Duke Law School Public Law & Legal Theory Research Paper Series最新文献

{"title":"Banking and Financial Regulation","authors":"S. Schwarcz","doi":"10.1093/OXFORDHB/9780199684205.013.028","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780199684205.013.028","url":null,"abstract":"This chapter provides a basic overview of banking and financial regulation for the forthcoming Oxford Handbook of Law and Economics (Francesco Parisi, ed.). Among other things, the chapter compares traditional and shadow banking and their regulation, differentiating “microprudential” regulation (which focuses on protecting individual components of the financial system, such as banks) and “macroprudential” regulation (which focuses on protecting against systemic risk). The chapter also examines how regulation can help to correct market failures that undermine financial efficiency. In that context, it discusses, among other things, capital requirements, ring-fencing, and stress testing. Finally, the chapter examines how regulation can help to protect against systemic risk, including by addressing potential triggers of systemic risk (such as maturity transformation — the asset-liability mismatch that results from the short-term funding of long-term projects — and limited liability).","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-08-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129233997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The IMF's Imperiled Priority","authors":"Melissa Boudreau, G. Gulati","doi":"10.2139/SSRN.2458098","DOIUrl":"https://doi.org/10.2139/SSRN.2458098","url":null,"abstract":"The role of the Official Sector institutions as lenders in crisis situations has evolved over time, and, particularly in the context of the current euro area debt crisis, into something akin to a lender of last resort. Institutions like the International Monetary Fund regularly provide distressed sovereigns with lending at affordable rates when private funding has dried up. To be able to provide this kind of emergency relief in a manner that does not result in large losses for their stakeholders, these Official Sector institutions often assert that their lending will have de facto priority over private lending. As a practical matter, since other creditors could not sue to interfere with the sovereign’s choices regarding whom to pay and in what order, de facto priority was all that was needed in the past for the system to function. All of this may have changed since October 2012 as a result of one case: NML Capital v. Republic of Argentina. This case has given private creditors, for the first time in history, a weapon with which they can go after payments made to any other creditor that has equal legal priority to them, potentially including any Official Sector institution without de jure priority. This leads to the question of whether Official Sector institutions’ half-century-old claim of de facto priority for their lending status can be said to have evolved, as a matter of customary international law, to a level of de jure priority.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130042175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revisiting Sovereign Bankruptcy","authors":"L. Buchheit, Anna Gelpern, G. Gulati, U. Panizza, Beatrice Weder di Mauro, Jeromin Zettelmeyer","doi":"10.2139/ssrn.2354998","DOIUrl":"https://doi.org/10.2139/ssrn.2354998","url":null,"abstract":"Sovereign debt crises occur regularly and often violently. Yet there is no legally and politically recognized procedure for restructuring the debt of bankrupt sovereigns. Procedures of this type have been periodically debated, but so far been rejected, for two main reasons. First, countries have been reluctant to give up power to supranational rules or institutions, and creditors and debtors have felt that there were sufficient instruments for addressing debt crises at hoc. Second, fears that making debt easier to restructure would raise the costs and reduce the amounts of sovereign borrowing in many countries. This was perceived to be against the interests of both the providers of both creditors and major borrowers.This report argues that both the nature and our understanding of sovereign debt problems have changed, over the course of the last decade, in a direction that creates a much stronger case for an orderly sovereign bankruptcy regime today than ten years ago. Pre-crisis policy mistakes are now recognized to be a much more severe problem for borrowing countries than the costs or limited availability of private financing. Recent court rulings – particularly a recent U.S. ruling that gives \"holdout creditors\" that decline a restructuring offer the right to interfere with payments to the creditors that accept such an offer. This will complicate efforts to resolve future debt crises on an ad hoc basis. Finally, sovereign debt crises are no longer just a problem in emerging markets, but a core concern in advanced countries as well – particularly in the Euro area. If the Euro is to survive, this will require both better ways to resolve debt crises and stronger, market-based incentives that prevent debt problems from occurring in the first place.To address these problems, policy proposals are presented at two levels: for the Euro area, and globally. A Euro area sovereign debt restructuring regime could be developed by amending the Treaty establishing the European Stability Mechanism (ESM). This would both restrict the scope for lending to highly indebted countries without also restructuring their debts, and protect Euro area members receiving ESM financial assistance from legal action byholdout creditors. At the global level, a number of proposals are discussed, ranging from a coordinated introduction of \"aggregate collective action clauses\" that would allow a supermajority of bondholders across all bonds to amend bond payment terms to an amendment of the IMF articles that would limit the legal remedies of holdouts when a debt restructuring proposal has been accepted both by a majority of creditors and endorsed by the IMF.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131189912","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Leverhulme Lecture: The Global Financial Crisis and Systemic Risk","authors":"S. Schwarcz","doi":"10.2139/ssrn.1707051","DOIUrl":"https://doi.org/10.2139/ssrn.1707051","url":null,"abstract":"This lecture examines the causes of the global financial crisis, showing it was triggered by market failures, not by financial institution failures, and arguing that any regulatory framework for managing systemic risk must address markets as well as institutions. The lecture also analyzes how regulation should be designed under that broader framework to mitigate systemic risk and its consequences. Finally, the lecture examines the potential systemic effects of sovereign debt crises, demonstrating how regulation can mitigate those effects.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-11-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121652984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tax Enforcement for Gamers: High Penalties or Strict Disclosure Rules?","authors":"L. Zelenak","doi":"10.2139/ssrn.1487672","DOIUrl":"https://doi.org/10.2139/ssrn.1487672","url":null,"abstract":"This essay responds to Alex Raskolnikov’s proposal to replace the current federal income tax compliance regime with a two-track approach based on taxpayer choice. The “deterrence regime” (DR) would be designed to be chosen by “gamers”, and the “compliance regime” (CR) would be designed to be chosen by all other taxpayers. Penalty rates would be significantly higher in the DR than in the CR. In this response, Lawrence Zelenak notes that the tax shelter disclosure rules of current law can also be viewed as a way of imposing a special compliance regime-featuring high odds of detection rather than high penalty rates-on gamers. Zelenak compares Raskolnikov’s proposal with the current regime, and suggests that there are plausible grounds for preferring the current regime to the proposal.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"1044 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116267188","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Public Responsibility of Structured Finance Lawyers","authors":"S. Schwarcz","doi":"10.1093/CMLJ/KML004","DOIUrl":"https://doi.org/10.1093/CMLJ/KML004","url":null,"abstract":"Lawyers, increasingly, are scrutinized as to their public responsibility when companies fail, particularly where the lawyer's involvement with the failed company is nontraditional and, arguably, intertwined with the failure. One of the least traditional roles of lawyers today is as counsel in structured finance transactions. This article focuses on the public responsibility of lawyers involved in these transactions.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133372334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Struggling Around the Natural Divide: The Protection of Tangible and Intangible Indigenous Property","authors":"Emanuela Arezzo","doi":"10.2139/ssrn.927991","DOIUrl":"https://doi.org/10.2139/ssrn.927991","url":null,"abstract":"In a century where access to information represents the key for doing business, big companies have come to realize that poor Developed Countries, whose economies are still based on agriculture and textiles, have an invaluable treasure worth billions of dollars. The varieties of plants and trees, located mostly in the Southern areas of the hemisphere, amount to a huge collection of genetic material with countless potential applications. Moreover, the value of these vast collections is further increased by the circumstance that local communities living in these areas have long studied and experimented the medicinal - as well other scientific - properties of such plants and herbs. Sometimes shamanic knowledge, for example, has reached very precise and effective results in the curing of some diseases. While indigenous communities have their own legal system and mores regulating the way their resources, both tangible and intangible, are to be produced and enjoyed within the group, Developed Industrialized Countries often look at traditional knowledge through the lenses of modern intellectual property systems. They reason in terms of inventiveness and novelty, they look for a specific author/inventor to reward and when they do not find any of the above, they just assume they have the right to take indigenous countries' scientific knowledge without giving anything in return. Such knowledge, they claim, is in the public domain. This paper is aimed at analyzing the current normative framework as well as the international debate surrounding the protection of biodiversity and traditional knowledge in such a way to solve the biopiracy issue and grant local communities the possibility of benefiting from a reasonable and fair exploitation of their resources by third parties.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"123 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117321747","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism","authors":"M. Adler","doi":"10.2139/ssrn.897988","DOIUrl":"https://doi.org/10.2139/ssrn.897988","url":null,"abstract":"Contemporary positivism has taken a communitarian turn. Hart, in the Postscript to \"The Concept of Law,\" clarifies that the rule of recognition is a special sort of social practice: a convention. It is not clear whether Hart, here, means convention in the strict sense elaborated by David Lewis, or in some weaker sense. A number of contemporary positivists, including Jules Coleman (at one point), Andrei Marmor, and Gerald Postema, have argued that the rule of recognition is something like a Lewis-convention. Others have suggested that the rule of recognition is conventional in a weaker sense - specifically, by figuring in a shared cooperative activity (SCA) among officials. Chris Kutz, Scott Shapiro, and Jules Coleman (more recently) have adopted this model. This Article criticizes the Lewis-convention and SCA models of the rule of recognition, drawing on U.S. constitutional theory. Imagine a society of U.S. officials who are committed to the text of the 1787 Constitution in a strong way: each official would continue to accept the text as supreme law even if every other official defected to an alternative text, and no official is prepared to bargain or negotiate with the others about the supremacy of the text. The social practice among these officials is neither a Lewis-convention (since there is no alternative text to which every official would shift if every other official did), nor an SCA (since the officials have no general intention to mesh their conceptions of legal validity, and in particular have no intention to compromise with officials who deny the supremacy of the 1787 text). Therefore, under the Lewis-convention and SCA models, a hypothetical society of U.S. officials who are committed, first and foremost, to the 1787 text rather than to the community of officials, is not a full-fledged legal system. But this is deeply counterintuitive. The hypothetical society simply embodies, in a particularly pure form, an attitude of fidelity to the 1787 text that many officials and citizens currently profess. The tension between the Lewis-convention and SCA models of the rule of recognition, and constitutional fidelity, points the way to a different model of the rule of recognition: namely, that the rule of recognition is a social norm.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116080005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Sovereign Immunity and Stare Decisis: Solving the Prisoners' Dilemma within the Court","authors":"Neil S. Siegel","doi":"10.15779/Z38RX4H","DOIUrl":"https://doi.org/10.15779/Z38RX4H","url":null,"abstract":"This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to the collective action problem that the Justices face. Most importanly, however, by focusing on the strategic dimension of stare decisis and identifying the long-term effects of the Court's tendency to overrule decisions when, and only because, a change in its composition empowers a new majority that thinks the precedent was wrongly decided, this inquiry brings into focus a significant hiatus in the current legal debate over the constitutional status of state sovereign immunity.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115874801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Amateurs?","authors":"C. Clotfelter","doi":"10.2139/ssrn.224758","DOIUrl":"https://doi.org/10.2139/ssrn.224758","url":null,"abstract":"Despite the undeniable trend over time toward greater professionalization of so many activities, including those of government and nonprofit organizations, a significant amount of effort that advances social policy in the United States continues to be carried out by persons who receive little, if any, pay or who do work for which they were not professionally trained. Professor Clotfelter's article is the first of a special series of articles to be published in an upcoming issue of Law and Contemporary Problems by Duke University School of Law, addressing the question of whether it is good public policy to rely on and indeed to encourage service by such amateurs. Professor Clotfelter provides an important overview of the subject and its significance, identifying three major forms of amateur service in contemporary America: unpaid volunteering, enlisted work for service organizations, and service-learning in schools. He introduces three important questions facing our use of amateurs: How effective are amateurs in delivering services? What are the effects on participants? What are the political effects? He concludes by presenting an overview of the other articles to be published in the special issue of Law and Contemporary Problems.","PeriodicalId":275936,"journal":{"name":"Duke Law School Public Law & Legal Theory Research Paper Series","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128614177","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}