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Full-Text Articles in Law
Ownership And Possession, Thomas W. Merrill
Ownership And Possession, Thomas W. Merrill
Faculty Scholarship
One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership. Ownership and possession will commonly overlap, and protecting ownership will protect possession. Nevertheless, even in the most sophisticated legal …
Dodd-Frank Orderly Liquidation Authority: Too Big For The Constitution?, Thomas W. Merrill, Margaret L. Merrill
Dodd-Frank Orderly Liquidation Authority: Too Big For The Constitution?, Thomas W. Merrill, Margaret L. Merrill
Faculty Scholarship
Title II of the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 establishes a new specialized insolvency regime, known as orderly liquidation, for systemically significant nonbank financial companies. While well intended, Title II unfortunately raises a number of serious constitutional questions. To vest authority in an Article III judge to appoint a receiver for such companies, yet also avoid a financial panic, Dodd–Frank requires that the judicial proceedings be conducted in secret, with no notice to the public or other interested parties on pain of criminal penalties, and that the judge rule on the petition to appoint the …