Law Commons^™

Exploration Into The Foreign Policy Impact Of Recent Immigration Laws, Luke Larson

Luke Larson

No abstract provided.

Exploration Into The Foreign Policy Impact Of Recent Immigration Laws, Luke Larson

Luke Larson

No abstract provided.

Investing In Distressed Italian Companies Under The Reformed Italian Bankruptcy Law - A Comparison With The Us Bankruptcy Code, Pierantonio Musso

Pierantonio Musso

This article presents a scheme to profitably invest in distressed Italian companies by taking advantage of the Italian Bankruptcy Law in comparison with the US Bankruptcy Code. The risks connected to the insolvency proceeding are analyzed under their economic effects and foreseen in their general appearance. Specific remedies to avoid or mitigate the potential risks are provided. Singular advantages, available only in the proposed investment scheme under the Italian Law, are described. As a result the investment produces a less risky and more profitable outcome than an investment in a non-distressed and non-Italian target company.

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

Impact fees complicate the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees are imposed in a way that make them, in effect, a dubious population tax. Indeed, the typical impact fee does little to discourage costly suburban sprawl. This essay, using economic lessons from policies to discourage the wasteful use of resources with light bulbs, bathrooms, and buildings, suggests a new policy course. It proposes an impact xat (a cross between a tax and fee) …

Labor Disputes In Professional Sports: How Federal Judges Referee Antitrust Lawsuits-- False Starts And Technical Fouls, Michael Leroy

Michael H LeRoy

Using a database of 83 published court opinions from 1970-2011, I show that players have utilized conflicting federal laws to improve their labor market mobility. They formed unions under the National Labor Relations Act, and bargained collectively with leagues. Often, however, they lacked bargaining power to modify the draft or reserve clause, which bound them to a team. Players sued, therefore, under the Sherman Act to challenge these practices as restraints of trade. Thus, players have used a dual engagement strategy of bargaining with leagues under the NLRA while holding identical negotiations under the threat of Sherman Act treble damages. …

The Case Against Credit Bidding: Optimal Creditor Behavior In Chapter 11 Collateral Auctions, Jared Kawalsky

Jared Kawalsky

This paper will attempt to advance some theoretical justifications for recent bankruptcy decisions that have denied the existence of a right for secured creditors to credit bid in the course of a reorganization under § 1129 of the Bankruptcy Code. § 363 of the Bankruptcy Code specifically grants secured creditors the right to bid their credit in a sale of their collateral as part of a going concern sale. However, in a reorganiztion under § 1129, secured creditors are not necessarily permitted to participate in an auction of the collateral underlying their liens. Relying on the broad auction theory literature …

Delaware’S Relevance In Chapter 22: Who Is “Courting Failure” Now?, Ruth S. Lee

Ruth S Lee

This study presents surprising new statistical evidence that contributes to the current “over-heated” academic debate about the Delaware courts’ role in Chapter 11 failure. In 2001, Professor LoPucki published an influential article suggesting that when large corporations file for bankruptcy under Chapter 11, they fail at a dramatically higher rate in Delaware courts than in other jurisdictions. He attributed this to corruption. His article enraged many academics and practitioners, and ignited many articles in the past two decades. This study presents startling evidence that while Chapter 11s filed in Delaware courts did have much higher failure rates from 1991-1996, after …

The Cost Of Democratization: Beyond Economists' Explanations Of Credit Card Debt, Andrea Freeman

Andrea Freeman

The credit card industry’s business model relies on the payment of fees and high interest rates by the poorest consumers to generate profits and subsidize credit card use by the richest. Industry studies indicate that African Americans and Latinos pay higher interest rates and more penalty fees than whites. Compounding credit card debt disparities are recent census statistics revealing that whites now have a median wealth twenty times higher than African Americans and eighteen times higher than Latinos. Despite the high social costs of deepening inequalities, law and economics and behavioral economics have largely ignored their contribution to market failure …

Corporate Leadership And The Unfinished Diversity Movement, Evan M. Roberts Mr.

Evan M Roberts Mr.

This comment explores topics relating to diversity in the board room. It begins by covering the benefits a diverse board brings to firm, focusing on the business case rationales of saving firms money, strengthening core business concepts and corporate governance and increasing shareholder value. Next, the comment explores why, despite the apparent value a divers e board brings to a firm, corporations remain largely homogenized at the highest levels. Current legal, social and economic principles such as tournament theory and labor market externalities appear to shed light on what specific problems diversity advocates must contend with if they hope to …

The Cost Of Democratization: Beyond Economists' Explanations Of Credit Card Debt, Andrea Freeman

Andrea Freeman

The credit card industry’s business model relies on the payment of fees and high interest rates by the poorest consumers to generate profits and subsidize credit card use by the richest. Industry studies indicate that African Americans and Latinos pay higher interest rates and more penalty fees than whites. Compounding credit card debt disparities are recent census statistics revealing that whites now have a median wealth twenty times higher than African Americans and eighteen times higher than Latinos. Despite the high social costs of deepening inequalities, law and economics and behavioral economics have largely ignored their contribution to market failure …

Rising Together: Clarifying The International Environmental Marketing Claim Regulatory Landscape So That Developing Country Exporters May More Effectively Market Their Environmentally Responsible Products, Jeffrey J. Minneti

Jeffrey J Minneti

This article focuses attention on national and international state and non-state actor environmental marketing claim criteria setting bodies to assess whether and to what extent the actors consider developing country interests in their schemes. Finding that many firm-specific and industry-specific non-state actors fail to offer any consideration of developing country interests in their standardization and certification schemes, likely because they lack any legal obligation to do, the article suggestes two clarifications to the World Trade Organization’s Agreement on Technical Barriers to Trade (TBT), that will at least incentivize non-state actors to integrate developing country interests into their schemes. First, the …

Rescission In Texas, A Suspect Remedy, George P. Roach

George P Roach

Rescission in Texas, A Suspect Remedy

Equitable remedies are sometimes overlooked even when favorable ex post changes in values or operating performance warrant their serious consideration. Due to liberalized standards for pleading and electing alternative remedies, rescission in Texas can provide a windfall to the claimant in comparison to standard monetary damages especially after favorable ex post changes. Texas courts are aware of the windfall incentive and can treat the claimant’s plea for rescission as suspect or opportunistic. Litigators on either side of a plea for rescission should consider how their case supports or refutes the suspicion that rescission would …

Corruption As Institution Among Small Businesses In Africa, Thomas A. Kelley Iii

Thomas A Kelley III

Suddenly it seems that US-funded international aid programs are all about building rational, predictable institutions to stimulate business in poor countries. The Millennium Challenge Corporation (MCC), a relatively new and increasingly important US aid organization, and the more venerable United States Agency for International Development (USAID), are initiating programs in poor countries around the world based on the assumption that their future stability and prosperity depends on unleashing and guiding the entrepreneurial spirit of small and medium-sized enterprises, and that this can be accomplished by improving the institutions – most particularly the laws and legal enforcement mechanisms – that regulate …

Et Tu Lisa Jackson? An Economic Case For Why The Epa’S Sweeping Environmental Regulatory Agenda Hurts Animal Welfare On Factory Farms, David E. Solan

David E Solan

Over the last several years, animal protection groups have increasingly partnered with environmentalists to ratchet up the environmental regulation of factory farms. This alliance has manifested itself in two primary ways: first, leading animal protection groups have supported the bold activism of Lisa Jackson, the Administrator of the EPA, in seeking to lasso factory farms into compliance with environmental laws; and second, these groups have engaged in a litigation strategy of suing factory farms under environmental statutes.

The Article aims to challenge the popular wisdom among the animal protection community that increased collaboration with the environmental movement confers mutual benefits. …

The End Of Mortgage Securitization? Electronic Registration As A Threat To Bankruptcy Remotenes, John P. Hunt, Richard Stanton, Nancy Wallace

John P Hunt

A central tenet of asset securitization in the United States—that assets are bankruptcy remote from their sponsors—may be threatened by innovations in the transfer of mortgage loans from the loan-originators (sponsors) to the legal entities that own the mortgage pools (the Special Purpose Vehicles (SPVs)). The major legal argument advanced in the paper is that because the mortgage is an interest in real property, the bankruptcy-remoteness rules applicable to real property, including § 544(a)(3) of the Bankruptcy Code, create a risk to the bankruptcy remoteness of mortgage transactions unless proper recording occurs. We review the traditional mortgage transfer process and …

"Systemic Poverty As A Cause Of Recessions", Robert Ashford

Robert Ashford

This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …

Information Failures In Structured Finance And Dodd'frank's "Improvements To The Regulation Of Credit Rating Agencies", Steven R. Mcnamara

Steven R. McNamara

This article analyzes the credit rating agency reform provisions of the Dodd-Frank Act’s “Improvements to the Regulation of Credit Rating Agencies” in light of the massive failures in the ratings of structured finance securities leading up to the 2008 credit crisis. The primary cause of ratings failure was the flawed quantitative ratings models used by the rating agencies; conflicted behavior on the part of the rating agencies was also an important but secondary cause. The key mechanical flaw in the ratings models was the method used to determination correlation, a measure of the likelihood that one borrower would default in …

Voice Without Say: Why More Capitalist Firms Are Not (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuinely employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive or efficient and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the …

Do We Value Our Cars More Than Our Kids? The Conundrum Of Care For Children, Palma Joy Strand

palma joy strand

Formal child care workers in the United States earn about $21,110 per year. Parking lot attendants, in contrast, make $21,250. These relative wages are telling: The market values the people who look after our cars more than the people who look after our kids. This article delves below the surface of these numbers to explore the systemic disadvantages of those who care for children—and children themselves. The article first illuminates the precarious economic position of children in our society, with a disproportionate number living in poverty. The article then documents both that substantial care for children is provided on an …

Freedom Of Contract In An Augmented Reality: The Case Of Consumer Contracts, Scott Peppet

Scott Peppet

This Article argues that freedom of contract will take on different meaning in a world in which ubiquitous information about places, goods, people, firms and contract terms is available to contracting parties anywhere, any time. In particular, our increasingly “augmented reality” calls into question leading justifications for distrusting consumer contracts—and thereby strengthens traditional understandings of freedom of contract as enforcing contracts as written. This is largely a descriptive and predictive argument: the Article aims to introduce contract law to these technologies and consider their most likely effects. It certainly has normative implications, however. Given that the vast majority of consumer …

The Ftc’S Proposal For Regulating Ip Through Ssos Would Replace Private Coordination With Government Hold-Up, F. Scott Kieff, Richard Epstein, Daniel Spulber

F. Scott Kieff

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …

How Lawsuits Could Ignite An Energy Market: The Case Of Anaerobic Digestion, Catherine Keske

Catherine Keske

This article focuses on anaerobic digestion—a technology that converts biomass into methane that can be captured and used as biogas, or that can be converted into electricity through a generator. The biogas and electricity can be used at the facility where the biomass is collected, or the electricity could be sold to the grid if net metering policies are available. Currently, anaerobic digestion is not feasible in many areas of the nation, including the U.S. West, where energy prices are relatively low. This article demonstrates how anaerobic digestion can help agricultural operations avoid the costs associated with a nuisance lawsuit. …

Reforming Paradoxes Of Socio-Economic Development: Modeling Change And Continuity At The World Bank, Peter Hammer

Peter Hammer

In 1995, James Wolfensohn became President of the World Bank. He inherited an institution at a time of crisis and drift. The crises were triggered by the sustained backlash against the so-called “Washington Consensus,” a strong wave of anti-globalization sentiment and a shocking lack of evidence that Bank policies have had any real impact in generating growth or reducing poverty. His two-term presidency (1995-2005) oversaw the creation of an ambitious agenda for socio-economic development. The truth is, however, that this is not the first time the Bank has undergone radical policy shifts. In the past, the Bank has cycled through …

The Evolution Of Regulation: 20th Century Lessons And 21st Century Opportunities, John W. Mayo

John W Mayo

Abstract: Reflections on the evolution of regulatory policies over the past half-century afford the ability to not only identify important drivers to this evolution, but also to identify elements of regulation and deregulation that have been most successful in practice. The common element of these successes has been that they are "results-based." Based on these successes, this paper develops a model of "results-based regulation" through the identification of a set of principles that can used to guide 21st century regulatory practice. A consideration of regulation in the modern telecommunications industry serves as a proof of concept for the model of …

Where Did Mill Go Wrong?: Why The Capital Managed Firm Rather Than The Labor Managed Enterprise Is The Predominant Organizational Form In Market Economies, Justin Schwartz

Justin Schwartz

In this Article, I propose a novel law and economics explanation of a deeply puzzling aspect of business organization in market economies. Why are virtually all firms are organized as capital managed and owned (capitalist) enterprises rather than as labor managed and owned cooperatives? Over 150 years ago, J.S. Mill predicted that efficiency and other advantages would eventually make worker cooperatives predominant over capitalist firms. Mill was right about the advantages but wrong about the results. The standard explanation is that capitalist enterprise is more efficient. Empirical research, however, overwhelmingly contradicts this. But employees almost never even attempt to organize …

“No Fishing Poles Allowed At The Office,” And Other Suggestions On How To Limit “Fishing Expeditions” To An Outdoor Weekend Activity And Away From The Realm Of E-Discovery, Joanna K. Slusarz

Joanna Slusarz

Early settlement is usually encouraged by the courts and welcomed by most parties involved in a lawsuit. However, it may not always be the most favorable result. This idiosyncrasy arises most when the costs of continuing litigation and adjudication on the merits outweigh those of early settlement. On the other hand, early settlement raises the risk of “encourag[ing] additional, low merit cases that might not otherwise have been filed had the company chosen to litigate existing lawsuits.”

The phenomenon of electronic discovery (“e-discovery”) has exponentially increased the occurrence of the latter result. As a result, defendants, particularly large corporations with …

Legal Political Moral Hazard: Does The Dodd-Frank Act End Too Big To Fail?, Troy S. Brown

Troy S Brown

Abstract In the aftermath of the 2008 financial crisis, Senator Chris Dodd proposed the Restoring American Financial Stability Act of 2010 (the “Dodd-Frank Act”). The Dodd-Frank Act, the result of more than 18 months of negotiation and debate, aims to strengthen consumer protection, and regulate complex financial products. President Obama called the Dodd-Frank Act “the greatest overhaul of Wall Street since the Great Depression.” Among the many changes and hopes for the Dodd-Frank Act is that it will finally end the financial calamity, social unrest, and massive federal bailouts associated with the “too big to fail” concept. The “too big …

Community Collateral Damage: A Question Of Priorities, Andrea J. Boyack

Andrea J Boyack

Today’s soaring mortgage default rate and the uncertainty and delay associated with mortgage foreclosure proceedings threatens to cause financial tragedies of the commons in condominiums and homeowner associations across the country. Assessment defaults in privately governed communities result in an inequitable allocation of upkeep costs, and current law provides no way to prevent this spillover effect. But the collateral damages caused by delayed foreclosures and insufficient recoveries can be minimized by gradually increasing the priority position of the association lien.

In a majority of states, association liens are completely subordinate to the first mortgage lien. At foreclosure of the mortgage …

Is There An Efficient Antitrust Approach To Health Care?, Kathryn Ciano

Kathryn Ciano

As American states and the federal government wrestle to find a solution to health care reform, some regulators are looking towards antitrust laws in the international marketplace to govern domestic health care policy. Antitrust principles dictate that antitrust authorities must intervene only when pressures become so great as to interfere with the very operations of the market. Pharmaceutical and health care markets rely on free trade and competitive global cooperation, so there is no efficient antitrust approach to health care.