Law Commons^™

An Introduction To The Financial Action Task Force And Its 2008 Lawyer Guidance, Laurel S. Terry

Faculty Scholarly Works

The Financial Action Task Force (FATF) is a thirty-eight-member intergovernmental organization whose mission is to fight money laundering and terrorism financing; the U.S. is a founding member of the FATF. The FATF is best known for its 40 Recommendations, many of which are directed towards various kinds of “gatekeepers” who are in a position to facilitate or inhibit money laundering and terrorism financing. (These were previously known as the 40+9 Recommendations). Lawyers are among those to whom the FATF’s recommendations apply. This article provides the introduction for the Journal of the Professional Lawyer’s Symposium about the application of the FATF …

Simultaneous Distress Of Residential Developers And Their Secured Lenders An Analysis Of Bankruptcy & Bank Regulation , Sarah Pei Woo

Fordham Journal of Corporate & Financial Law

No abstract provided.

The Tenth Annual A. A. Sommer, Jr. Lecture On Corporate, Securities, & Financial Law, Elisse B. Walter

Fordham Journal of Corporate & Financial Law

No abstract provided.

Two Masters, Carl E. Schneider

Articles

American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

Articles

Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger

Articles

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …

Testimony Before The Financial Crisis Inquiry Commission, Miami, Florida September 21, 2010, William K. Black

Faculty Works

"Control frauds" are seemingly legitimate entities controlled by persons that use them as a fraud "weapon." (The person that controls the firm is typically the CEO, so that term is used in this testimony.) A single control fraud can cause greater losses than all other forms of property crime combined. Neo-classical economic theory, methodology, and praxis combine to optimize criminogenic environments that hyper-inflate financial bubbles and produce recurrent, intensifying financial crises. A criminogenic environment is one that creates such perverse incentives that it leads to widespread crime. Financial control frauds’ "weapon of choice" is accounting. Neoclassical theory, which dominates law …

Insurance Law Between Business Law And Consumer Law, Jeffrey E. Thomas

Faculty Works

The U.S. legal system has multiple and complex regulatory regimes for insurance which combine statutes, administrative regulations and common law rules. Regulation of insurance is predominantly done by the fifty states, and this increases the system’s complexity. The regulatory regimes generally divide the industry, the subject of regulation, from the consumers, which are to be protected, without regard for the status or sophistication of the insurance consumer. This article focuses on the role of insurance law and regulation within the legal system, and in particular the divide between business or commercial insurance and that provided for consumers, more commonly known …

Wall St. Fraud And Fiduciary Responsibilities: Can Jail Time Serve As An Adequate Deterrent For Willful Violations?, William K. Black

Faculty Works

The answer to the question posed by the title of this hearing is: only prison sentences can deter the violations that caused the debacle. We should, however, never rely solely on prosecutions to constrain crimes. The criminal justice system needs to work with regulation not only to make regulation more effective, but also to prevent “private market discipline” from becoming a “criminogenic” oxymoron. To understand the vital role that the criminal justice system must play if we are to avoid the recurrent, intensifying financial crises that have beset this and many other nations for nearly three decades we must begin …

Short Selling And The News: A Preliminary Report On An Empirical Study, Merritt B. Fox, Lawrence R. Glosten, Paul C. Tetlock

NYLS Law Review

No abstract provided.

Wine Wars: How We Have Painted Ourselves Into A Regulatory Corner, Rachel M. Perkins

Vanderbilt Journal of Entertainment & Technology Law

A private citizen can violate the Constitution in two ways. The first is by enslaving another person, an atrocious act that should be proscribed by the highest law in the land. The second is by transporting alcohol across a state line in violation of the laws of that state. The two actions are hardly of the same magnitude.

The history of alcohol regulation has been a litany of failed attempts--on both the state and federal levels. Each new layer of legislation created additional problems. Most are familiar with the infamy of Prohibition, the federal ban on the manufacture or sale …

The Ilc And The Reconstruction Of U.S. Banking, Mehrsa Baradaran

Scholarly Works

Since the Great Depression, bank regulators in the United States have endeavored to separate banking institutions from commercial firms, believing such separation was necessary for stability and growth. The recent collapse of our financial system indicates that this premise may be false, as Industrial Loan Companies ("ILCs") – the only institutions where commercial firms are permitted to own banks – remain sound. ILCs have persisted throughout U.S. banking history through exceptions and omissions in banking legislation, but the strength and resilience they have exhibited in the current financial collapse are worth investigating and even emulating. This article examines recent controversy …

Rethinking Environmental Contracting, Natasha Affolder

All Faculty Publications

Environmental contracts occupy an ill-defined middle ground between command and control regulation and voluntary initiatives. These agreements have captured the imagination of policymakers and scholars in the U.S. and Europe in particular. They are heralded as promising examples of “new governance.” This Article explores a little known example of environmental contracting which emerged in the context of a Canadian diamond mine — the Ekati Environmental Agreement. Through a fine-grained case study of the Ekati Agreement, this article challenges some of the assumptions that shape the “environmental contracting literature as well as the wider literature on “new governance.” By debunking the …

Systemic Regulation Of Global Trade And Finance: A Tale Of Two Systems, R. Michael Gadbaw

Georgetown Law Faculty Publications and Other Works

The recent financial crisis has put enormous strains on the global systems governing international finance and trade. These two important international regulatory systems, created after World War II to promote growth and stability in the global economy, were put to the test in ways unprecedented since the 1930s. This article seeks to analyze and compare their performance as systemic regulators in the course of the crisis and concludes that the trading system performed quite well while the financial system virtually collapsed. This article seeks to account for this difference by looking at the nature of the rules and the institutions …

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.

Populist Retribution And International Competition In Financial Services Regulation, Adam C. Pritchard

Articles

The pattern of regulatory reform in financial services regulation follows a predictable pattern in democratic states. A hyperactive market generates a bubble, the bubble deflates, and much financial pain ensues for those individuals who bought at the top of the market. The financial mess brings the scrutiny of politicians, who vow "Never again!" A political battle ensues, with representatives of the financial services industry fighting a rearguard action to preserve its prerogatives amidst cries for the bankers' scalps. Regulations, carefully crafted to win the last war, are promulgated. Memories fade of the foolish enthusiasm that fed the last bubble. Slowly, …

Addressing Government Failure Through International Financial Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article discusses the recent financial crisis and argues that the government’s actions contributed to the collapse as much as market failure did. The article also notes that preventive and cleanup measures need to be instituted and the economy needs to be made more resilient so that it can survive temporary credit crises. These goals can be accomplished by increasing competitiveness, renewing trade liberalization, eliminating subsidies for domestic products, and avoiding demagoguery. Finally, international institutions should play a role in financial regulation; specifically, the international community should some of the WTO and ILO’s techniques. I conclude by noting that effective …

Did Trinko Really Kill Antitrust Price Squeeze Claims?, Caroline C. Rudaz

Vanderbilt Journal of Transnational Law

This Article presents a critical analysis of the Linkline case that refuses to recognize price squeeze claims as antitrust claims under § 2 of the Sherman Act. It argues that Linkline gives a distorted reading of Trinko without giving proper attention to the application of § 2 of the Sherman Act. The Linkline decision takes a dogmatic position and thus, while refuting the Alcoa decision, appears to be a missed opportunity to more precisely define price squeezing.

This Article offers a comparison between the U.S. Supreme Court's decision and the recent European decisions delivered in broadband access cases that are …

Balancing Of Markets, Litigation And Regulation, Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin, Todd J. Zywicki

Faculty Scholarship

In addition to judicial education programs that the Law and Economics Center conducts, we also have a division that focuses on public policy research, known as the Searle Civil Justice Institute. In November, we held a public policy roundtable where we commissioned a variety of research and brought together a group of experts, both academic and practitioner experts, to discuss the issue of balancing the appropriate roles of markets, litigation, and regulation. And the notion there is that each one - markets, litigation, and regulation - can and probably should play a role in addressing various consumer harms.

Commerce, Jack M. Balkin

Michigan Law Review

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power …

Legislation That Isn't – Attending To Rulemaking's "Democracy Deficit", Peter L. Strauss

Faculty Scholarship

Philip Frickey's commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something "practical" – to attempt a constructive approach to an enduring problem – that has some bearing on his lifelong attention to the problem of "interpretation." If it will not make the problem go away, perhaps it will provide a basis for understanding its inevitable tensions, and in that way will help us step past theoretical exegeses suggesting the possibility of simple answers.

The Road Not Taken: Rethinking Securities Regulation And The Case For Federal Merit Review, Daniel J. Morrissey

University of Richmond Law Review

No abstract provided.

"No Man Can Be Worth $1,000,000 A Year": The Fight Over Executive Compensation In 1930s America, Harwell Wells

University of Richmond Law Review

No abstract provided.

Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge

Faculty Scholarship

Recently, public confidence in the charitable sector has eroded due to a barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and state attorneys general, are saddled with bureaucratic constraints that make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector.

Some advocate expanding private regulation of the charitable sector to improve enforcement of the fiduciary responsibilities of charitable managers. …

A New Era Of Tax Enforcement: From 'Big Stick' To Responsive Regulation, Sagit Leviner

University of Michigan Journal of Law Reform

This Article explores the economics of crime and compliance as the dominant approach to U.S. tax enforcement of the past three and a half decades. It evaluates the key advantages and disadvantages of the economic model as well as its application to tax. The Article then addresses the multiplicity of taxpayer behavior and the need and prospect of balancing the economically conceived methods of detection and punishment against other, more cooperative, means and developing a broader approach to tax enforcement more generally. The Article explores responsive regulation as a case study for an alternative method to tax enforcement that heavily …

A Healthy Diet Of Preemption: The Power Of The Fda And The Battle Over Restricting High Fructose Corn Syrup From Food And Beverages Labeled 'Natural', Adam C. Schlosser

Journal of Food Law & Policy

America is unhealthy. America faces an obesity epidemic. The food consumed by Americans is making them fat. Americans, bombarded every single day by negative headlines like these, are becoming more and more health conscious. This newfound commitment to health is reflected in the food and beverages Americans purchase.

Household Actions Can Provide A Behavioral Wedge To Rapidly Reduce U.S. Carbon Emissions, Michael P. Vandenbergh, Thomas Dietz, Gerald T. Gardner, Jonathan Gilligan, Paul C. Stern

Vanderbilt Law School Faculty Publications

Most climate change policy attention has been addressed to long-term options, such as inducing new, low-carbon energy technologies and creating cap-and-trade regimes for emissions. We use a behavioral approach to examine the reasonably achievable potential for near-term reductions by altered adoption and use of available technologies in US homes and nonbusiness travel. We estimate the plasticity of 17 household action types in 5 behaviorally distinct categories by use of data on the most effective documented interventions that do not involve new regulatory measures. These interventions vary by type of action and typically combine several policy tools and strong social marketing. …

Imperfect Property Rights, James Bessen

Faculty Scholarship

In theory, property rights allow markets to achieve Pareto optimal allocations. But the literature on contracting largely ignores what happens when property rights are imperfectly defined and enforced. Although some models include weak enforcement or poorly defined rights or "anticommons," this paper develops a general model that includes all of these possibilities. I find that combinations matter: Policy prescriptions to remedy individual imperfections are sometimes inappropriate under other conditions. For example, stronger penalties for violating rights can decrease Pareto efficiency, contrary to a common view. Also, collective rights organizations, such as patent pools, sometimes worsen problems of overlapping claims.

Off The Grid: Federal Jurisdiction And The Canadian Electricity Sector, Ian Blue

Dalhousie Law Journal

The author argues that the federal government should empower the National Energy Board to regulate transmission access on provincial electricity systems including the authority to order a provincial utility to construct new facilities, for the purpose of creating a truly national electricity system and facilitating interprovincial and international electricity sales. First, because Canada needs a national regulator who can address the creeping Americanization of the Canadian electricity sector arising from the U.S. legislation and decisions of the Federal Energy Regulatory Commission. Second, because Canada needs a nationalbody to facilitate the movement ofnon-greenhouse gas sources of electricity to markets where it …

Regulating Sperm Donation: Why Requiring Exposed Donation Is Not The Answer, Vanessa L. Pi

Duke Journal of Gender Law & Policy

[...] the risk of incest and consanguinity11 are prevalent with anonymous donation12 since there is no monitoring of the number of live births per donor. [...] the number of children born from sperm donation has doubled in recent years.30 Although sperm may be donated by a relative or close friend of the couple or individual, often the sperm is donated anonymously through a sperm bank or clinic.