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\u27Moralist\u27 Versus \u27Scientist\u27: Stanley Surrey and the Public Intellectual Practice of Tax Policy
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Finance Against Law: The Case of China
Get PDFCan there be a highly developed financial market without legal protection for investors and creditors? The influential law and finance literature is built on the assumption that legal protection is essential to the development of an impersonal financial market. This Article investigates how two financial markets of trillions of dollars have developed extralegally in the past two decades despite the risk of regulatory enforcement and contract defaults. Specifically, I examine (1) how Chinese internet companies from Sina to Alibaba have designed contracts to circumvent the Chinese government’s ban on foreign capital in its internet industry and (2) how Chinese entities and foreign investors contract out of China’s stringent regulations on the issuance of international bonds. These extralegal contracts incur significant legal risks and are unlikely to be enforced in Chinese courts. Nevertheless, numerous international investors have invested in China through such contracts, providing capital essential to the country’s economic growth over the past two decades. My research reveals that (1) the extralegality of both the international capital market supporting China’s internet companies and the market of Chinese-issued international bonds originates from China’s struggle between development, which requires access to the international capital market, and control, which requires keeping both Chinese enterprises and foreign capital on a short leash; and (2) networks of Chinese state actors, market intermediaries, and Chinese corporations concentrated in certain industries replace judicial enforcement in supporting financial development of a remarkable duration and scale.
Based on the above case studies, this Article coins the term “finance against law,” challenging the necessity of law to developing impersonal and sophisticated financial markets. Law and finance scholars are right that impersonal finance needs the backing of the state, but wrong to assume that the state can only back impersonal finance with legal institutions. China’s approach, “governing by extralegality,” sheds light on the role of the state and politics in extralegality, pointing to a new direction that scholars of law and social norms who mainly focus on private ordering should attend to. The Chinese experience also demonstrates an approach of developing markets by circumventing existing legal and regulatory barriers, further complicating the relationship between law and development
Masks, Mayhem & the Future of Disability Rights in Schools
Get PDFDisability rights took center stage in the recent battles over universal mask mandates in public schools. Pro-mask advocates argued that universal mask policies were necessary to ensure equal access to education under two different federal disability statutes, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Opponents argued universal masking was an infringement on personal liberty and uncalled for by either law. Courts responded with a great deal of confusion that resulted in disparate legal outcomes for cases with essentially the same facts. This confusion, however, is not new—it is rooted in decades of doctrinally flawed reasoning interpreting whether K–12 students’ requested accommodations are reasonable. Courts imported this reasonableness framework from federal regulations for post-secondary and vocational schools. But those regulations do not apply to the K–12 space. In fact, the regulations governing K–12 schools say nothing about accommodations and do not limit schools’ obligations to ensure equal access for students with disabilities. To confuse matters further, the U.S. Department of Education (DOE), tasked with enforcing disability rights in public schools, applies an entirely different analysis when resolving allegations of disability discrimination in administrative claims. This Article is the first to identify and resolve courts’ and agencies’ confusion regarding K–12 disability discrimination claims. It argues that lower courts have misapplied the Supreme Court’s higher education precedent to limit K–12 disability rights claims while the DOE has ignored legitimate limits on such claims to the confusion of individuals, schools, and courts. Further, it offers an amendment to Section 504 regulations that will clarify the law’s reach for both lower courts and administrative claims
Keynote: Airpower Law and the Warfighter\u27s Perspective
No full textDavid Deptula discusses the law governing military aircraft.
Introduction: Maj. Gen. Charlie Dunlap, USAF (Ret.), LENS Executive Director
Speaker: Lt. Gen. David Deptula, USAF (Ret.), Dean, Mitchell Institute for Aerospace Studie
The Cryptocurrency Crisis and National Security
No full textLee Reiners speaks about the impact of the recent cryptocurreny dilemma on national security.
Speaker:
Prof. Lee Reiners, Policy Director at the Duke Financial Economics Center and Lecturing Fellow at Duke Economic
The Psychology Behind Default Rules
No full textModerated by Arti Rai (Duke Law).
Jeffrey Rachlinski (Cornell Law School), Emily Murphy (UC Hastings Law School), panelists
Hospitals Suing Patients: How Hospitals Use N.C. Courts to Collect Medical Debt
Get PDFFrom January 2017 through June 2022, North Carolina hospitals brought 5,922 lawsuits to collect medical debt against 7,517 patients and family members. These actions were brought in small claims court, state district, and state superior courts, and generated 3,449 judgments for hospitals totaling 16,623 per judgment.
Hospitals took advantage of North Carolina’s allowance of 8% annual interest on judgments, including by refiling actions to sustain judgments issued ten years earlier. These interest charges and other additional fees totaled an estimated 10,000 in interest alone. There is also evidence that patients had little say in these judicial proceedings, as 59.8% of all judgments in state district courts were default judgments.
A small subset of North Carolina’s hospitals were responsible for a vast majority of lawsuits. Five hospital systems filed 96.5% of the collection actions over the studied time period. Additionally, nonprofit hospitals initiated 90.6% of the lawsuits against patients. Hospitals that filed more than 40 lawsuits — which we denote as “litigious hospitals” — exhibited an average charge-to-cost ratio (a metric of price markups) of 480.5%, compared to a national average of 417% in 2018, and an average net profit margin of 12% from 2017 to 2022. These hospitals also offered less charity care than the estimated value of a nonprofit hospital’s tax exemption.
Courthouse records and patient interviews conducted by the North Carolina Office of State Treasurer add texture to these empirical findings. Some of the medical debt targeted by these lawsuits were reportedly consequences of failures in charity care, from “surprise bills,” and from care encounters in which patients unknowingly or unavoidably received care from out-of-network providers.
Patients also described how the financial stress from hospital lawsuits negatively impacted their physical health and deterred them from seeking future medical care. Under North Carolina law, a judgment automatically triggers a lien against real property, and many expressed fear of losing their main source of equity. Some were also unaware that their hospital judgment resulted in a lien on their home