In the Fall of 2008, Lehman Brothers had a $35 trillion derivatives portfolio, representing about 5% of the worldwide derivatives market. It was a party to approximately one million trades, under more than 6,000 ISDA master agreements.Lehman’s derivatives were not the direct cause of its failure, but its derivatives, and the growth of the derivatives markets in general, led to the assumption of outsized risks and systemic weaknesses that did facilitate the crisis.In addition to the systemic problems caused by Lehman’s derivatives portfolio, derivatives have also been identified as a key source of value loss in the bankruptcy.The singular losses caused to Lehman’s bankruptcy estate by Lehman’s derivatives portfolio came from the safe harbors and the system of closeout netting the safe harbors support. While the safe harbors have been thoroughly studied and debated in the abstract, a close look at Lehman’s experience provides important insights for the future. In particular, the largest part of Lehman’s derivatives portfolio shows how financial institutions will again suffer when resolution is attempted in the traditional bankruptcy system. As such, I question the Dodd-Frank Act’s professed preference for “normal” bankruptcy process over specialized insolvency regimes like the new “Orderly Liquidation Authority.”And the abrupt closeout of Lehman’s cleared derivatives portfolio by CME, which Lehman’s examiner noted as the source of several obvious losses to the bankruptcy estate, also provides important insights, given Dodd-Frank’s strong preference for central clearing going forward.This paper looks at both issues, and suggests that the continuation of the safe harbors “as is” renders chapter 11 nonviable for larger financial institutions, and recent contractual attempts to work around the safe harbors are insufficient to solve the problem, while the increased role of clearinghouses in financial institution failures will force regulators to confront difficult choices. In short, the regulators will have to balance two competing systemic risks: the risk of an unruly resolution of the financial institution, balanced against increased risk to the clearinghouse.
{"title":"Lehman's Derivative Portfolio","authors":"S. Lubben","doi":"10.2139/ssrn.2698234","DOIUrl":"https://doi.org/10.2139/ssrn.2698234","url":null,"abstract":"In the Fall of 2008, Lehman Brothers had a $35 trillion derivatives portfolio, representing about 5% of the worldwide derivatives market. It was a party to approximately one million trades, under more than 6,000 ISDA master agreements.Lehman’s derivatives were not the direct cause of its failure, but its derivatives, and the growth of the derivatives markets in general, led to the assumption of outsized risks and systemic weaknesses that did facilitate the crisis.In addition to the systemic problems caused by Lehman’s derivatives portfolio, derivatives have also been identified as a key source of value loss in the bankruptcy.The singular losses caused to Lehman’s bankruptcy estate by Lehman’s derivatives portfolio came from the safe harbors and the system of closeout netting the safe harbors support. While the safe harbors have been thoroughly studied and debated in the abstract, a close look at Lehman’s experience provides important insights for the future. In particular, the largest part of Lehman’s derivatives portfolio shows how financial institutions will again suffer when resolution is attempted in the traditional bankruptcy system. As such, I question the Dodd-Frank Act’s professed preference for “normal” bankruptcy process over specialized insolvency regimes like the new “Orderly Liquidation Authority.”And the abrupt closeout of Lehman’s cleared derivatives portfolio by CME, which Lehman’s examiner noted as the source of several obvious losses to the bankruptcy estate, also provides important insights, given Dodd-Frank’s strong preference for central clearing going forward.This paper looks at both issues, and suggests that the continuation of the safe harbors “as is” renders chapter 11 nonviable for larger financial institutions, and recent contractual attempts to work around the safe harbors are insufficient to solve the problem, while the increased role of clearinghouses in financial institution failures will force regulators to confront difficult choices. In short, the regulators will have to balance two competing systemic risks: the risk of an unruly resolution of the financial institution, balanced against increased risk to the clearinghouse.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124875719","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 paper employs the empirical tools of social network analysis to examine the “property as social relations” approach to intellectual property. Social network analysis seeks to describe and model society and culture based on the connections between agents in a network. A “property as social relations” perspective suggests that property rights emerge out of, and help construct, social relationships. But things become murky when this perspective is applied to basic intellectual property problems. One such problem is the relationship between trade secrets and patents. In trade secret law, the social aspects of information have long been recognized. This intuition is confirmed by social network analysis. In fact, a notion of “social rivalry” permeates trade secret law. In patent law, in contrast, information continues to be viewed almost exclusively as a non-rivalrous economic commodity. Social network analysis demonstrates that the “social” qualities of an innovation are largely stripped away when the innovation moves from the trade secret to the patent domain. It is unclear, however, whether a “property as social relations” approach to patents would achieve the sorts of results its advocates hope would obtain.
{"title":"Social Network Analysis of Trade Secrets and Patents as Social Relations","authors":"D. Opderbeck","doi":"10.2139/SSRN.2214595","DOIUrl":"https://doi.org/10.2139/SSRN.2214595","url":null,"abstract":"This paper employs the empirical tools of social network analysis to examine the “property as social relations” approach to intellectual property. Social network analysis seeks to describe and model society and culture based on the connections between agents in a network. A “property as social relations” perspective suggests that property rights emerge out of, and help construct, social relationships. But things become murky when this perspective is applied to basic intellectual property problems. One such problem is the relationship between trade secrets and patents. In trade secret law, the social aspects of information have long been recognized. This intuition is confirmed by social network analysis. In fact, a notion of “social rivalry” permeates trade secret law. In patent law, in contrast, information continues to be viewed almost exclusively as a non-rivalrous economic commodity. Social network analysis demonstrates that the “social” qualities of an innovation are largely stripped away when the innovation moves from the trade secret to the patent domain. It is unclear, however, whether a “property as social relations” approach to patents would achieve the sorts of results its advocates hope would obtain.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134039517","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}
Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate by looking instead at the players regulated by the patent system. The Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors, while largely ignoring a crucial player: the ordinary user. The user in his everyday decisions of whether to adopt or not to adopt a technology plays a critical role in determining whether a new technology will be disseminated. Yet, patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated by price and availability alone. This Article uncovers the intricacy of ordinary users’ decisions regarding technological adoption. It identifies two main sources of user resistance: resistance due to novelty and resistance due to perceived consequences. Many believe that the market rule should govern the adoption process of new technologies, that is, the market should decide which technology is adopted. Yet, this rule fails to recognize the multi-faceted nature of the ordinary user. This Article proposes that while government action to encourage user adoption should not be the norm, government action gently nudging the user could be particularly effective in cases of market failures. It concludes by suggesting two instances, in which government action is particularly warranted. First, when market failure occurs because a technology is dependent on network effects and the accumulation of a critical mass of users. Second, when time is of the essence and there is a critical need to disseminate a technology quickly.
{"title":"Incentivizing the Ordinary User","authors":"G. Bernstein","doi":"10.2139/ssrn.2163142","DOIUrl":"https://doi.org/10.2139/ssrn.2163142","url":null,"abstract":"Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate by looking instead at the players regulated by the patent system. The Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors, while largely ignoring a crucial player: the ordinary user. The user in his everyday decisions of whether to adopt or not to adopt a technology plays a critical role in determining whether a new technology will be disseminated. Yet, patent law contains an overly simplistic view of the ordinary user. It views the ordinary user as motivated by price and availability alone. This Article uncovers the intricacy of ordinary users’ decisions regarding technological adoption. It identifies two main sources of user resistance: resistance due to novelty and resistance due to perceived consequences. Many believe that the market rule should govern the adoption process of new technologies, that is, the market should decide which technology is adopted. Yet, this rule fails to recognize the multi-faceted nature of the ordinary user. This Article proposes that while government action to encourage user adoption should not be the norm, government action gently nudging the user could be particularly effective in cases of market failures. It concludes by suggesting two instances, in which government action is particularly warranted. First, when market failure occurs because a technology is dependent on network effects and the accumulation of a critical mass of users. Second, when time is of the essence and there is a critical need to disseminate a technology quickly.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129162210","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 the years leading to the recent financial crisis, finance theorists introduced innovative methods, including quantitative financial models and derivative instruments, to measure and mitigate risk exposure. During the financial crisis, financial institutions facing insolvency revealed pervasive misunderstandings, misapplications, and mistaken assumptions regarding these complex risk management methods. As losses in financial markets escalated and caused liquidity and solvency crises, commentators sharply criticized directors and executives at large financial institutions for their risk management decisions. By adopting the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directly and indirectly addresses certain risk management oversight concerns at large, complex financial institutions. To improve risk management oversight at these institutions, Congress imposed several structural reforms altering the composition and obligations of financial institutions' boards of directors. Unfortunately, even after the adoption of the Dodd-Frank Act reforms, financial institutions remain vulnerable to the same critical errors in enterprise risk management oversight that engendered systemic risk concerns during the recent financial crisis. While the Dodd-Frank Act may enhance a board's risk management oversight capabilities, significant concerns persist regarding reliance on board committees. Organizational literature suggests that cognitive biases and structural limitations that influence group decision making will continue to plague boards' efforts to effectively manage risk. This Article argues that better-tailored reforms are necessary to address weaknesses in enterprise risk management regulation and to reduce the threat of systemic risk.
{"title":"Addressing Gaps in the Dodd-Frank Act: Directors' Risk Management Oversight Obligations","authors":"Kristin N. Johnson","doi":"10.2139/ssrn.1975131","DOIUrl":"https://doi.org/10.2139/ssrn.1975131","url":null,"abstract":"In the years leading to the recent financial crisis, finance theorists introduced innovative methods, including quantitative financial models and derivative instruments, to measure and mitigate risk exposure. During the financial crisis, financial institutions facing insolvency revealed pervasive misunderstandings, misapplications, and mistaken assumptions regarding these complex risk management methods. As losses in financial markets escalated and caused liquidity and solvency crises, commentators sharply criticized directors and executives at large financial institutions for their risk management decisions. By adopting the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress directly and indirectly addresses certain risk management oversight concerns at large, complex financial institutions. To improve risk management oversight at these institutions, Congress imposed several structural reforms altering the composition and obligations of financial institutions' boards of directors. Unfortunately, even after the adoption of the Dodd-Frank Act reforms, financial institutions remain vulnerable to the same critical errors in enterprise risk management oversight that engendered systemic risk concerns during the recent financial crisis. While the Dodd-Frank Act may enhance a board's risk management oversight capabilities, significant concerns persist regarding reliance on board committees. Organizational literature suggests that cognitive biases and structural limitations that influence group decision making will continue to plague boards' efforts to effectively manage risk. This Article argues that better-tailored reforms are necessary to address weaknesses in enterprise risk management regulation and to reduce the threat of systemic risk.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121984508","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}
A variety of forces have converged to pressure nonprofit boards to follow the lead of the for-profit sector to become independent, even while empirical evidence from the business sector suggests that board independence from management is not fulfilling expectations, and may be related to weakened firm performance. This background, and the paucity of governance studies in the nonprofit sector, suggests that nonprofits are prematurely jumping onto the independent board bandwagon. There is no convincing articulation of why nonprofit boards should be independent - what is it that independent boards are supposed to be able to uniquely accomplish, how many independent directors are required to ensure board independence, what evidence exists that independent boards are effective at achieving the articulated goals, not to mention whether such goals are quantifiable and measurable. Early results of governance reform suggest that corporate compliance supersedes preservation and pursuit of mission in many of today's nonprofit board rooms. No question exists that nonprofit directors can and do act in their self-interest, behave illegally (if often naively), or mishandle the assets entrusted to their stewardship. But a disproportionate focus on legal and financial accountability, with the attendant pressure to appoint directors qualified for performance of compliance activities, can divert attention from the more important question of what kind of board will serve as the best steward of the entity's resources as it pursues its mission and serves its constituencies. The goals of current governance reform might just as effectively be served by encouraging nonprofit boards to become more diverse in the skill sets of their directors; closing the gaps in current nonprofit statutes that permit weak governance structures; statutorily requiring financial audits by nonprofits over a certain size; recommending the presence of monitoring directors; and legally imposing an aggressively expanded conception of transparency.
{"title":"Does an Independent Board Improve Nonprofit Corporate Governance?","authors":"K. Boozang","doi":"10.2139/SSRN.1002421","DOIUrl":"https://doi.org/10.2139/SSRN.1002421","url":null,"abstract":"A variety of forces have converged to pressure nonprofit boards to follow the lead of the for-profit sector to become independent, even while empirical evidence from the business sector suggests that board independence from management is not fulfilling expectations, and may be related to weakened firm performance. This background, and the paucity of governance studies in the nonprofit sector, suggests that nonprofits are prematurely jumping onto the independent board bandwagon. There is no convincing articulation of why nonprofit boards should be independent - what is it that independent boards are supposed to be able to uniquely accomplish, how many independent directors are required to ensure board independence, what evidence exists that independent boards are effective at achieving the articulated goals, not to mention whether such goals are quantifiable and measurable. Early results of governance reform suggest that corporate compliance supersedes preservation and pursuit of mission in many of today's nonprofit board rooms. No question exists that nonprofit directors can and do act in their self-interest, behave illegally (if often naively), or mishandle the assets entrusted to their stewardship. But a disproportionate focus on legal and financial accountability, with the attendant pressure to appoint directors qualified for performance of compliance activities, can divert attention from the more important question of what kind of board will serve as the best steward of the entity's resources as it pursues its mission and serves its constituencies. The goals of current governance reform might just as effectively be served by encouraging nonprofit boards to become more diverse in the skill sets of their directors; closing the gaps in current nonprofit statutes that permit weak governance structures; statutorily requiring financial audits by nonprofits over a certain size; recommending the presence of monitoring directors; and legally imposing an aggressively expanded conception of transparency.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115340546","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 tortured path of the Schiavo case represented the worst case-scenario that results when a family fails to agree upon the most appropriate care for a severely impaired loved one. While many treatment termination cases consider how the incompetent patient's religious beliefs may inform how the patient would have viewed her treatment, religious tenants have rarely figured so prominently in a right-to-die case. Unfortunately, most of the discussion about the Catholic Church's position in treatment termination generally, and discontinuation of medically-assisted feeding for patients in persistent vegetative states specifically, was ill-informed and confusing. This article pursues two goals: first to clarify the teachings of the Church regarding treatment termination, and, second, to explore the relevance of those teachings to the legal resolution of the Schiavo case. It concludes that because Church teaching was not itself clear while Ms. Schiavo was still competent on the question of terminating nutrition and hydration from a person in PVS, and because it was even less clear whether Ms. Schiavo understood or subscribed to Catholic teaching on the subject, that Church teaching was unhelpful in determining what Ms. Schiavo would have decided about her continued treatment, or whether continued treatment was in her best interests.
{"title":"Divining a Patient's Religious Beliefs in Treatment Termination Decision-Making","authors":"K. Boozang","doi":"10.2139/ssrn.933202","DOIUrl":"https://doi.org/10.2139/ssrn.933202","url":null,"abstract":"The tortured path of the Schiavo case represented the worst case-scenario that results when a family fails to agree upon the most appropriate care for a severely impaired loved one. While many treatment termination cases consider how the incompetent patient's religious beliefs may inform how the patient would have viewed her treatment, religious tenants have rarely figured so prominently in a right-to-die case. Unfortunately, most of the discussion about the Catholic Church's position in treatment termination generally, and discontinuation of medically-assisted feeding for patients in persistent vegetative states specifically, was ill-informed and confusing. This article pursues two goals: first to clarify the teachings of the Church regarding treatment termination, and, second, to explore the relevance of those teachings to the legal resolution of the Schiavo case. It concludes that because Church teaching was not itself clear while Ms. Schiavo was still competent on the question of terminating nutrition and hydration from a person in PVS, and because it was even less clear whether Ms. Schiavo understood or subscribed to Catholic teaching on the subject, that Church teaching was unhelpful in determining what Ms. Schiavo would have decided about her continued treatment, or whether continued treatment was in her best interests.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114853974","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}
Mark P. Denbeaux, Joshua W. Denbeaux, John Gregorek
The recent deaths by suicide of three detainees at Guantanamo have raised questions about both the conditions under which such individuals are held and their dangerousness. The Government, consistent with Secretary of Defense Rumsfeld's description of the detainees as the worst of the worst, has uniformly portrayed the detainees as highly dangerous, even in the restrictive environment in which they are confined. Further, the Government has consistently characterized conduct that, on the surface, seemed to be attempts at suicide, as something other, and less serious, than suicide attempts. The recent success of the suicide attempts by the three detainees has led the Government to characterize these three suicides, and previous actions of detainees, as acts of Asymmetrical Warfare. The Department of Defense has produced official records that provide some opportunity to assess the accuracy of the Government's description of the detainees and the characterization of their conduct, both in terms of how dangerous the detainees are to others and how dangerous the detainees are to themselves. The data does not support the assertion that the detainees are a serious threat to their captors. More importantly, the data does not support the Government's assertion that the detainees are not serious about taking their own lives. This Report is the first effort to provide a more detailed picture of how the detainees have behaved during their detention at Guantanamo. This Report provides a window into the detainee behavior towards themselves and their guards. This Report is based entirely upon the United States Government's own documents or the Government's own public statements. The data shows, remarkably, that the detainees are comparatively cowed and unthreatening to their guards but pose a substantial danger to themselves. Government records reflect that detainees committed acts defined by the Government as manipulative self-injurious behavior more often than they commit disciplinary violations: Detainees committed 460 acts of manipulative self-injurious behavior in 2003 and 2004, an average of one such act every day and a half (one per every 1.59 days.) Detainees committed 499 disciplinary violations over 2 years and eight months, an average of one incident every two days (one per every 1.91 days.) There are more hanging gestures by detainees than there are physical assaults on guards, based upon 120 hanging gestures for 2003 and 95 assaults and 22 attempted assaults for the 2 years and 8 months of reported disciplinary violations. More than 70% of the disciplinary violations, including assaults, are for relatively trivial offenses, and even the most serious are offensive but not dangerous. The disciplinary reports reveal that the most serious injuries sustained by guards as a result of prisoner misconduct are a handful of cuts and scratches. Assuming no recidivism (obviously, an unlikely assumption), at least one third of the detainees have ne
{"title":"Report on the Guantanamo Detainees During Detention: Data from Department of Defense Records","authors":"Mark P. Denbeaux, Joshua W. Denbeaux, John Gregorek","doi":"10.2139/SSRN.916789","DOIUrl":"https://doi.org/10.2139/SSRN.916789","url":null,"abstract":"The recent deaths by suicide of three detainees at Guantanamo have raised questions about both the conditions under which such individuals are held and their dangerousness. The Government, consistent with Secretary of Defense Rumsfeld's description of the detainees as the worst of the worst, has uniformly portrayed the detainees as highly dangerous, even in the restrictive environment in which they are confined. Further, the Government has consistently characterized conduct that, on the surface, seemed to be attempts at suicide, as something other, and less serious, than suicide attempts. The recent success of the suicide attempts by the three detainees has led the Government to characterize these three suicides, and previous actions of detainees, as acts of Asymmetrical Warfare. The Department of Defense has produced official records that provide some opportunity to assess the accuracy of the Government's description of the detainees and the characterization of their conduct, both in terms of how dangerous the detainees are to others and how dangerous the detainees are to themselves. The data does not support the assertion that the detainees are a serious threat to their captors. More importantly, the data does not support the Government's assertion that the detainees are not serious about taking their own lives. This Report is the first effort to provide a more detailed picture of how the detainees have behaved during their detention at Guantanamo. This Report provides a window into the detainee behavior towards themselves and their guards. This Report is based entirely upon the United States Government's own documents or the Government's own public statements. The data shows, remarkably, that the detainees are comparatively cowed and unthreatening to their guards but pose a substantial danger to themselves. Government records reflect that detainees committed acts defined by the Government as manipulative self-injurious behavior more often than they commit disciplinary violations: Detainees committed 460 acts of manipulative self-injurious behavior in 2003 and 2004, an average of one such act every day and a half (one per every 1.59 days.) Detainees committed 499 disciplinary violations over 2 years and eight months, an average of one incident every two days (one per every 1.91 days.) There are more hanging gestures by detainees than there are physical assaults on guards, based upon 120 hanging gestures for 2003 and 95 assaults and 22 attempted assaults for the 2 years and 8 months of reported disciplinary violations. More than 70% of the disciplinary violations, including assaults, are for relatively trivial offenses, and even the most serious are offensive but not dangerous. The disciplinary reports reveal that the most serious injuries sustained by guards as a result of prisoner misconduct are a handful of cuts and scratches. Assuming no recidivism (obviously, an unlikely assumption), at least one third of the detainees have ne","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114147171","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}
After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on the objectionable result. In the latter case (deemed exclusion harm), complainants should have some right to a limited explanation of why they did not appear in highly ranked results. Both these rights are based on consumer protections guaranteed by the Fair Credit Reporting Act. Given extraordinary advances in the annotation software of wiki's, these basic prerogatives ought to be relatively easy to implement for trademark holders and vanity searches (relating to an individual's name). But even if these particular proposals are deemed implausible, they do focus attention on matters of principle that will have increasing importance in coming years: the degree of copyrightability and First Amendment protection of search engine rankings and other machine speech resulting from computerized algorithms. Given the rapidly growing importance of rankers and other aggregators of information, law should not lightly permit machine expression to garner these protections. Rather, they are merited to the extent that rankers are responsible, reflecting actual human judgment and providing due process to those harmed by inclusion or exclusion in relevant results.
{"title":"Rankings, Reductionism, and Responsibility","authors":"Frank A. Pasquale","doi":"10.2139/SSRN.888327","DOIUrl":"https://doi.org/10.2139/SSRN.888327","url":null,"abstract":"After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on the objectionable result. In the latter case (deemed exclusion harm), complainants should have some right to a limited explanation of why they did not appear in highly ranked results. Both these rights are based on consumer protections guaranteed by the Fair Credit Reporting Act. Given extraordinary advances in the annotation software of wiki's, these basic prerogatives ought to be relatively easy to implement for trademark holders and vanity searches (relating to an individual's name). But even if these particular proposals are deemed implausible, they do focus attention on matters of principle that will have increasing importance in coming years: the degree of copyrightability and First Amendment protection of search engine rankings and other machine speech resulting from computerized algorithms. Given the rapidly growing importance of rankers and other aggregators of information, law should not lightly permit machine expression to garner these protections. Rather, they are merited to the extent that rankers are responsible, reflecting actual human judgment and providing due process to those harmed by inclusion or exclusion in relevant results.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128066948","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}
Chapter 11 has healed itself. According to some of its leading critics, chapter 11 is no longer the long, expensive process that it was in the 1980s - when storied companies like Pan Am slowly wasted away their remaining value in a vainglorious attempt to survive in a changed marketplace. Today's chapter 11 is a swift, market driven process that quickly moves troubled companies into more capable hands. And the credit for this change goes to control rights. In particular, advances in financial contracting are said to allow the parties to agree about who should exercise control over the firm's assets in any particular state of the world. Chapter 11 has then become a system of corporate reorganization that is dominated by a single creditor, or at least a small group of sophisticated creditors. In this paper I examine this putative new chapter 11. Unlike Baird, Rasmussen, and Skeel before me, I express some skepticism about the new state of affairs. I begin by addressing two basic questions: should chapter 11 be dominated by a parochial group and who might suffer under such a regime? In particular, I look at whether chapter 11 is appropriately deployed to address a firm's financial distress when that firm has already allocated its control rights to a single actor or a concentrated group of actors, like a DIP lender. I conclude that if the control rights description of the new chapter 11 is accurate, chapter 11 will only be used when it benefits the controlling creditor, and we should expect these sorts of creditors to capture most or all of these benefits. Moreover, we should expect that in some number of cases, the use of chapter 11 under a control rights regime will not be overall efficient, in that any gains come with corresponding losses to non-consenting parties. I then consider whether the empirical story told by these authors is plausible. Again in contrast to the leading scholars, I argue that control in a large modern firm is often inherently ambiguous and that control rights are always relative and state-dependant. Formal control may have little relation to actual, functional control. In this context, chapter 11 provides a forum for an organized resolution of these competing claims.
{"title":"The New and Improved Chapter 11","authors":"S. Lubben","doi":"10.2139/ssrn.567321","DOIUrl":"https://doi.org/10.2139/ssrn.567321","url":null,"abstract":"Chapter 11 has healed itself. According to some of its leading critics, chapter 11 is no longer the long, expensive process that it was in the 1980s - when storied companies like Pan Am slowly wasted away their remaining value in a vainglorious attempt to survive in a changed marketplace. Today's chapter 11 is a swift, market driven process that quickly moves troubled companies into more capable hands. And the credit for this change goes to control rights. In particular, advances in financial contracting are said to allow the parties to agree about who should exercise control over the firm's assets in any particular state of the world. Chapter 11 has then become a system of corporate reorganization that is dominated by a single creditor, or at least a small group of sophisticated creditors. In this paper I examine this putative new chapter 11. Unlike Baird, Rasmussen, and Skeel before me, I express some skepticism about the new state of affairs. I begin by addressing two basic questions: should chapter 11 be dominated by a parochial group and who might suffer under such a regime? In particular, I look at whether chapter 11 is appropriately deployed to address a firm's financial distress when that firm has already allocated its control rights to a single actor or a concentrated group of actors, like a DIP lender. I conclude that if the control rights description of the new chapter 11 is accurate, chapter 11 will only be used when it benefits the controlling creditor, and we should expect these sorts of creditors to capture most or all of these benefits. Moreover, we should expect that in some number of cases, the use of chapter 11 under a control rights regime will not be overall efficient, in that any gains come with corresponding losses to non-consenting parties. I then consider whether the empirical story told by these authors is plausible. Again in contrast to the leading scholars, I argue that control in a large modern firm is often inherently ambiguous and that control rights are always relative and state-dependant. Formal control may have little relation to actual, functional control. In this context, chapter 11 provides a forum for an organized resolution of these competing claims.","PeriodicalId":246118,"journal":{"name":"Seton Hall Law School","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131114778","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}
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