Law Commons^™

Escaping Entity-Centrism In Financial Services Regulation, Anita Krug

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In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entitycentric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as …

Collective Representation And Employee Voice In The U.S. Public Sector Workplace: Looking North For Solutions?, Martin H. Malin

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Legislation enacted in many states following the 2010 elections in the United States strengthened unilateral public employer control and weakened employee voice. This rebalancing of power occurred in the context of state public employee labour relations acts modeled on the National Labor Relations Act (NLRA), but with a narrower scope of bargaining than in the private sector. This narrow scope channels unions’ voice away from the quality of public services and towards protecting members from the effects of decisions unilaterally imposed by management. The Supreme Court of Canada has held that the freedom of association guaranteed by the Charter of …

Access To Justice And Technology Clinics: A 4% Solution (With Andrew P. Medeiros) (Symposium), Ronald W. Staudt

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No abstract provided.

Where's Waldo?: Geolocation, Mobile Apps, And Privacy, Lori Andrews

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No abstract provided.

Introduction, Justice, Lawyering And Legal Education In The Digital Age (Symposium Editor With M. Lauritsen), Ronald W. Staudt

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No abstract provided.

Reinventing The Development Wheel Of The World Trading System (Reviewing Sonia E. Rolland, Development At The World Trade Organization (2012)), Sungjoon Cho

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In probing how WTO norms may affect developing countries, Sonia Rolland introduces two paradigms in this book: development as an idiosyncrasy and development as a normative co-constituent to trade. The first paradigm concerns development-related exceptions and carve-outs found within WTO rules and agreements that exemplify a contingent provision of special favors to developing countries. Overall, it represents a limited mandate on development in the WTO. In contrast, the second paradigm embodies a normative operationalization of development agenda within the WTO system. It normatively reconstructs WTO rules and institutions in a way where development is a core mandate of the WTO, …

Does Public Employee Collective Bargaining Distort Democracy? A Perspective From The United States, Martin H. Malin

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The beginning of the second decade of the 21st century saw renewed attacks on public employee collective bargaining, which included claims that allowing public employees to organize and bargain collectively distorts democratic processes. These renewed attacks included the traditional claim that public employee collective bargaining inappropriately gives one interest group, workers and their unions, an avenue of access to public decision-makers that is not available to other interest groups. The attack also raised a new claim of distortion of democratic processes: that unions are inappropriately advantaged in the broader political process through agency shop or fair share and dues check-off …

The Dark Side Of Town: The Social Capital Revolution In Residential Property, Stephanie M. Stern

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Social capital has pervaded property law, with scholars and policymakers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital — its capacity to effectuate local factions and promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, …

The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug

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This Article first recalls the primary contours of Adolf Berle and Gardiner Means’s acclaimed observations regarding the separation of ownership and control in the “modern corporation,” as well as their conclusions about the implications of those observations for the doctrine of shareholder primacy. Second, the Article describes how the activities of FSHCs generally differ from what we think corporations do and, certainly, from what Berle and Means conceived of as the purpose of corporations or, indeed, any business enterprise. Third, this Article articulates how those business activities render more acute the problem of the separation of ownership and control that …

From Roach Powder To Radical Humanism: Professor Derrick Bell's 'Critical' Constitutional Pedagogy, Vinay Harpalani

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This essay is a tribute to the late Professor Derrick Bell, who passed away on October 5, 2011. The author was the Derrick Bell Fellow at New York University School of Law in 2009-10 and assisted Professor Bell in teaching his constitutional law courses. The essay discusses Professor Bell's 'critical' constitutional and life pedagogy, by giving illustrations from Professor Bell's classes and anecdotes from several of his former students. It highlights not only Professor Bell's comprehensive approach to constitutional law, but also the "radical humanism" he brought to teaching and mentoring students.

Two Models Of Interest Arbitration, Martin H. Malin

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Most states prohibit public employees from striking and the federal government makes a strike by a federal employee a felony. Many public employee labor relations acts give organized employees a right to arbitrate when their union and employer are unable to reach agreement on the terms of a contract. Much discussion of such interest arbitration schemes has focused on whether the process inhibits bargaining (the chilling effect) or is habit forming (the narcotic effect). These discussions contrast the use of traditional interest arbitration, where the arbitrator may award any outcome that falls between the parties’ final offers, with final offer …

Are World Trading Rules Passé?, Sungjoon Cho, Claire R. Kelly

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This Article probes previously under-explored failure of the world trading rules to keep abreast with the global marketplace. It argues that the global trading system, despite its well-documented contribution to the spectacular expansion of postwar trade, has never in fact fully moved away from the mercantilist past; its mono-linear conception of production and trading patterns; and its state centric, top-down paradigm of rule making. The inevitable anachronism precipitated by the out of date trading rules structure is seriously ill-suited to the contemporary non-territorial international business transactions defined by global supply chains. Consequently, while the trading rules officially seek to help …

Injunctive And Reverse Settlements In Competition-Blocking Litigation (With Keith N. Hylton), Sungjoon Cho

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We distinguish standard settlements, in which the status quo is preserved, and injunctive settlements, which prohibit the defendant’s activity. The reverse settlement is a special type of injunctive settlement. We examine the divergence between private and social incentives to settle and policies that would minimize socially undesirable injunctive and reverse settlements (e.g., banning reverse settlements). The results are applied to competition-blocking litigation, such as patent infringement and antidumping.

Contract Theory And The Failures Of Public-Private Contracting, Wendy Netter Epstein

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The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various public law solutions. But the literature is incomplete because it does not approach the problem through a commercial lens. This Article fills that gap. It considers how economic analysis of contract law, in particular efficiency theory and agency theory, bear upon the unique problems of public-private …

Asia And Global Competition Law Convergence, David J. Gerber

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No abstract provided.

Beyond Notice And Choice: Privacy, Norms, And Consent, Richard Warner, Robert Sloan

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Informational privacy is the ability to determine for yourself when and how others may collect and use your information. Adequate informational privacy requires a sufficiently broad ability to give or withhold free and informed consent to proposed uses.

Notice and Choice (sometimes also called “notice and consent”) is the current paradigm for consent online. The Notice is a presentation of terms, typically in a privacy policy or terms of use agreement. The Choice is an action signifying acceptance of the terms, typically clicking on an “I agree” button, or simply using the website. Recent reports by the Federal Trade Commission …

Section 1983 Is Born: The Interlocking Supreme Court Stories Of Tenney And Monroe, Sheldon Nahmod

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No abstract provided.

Becoming A Fifth Branch (With M. Henderson), William Birdthistle

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No abstract provided.

Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt

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Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …

Sentencing The Why Of White Collar Crime, Todd Haugh

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No abstract provided.

Investment Company As Instrument: The Limitations Of The Corporate Governance Regulatory Paradigm, Anita Krug

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U.S. regulation of public investment companies (such as mutual funds) is based on a notion that, from a governance perspective, investment companies are simply another type of business enterprise, not substantially different from companies that produce goods or provide (noninvestment) services. In other words, investment company regulation is founded on what this Article calls a “corporate governance paradigm,” in that it provides a significant regulatory role for boards of directors, as the traditional governance mechanism in business enterprises, and is “entity centric,” focusing on intraentity relationships to the exclusion of superentity ones. This Article argues that corporate governance norms, which …

Rethinking U.S. Investment Adviser Regulation, Anita Krug

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(Excerpt)Now, in the aftermath of Dodd-Frank's enactment and the SEC's associated bout of rulemaking, one might think that the Advisers Act's regulatory regime is a workable and effective one, equipped to address - and address efficiently - the investor-protection risks that the twenty-first-century investment adviser industry produces. In fact, however, Dodd-Frank did not touch - and, indeed, Dodd-Frank's crafters indicated no awareness of - many of the Advisers Act's longstanding troubles. Additionally, the changes Dodd-Frank brought about have their own considerable deficiencies. As this Article contends, the U.S. investment adviser regulatory regime, now seventy-four years old, is in need of …

A "Progressive Contraction Of Jurisdiction": The Making Of The Modern Supreme Court, Carolyn Shapiro

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No abstract provided.