This paper is a brief analysis of the proposed class settlement in In re Interchange Fee and Merchant Discount Antitrust Litigation, MDL 1720 (E.D.N.Y.). The analysis concludes that the relief plaintiff class members would obtain from the proposed settlement is largely illusory. The settlement does not result in meaningful reform of the interchange fee system and appears to provide less relief than would likely result from continued litigation. In short, the settlement is a bad deal for merchant plaintiffs and the public at large.
{"title":"An Analysis of the Proposed Interchange Fee Litigation Settlement","authors":"Adam J. Levitin","doi":"10.2139/ssrn.2133361","DOIUrl":"https://doi.org/10.2139/ssrn.2133361","url":null,"abstract":"This paper is a brief analysis of the proposed class settlement in In re Interchange Fee and Merchant Discount Antitrust Litigation, MDL 1720 (E.D.N.Y.). The analysis concludes that the relief plaintiff class members would obtain from the proposed settlement is largely illusory. The settlement does not result in meaningful reform of the interchange fee system and appears to provide less relief than would likely result from continued litigation. In short, the settlement is a bad deal for merchant plaintiffs and the public at large.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114544877","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}
The global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse. First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with some “soft law” international financial standards as both diagnostic and prophylactic tools, has been decidedly mixed, in fact, largely unsatisfactory. Thirdly, the “soft law” discourse in international finance appears strangely remote from the daily grind of international commercial practice, where the discourse is largely unknown. But perhaps in this disconnect between theory and practice lies clues to important normative forces at work in international finance, and in particular the international capital markets. The more one considers the world of international finance, the more obvious become the outlines of centuries old transnational merchant law, the contentious lex mercatoria. The proposition put forward here is that the formal regulation of financial markets is supported by a body of strong and persistent customary law, a lex mercatoria, a rarely acknowledged but powerful undercurrent in finance, especially in its international iteration. The continued prevalence of oral contracting and the stubborn persistence of self-regulatory principles are examples. There are several intriguing implications to this proposition. Is it possible that the global financial crisis represented not only a failure of formal, state-led regulation, as it surely did, but also a breakdown of a lex mercatoria of finance? If that is the case, international standard setters and national regulators, both, ignore this lex mercatoria (the customs and practices of international finance) at their peril. To do so, would be to miss a true, powerful, source of normativity operating in international financial markets.
{"title":"International Financial Standards and the Explanatory Force of Lex Mercatoria","authors":"Cally Jordan","doi":"10.2139/SSRN.2107943","DOIUrl":"https://doi.org/10.2139/SSRN.2107943","url":null,"abstract":"The global financial crisis has cast a strong light on some hitherto obscure corners of the financial world, provoking an outpouring of calls for concerted international action. “Hard law” having disappointed, can “soft law”, in the form of international financial standards, substitute for traditional national legislation. This article examines some of the difficulties associated with the “international standards as soft law” discourse. First of all, conceptual problems in the “soft law” discourse itself reveal profoundly different patterns of legal thought cutting across national boundaries, resulting in different understandings of international financial standards. Secondly, recent experience, over the past decade, with some “soft law” international financial standards as both diagnostic and prophylactic tools, has been decidedly mixed, in fact, largely unsatisfactory. Thirdly, the “soft law” discourse in international finance appears strangely remote from the daily grind of international commercial practice, where the discourse is largely unknown. But perhaps in this disconnect between theory and practice lies clues to important normative forces at work in international finance, and in particular the international capital markets. The more one considers the world of international finance, the more obvious become the outlines of centuries old transnational merchant law, the contentious lex mercatoria. The proposition put forward here is that the formal regulation of financial markets is supported by a body of strong and persistent customary law, a lex mercatoria, a rarely acknowledged but powerful undercurrent in finance, especially in its international iteration. The continued prevalence of oral contracting and the stubborn persistence of self-regulatory principles are examples. There are several intriguing implications to this proposition. Is it possible that the global financial crisis represented not only a failure of formal, state-led regulation, as it surely did, but also a breakdown of a lex mercatoria of finance? If that is the case, international standard setters and national regulators, both, ignore this lex mercatoria (the customs and practices of international finance) at their peril. To do so, would be to miss a true, powerful, source of normativity operating in international financial markets.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"143 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123273843","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}
This Article, part of a theme-volume on the Credit C.A.R.D. Act, explores the phenomenon of credit card “rate-jacking” — the practice of card issuers suddenly raising the interest rate on an account, often applying the new rate retroactively to existing balances. This Article examines the degree to which rate-jacking — now largely prohibited by the Credit C.A.R.D. Act — and credit card pricing generally reflects risk-based or opportunistic pricing.
{"title":"Rate-Jacking: Risk-Based and Opportunistic Pricing in Credit Cards","authors":"Adam J. Levitin","doi":"10.5072/ULR.V2011I2.564","DOIUrl":"https://doi.org/10.5072/ULR.V2011I2.564","url":null,"abstract":"This Article, part of a theme-volume on the Credit C.A.R.D. Act, explores the phenomenon of credit card “rate-jacking” — the practice of card issuers suddenly raising the interest rate on an account, often applying the new rate retroactively to existing balances. This Article examines the degree to which rate-jacking — now largely prohibited by the Credit C.A.R.D. Act — and credit card pricing generally reflects risk-based or opportunistic pricing.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117266627","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}
Pub Date : 2010-10-25DOI: 10.5040/9781472564436.ch-006
David Cole
"Material support" has become the watchword of the post-9/11 era. Material support to groups that have been designated as "terrorist" has been the U.S. government's favorite charge in post-9/11 "terrorism" prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a "war crime." This essay argues that the criminalization of "material support" to designated "terrorist organizations" is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership and association with the Communist Party did during the Cold War. I first outline the ways in which guilt by association has been revived through the concept of penalizing "material support" for organizations labeled terrorist. I then discuss the constitutional questions that these laws present, and sketch how the courts have thus far resolved those questions. In short, the courts have sought to trim the worst excesses of the laws, but have been largely unwilling to confront head on their fundamental infirmity - the imposition of guilt by association without any proof of intent to further any terrorist acts. The essay concludes by explaining how the material support laws fit into the United States' broader "paradigm of prevention" in confronting the threat of terrorism. That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future. The material support laws further this goal by expanding the definition of what constitutes a past crime, just as the Smith Act membership provision of the Cold War era did. These laws are not purely preventive, in that they do require proof of some past "wrongdoing." But their expansive definitions of wrongdoing stretch that concept beyond its limits in the name of preventing future harm.
{"title":"Terror Financing, Guilt by Association and the Paradigm of Prevention in the 'War on Terror'","authors":"David Cole","doi":"10.5040/9781472564436.ch-006","DOIUrl":"https://doi.org/10.5040/9781472564436.ch-006","url":null,"abstract":"\"Material support\" has become the watchword of the post-9/11 era. Material support to groups that have been designated as \"terrorist\" has been the U.S. government's favorite charge in post-9/11 \"terrorism\" prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a \"war crime.\" This essay argues that the criminalization of \"material support\" to designated \"terrorist organizations\" is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership and association with the Communist Party did during the Cold War. I first outline the ways in which guilt by association has been revived through the concept of penalizing \"material support\" for organizations labeled terrorist. I then discuss the constitutional questions that these laws present, and sketch how the courts have thus far resolved those questions. In short, the courts have sought to trim the worst excesses of the laws, but have been largely unwilling to confront head on their fundamental infirmity - the imposition of guilt by association without any proof of intent to further any terrorist acts. The essay concludes by explaining how the material support laws fit into the United States' broader \"paradigm of prevention\" in confronting the threat of terrorism. That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future. The material support laws further this goal by expanding the definition of what constitutes a past crime, just as the Smith Act membership provision of the Cold War era did. These laws are not purely preventive, in that they do require proof of some past \"wrongdoing.\" But their expansive definitions of wrongdoing stretch that concept beyond its limits in the name of preventing future harm.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-10-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125823549","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}
Politics aside, the question of whether the EU should create an SEC is about the trade-offs between scale and accountability. This paper considers that trade-off in the U.S. context, with specific attention the SEC's apparent role as a "global" securities regulator on matters relating to issuer disclosure. The principal claim is that in making enforcement decisions, there will likely be a "home bias" toward domestic enforcement actions that makes extraterritorial actions less likely, thus reducing the incentives to comply. To the extent that this is typical of regulatory behavior, then there may be lessons for Europeans considering the question of institutional design. More broadly, the paper also considers some of the institutional features that make SEC enforcement policy what it is, which may or may not be exportable (or which policy makers in Europe may not want to import) to the European context.
{"title":"Structuring Securities Regulation in the European Union: Lessons from the U.S. Experience","authors":"Donald C. Langevoort","doi":"10.2139/ssrn.624582","DOIUrl":"https://doi.org/10.2139/ssrn.624582","url":null,"abstract":"Politics aside, the question of whether the EU should create an SEC is about the trade-offs between scale and accountability. This paper considers that trade-off in the U.S. context, with specific attention the SEC's apparent role as a \"global\" securities regulator on matters relating to issuer disclosure. The principal claim is that in making enforcement decisions, there will likely be a \"home bias\" toward domestic enforcement actions that makes extraterritorial actions less likely, thus reducing the incentives to comply. To the extent that this is typical of regulatory behavior, then there may be lessons for Europeans considering the question of institutional design. More broadly, the paper also considers some of the institutional features that make SEC enforcement policy what it is, which may or may not be exportable (or which policy makers in Europe may not want to import) to the European context.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115251495","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}
In this article, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but is a neutral tool for evaluating public policy. In making this argument, these observers have often invoked the use of cost-benefit analysis to support previous regulatory decisions as a sign that this technique can be used to support as well as to undermine protective regulation. As we demonstrate, however, the fact is that cost-benefit analysis would have stood as an obstacle to early regulatory successes. We have compiled three case studies in coming to this conclusion: the removal of lead from gasoline in the 1970s and 1980s, the decision not to dam the Grand Canyon for hydroelectric power in the 1960s, and the strict regulation of workplace exposure to vinyl chloride in 1974. The technique would have gotten the answer wrong in all three cases. Each case study illustrates, in a different manner, the damage that cost-benefit analysis could have done in the past, had it played the central role that is proposed for it today. The problems with cost-benefit analysis of regulations lie deep within the methodology; it would have done no better a generation ago than it does now.
{"title":"Applying Cost-Benefit to Past Decisions: Was Environmental Protection Ever a Good Idea?","authors":"L. Heinzerling, F. Ackerman, R. Massey","doi":"10.2139/SSRN.576161","DOIUrl":"https://doi.org/10.2139/SSRN.576161","url":null,"abstract":"In this article, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but is a neutral tool for evaluating public policy. In making this argument, these observers have often invoked the use of cost-benefit analysis to support previous regulatory decisions as a sign that this technique can be used to support as well as to undermine protective regulation. As we demonstrate, however, the fact is that cost-benefit analysis would have stood as an obstacle to early regulatory successes. We have compiled three case studies in coming to this conclusion: the removal of lead from gasoline in the 1970s and 1980s, the decision not to dam the Grand Canyon for hydroelectric power in the 1960s, and the strict regulation of workplace exposure to vinyl chloride in 1974. The technique would have gotten the answer wrong in all three cases. Each case study illustrates, in a different manner, the damage that cost-benefit analysis could have done in the past, had it played the central role that is proposed for it today. The problems with cost-benefit analysis of regulations lie deep within the methodology; it would have done no better a generation ago than it does now.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124439115","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}
Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from six trolley problem studies of over five hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.
{"title":"Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect","authors":"John Mikhail","doi":"10.2139/SSRN.762385","DOIUrl":"https://doi.org/10.2139/SSRN.762385","url":null,"abstract":"Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from six trolley problem studies of over five hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.","PeriodicalId":198490,"journal":{"name":"Georgetown Law Center Public Law & Legal Theory Research Paper Series","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128889838","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：