Law Commons^™

Ambiguity And Exceptions: Dissecting Cftc V. Monex Credit Co. And The Commodity Exchange Act To Explain Actual Delivery, William Knotts

Mississippi College Law Review

“Leveraged trades” are transactions in which an investor borrows the capital to purchase or sell a commodity using the commodity itself as collateral. These transactions are vital to the health of commodities markets as they relate directly to market participation and liquidity, both essential components. A recent Ninth Circuit decision threatens these types of valuable transactions by adopting a narrow interpretation of a key exemption from the applicability of Commodity Exchange Act regulations. This Article will argue a broader interpretation is more consistent with the purpose behind the Commodity Exchange Act, recent Commodity Futures Trading Commission interpretations, and will better …

Markets As Legal Constructions, Gregory Brazeal

University of Cincinnati Law Review

Since at least the late 1970s, popular political and economic debates in the United States have often been framed in terms of a choice between “government” and “the market.” In addition, debates have often assumed that “the market” is associated with freedom while government “regulation” or “interference in the market” constitutes oppression.

This article begins by making the familiar observation that the distinction between “government” and “the market,” at least when taken at face value, makes no sense. Even idealized laissez-faire markets are creatures of the state and its market-structuring laws, including criminal law and the laws of property, contracts, …

Making Net Zero Matter, Albert C. Lin

Washington and Lee Law Review

In recent months, dozens of countries and thousands of businesses have pledged to achieve net zero greenhouse gas emissions. However, net zero often means different things to different entities, and it is often uncertain how net zero pledges—which set targets years or decades from the present—will be met. This Article considers the motivations behind net zero pledges, highlights the underappreciated role of carbon removal in net zero efforts, and identifies mechanisms for encouraging the accomplishment of net zero goals. Two key strategies are essential to making net zero targets matter. First, society should develop and implement accountability and enforcement mechanisms …

The Market Cannot Be Your Mother, Meghan Boone

Michigan Law Review

A Review of The Free-Market Family: How the Market Crushed the American Dream (and How It Can Be Restored). by Maxine Eichner.

Regulating The Financial Services And Markets In The United Arab Emirates

UAEU Law Journal

Financial services and markets contribute to the economic growth of the country. However, laws and regulations should be developed to assist markets in executing their role effectively. The subject of this paper is the regulation of financial services and markets in the UAE. It analyses in particular the laws and regulations of financial markets in the UAE since the establishment of its formal financial markets in 2000. Due to the expansion of financial markets and services in the country, there is a real need to examine the extent to which the applicable laws and regulations keep up with development. Therefore, …

The Application Of The Legal Framework Of The Commercial Shop On Electronic Ones A Comparative Legal Study, Dr. Rasha Hattab, Maha Khasawneh

UAEU Law Journal

The Internet has recently witnessed widespread usage to the extent that it has become one of the most important commercial distribution channels, and has, therefore, turned to be a phenomenon that cannot be ignored. Statistics show a growing number of Internet users shopping online at both local and international levels. Web sites are classified into two categories: informational, which aim at the exchange of information of different nature (cultural, media, advertisement, legal, administrative, recreational and commercial), and commercial websites which aim at trading across the electronic network. This research is concerned with studying these commercial Internet sites which can be …

Libor Phaseout: Litigation Is Coming, John Michael Neubert

Michigan Business & Entrepreneurial Law Review

This paper will explore the different steps market participants should take to make sure they are prepared when LIBOR is phased out in December 2021. Part I will focus on the actions market participants should do before going into negotiations that can increase their potential to reach a consensual agreement. Part II will explore what financial firms should be prepared for during the negotiation process and what claims may arise when no agreement is reached. The decision for how to handle any LIBOR-linked financial instrument in their portfolio should be left to the discretion of market participants themselves. This paper …

Equity Market Structure Regulation: Time To Start Over, Paul G. Mahoney

Michigan Business & Entrepreneurial Law Review

Over the past half-century, the U.S. Securities and Exchange Commission (SEC)’s regulations have become key determinants of the way in which stocks trade and the fees that exchanges charge for their services. The current equity market structure rules are contained primarily in the SEC’s Regulation NMS. The theory behind Regulation NMS is that a system of dispersed markets operating pursuant to SEC-mandated information and order routing links will provide the benefits of consolidation and competition simultaneously.

This article argues that Regulation NMS has failed in that quest. It has produced fragmented markets and created questionable incentives for market participants, possibly …

Amazon’S Antitrust Fair Play, A Transatlantic Evaluation, Angelos Vlazakis, Angeliki Varela

Northern Illinois University Law Review

For the first time after a century, antitrust law has been making headlines around the country. Amazon, among other technological giants, finds itself in the middle of a cyclone against economic power. This article joins the endeavor of several scholars to understand Amazon's conduct, but through a different lens. It tries to see the big picture of Amazon's relevant market of operation, it evaluates indirect and potential competition and reaches the conclusion that the legendary e-retailer has a weak monopoly, if not any monopoly power. Subsequently, the article assesses several doctrines that could sanction Amazon's market conduct through comparative legal …

Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll

Indiana Law Journal

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding. …

Fascism And Monopoly, Daniel A. Crane

Michigan Law Review

The recent revival of political interest in antitrust has resurfaced a longstanding debate about the role of industrial concentration and monopoly in enabling Hitler’s rise to power and the Third Reich’s wars of aggression. Proponents of stronger antitrust enforcement argue that monopolies and cartels brought the Nazis to power and warn that rising concentration in the American economy could similarly threaten democracy. Skeptics demur, observing that German big business largely opposed Hitler during the crucial years of his ascent. Drawing on business histories and archival material from the U.S. Office of Military Government’s Decartelization Branch, this Article assesses the historical …

Tashkent In The Valuable Written Heritages Of Past. “Tarixi Jadidayi Tashkent”, F. Khusainova

Review of law sciences

The article analyzes the history of Tashkent, one of the oldest cities in Central Asia, based on written sources. There is also an analysis of topography of Tashkent based on the historical book “Tarixi Jadidayi Tashkent” by Muhammad Salih.

Uncovering Wholesale Electricity Market Principles, Michael Panfil, Rama Zakaria

Michigan Journal of Environmental & Administrative Law

This paper examines, enunciates, and makes explicit a set of market principles historically relied upon by the Federal Energy Regulatory Commission (FERC) to regulate wholesale electricity markets as required under the Federal Power Act (FPA). These identified competitive market principles are supported by policy and legal foundations that run through a myriad of FERC orders and court decisions. This paper seeks to make that history and those implicit market principles explicit by distilling and organizing Commission Orders and court decisions. It concludes that five market principles, each with multiple subprinciples, can be identified as elemental to how FERC understands and …

Property, Unbundled Water Entitlements, And Anticommons Tragedies: A Cautionary Tale From Australia, Paul Babie, Paul Leadbeter, Kyriaco Nikias

Michigan Journal of Environmental & Administrative Law

As water becomes an increasingly scarce resource, a lack of clarity in relation to its use can produce both conflict among and inefficient use by users. In order to encourage markets in water and to ensure the viability and functionality of those markets, governments in many jurisdictions have moved away from commons property as a means of water allocation, and towards systems of private property in water. In doing so, one policy and legal option is “unbundling”, which seeks carefully to define both the entitlement to water and its separation into constituent parts. Advocates claim that unbundling makes water rights …

The Layers Of Digital Financial Innovation: Charting A Regulatory Response, Teresa Rodriguez De Las Heras Ballell

Fordham Journal of Corporate & Financial Law

The increasing penetration of digital technologies in financial markets is evidenced by promising adoption rates among users, expanding presence of fintech firms and bigtech providing techfin services, and the growing use of fintech solutions by incumbents. The increasingly popular term "fintech" captures the accelerated transformation of contemporary financial markets driven and enabled by technology, and encapsulates its multifarious potential impact on services, market structures, and business models. This Article first aims to devise and propose an analytical framework to understand the digital challenges to financial regulation based on the "layers of digital financial innovation" theory. Accordingly, digital innovation (fintech) is …

Global Standards For Securities Holding Infrastructures: A Soft Law/Fintech Model For Reform, Charles W. Mooney Jr.

Michigan Journal of International Law

This Article outlines a “soft-law-to-hard-law” approach for the development and implementation of reforms to systems for the holding of publicly traded securities. It proposes the development of global standards for securities holding systems (“Global Standards”), to be led by the International Organization of Securities Commissions (the “IOSCO”). This approach contemplates that States would be encouraged and expected to implement the Global Standards by adopting “hard law” reforms through statutory and regulatory adjustments to their securities holding systems as well as modifications of the architecture of their securities holding systems. The successes of past IOSCO initiatives inspire this Article’s proposal, as …

A Crossroads, Not An Island: A Response To Hanoch Dagan, Zoë Hitzig, E. Glen Weyl

Michigan Law Review Online

Hanoch Dagan critiques Radical Markets for insufficient attention to the value of autonomy. While most of his concrete disagreements result from miscommunications, he appears sympathetic to a theory of autonomy that is more widespread, and deserves response. Human agency is fundamentally social, and individuality is primarily constituted by the unique set of social connections and identities one adopts. In this sense, flourishing individuals are crossroads of different communities, not self-sufficient islands. Beyond any welfarist benefits, a fundamental value of Radical Markets is that they aim to instantiate the social nature of identity and empower agency through diverse community.

Financial Repression In China: Short-Term Growth But Long-Term Crisis, Guangdong Xu, Michael Faure

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Berle And Corporation Finance: Everything Old Is New Again, Frank Partnoy

Seattle University Law Review

In this essay, I want to illustrate how Adolf A. Berle Jr.’s Studies in the Law of Corporation Finance1 was prescient about the kinds of financial innovation that are central to today’s markets. For scholars who are not familiar with this publication, Corporation Finance is a compilation of edited versions of several of Berle’s articles, along with some new material, most of which is focused on 1920s corporate practice. My primary goal here is simply to shine a light on this work and to memorialize for scholars the key passages that echo many of today’s challenges. The punch line of …

Draining The Flooded Markets: Tariffs, Suniva & Solar Energy Investment, Michael A. Stroup

Indiana Journal of Global Legal Studies

Demand for solar energy in the United States has increased significantly over the past half century. Despite the falling costs of solar infrastructure, the United States solar energy market is at a turning point. In 2017, two insolvent U.S. solar manufacturers, Suniva and SolarWorld America, successfully petitioned the International Trade Commission (ITC) to invoke Section 201 of the 1974 Trade Act. The two U.S. manufacturers argued that a surplus of imported Chinese solar panels has driven the cost of solar infrastructure too low and forced them out of the market. The ITC responded by recommending tariffs on global solar photovoltaic …

Why Markets? Welfare, Autonomy, And The Just Society, Hanoch Dagan

Michigan Law Review

Review of Eric A. Posner's Radical Markets: Uprooting Capitalism and Democracy for a Just Society.

Digital Market Perfection, Rory Van Loo

Michigan Law Review

Google’s, Apple’s, and other companies’ automated assistants are increasingly serving as personal shoppers. These digital intermediaries will save us time by purchasing grocery items, transferring bank accounts, and subscribing to cable. The literature has only begun to hint at the paradigm shift needed to navigate the legal risks and rewards of this coming era of automated commerce. This Article begins to fill that gap by surveying legal battles related to contract exit, data access, and deception that will determine the extent to which automated assistants are able to help consumers to search and switch, potentially bringing tremendous societal benefits. Whereas …

Assessing The Evolution Of Cryptocurrency: Demand Factors, Latent Value, And Regulatory Developments, Ryan Clements

Michigan Business & Entrepreneurial Law Review

The purpose of this Comment is to analyze the roots of this fervor— including that which drove Bitcoin’s initial demand surge—and investigate whether cryptocurrency can survive a market bubble that experienced a significant correction in 2018.

Integrating Micro And Macro Policy Levers In Response To Financial Crises, Daniel A. Crane, Markus Kitzmuller, Graciela Miralles

Michigan Business & Entrepreneurial Law Review

The 2008–09 Global Financial Crisis originated from a poor incentive structure in the asset market derived from subprime mortgages. The ultimate bursting and unwinding of an asset bubble (here highly overvalued real estate prices woven into a complex multilayer network of securitization, so called collateralized debt obligations or CDOs) put enormous stress on the financial system, spreading through the global network economy and ultimately resulting in the worst economic crisis since the Great Depression. Economists today agree that the severe economic fallout can be largely attributed to the poor systemic performance of international financial markets. Global macroeconomic imbalances, as well …

Markets For Self-Authorship, Hanoch Dagan

Cornell Journal of Law and Public Policy

Markets are complex phenomena with heterogeneous manifestations. They involve different types of goods and services and can be structured around different property and contract types. This plurality of markets justifies a careful attitude towards the definition of a market. It also counsels some suspicion towards overly-broad normative judgments, be they celebratory or critical, launched at markets-as-such.

But markets are powerful institutions that significantly impact individuals, affect relationships, and shape societies. They should thus be subject to critical scrutiny vis-A-vis the various goals that justify the complex legal arrangements which sustain them. Promoting social welfare, rewarding desert, inculcating virtues, and spreading …

Contract, Promise, And The Right Of Redress, Andrew S. Gold

William & Mary Business Law Review

This Essay reviews Nathan Oman’s recent book, The Dignity of Commerce. The book is compelling, and it makes an important and original contribution to contract theory—a contribution that insightfully shows how markets matter. Yet, in the course of developing a market-centered justification for contract law, The Dignity of Commerce also downplays the significance of consent and promissory morality. In both cases, the book’s argument is problematic, but this Essay will address questions of promissory morality. Oman contends that promise-based accounts struggle with contract law’s bilateralism and with its private standing doctrine. Yet, promissory morality is a very good fit …

A Pragmatist’S View Of Promissory Law With A Focus On Consent And Reliance, Robert A. Hillman

William & Mary Business Law Review

This Article discusses Professor Nate Oman’s excellent new book, The Dignity of Commerce, which makes an impressive case for how markets can produce “desirable” outcomes for society. In addition to a comprehensive account of what he calls “virtues” of markets, such as their tendency to produce cooperation, trust, and wealth, the book is full of useful and persuasive supporting information and discussions.

Oman is not only a fan of markets, but he asserts that markets are the “center” of contract theory, and provide its normative foundation. Elaborating, Oman concludes that “contract law exists primarily to support markets” and that …

Markets And Morals: The Limits Of Doux Commerce, Mark L. Movsesian

William & Mary Business Law Review

In this Essay on Professor Oman’s beautifully written and meticulously researched book, The Dignity of Commerce, I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called doux commerce thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from …

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

William & Mary Business Law Review

In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the marketplace as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the market theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and theory should account for values …

Exclusion In Digital Markets, Konstantinos Stylianou

Michigan Telecommunications & Technology Law Review

This article recasts the existing analytical framework on exclusion to account for the technology-intensive nature of digital markets. It discusses:

a) technological ways that affect the competitive intensity in digital markets
b) empirical data on the durability of competitive advantage in digital markets, and
c) the nature of exclusion as a monopolization tactic from a technological point of view

The technology element is important because as a matter of order it is technological capabilities and limitations that define what the transactional overlay can be, not the other way around. Economists start from the pre-assumption that “in the beginning there [are] …