Articles Category
Making Banks Transparent
Mar. 30, 2012—As the Financial Crisis and the more recent European sovereign debt crisis illustrated, U.S. financial institutions represent uniquely opaque organizations for investors in capital markets. Although bank regulatory policy has long sought to promote market discipline of banks through enhanced public disclosure, bank regulatory disclosures are notoriously lacking in granular, position-level information concerning banks’ credit...
Undocumented Workers and Concepts of Fault: Are Courts Engaged in Legitimate Decisionmaking?
Mar. 30, 2012—This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are...
Eyewitnesses and Exclusion
Mar. 30, 2012—The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged: it is obvious where the defendant is sitting, and, importantly, the memory of the eyewitness should have been tested before trial...
On the Efficient Deployment of Rules and Standards to Define Federal Jurisdiction
Mar. 30, 2012—Congress and the federal courts have traditionally adopted rules, as opposed to standards, to establish the boundaries of federal district court jurisdiction. More recently, the Supreme Court has strayed from this path in two areas: federal question jurisdiction and admiralty jurisdiction. Commentators have generally supported the use of discretion in determining federal question jurisdiction, but...
The New Exit in Venture Capital
Jan. 31, 2012—This Article examines a third exit option in venture capital to supplement IPOs and trade sales: secondary markets for the sale of individual ownership interests in start-ups and venture capital funds. While investors can readily buy shares in publicly traded companies, until recently they have been unable to own a piece of private start-ups like...
The “Independent” Sector: Fee-for-Service Charity and the Limits of Autonomy
Jan. 31, 2012—Although numerous scholars have attempted to explain and justify the benefits provided to charities, none has been completely successful. Their theories share, however, two required characteristics for charities. First, charities must be distinct from other types of entities in society, including governmental bodies, businesses, other types of nonprofit organizations, and informal entities such as families....
Falsely Shouting Fire in a Global Theater: Emerging Complexities of Transborder Expression
Jan. 31, 2012—We have entered an era in which potentially harmful expression can be distributed around the world in an instant. In the emerging global theater, speakers and audiences are connected through new and proliferating media; communicative space and time are compressed to an extraordinary degree; domestic expression can implicate national security and foreign affairs concerns; and...
Deterring and Compensating Oil-Spill Catastrophes: The Need for Strict and Two-Tier Liability
Nov. 29, 2011—The BP Deepwater Horizon oil spill highlighted the glaring weaknesses in the current liability and regulatory regime for oil spills and for environmental catastrophes more broadly. This Article proposes a new liability structure for deep-sea oil drilling and for catastrophic risks generally. It delineates a two-tier system of liability. The first tier would impose strict...
Catastrophic Oil Spills and the Problem of Insurance
Nov. 29, 2011—The BP oil spill of 2010 focused considerable attention on the operating conduct of BP, on the potential liability of BP and other entities associated with the spill, and on the fund that BP established to provide compensation to victims of the spill. Much less attention has been paid, however, to the nature and scope...
Real-Time Economic Analysis and Policy Development During the BP Deepwater Horizon Oil Spill
Nov. 29, 2011—The 2010 BP Deepwater Horizon oil spill posed near-term economic risks to the Gulf of Mexico region and raised questions about appropriate policies to mitigate catastrophic oil-spill risks. This Essay reviews the Obama Administration’s assessment of the economic vulnerabilities to the spill, the Administration’s May 12, 2010, legislative proposal focused on minimizing the adverse economic...
Coastal Wetland Restoration and the Deepwater Horizon Oil Spill
Nov. 29, 2011—Both the 2005 Hurricanes Katrina and Rita and the 2010 BP oil spill have focused attention on the need to restore coastal wetland habitats along the Gulf of Mexico of the United States. As restoration is required by the Oil Pollution Act of 1990, restoring coastal wetlands will be required as part of BP’s legal...
Deepwater Drilling: Law, Policy, and Economics of Firm Organization and Safety
Nov. 29, 2011—Although the causes of the Deepwater Horizon spill are not yet conclusively identified, significant attention has focused on the safety-related policies and practices—often referred to as the safety culture—of BP and other firms involved in drilling the well. This Article defines and characterizes the economic and policy forces that affect safety culture and identifies reasons...
Litigating BP’s Contribution Claims in Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?
Nov. 29, 2011—In this Article, we focus on an important problem involving mass-accident cases that was highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to shift incurred or expected liability and damages between the business and governmental entities that participated in the activity that gave rise to the mass-accident...
Organizational Apologies: BP as a Case Study
Nov. 29, 2011—This Article examines the conduct of BP executives in the weeks following the Deepwater Horizon oil spill to illuminate the use of apology by organizations. After briefly describing the value of apology and its nuances from an evolutionary perspective, the Article describes how apology and other responsibility-accepting behaviors can be mobilized by organizations to avoid...
Should BP Be Liable for Economic Losses Due to the Moratorium on Oil Drilling Imposed After the Deepwater Horizon Accident?
Nov. 29, 2011—In the aftermath of the Deepwater Horizon accident and the BP oil spill, the government imposed a moratorium on deepwater oil drilling in the Gulf of Mexico. The issue addressed here is whether, on grounds of policy, BP should be held responsible for moratorium-related economic losses. The answer that is developed is no. The reason,...
Plea Bargaining, Discovery, and the Intractable Problem of Impeachment Disclosures
Oct. 26, 2011—In a criminal justice system where guilty pleas are the norm and trials the rare exception, the issue of how much discovery a defendant is entitled to before allocution has immense significance. This Article examines the scope of a prosecutor’s obligation to disclose impeachment information before a guilty plea. This question has polarized the criminal...