3320 research outputs found
Sort by
Inside Safe Assets
Get PDF“Safe assets” is a catch-all term for financial contracts that market participants treat as if they were risk-free. These may include government debt, AAA corporate debt, bank debt, and asset-backed securities, among others. The International Monetary Fund estimated potential safe assets at more than $114 trillion worldwide in 2011, over seven times the U.S. economic output that year.
To treat any contract as if it were risk-free seems delusional after apparently super-safe public and private debt markets collapsed overnight. Nonetheless, financial crises have only raised the policy and academic profile of safe assets, invoked to explain global imbalances, shadow banking, and prolonged economic stagnation. The economic literature speaks of safe assets in terms of poorly understood natural forces or essential particles newly discovered in a super-collider. Law is virtually absent in this account.
Our Article makes four contributions. First, we describe the legal architecture of safe assets. Existing theories do not explain where safe assets get their safety. Understanding how legal and regulatory tools help make, label, and guarantee safe assets is an essential first step to managing the risks they entail. Second, we offer a unified analytical framework that links the safe asset debate with post-crisis legal critiques of money, banking, structured finance and bankruptcy. Third, we highlight sources of instability in the legal architecture, and the political commitments embedded in it. Fourth, we offer preliminary prescriptions to address some of the failings we identify.
Precisely because there are no risk-free contracts, state intervention supplies the essential infrastructure to let people act as if some contracts were risk-free. The law constructs and maintains safe asset fictions, and it places them at the foundation of institutions and markets. This project is unavoidably distributive and fraught with distortions
Is the United States Prepared for a Major Zika Virus Outbreak?
Get PDFZika virus has emerged as a global public health crisis with active transmission in the Americas and Caribbean. The World Health Organization (WHO) declared a Public Health Emergency of International Concern (PHEIC), and recently WHO reported there is a scientific consensus that Zika is a cause of microcephaly and Guillain-Barré syndrome (GBS). In the U.S. the Centers for Disease Control and Prevention (CDC) activated its emergency operations center at its highest capacity. President Obama requested $1.86 billion in emergency funding. Shamefully, Congress has yet to appropriate the funding needed for Zika preparedness, and the President has had to reallocate Ebola funding for Zika prevention.
Although none of the continental states has reported local mosquito-borne transmission, federal authorities are amplifying the potential for Zika to affect national security. The virus already severely threatens Puerto Rico. Travelers visiting or returning to the United States could likely escalate the spread of Zika via sexual transmission. The virus may spread across a majority of US states including large cities where Aedes species mosquitos are active. Is the U.S. prepared for Zika? America\u27s highly functioning health system will help, but signs of unpreparedness remain due to insufficient resources and variable legal authorities
The New International Tax Diplomacy
Get PDFInternational tax avoidance by multinational corporations is now frontpage news. At its core, the issue is simple: the tax regimes of different countries allow multinational corporations to book much of their income in low-tax or no-tax jurisdictions, and many of their expenses in high-tax jurisdictions, thereby significantly reducing their tax liabilities. In a time of public austerity, citizens and legislators around the world have been more focused on the resulting erosion of the corporate income tax base than ever before. In response, in 2012, the G-20—the gathering of the leaders of the world’s twenty largest economies—launched the Base Erosion and Profit Shifting (BEPS) project, the most extensive attempt to change international tax norms since the 1920s. In the course of the BEPS project, the field of international tax has adopted the institutional and procedural architecture for multilateral action used in international financial law. This Article is the first to ask whether that architecture will work in the international tax context. To answer that question, this Article first applies lessons from the international financial law literature to assess international tax agreements that are now being reached through soft-law instruments and procedures comparable to those that characterize international financial law. This initial analysis, which draws from the experience in international financial law, is largely pessimistic. However, this Article then describes how model tax treaty law—although also a form of soft law—is highly effective, and differentiates the political economy of international tax law from that of international financial law. As a result, a key theoretical point emerges: bifurcating analysis of multilateral efforts to change international tax norms into their Model Treaty-based and non-Model Treaty-based components is necessary in order to understand the new regime for international tax governance. At a more practical level, bifurcating the analysis highlights that observers should expect the Model Treaty-based parts of the BEPS project to be implemented, as well as most parts of the project focused on tax transparency.
By contrast, sustained international coordination in implementing other dimensions of the project is doubtful. In reaching these conclusions, the Article contributes to the broader international economic governance literature by using a high-profile example from international tax diplomacy to show how underlying legal institutions affect the prospects for implementation of international regulatory agreements
Bartleby’s Consensual Dysphoria
Get PDFThe 2011 Occupy Wall Street protest movement adopted what on first blush appears to be a peculiar literary mascot: Bartleby the scrivener, one of the two protagonists of the Story of Wall Street penned by Herman Melville in the middle of the nineteenth-century. But this empathic identity of interests between twenty-first-century street protesters pushing back against the dominance of the .01% and a pathetic, melancholic, cadaverous, anorexic, apparently suicidal, and fictional mid-nineteenth-century legal scrivener is decidedly odd.
In this paper, I ask and try to answer this question: what did the OWS protesters recognize in Bartleby that sparked their empathic identification? More broadly, what is it, in Bartleby and in his recalcitrance, that is recognizably and deeply human? Ultimately, I argue that Bartleby the man can be understood to suffer from an extreme case of what I call “consensual dysphoria,” a disorienting and disabling consciousness of a radical disjuncture between one’s felt subjective pleasures and pains, and the transactions and states of the world to which one gives one’s free or voluntary consent. Consensual dysphoria, as I will describe it, is an affliction felt by individuals, but it is not a psychological malady. It is, rather, a political malady felt by individuals in liberal states, and brought on by the powers of political rhetoric and influence. I claim that consensual dysphoria has been an acutely felt part of the consciousness of both the classical legal thought of the mid-nineteenth-century and the liberal legalist thought of our own time. Melville’s Bartleby had that condition in extremis, and the twenty-first-century protesters suffer from it as well. That commonality, I suggest, lays the groundwork for the otherwise inexplicable empathic bond between them.
The first part of this paper discusses some of the scholarly literature on Bartleby, with an eye toward elucidating why it is that so few scholars have felt the need to understand Bartleby’s political malady – or more generally, to understand his humanity. The second part discusses the jurisprudential background and content of the story, expanding where need be on Brook Thomas’s similarly motivated account from the 1980s. The third and fourth parts introduce the idea of “consensual dysphoria” as an individualized, psychic manifestation of some of the discomforts attendant to liberal and neoliberal markets and state organization, and makes the case that this is the essence of Bartleby’s affliction. I conclude with some observations about the OWS movement informed by some aspects of this analysis
Alternative Litigation Finance and the Limits of the Work-Product Doctrine
Get PDFAs third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course of obtaining and making use of third-party funding in litigation qualify for work-product protection under Rule 26
Informational Cronyism
Get PDFIf Maher Kara, the Citigroup analyst at the center of the Salman case now before the Supreme Court, was forbidden under SEC Rule 10b-5 from trading securities for his own account while in possession of the valuable secrets to which his job gave him access, should he instead be able to give that information to family members simply in order to enrich them? I suspect that to anyone unfamiliar with the fine line drawing of federal insider trading law, the answer is clearly no. There is probably no more common form of corruption than generously shoveling the fruits of power and privilege to family and close friends. Cultures lacking a strong rule of law make it an art form
The First Amendment Walks into a Bar: Trademark Registration and Free Speech
Get PDFSection 2 of the Lanham Act, the federal law governing trademarks, lists a number of bars that preclude registration of a trademark on the federal register. These reasons include: the claimed matter is functional, meaning it affects the cost or quality of the underlying product or service; the claimed matter is merely descriptive, meaning that consumers don’t understand that it indicates source and instead think that it just describes some characteristic of the product; the claimed matter is deceptively misdescriptive, which is like descriptiveness except not true; the claimed matter is deceptive, meaning that the untruth would be material to consumers; the claimed matter is confusingly similar to an existing registered mark or mark in use in the United States; the claimed matter is the name, photo, or signature of a living person and there’s no written consent from that person to register the mark; the claimed matter is the flag or insignia of a nation or state or other U.S. political subdivision; the claimed matter creates a false association with people or institutions; the claimed matter is a geographic indication for wine or spirits but identifies a place other than the origin of the goods; and, last but not least, the claimed matter is scandalous, immoral, or disparaging.
The constitutionality of section 2 is now in doubt. Washington’s football team had its disparaging marks cancelled, a decision upheld by a district court in mid-2015 and now on appeal to the Fourth Circuit. But in December 2015, the Federal Circuit, en banc, held that section 2(a)’s disparagement bar was unconstitutional in the case of Simon Tam, an Asian-American seeking to register an anti-Asian slur in order to reclaim its negative meaning. The government apparently agrees that this holding also invalidates section 2(a)’s scandalousness bar, and the Supreme Court granted certiorari to review the decision in September 2016.
This Article analyzes the First Amendment arguments against section 2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. My fundamental conclusions are that In re Tam is wrongly reasoned even given the Supreme Court’s increased scrutiny of commercial speech regulations, and that to hold otherwise and preserve the rest of trademark law would require unprincipled distinctions within trademark law. More generally, the Supreme Court’s First Amendment jurisprudence has become so expansive as to threaten basic aspects of the regulatory state; the result of subjecting economic regulations such as trademark registration to strict First Amendment scrutiny shows the damage that can be done thereby
Physician Assisted Dying: A Turning Point?
Get PDFPhysician Assisted Dying (PAD) has been lawful in some countries since the 1940s and in the United States since 1997. There is a body of social and scientific research that has focused on whether the practice has been misused and whether gaps exist in legislative safeguards. There are multiple concerns with physicians assisting patients to die: incompatibility with the physician’s role as a healer, devaluation of human life, coercion of vulnerable individuals (e.g., the poor and disabled), and the risk that PAD will be used beyond a narrow group of terminally ill individuals. Statutes in the United States have been drafted with these concerns in mind in an effort to mitigate the possible risks of PAD while still providing individuals with access.
There seems to be a shift in attitudes towards PAD. Currently four states statutorily permit PAD and it is being discussed by multiple legislatures across the country. There also seems to be a shift in medical practice as demonstrated by a 2015 survey that showed for the first time that more than half of physicians surveyed favored medical assistance in dying.
PAD is a deeply personal choice. The question is whether more states will authorize the practice and, if so, what safeguards will be put in place to ensure the practice is not misused and remains consistent with prevailing social and ethical thought
The Emerging Zika Pandemic: Enhancing Preparedness
Get PDFThe Zika virus (ZIKV), a flavivirus related to yellow fever, dengue, West Nile, and Japanese encephalitis, originated in the Zika forest in Uganda and was discovered in a rhesus monkey in 1947. The disease now has “explosive” pandemic potential, with outbreaks in Africa, Southeast Asia, the Pacific Islands, and the Americas. Since Brazil reported Zika virus in May 2015, infections have occurred in at least 20 countries in the Americas. Puerto Rico reported the first locally transmitted infection in December 2015, but Zika is likely to spread to the United States. The Aedes species mosquito (an aggressive daytime biter) that transmits Zika virus (as well as dengue, chikungunya, and yellow fever) occurs worldwide, posing a high risk for global transmission. Modeling anticipates significant international spread by travelers from Brazil to the rest of the Americas, Europe, and Asia. What steps are required now to shore up preparedness in the Americas and worldwide
Reconstructing RFRA: The Contested Legacy of Religious Freedom Restoration
Get PDFAlmost every member of Congress voted to approve the Religious Freedom Restoration Act of 1993 (RFRA), a bill endorsed by an unprecedented coalition of dozens of religious and civil rights organizations spanning the political and ideological spectrum. President Clinton quipped at the signing ceremony that perhaps only divine intervention could explain such an unusual meeting of the minds: the establishment of “new trust” across otherwise irreconcilable “ideological and religious lines,” he remarked, “shows . . . that the power of God is such that, even in the legislative process, miracles can happen.”
The RFRA consensus was especially “miraculous” because the legislation addressed a deeply divisive question: whether and under what circumstances religious objectors should be exempt from generally applicable laws. RFRA’s supporters, both within and outside Congress, would surely have had sharp disagreements about many specific claims for religious exemptions to particular laws. Yet they coalesced around RFRA, which circumvented such disagreements at the retail level by codifying a “cross-cutting” statutory standard that judges would be required to apply to an undifferentiated and unknown array of future claims for exemptions to every generally applicable law in the land