Law Commons^™

A Framework For A Formal Sovereign Debt Restructuring Mechanism: The Kiss Principle (Keep It Simple, Stupid) And Other Guiding Principles, Charles W. Mooney Jr.

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Given the ongoing work on a multilateral restructuring process for sovereign debt in the UN, consideration of the content and implementation of a sovereign debt restructuring mechanism (SDRM) is timely. The framework and content of the SDRM proposed here differs from earlier proposals in several important respects. For the classification and supermajority voting of claims in the approval a restructuring plan, it would mimic the structure and operation of the model collective action clauses (Model CACs) proposed by the International Capital Markets Association. Restructuring under a qualified sovereign debt restructuring law (QSDRL) would be guided by four principles: (i) observe …

Ending Security Council Resolutions, Jean Galbraith

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The Security Council resolution implementing the Iran deal spells out the terms of its own destruction. It contains a provision that allows any one of seven countries to terminate its key components. This provision – which this Comment terms a trigger termination – is both unusual and important. It is unusual because, up to now, the Security Council has almost always either not specified the conditions under which resolutions terminate or used time-based sunset clauses. It is important not only for the Iran deal, but also as a precedent and a model for the use of trigger terminations in the …

The Developmental Effect Of State Alcohol Prohibitions At The Turn Of The 20th Century, Mary F. Evans, Eric Helland, Jonathan Klick, Ashwin Patel

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We examine the quasi-randomization of alcohol consumption created by state-level alcohol prohibition laws passed in the U.S. in the early part of the 20th century. Using a large dataset of World War II enlistees, we exploit the differential timing of these laws to examine their effects on adult educational attainment, obesity, and height. We find statistically significant effects for education and obesity that do not appear to be the result of pre-existing trends. Our findings add to the growing body of economic studies that examines the long-run impacts of in utero and childhood environmental conditions.

Can Simple Mechanism Design Results Be Used To Implement The Proportionality Standard In Discovery?, Jonah B. Gelbach

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I point out that the Coase theorem suggests there should not be wasteful discovery, in the sense that the value to the requester is less than the cost to the responder. I use a toy model to show that a sufficiently informed court could design a mechanism under which the Coasean prediction is borne out. I then suggest that the actual information available to courts is too little to effect this mechanism, and I consider alternatives. In discussing mechanisms intended to avoid wasteful discovery where courts have limited information, I emphasize the role of normative considerations.

The Importance Of Being Dismissive: The Efficiency Role Of Pleading Stage Evaluation Of Shareholder Litigation, Lawrence A. Hamermesh, Michael L. Wachter

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It has been claimed that the risk/reward dynamics of shareholder litigation have encouraged quick settlements with substantial attorneys’ fee awards but no payment to shareholders, regardless of the merits of the case. Fee-shifting charter and bylaw provisions may be too blunt a tool to control agency costs associated with excessive shareholder litigation, and are in any event now prohibited by Delaware statute. We claim, however, that active judicial supervision of public company shareholder litigation at an early stage reduces the costs of frivolous litigation to shareholders by separating meritorious from unmeritorious litigation before the full costs of discovery are incurred. …

Ratification, Reporting, And Rights: Quality Of Participation In The Convention Against Torture, Cossette D. Creamer, Beth A. Simmons

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The core international human rights treaty bodies play an important role in monitoring implementation of human rights standards through consideration of states parties’ reports. Yet very little research explores how seriously governments take their reporting obligations. This article examines the reporting record of parties to the Convention against Torture, finding that report submission is heavily conditioned by the practices of neighboring countries and by a government’s human rights commitment and institutional capacity. This article also introduces original data on the quality and responsiveness of reports, finding that more democratic—and particularly newly democratic—governments tend to render higher quality reports.

Obama's Get-Out-Of-Jail-Free Decree, Paul H. Robinson

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While agreeing that sentences for nonviolent drug offenses are too long, this Wall Street Journal op-ed piece argues that the large-scale clemency program planned by President Obama is misguided. It sets a dangerous precedent for using the clemency power beyond its traditional and intended purpose of providing a last-resort check on fairness and justice errors in individual cases, and instead uses the power to set sentencing policy. While many people will like the results of the current program, they will be less than happy when some future president uses it as precedent to promote a sentencing policy of which they …

Lost In A Legal Thicket, Paul H. Robinson

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This op-ed piece argues that criminal law recodification is badly needed in the states and the federal system, but that prosecutors stand out as the group who appear to regularly oppose it.

Governing Disasters: The Challenge Of Global Disaster Law And Policy, Eric A. Feldman, Chelsea Fish

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This chapter uses the analytical framework of transnational legal ordering (TLO) developed by Halliday and Shaffer and applies it to the area of law and disasters. In contrast to the increasingly transnational legal nature of social ordering highlighted by Halliday and Shaffer, it argues that the emergence of transnational regulatory networks and cross-border principles or policies in the area of disaster management has been uneven and incomplete. Although there are many factors that help to explain why the law/disasters area has resisted the trend toward “transnationalization,” two stand out. One is the relative dearth of national laws and policies governing …

The New Synthesis Of Bank Regulation And Bankruptcy In The Dodd-Frank Era, David A. Skeel Jr.

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Since the enactment of the Dodd-Frank Act in 2010, U.S. bank regulation and bankruptcy have become far more closely intertwined. In this Article, I ask whether the new synthesis of bank regulation and bankruptcy is coherent, and whether it is likely to prove effective.

I begin by exploring some of the basic differences between bank resolution, which is a highly administrative process in the U.S., and bankruptcy, which relies more on courts and the parties themselves. I then focus on a series of remarkable new innovations designed to facilitate the rapid recapitalization of systemically important financial institutions: convertible contingent capital …

Cloud Computing, Contractibility, And Network Architecture, Christopher S. Yoo

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The emergence of the cloud is heightening the demands on the network in terms of bandwidth, ubiquity, reliability, latency, and route control. Unfortunately, the current architecture was not designed to offer full support for all of these services or to permit money to flow through it. Instead of modifying or adding specific services, the architecture could redesigned to make Internet services contractible by making the relevant information associated with these services both observable and verifiable. Indeed, several on-going research programs are exploring such strategies, including the NSF’s NEBULA, eXpressive Internet Architecture (XIA), ChoiceNet, and the IEEE’s Intercloud projects.

Wynne: It's Not About Double Taxation, Michael S. Knoll, Ruth Mason

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This Article discusses Wynne v. Comptroller, a dormant Commerce Clause case against Maryland pending before the Supreme Court. We use economic analysis to rebut Maryland’s claim that its tax regime does not discriminate against interstate commerce. We also argue that the parties’ framing of the central issue in the case as whether the Constitution requires states to relieve double taxation draws focus away from the discrimination question, and therefore could undermine the Wynnes’ case and lead to unjustified narrowing of the dormant Commerce Clause. We also show how our approach to tax discrimination resolves many of the issues that …

Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan

SJD Dissertations

My dissertation explores intellectual property rights in three fields: fashion, music and education. I examine the varying degrees of IP rights in those fields, and ask whether the differing levels of rights are appropriate to keep these industries creative, innovative and robust. I further examine the salient characteristics of those rights and ask whether such an understanding might help to determine optimal levels of IP protection in other creative industries.

Judge Posner’S Simple Law, Mitchell N. Berman

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The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected.

Posner’s diagnoses and prescriptions range widely—from the Bluebook …

Compensating The Victims Of Japan’S 3-11 Fukushima Disaster, Eric A. Feldman

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Japan’s March 2011 triple disaster—first a large earthquake, followed by a massive tsunami and a nuclear meltdown—caused a devastating loss of life, damaged and destroyed property, and left hundreds of thousands of people homeless, hurt, and in need. This article looks at the effort to address the financial needs of the victims of the 3/11 disaster by examining the role of public and private actors in providing compensation, describing the types of groups and individuals for whom compensation is available, and analyzing the range of institutions through which compensation has been allocated. The story is in some ways cause for …

Cyber Espionage Or Cyber War?: International Law, Domestic Law, And Self-Protective Measures, Christopher S. Yoo

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Scholars have spent considerable effort determining how the law of war (particularly jus ad bellum and jus in bello) applies to cyber conflicts, epitomized by the Tallinn Manual on the International Law Applicable to Cyber Warfare. Many prominent cyber operations fall outside the law of war, including the surveillance programs that Edward Snowden has alleged were conducted by the National Security Agency, the distributed denial of service attacks launched against Estonia and Georgia in 2007 and 2008, the 2008 Stuxnet virus designed to hinder the Iranian nuclear program, and the unrestricted cyber warfare described in the 1999 book by …

Framing For A New Transnational Legal Order: The Case Of Human Trafficking, Paulette Lloyd, Beth A. Simmons

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How does transnational legal order emerge, develop and solidify? This chapter focuses on how and why actors come to define an issue as one requiring transnational legal intervention of a specific kind. Specifically, we focus on how and why states have increasingly constructed and acceded to international legal norms relating to human trafficking. Empirically, human trafficking has been on the international and transnational agenda for nearly a century. However, relatively recently – and fairly swiftly in the 2000s – governments have committed themselves to criminalize human trafficking in international as well as regional and domestic law. Our paper tries to …

A Signal Or A Silo? Title Vii's Unexpected Hegemony, Sophia Z. Lee

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Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively …

Justice: 1850s San Francisco And The California Gold Rush, Paul H. Robinson, Sarah M. Robinson

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Using stories from the 1848-1851 California gold miners, the 1851 San Francisco vigilante committees, Nazi concentration camps of the 1940s, and wagon trains of American westward migration in the 1840s, the chapter illustrates that it is part of human nature to see doing justice as a value in itself—in people’s minds it is not dependent for justification on the practical benefits it brings. Having justice done is sufficiently important to people that they willingly suffer enormous costs to obtain it, even when they were neither hurt by the wrong nor in a position to benefit from punishing the wrongdoer.

This …

Punishment: Drop City And The Utopian Communes, Paul H. Robinson, Sarah M. Robinson

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Using stories from the utopian non-punishment hippie communes of the late 1960's, the essay challenges today’s anti-punishment movement by demonstrating that the benefits of cooperative action are available only with the adoption of a system for punishing violations of core rules. Rather than being an evil system anathema to right-thinking people, punishment is the lynchpin of the cooperative action that has created human success.

This is Chapter 3 from the general audience book Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law. Chapter 4 of the book is also available on SSRN at http://papers.ssrn.com/abstract=2416484).

The Mess At Morgan: Risk, Incentives And Shareholder Empowerment, Jill E. Fisch

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The financial crisis of 2008 focused increasing attention on corporate America and, in particular, the risk-taking behavior of large financial institutions. A growing appreciation of the “public” nature of the corporation resulted in a substantial number of high profile enforcement actions. In addition, demands for greater accountability led policymakers to attempt to harness the corporation’s internal decision-making structure, in the name of improved corporate governance, to further the interest of non-shareholder stakeholders. Dodd-Frank’s advisory vote on executive compensation is an example.

This essay argues that the effort to employ shareholders as agents of public values and, thereby, to inculcate corporate …

Brulotte'S Web, Herbert J. Hovenkamp

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Kimble v. Marvel Entertainment held that stare decisis required the Supreme Court to adhere to the half century old, much criticized rule in Brulotte v. Thys. Justice Douglas' Brulotte opinion concluded that license agreements requiring royalties measured by use of a patent after its expiration are unenforceable per se. The court need not inquire into market power nor anticompetitive effects, effects on innovation, and it may not accept any defense. Congress can change the rule if it wants to, but has resisted many invitations to do so.

Under Brulotte a hybrid license on patents and trade secrets requires a royalty …

Empowering Employees To Prevent Fraud In Nonprofit Organizations, John M. Bradley

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This Article examines the significant problem of fraud within nonprofit organizations and demonstrates that current anti-fraud measures do not adequately reflect the important role employees play in perpetuating or stopping fraudulent activity. Psychological and organizational behavior studies have established the importance of (1) participation and (2) peers in shaping the behavior of individuals within the organizational context. This Article builds on that research and establishes that to successfully combat fraud, organizations must integrate employees into the design, implementation, and enforcement of anti-fraud strategy and procedures. Engaged, empowered employees will be less likely to commit fraud and more likely to dissuade …

The Ironies Of Affirmative Action, Kermit Roosevelt Iii

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The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations—or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs—the way …

Federal Securities Fraud Litigation As A Lawmaking Partnership, Jill E. Fisch

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In its most recent Halliburton II decision, the Supreme Court rejected an effort to overrule its prior decision in Basic Inc. v. Levinson. The Court reasoned that adherence to Basic was warranted by principles of stare decisis that operate with “special force” in the context of statutory interpretation. This Article offers an alternative justification for adhering to Basic—the collaboration between the Court and Congress that has led to the development of the private class action for federal securities fraud. The Article characterizes this collaboration as a lawmaking partnership and argues that such a partnership offers distinctive lawmaking advantages. …

Fractured Markets And Legal Institutions, Herbert J. Hovenkamp

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This article considers how we can improve legal outcomes of conflicts that occur in very small arenas. The conflicts can be of many kinds, including a nuisance dispute between neighbors, an impending collision between two moving vehicles, a joint decision between spouses about whether or on what terms to continue their marriage, or a disagreement between managers and shareholders within a firm.

The prevailing literature typically refers to these small environments as “markets.” Thinking of them as markets, however, averts our attention from larger environments that should be considered but that often do not function well as private markets. For …

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

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The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members, …

A Market-Oriented Analysis Of The 'Terminating Access Monopoly' Concept, Jonathan E. Nuechterlein, Christopher S. Yoo

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Policymakers have long invoked the concept of a “terminating access monopoly” to inform communications policy. Roughly speaking, the concept holds that a consumer-facing network provider, no matter how small or how subject to retail competition, generally possesses monopoly power vis-à-vis third-party senders of communications traffic to its customers. Regulators and advocates have routinely cited that concern to justify regulatory intervention in a variety of contexts where the regulated party may or may not have possessed market power in any relevant retail market.

Despite the centrality of the terminating access monopoly to modern communications policy, there is surprisingly little academic literature …

From Chrysler And General Motors To Detroit, David A. Skeel Jr.

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In the past five years, three of the most remarkable bankruptcy cases in American history have come out of Detroit: the bankruptcies of Chrysler and General Motors in 2009, and of Detroit itself in 2012. The principal objective of this Article is simply to show that the Grand Bargain at the heart of the Detroit bankruptcy is the direct offspring of the bankruptcy sale transactions that were used to restructure Chrysler and GM. The proponents of Detroit’s “Grand Bargain” never would have dreamed up the transaction were it not for the federal government-engineered carmaker bankruptcies. The Article’s second objective, based …

The Rise And Fall And Resurrection Of American Criminal Codes, Paul H. Robinson

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This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.