS AS A GROSS DOMESTIC PRODUCT 14

Re-Envisioning Investors’ Anti-Director Rights Index: Theory, Criticism, And Implications, Sang Yop Kang

Sang Yop Kang

‘Law and Finance’ theory – which offers analytical frameworks to measure the protection of public investors and the quality of corporate governance – has dominated the comparative corporate governance scholarship in the last decade. So far, many proponents and critics have had debates on the relevance of the theory and the implications of the theory’s empirical studies. Several important points in relation to shareholder protection, however, have been highly neglected in these debates. In particular, the significance of one-share-one-vote (OSOV) rule has been inappropriately underestimated. In response, this Article explores (1) why OSOV is an utmost critical component in corporate …

Apps, Artificial Intelligence, And Androids: Beyond Schumpeter’S “Creative Destruction” To “Destructive Destruction” David Barnhizer, David Barnhizer

David Barnhizer

The analysis offered here is not a Neo-Luddite rage against “the machine”. As with the oft-stated reproach about paranoia, there sometimes really are situations in which people are “out to get you”. In our current situation the threat is not from people but from the convergence of a set of technological innovations that are and will increasingly have an enormous impact on the nature of work, economic and social inequality and the existence of the middle classes that are so vital to the durability of Western democracy. The fact is that developed nations’ economies such as found in Western Europe …

The E-Books Conspiracy: Crossing The Line Between Applying And Creating Law, Tom Campbell

Tom Campbell

This article responds to John Kirkwood’s Collusion to Control a Powerful Customer: Amazon, E-Books, and Antitrust Policy. Professor Kirkwood argued that in a monopsonistic market (i.e., one where there exists one powerful buyer and many less powerful sellers), or a market in which a buyer has significantly more power than the sellers, collusion on the part of the sellers might be justified, and ought to be a defense to antitrust claims, under certain conditions. This article summarizes Kirkwood’s proposed requirements for invoking this defense and argues that they are overly prescriptive, failing to allow certain instances of beneficial collusion, imposing …

Reflective Intensions: Two Foundational Decision-Points In Mathematics, Law, And Economics, Robert C. Hockett

Robert C. Hockett

This Article, transcribed from a symposium talk given by the author, examines two critical junctures at which foundational decisions must be made in three areas of theoretical inquiry - mathematics, law, and economics. The first such juncture is that which the Article labels the "arbitrary versus criterial choice" juncture. This is the decision point at which one must select between what is typically called an "algorithmic," "principled," "law-like," or "intensionalist" understanding of those concepts which figure foundationally in the discipline in question on the one hand, and a "randomized," "combinatorial," or "extensionalist" such understanding on the other hand. The second …

Bailouts, Buy-Ins, And Ballyhoo, Robert C. Hockett

Robert C. Hockett

The bailout strategy now being pursued by Treasury under the recently authorized Troubled Asset Relief Plan, if “strategy” it can be called, remains obscure and erratic at best. All the while markets remain jittery and credit remains tight, as the underlying source of our present financial jitters—continued decline in the housing market and still mounting foreclosures—goes unaddressed. This piece proposes an interesting and novel approach to solving the financial problem. If it works out, it would eventually minimize the cost to the government.

Taking Distribution Seriously, Robert C. Hockett

Robert C. Hockett

It is common for legal theorists and policy analysts to think and communicate mainly in maximizing terms. What is less common is for them to notice that each time we speak explicitly of socially maximizing one thing, we speak implicitly of distributing another thing and equalizing yet another thing. We also, moreover, effectively define ourselves and our fellow citizens by reference to that which we equalize; for it is in virtue of the latter that our social welfare formulations treat us as “counting” for purposes of socially aggregating and maximizing. To attend systematically to the inter-translatability of maximization language on …

What Kinds Of Stock Ownership Plans Should There Be? Of Esops, Other Sops And "Ownership Societies", Robert C. Hockett

Robert C. Hockett

Present-day advocates of an ownership society (OS) do not seem to have noticed the means we have already employed to become an OS where homes and human capital (higher education) are concerned. Nor do they appear to have considered whether these same means - which amount to publicly enhanced private credit markets - might be employed to spread shares in business firms, with a view to completing our OS. This article, the third in a series, seeks tentatively to fill that gap. It does so first by demonstrating how the Employee Stock Ownership Plan, or ESOP, in effect replicates our …

Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett

Robert C. Hockett

Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

Jeffrey L Harrison

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest. In order to understand the economic approach and the inconsistency of copyright law, as well as the …

Egoism, Altruism, And Market Illusions: The Limits Of Law And Economics, Jeffrey L. Harrison

Jeffrey L Harrison

The primary objective of this Article is to question assumptions in order to show that the conventional economic approach to law and public policy has limited value. The arguments are founded on empirical evidence drawn from many fields of study. An underlying theme is that the current application of economic analysis to law should be regarded as an interim step toward the integration of law with the behavioral, natural, and social sciences. Part I describes the two forms of the self-interest assumption more completely. This examination reveals that economics and the separate study of law and economics are caught in …

Nuclear Chain Reaction: Why Economic Sanctions Are Not Worth The Public Costs, Nicholas C.W. Wolfe

Nicholas A Wolfe

International economic sanctions frequently violate human rights in targeted states and rarely achieve their objectives. However, many hail economic sanctions as an important nonviolent tool for coercing and persuading change. In November 2013, the Islamic Republic of Iran negotiated a temporary agreement with major world powers regarding Iran’s nuclear program. The United States’ media and politicians have repeatedly and incorrectly attributed Iran’s willingness to negotiate to the effectiveness of economic sanctions.

Politicians primarily focus on immediate domestic effects and enact sanctions without a thorough understanding of the long-term effects on the United States economy and the public within a targeted …

Governing For The Corporations: History And Analysis Of U.S. Promotion Of Foreign Investment, Michael R. Miller

Michael R Miller

This paper explores and analyzes U.S. government support for foreign investors, especially major oil companies.

Throughout the 20th Century the US government has repeatedly used its international political influence to benefit US corporate activities abroad. The US government and others assumed initially that this was in the larger interests of the United States because US companies would represent and promote the United States’ policy agenda.

However, US corporate activities abroad over the last century seem to indicate this assumption was flawed. In numerous examples, US corporations have either ignored or thwarted the stated interests of the US government. At first …

The Ciudades Modelo Project: Testing The Legality Of Paul Romer’S Charter Cities Concept By Analyzing The Constitutionality Of The Honduran Zones For Employment And Economic Development, Michael R. Miller

Michael R Miller

Over the last several years, the Honduran government has been aggressively advancing a "model cities" project that it argues will provide options for its citizens to escape the extreme violence in their country without migrating to the U.S. The model cities, which are formally called "Zones for Employment and Economic Development" ("ZEDEs"), are purported to be autonomously governed areas that will attract foreign investment and compete for residents by establishing safer communities and better managed institutions governed by the rule of law.

The ZEDEs trace their origin to a concept formulated by development economist Paul Romer, who proposed the idea …

Halliburton, Basic And Fraud On The Market: The Need For A New Paradigm, Charles W. Murdock

Charles W. Murdock

Summary: Halliburton, Basic and Fraud on the Market: The Need for a New Paradigm

If defrauded securities plaintiffs cannot bring a class-action lawsuit, there often will be no effective remedy since the amount at stake for individual plaintiffs is not sufficient to warrant the substantial costs of litigation. To surmount the problem of individualized reliance and establish commonality, federal courts for twenty-five years have been employing the Basic fraud-on-the-market theory which posits that, in an efficient market, investors rely on the integrity of the market price.

While class certification at one time was a matter of course, today it is …

The Law And Economics Of Microfinance, Katherine Helen Mary Hunt

Katherine Helen Mary Hunt

Financial inclusion may be jargon which appeals to international donors and academics, but the strategic implementation in developing countries is often based on international du jour priorities, such as microfinance. The topic of microfinance is highly debated in the academic literature, although little empirical work has been published. Further, no literature to date has considered microfinance from a law and economics perspective. This paper seeks to contribute to the gap in the literature by considering how microfinance has evolved to address the credit market failure, and how microfinance regulation should be designed to promote long term financial inclusion via financially …

The Origins Of Affirmative Fiscal Action, Mirit Eyal-Cohen

Mirit Eyal-Cohen

This article highlights an anomaly. It shows that two tax rules aimed to achieve a similar goal were introduced at the same time. Both meant to be temporary and bring economic stimuli, but received a dramatically different treatment. The less efficient or economically inferior survived. Its superior counterpart did not. The article reviews the reasons for this paradox. It shows that the reason is both political and an agency problem. The article not only enriches an important and ongoing debate that has received much attention in recent years, but also provides important lessons to policymakers.

Essential Facilities Doctrine And China’S Anti-Monopoly Law, Yong Huang, Elizabeth Xiao-Ru Wang, Xin Roger Zhang

Elizabeth Xiao-Ru Wang

No abstract provided.

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …