Cardozo Law School Legal Studies Research Paper Series最新文献

Limitation of Liability in Adhesion Contract: A Comparative Analysis between the French Theory of 'Failure of Essential Obligation' and the U.S. Theory of 'Failure of the Essential Purpose' 附合合同中的责任限制:法国“基本义务失效”理论与美国“基本目的失效”理论的比较分析

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2015-04-01 DOI: 10.2139/ssrn.3036654

Koffi Dogbevi

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引用次数: 0

Developing Securitization-Enabling Financial Infrastructure in Emerging Markets: A Case Study of Zimbabwe 在新兴市场发展证券化金融基础设施:以津巴布韦为例

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2009-09-24 DOI: 10.2139/SSRN.1730784

Tawanda Hondora

{"title":"Developing Securitization-Enabling Financial Infrastructure in Emerging Markets: A Case Study of Zimbabwe","authors":"Tawanda Hondora","doi":"10.2139/SSRN.1730784","DOIUrl":"https://doi.org/10.2139/SSRN.1730784","url":null,"abstract":"This legal study identifies through a case-study of Zimbabwe the range of essential legal reforms an emerging market should implement to establish financial infrastructure that enables the structuring of securitization transactions and the prevention and management of risks – such as those highlighted by the 2007 global financial crisis – that can arise from securitization transactions. \u0000The study analyses: (i) laws regulating or relating to prudentially regulated firms that typically use securitization to refinance; (ii) corporate and trust laws to identify legal structures which can be utilised as securitization special purpose vehicles; (iii) the Roman-Dutch law of sale to determine whether it permits the true-sale of financial assets; (iv) various legal risks, including substantive-consolidation, veil-piercing, foreclosure, insolvency and tax risks; (v) the dispute resolution framework; and (vi) the structured finance risk mitigation properties of Zimbabwe‘s financial market regulatory framework. \u0000The study concludes that Zimbabwe‘s legal system permits most of the contractual arrangements that constitute a basic securitization transaction. However, its financial services regulatory and gatekeeping framework - which must be reformed - is rudimentary and ill-suited to preventing and managing systemic risks that can arise from securitization. \u0000This is the first comprehensive academic study which investigates the extent to which the Roman-Dutch legal system enables the various contractual arrangements that constitute a securitization transaction. It also presents an analytical model for reviewing the securitization-enabling characteristics of emerging markets‘ legal systems and the securitization risk mitigation properties of their financial infrastructures.","PeriodicalId":319366,"journal":{"name":"Cardozo Law School Legal Studies Research Paper Series","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114890212","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}

引用次数: 0

The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the Traditional Public Function Doctrine 美国税务局诉戴维斯案的虚情假意:通过传统的公共职能原则破坏休眠商业条款

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2009-03-03 DOI: 10.2139/ssrn.1352687

Edward A. Zelinsky

{"title":"The False Modesty of Department of Revenue v. Davis: Disrupting the Dormant Commerce Clause Through the Traditional Public Function Doctrine","authors":"Edward A. Zelinsky","doi":"10.2139/ssrn.1352687","DOIUrl":"https://doi.org/10.2139/ssrn.1352687","url":null,"abstract":"In Department of Revenue v. Davis, the United States Supreme Court held that the Kentucky income tax statute and, by extension, other states' similar laws do not discriminate for purposes of the dormant Commerce Clause. By explicitly deferring to established practices and expectations, Davis is, at first blush, the kind of modest, pragmatic decision advocated today by many, including, most prominently, Chief Justice Roberts. However, on a second look, Davis has broad implications. Indeed, Davis disrupts the Court's preexisting dormant Commerce Clause doctrine by confirming the Roberts Court's use of the \"traditional public function\" category to immunize government activity from dormant Commerce Clause scrutiny. Over two decades ago, in Garcia v. San Antonio Metropolitan Transit Authority, the Supreme Court rejected for Commerce Clause purposes the \"traditional public function\" doctrine as unworkable. The Garcia Court's criticism remains persuasive today: There is no principled basis for determining when a government function is old enough to be \"traditional\" or \"public\" enough to be public. Every government activity is traditional or becomes so. Given the breadth (indeed, the indeterminacy) of the \"traditional public function\" category, that category, as affirmed in Davis, encompasses and gives dormant Commerce Clause protection to all governmental activities including tax-based subsidies the Court has previously stricken as impermissibly discriminating under the dormant Commerce Clause. As these previously stricken activities constitute \"traditional public functions,\" Davis logically protects them from dormant Commerce Clause scrutiny.","PeriodicalId":319366,"journal":{"name":"Cardozo Law School Legal Studies Research Paper Series","volume":"8 22","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113980260","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}

引用次数: 2

The New Internationalization of US Securities Regulation: Improving the Prospects for a Trans-Atlantic Marketplace 美国证券监管的新国际化:改善跨大西洋市场的前景

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2008-02-01 DOI: 10.54648/eucl2008013

Eric J. Pan

引用次数: 5

Habermas's Call for Cosmopolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal 哈贝马斯在全球恐怖时代对世界主义宪政爱国主义的呼唤:一个多元主义的评价

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2006-05-01 DOI: 10.2139/ssrn.917170

M. Rosenfeld

{"title":"Habermas's Call for Cosmopolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal","authors":"M. Rosenfeld","doi":"10.2139/ssrn.917170","DOIUrl":"https://doi.org/10.2139/ssrn.917170","url":null,"abstract":"In recent work, Habermas has provided a critical account of the trend towards transnational government and global governance in terms of his conception of communicative action and his discourse theory of law and ethics, expanding on his contribution in BETWEEN FACTS AND NORMS (Eng. Trans. 1996). Moreover, Habermas has also recently tackled global terrorism and evaluated it in terms of modernism and the continued viability of the Enlightenment project. Habermas does tie economic globalization and global terrorism, but does not believe that the latter is ultimately a manifestation of a clash of cultures. Instead Habermas regards global terrorism as an economically based reaction to the gross inequities perpetrated by globalization. Accordingly, Habermas regards global terrorism as arising from a breakdown of communication and as only amounting to an external threat to modernism. The article takes a critical look at Habermas's analysis and at his suggestion that the solution to the problem lies with expansion of the constitutional order beyond the nation-state through promotion of a cosmopolitan constitutional patriotism. Taking a pluralistic perspective, the article questions several of Habermas's assumptions and conclusions.","PeriodicalId":319366,"journal":{"name":"Cardozo Law School Legal Studies Research Paper Series","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115920176","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}

引用次数: 3

Bridging the Digital Divide: Equality in the Information Age 弥合数字鸿沟:信息时代的平等

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2002-05-09 DOI: 10.2139/ssrn.309841

Philip S. Yu

{"title":"Bridging the Digital Divide: Equality in the Information Age","authors":"Philip S. Yu","doi":"10.2139/ssrn.309841","DOIUrl":"https://doi.org/10.2139/ssrn.309841","url":null,"abstract":"The digital revolution has transformed the lives of many, but also has left untouched the lives of many others. As a result, a large segment of the world population misses out on the tremendous political, social, economic, educational, and career opportunities created by the digital revolution. This gap between the information haves and have-nots is commonly referred to as the digital divide. Although evidence suggested that the digital divide in the United States is closing, the same is not true for the less developed countries. In light of the alarming disparities between the information haves and have-nots, the Howard M. Squadron Program in Law, Media and Society at the Benjamin N. Cardozo School of Law, Yeshiva University selected the digital divide as the topic for its Second Squadron Symposium on Internet, Law & Society. Included in the symposium issue published by the Cardozo Arts & Entertainment Law Journal are articles by Andrew Celli, Mark Cooper, Kenneth Dreifach, B. Keith Fulton, Allen Hammond, and Jack Qiu. As an introduction to this symposium issue, this Article highlights the global significance of the digital divide. It discusses five key prerequisites for bridging this inequitable gap: awareness, access, affordability, availability, and adaptability. It also explores the inequalities in Internet access between the developed and less developed countries and explains why including the less developed countries in the digital revolution would benefit the developed countries as well as the less developed countries. The Article concludes by highlighting the various areas that may present challenges to policies seeking to bridge the digital divide.","PeriodicalId":319366,"journal":{"name":"Cardozo Law School Legal Studies Research Paper Series","volume":"247 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-05-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133398512","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}

引用次数: 42

Economic Rationality in Law and Economics Scholarship 法律与经济学术中的经济理性

Cardozo Law School Legal Studies Research Paper Series Pub Date : 2000-11-14 DOI: 10.2139/ssrn.245488

J. Schroeder

{"title":"Economic Rationality in Law and Economics Scholarship","authors":"J. Schroeder","doi":"10.2139/ssrn.245488","DOIUrl":"https://doi.org/10.2139/ssrn.245488","url":null,"abstract":"Judge Richard A. Posner - the doyen of the law and economics movement - is probably the leading proponent of the hypothesis that legal subjects act as if they were economically rational. Over the years, however, Posner's conception of rationality has devolved from end-means reasoning by a conscious individual human actor, to unconscious instinct which is, nevertheless, beneficial to an individual subject (animal or human) to the mechanistic reproductive activity of individual genes which may or may not be beneficial to either the organism of which the gene is a part - or even to the gene itself. Indeed, all that seems to be left of the \"rational\" component of Posnerian rationality might be the positive normative connotations of the term itself. At the turn of the millennium the law and economics movement is over a quarter of a century old. It is time to unpack Posner's rational choice baggage to see what remains inside. Prof. Schroeder explicates the internal contradictions of Posner's account of rational choice theory and contrasts his attempt to bolster his theory through the adoption of arbitrary and ad hoc ancillary hypotheses with the methodology of social science. She challenges Posner's presentation of himself as a proponent of mainstream economic theory. In this Article, Prof. Schroeder contrasts Posner's conception of rational choice theory with those of a number of Nobel Prize laureates who accept some variation of the rationality postulate - Gary Becker, Ronald Coase, Paul Samuelson, George Stigler - as well as two who are critical of rational choice literature - Amartya Sen and Herbert Simon. She also tentatively offers some suggestions from Lacanian psychoanalytic philosophy as to the appeal of certain notions of \"rationality.\"","PeriodicalId":319366,"journal":{"name":"Cardozo Law School Legal Studies Research Paper Series","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123936733","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}

引用次数: 5