University of California, Davis law review最新文献

{"title":"George Stigler on His Head: The Consequences of Restrictions on Competition in (Bank) Regulation","authors":"Prasad Krishnamurthy","doi":"10.2139/ssrn.3180932","DOIUrl":"https://doi.org/10.2139/ssrn.3180932","url":null,"abstract":"Bank regulation used to be riddled with price, product, entry, and location restrictions. These restrictions were intended to prevent the recurrence of crises, such as those of the 1930s and 1940s. Over time, however, regulatory acquiescence to technological and institutional innovation undermined their ability to limit competition. An intellectual turn toward valorizing competition also hastened their demise. George Stigler, in particular, provided a trenchant critique of all such regulation as the product of pure rent seeking by private industry. \u0000This Article revisits the role of such restrictions on competition in banking. On the one hand, the public choice account of these restrictions as the outcome of private rent seeking is essentially true. On the other hand, their unintended historical result was to limit banks’ risk-taking incentives and to coopt banks into preventing regulatory arbitrage. Viewed from this perspective, these restrictions provide an important legal, political, and economic (LPE) model for how limits on competition could usefully complement current bank regulation. This model is one in which, to some extent, regulation facilitates rather than frustrates cartel formation in order to maintain a more stable equilibrium.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"53 1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89667318","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":"Fiduciary Law and Corruption","authors":"Sung Hui Kim","doi":"10.1093/OXFORDHB/9780190634100.013.44","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780190634100.013.44","url":null,"abstract":"This chapter argues that the common law of fiduciary obligation contains an anticorruption norm, which broadly (albeit inconsistently) proscribes and remedies the use of an entrusted position for self-regarding gain. Section II begins with the conventional definition of public corruption, the use of public office for private gain, to derive a general definition of corruption that is applicable to both public and private sector contexts. Corruption is generally defined as the use of an entrusted position for self-regarding gain. Section III argues that courts have aimed to prevent corruption and invoked the anticorruption norm in cases applying fiduciary law’s proscriptive rules, the no-conflict and no-profit rules, in various fiduciary contexts. These rules are generally grounded in the rationale that fiduciaries should avoid being tempted into using their positions to seek their own advantage. Section IV argues that one of the main insights to be gained from understanding that fiduciary law contains an anticorruption norm is that fiduciary law helps to preserve and promote the legitimacy of important social institutions. While this chapter principally relies on the prevailing “public-office-centered” definition of corruption, which is used by contemporary social scientists and which attempts to identify corrupt behavior, it shows how a broader, classical understanding of corruption, which emphasizes the moral decay and depravity of an individual’s character, has also informed fiduciary law.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-02-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86291617","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":"Marxist Legal History","authors":"C. Tomlins","doi":"10.1093/OXFORDHB/9780198794356.013.28","DOIUrl":"https://doi.org/10.1093/OXFORDHB/9780198794356.013.28","url":null,"abstract":"Forty years after the 1975–1985 decade of socialism’s macro-political crisis, and of Western Marxism’s metastasizing theoretical crisis and eventual dispersal, we are in the grip of a new fast-forming historical conjuncture. Both globally, and within its historic Anglophone heartlands, capital is at war with itself, and it is liberalism’s turn to feel the cold pinch of disintegration. This chapter asks: What opportunities exist for renewing the attempt to create a Marxist legal historiography? What responsibilities attend that effort? It suggests that legal historians need to realize that what makes Marxist legal history useful and attractive is less that it is a particular way of doing legal history that produces specific outcomes than that it is an explicitly historical method.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88177101","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":"Promises and Expectations","authors":"Florian Ederer, A. Stremitzer","doi":"10.2139/ssrn.2368941","DOIUrl":"https://doi.org/10.2139/ssrn.2368941","url":null,"abstract":"We investigate why people keep their promises in the absence of external enforcement mechanisms and reputational effects. In a controlled laboratory experiment we show that exogenous variation of second-order expectations (promisors' expectations about promisees' expectations that the promise will be kept) leads to a significant change in promisor behavior. We provide clean evidence that a promisor's aversion to disappointing a promisee's expectation leads her to keep her promise. We propose a simple theory of lexicographic promise keeping that is supported by our results and nests the findings of previous contributions as special cases.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91438068","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":"Nation Building, Social Engineering and Unofficial Legal Pluralism in Turkey and Pakistan","authors":"Ihsan Yilmaz","doi":"10.2139/ssrn.3208009","DOIUrl":"https://doi.org/10.2139/ssrn.3208009","url":null,"abstract":"The modernist nation-building projects in Pakistan and Turkey have employed state law as an ideological apparatus and instrument of top-down social engineering to construct a new citizen identity of modern Muslims. These two Muslim-majority countries endeavored to reform the country’s Muslim society and to construct a new modern-nation by reforming the Muslim family laws. Instrumentalist use of law in these two nation-states has paved the way for a similar result: Emergence unofficial (strong) Muslim legal pluralism as a result of resistance from the counter-hegemonic traditionalists, conservatives, religious reactionaries, Salafists and patriarchal power structures in society. Thus, in these two Muslim nation-states, some sections of society still obey the unofficial Muslim laws as traditionally understood, interpreted and practiced by conservative ulama, not by the hegemonic nation-state. This is not a static process. New hybrid official and unofficial laws are being continuously constructed as a result of the dynamic interactions between official and unofficial laws.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"40 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-06-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77550646","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":"Misconstruing Whistleblower Immunity Under the Defend Trade Secrets Act","authors":"Peter S. Menell","doi":"10.2139/SSRN.2893181","DOIUrl":"https://doi.org/10.2139/SSRN.2893181","url":null,"abstract":"In crafting the Defend Trade Secrets Act of 2016 (DTSA), Congress went beyond the federalization of state trade secret protection to tackle a broader social justice problem: the misuse of nondisclosure agreements (NDAs) to discourage reporting of illegal activity in a variety of areas. The past few decades have witnessed devastating government contracting abuses, regulatory violations, and deceptive financial schemes that have hurt the public and cost taxpayers and investors billions of dollars. Congress recognized that immunizing whistleblowers from the cost and risk of trade secret liability for providing information to the Government could spur law enforcement. Congress solved the problem through a true “cone of silence.” Congress immunized whistleblowers from liability under federal and state trade secret law for disclosure, in confidence, of trade secrets to government officials and attorneys for the purpose of reporting or investigating a suspected violation of law. Defend Trade Secrets Act of 2016, § 7 (codified at 18 U.S.C. § 1833(B)(1)(A) (2012)). By limiting disclosure to trusted intermediaries -- government officials bound by state and federal law to protect trade secrets and attorneys bound by confidentiality obligations -- the DTSA whistleblower immunity regime promotes law enforcement without risking commercial harm to legitimate trade secret owners.Unfortunately, the first case to apply the DTSA whistleblower immunity provision (Unum Group v. Loftus, 2016 WL 7115967 (D. Mass.)) turns Congress’ immunity regime on its head. By treating a statutory immunity as a defense rather than a safe harbor, the court effectively resurrected the murky situation that Congress corrected by immunizing employees and contractors for protected activities. Notwithstanding that Unum provided no evidence that Loftus has done anything more than share company records with his counsel as part of an effort to investigate a suspected violation of law, the court nonetheless imposed upon Loftus the burden of proving that he did not have an improper purpose. In so doing, the court ignores the vaccine and subjects Loftus to the very disease that Congress cured: the imposition of substantial costs and adverse career repercussions by sharing, in confidence, company documents with counsel. Where the employee asserts under oath that he or she disclosed company documents to government officials or an attorney in confidence solely for the purpose of reporting or investigating a suspected violation of law, the DTSA whistleblower regime requires the employer-trade secret owner to come forward with concrete evidence that the employee or contractor has shared trade secret information outside of the protected categories or for an impermissible purpose. Absent such evidence, the employee-contractor remains free to work with counsel to investigate and report alleged violations of law and immune from suit for trade secret violations.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"53 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76901438","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":"A Note on Estimating Network Dependence in a Discrete Choice Model","authors":"Jing Zhou, Da Huang, Hansheng Wang","doi":"10.2139/ssrn.3172134","DOIUrl":"https://doi.org/10.2139/ssrn.3172134","url":null,"abstract":"Discrete choice model is probably one of the most popularly used statistical methods in practice. The common feature of this model is that it considers the behavioral factors of a person and the assumption of independent individuals. However, this widely accepted assumption seems problematic because human beings do not live in isolation. They interact with each other and form complex networks. Then the application of discrete choice model to network data will allow for network dependence in a general framework. In this paper, we focus on a discrete choice model with probit error which is specified as a latent spatial autoregressive model (SAR). This model could be viewed as a natural extension of the classical SAR model. The key difference is that the network dependence is latent and unobservable. Instead, it could be measured by a binary response variable. Parameter estimation then becomes a challenging task due to the complicated objective function. Following the idea of composite likelihood, an approximated paired maximum likelihood estimator (APMLE) is developed. Numerical studies are carried out to assess the finite sample performance of the proposed estimator. Finally a real dataset of Sina Weibo is analyzed for illustration purpose.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"109 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73312991","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 Parable of the Talents","authors":"Stephen M. Bainbridge","doi":"10.4337/9781784714833.00014","DOIUrl":"https://doi.org/10.4337/9781784714833.00014","url":null,"abstract":"On its surface, Jesus’ Parable of the Talents is a simple story with four key plot elements: (1) A master is leaving on a long trip and entrusts substantial assets to three servants to manage during his absence. (2) Two of the servants invested the assets profitably, earning substantial returns, but a third servant — frightened of his master’s reputation as a hard taskmaster — put the money away for safekeeping and failed even to earn interest on it. (3) The master returns and demands an accounting from the servants. (4) The two servants who invested wisely were rewarded, but the servant who failed to do so is punished. Neither the master nor any of the servants make any appeal to legal standards, but it seems improbable that there was no background set of rules against which the story plays out. To the legal mind, the Parable thus raises some interesting questions: What was the relationship between the master and the servant? What were the servants’ duties? How do the likely answers to those questions map to modern relations, such as those of principal and agent? Curiously, however, there are almost no detailed analyses of these questions in Anglo-American legal scholarship. This project seeks to fill that gap.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89431294","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 Small IPO and the Investing Preferences of Mutual Funds","authors":"Robert P. Bartlett, Paul Rose, Steven Davidoff Solomon","doi":"10.2139/ssrn.2718862","DOIUrl":"https://doi.org/10.2139/ssrn.2718862","url":null,"abstract":"We examine how liquidity and return concerns at large mutual funds explain their diminished participation in small IPOs since the late 1990s. Using 5825 IPOs and portfolio-level information for 37,052 funds, we exploit Russia's 1998 debt default as an exogenous shock to funds' liquidity concerns. After 1998, large funds invested in fewer small/illiquid IPOs and more large/liquid IPOs than smaller funds and received higher returns for small IPO investments. Given increased fund sizes since 1990, these results are consistent with funds' liquidity concerns and their demand for greater compensation when investing in transactions representing a trivial fraction of fund assets.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"72 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2016-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85487373","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":"Copyright and the Architecture of Digital Delivery","authors":"D. Burk","doi":"10.5210/FM.V19I10.5544","DOIUrl":"https://doi.org/10.5210/FM.V19I10.5544","url":null,"abstract":"Copyright law is largely a response to new media: from the printing press through radio, photocopiers, and digital computers, changes in copyright reflect the increased public availability of information reproduction technologies. But while the exclusive rights conferred by copyright are shaped by the technologies they respond to, the opposite is also true: technology is shaped in response to the requirements of copyright, altering or innovating designs to either avoid or accommodate the demands of the law. Nowhere has this dynamic interaction been more apparent than in the 2001 copyright decision against Napster and in the succeeding impact of that case. The Napster case and its progeny reveal a pattern of creative “inventing around” previous definitions of formal copyright boundaries. Such interactive re–imagining of technical and legal standards continues in current legal controversies regarding digital delivery systems such as streaming media, digital lockers, and “cloud” services, extending the pattern present in Napster and its progeny into current copyright policy.","PeriodicalId":83406,"journal":{"name":"University of California, Davis law review","volume":"66 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74906012","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}