{"title":"The Consumer Financial Protection Bureau: Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010","authors":"Gail Hillebrand","doi":"10.15779/Z38J57B","DOIUrl":"https://doi.org/10.15779/Z38J57B","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122234279","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 breaks new ground toward contractual and institutional innovation in models of homeownership, equity building, and mortgage enforcement. Inspired by recent developments in the affordable housing sector and other types of public financing schemes, we suggest extending institutional and financial strategies such as timeand place-based division of property rights, conditional subsidies, and credit mediation to alleviate the systemic risks of mortgage foreclosure. Two new solutions offer a broad theoretical basis for such developments in the economic and legal institution of homeownership: a forprofit shared equity scheme led by local governments alongside a private market shared equity model, one of "bootstrapping home buying with purchase options. " t Benito Arruiada is a professor at the Department of Economics and Business, Pompeu Fabra University and Barcelona GSE. Amnon Lehavi is Chair, Real Estate Studies, Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya, and a visiting professor, Faculty of Law, University of Toronto. For most helpful information and advice, we are indebted to Michael Brown, John Davis, Robert Ellickson, Lee Fennell, Allison Handler, Roz Greenstein, Fernando P. Mdndez Gonzilez, Steven Shavell, and participants of the 2010 annual meeting of the Canadian Law and Economics Association held at the University of Toronto. Arrufiada acknowledges financial support from the Spanish Ministry of Science and Innovation through grant EC02008-01116. Berkeley Business Law Journal
本文在房屋所有权、股权建设和抵押执行模式的合同和制度创新方面开辟了新的领域。受经济适用房领域近期发展和其他类型公共融资计划的启发，我们建议扩展制度和金融策略，如基于时间和地点的产权划分、有条件补贴和信用调解，以减轻抵押贷款止赎的系统性风险。两种新的解决方案为住房所有权的经济和法律制度的发展提供了广泛的理论基础:一种是由地方政府主导的营利性共享股权计划，另一种是私人市场共享股权模式，即“带购买选择权的自主购房”模式。贝尼托·阿鲁亚达是庞培法布拉大学和巴塞罗那GSE经济与商业系的教授。Amnon Lehavi, Radzyner法学院荷兹利亚跨学科中心(IDC)房地产研究主席，多伦多大学法学院客座教授。我们感谢Michael Brown, John Davis, Robert Ellickson, Lee Fennell, Allison Handler, Roz Greenstein, Fernando P. Mdndez gonzalez, Steven Shavell，以及在多伦多大学举行的2010年加拿大法律与经济协会年会的与会者，为我们提供了最有用的信息和建议。Arrufiada通过拨款EC02008-01116获得了西班牙科学与创新部的财政支持。伯克利商法杂志
{"title":"Prime Property Institutions for Subprime Era: Towards Innovative Models of Homeownership","authors":"Benito Arruñada, Amnon Lehavi","doi":"10.15779/Z38BP39","DOIUrl":"https://doi.org/10.15779/Z38BP39","url":null,"abstract":"This Article breaks new ground toward contractual and institutional innovation in models of homeownership, equity building, and mortgage enforcement. Inspired by recent developments in the affordable housing sector and other types of public financing schemes, we suggest extending institutional and financial strategies such as timeand place-based division of property rights, conditional subsidies, and credit mediation to alleviate the systemic risks of mortgage foreclosure. Two new solutions offer a broad theoretical basis for such developments in the economic and legal institution of homeownership: a forprofit shared equity scheme led by local governments alongside a private market shared equity model, one of \"bootstrapping home buying with purchase options. \" t Benito Arruiada is a professor at the Department of Economics and Business, Pompeu Fabra University and Barcelona GSE. Amnon Lehavi is Chair, Real Estate Studies, Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya, and a visiting professor, Faculty of Law, University of Toronto. For most helpful information and advice, we are indebted to Michael Brown, John Davis, Robert Ellickson, Lee Fennell, Allison Handler, Roz Greenstein, Fernando P. Mdndez Gonzilez, Steven Shavell, and participants of the 2010 annual meeting of the Canadian Law and Economics Association held at the University of Toronto. Arrufiada acknowledges financial support from the Spanish Ministry of Science and Innovation through grant EC02008-01116. Berkeley Business Law Journal","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122120533","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":"Klein and the Contradictions of Corporations Law","authors":"Stewart Macaulay","doi":"10.15779/Z38XG5Q","DOIUrl":"https://doi.org/10.15779/Z38XG5Q","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129473234","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, I argue that securities fraud class actions ("SFCAs ") should not be treated as class actions but rather should be treated as derivative actions. In addition, I argue that such actions should be dismissed unless it appears that insiders (including the company itselj have gained from trading during the fraud period. Both of these conclusions are based on the fundamental argument that (1) securities law seeks to protect the interests of reasonable investors, (2) reasonable investors diversify, and (3) diversified investors are effectively protected against the supposed financial harms of securities fraud by virtue of being diversified, except in cases in which insiders have extracted gains by trading during the fraud period. Only those actions that involve insider trading or the equivalent by directors, officers, or agents of the defendant company (or the company itselJ) cause genuine financial harm to the plaintiff class, because only those actions involve an extraction of wealth from the public market. SFCAs visit serious collateral damage on defendant companies, ultimately reducing investor return. In an action based on failure to disclose bad news, the prospect of payout will cause stock price to fall by more than it otherwise would-even in a perfectly efficient market-and will trigger a positive feedback mechanism that will magnify the potential payout. It is easy to fix the feedback problem. If the case does not involve insider extraction of gains, it should be dismissed. If the case does involve insider extraction of gains, it should be litigated in the name of the corporation, and the corporation should recover any gain extracted by insiders. Treating a securities fraud action as an action by the corporation will make stockholders whole and will avoid collateral damage to the issuer corporation. t Marbury Research Professor of Law, University of Maryland School of Law. Berkeley Business Law Journal Vol. 4.1, 2007
{"title":"The End of the Securities Fraud Class Action as We Know It","authors":"R. Booth","doi":"10.15779/Z38700F","DOIUrl":"https://doi.org/10.15779/Z38700F","url":null,"abstract":"In this article, I argue that securities fraud class actions (\"SFCAs \") should not be treated as class actions but rather should be treated as derivative actions. In addition, I argue that such actions should be dismissed unless it appears that insiders (including the company itselj have gained from trading during the fraud period. Both of these conclusions are based on the fundamental argument that (1) securities law seeks to protect the interests of reasonable investors, (2) reasonable investors diversify, and (3) diversified investors are effectively protected against the supposed financial harms of securities fraud by virtue of being diversified, except in cases in which insiders have extracted gains by trading during the fraud period. Only those actions that involve insider trading or the equivalent by directors, officers, or agents of the defendant company (or the company itselJ) cause genuine financial harm to the plaintiff class, because only those actions involve an extraction of wealth from the public market. SFCAs visit serious collateral damage on defendant companies, ultimately reducing investor return. In an action based on failure to disclose bad news, the prospect of payout will cause stock price to fall by more than it otherwise would-even in a perfectly efficient market-and will trigger a positive feedback mechanism that will magnify the potential payout. It is easy to fix the feedback problem. If the case does not involve insider extraction of gains, it should be dismissed. If the case does involve insider extraction of gains, it should be litigated in the name of the corporation, and the corporation should recover any gain extracted by insiders. Treating a securities fraud action as an action by the corporation will make stockholders whole and will avoid collateral damage to the issuer corporation. t Marbury Research Professor of Law, University of Maryland School of Law. Berkeley Business Law Journal Vol. 4.1, 2007","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121663921","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}
Publicly traded companies distribute cash to shareholders either through dividends or through anonymous repurchases of the companies' own stock on the open market. Companies must announce a repurchase authorization but do not actually have to repurchase any stock, and until recently companies did not have to disclose whether or not they were in fact repurchasing any stock. Scholars and regulators noticed that companies frequently announced repurchases but then appeared not to complete them. They feared that such announcements might be used by insiders to exploit public investors. To reduce opportunities for exploitive behavior, the SEC required that companies disclose their repurchase activity in their quarterly filings beginning in January 2004. This Article tracks 365 repurchase programs announced in 2004 and finds that, since the SEC disclosure requirement went into effect, companies are more likely to complete their announced repurchases and do so within a shorter time period after the repurchase announcement. Michael Simkovic will be a professor at Seton Hall Law School starting in Fall 2010. He authored this article as a John M. Olin Fellow in Law and Economics at Harvard Law School. He thanks the School's John M. Olin Center for Law, Economics, and Business for its generous support. He also thanks his faculty advisor, Guhan Subramanian, for his guidance. Finally, he thanks his research assistants, Victoria Salisbury, Laura Dauban, Ian J. Pohl, Yifei Chen, Joshua Reilly, and Winnie Nip for their assistance gathering and coding data. The views expressed are those of Michael Simkovic and do not reflect the views of Harvard Law School, the Olin Center, or any other organization. Email: msimkovic@gmail.com. Mobile Phone: 516-423-9187. Effect of Mandatory Disclosure on Open-Market Stock Repurchases
上市公司通过分红或在公开市场上匿名回购公司股票的方式向股东派发现金。公司必须宣布回购授权，但实际上不必回购任何股票，而且直到最近，公司还不必披露它们是否实际上在回购任何股票。学者和监管机构注意到，企业经常宣布回购，但随后似乎没有完成。他们担心这样的公告可能会被内部人士用来剥削公众投资者。为了减少剥削行为的机会，美国证券交易委员会要求公司从2004年1月开始在季度报告中披露其回购活动。本文追踪了2004年宣布的365个回购项目，发现自SEC披露要求生效以来，公司更有可能在回购公告后较短的时间内完成其宣布的回购。Michael Simkovic将从2010年秋季开始担任西顿霍尔法学院的教授。本文作者是哈佛大学法学院(Harvard Law School)法律与经济学约翰·奥林(John M. Olin)研究员。他感谢学院的约翰·m·奥林法律、经济和商业中心的慷慨支持。他还感谢他的指导老师古汉·萨勃拉曼尼亚(Guhan Subramanian)的指导。最后，他感谢他的研究助理Victoria Salisbury、Laura Dauban、Ian J. Pohl、Yifei Chen、Joshua Reilly和Winnie Nip协助收集和编码数据。本文仅代表Michael Simkovic的观点，不代表哈佛法学院、奥林中心或任何其他组织的观点。电子邮件:msimkovic@gmail.com。手机:516-423-9187。强制性披露对公开市场股票回购的影响
{"title":"The Effect of Mandatory Disclosure on Open-Market Repurchases","authors":"M. Simkovic","doi":"10.15779/Z384W08","DOIUrl":"https://doi.org/10.15779/Z384W08","url":null,"abstract":"Publicly traded companies distribute cash to shareholders either through dividends or through anonymous repurchases of the companies' own stock on the open market. Companies must announce a repurchase authorization but do not actually have to repurchase any stock, and until recently companies did not have to disclose whether or not they were in fact repurchasing any stock. Scholars and regulators noticed that companies frequently announced repurchases but then appeared not to complete them. They feared that such announcements might be used by insiders to exploit public investors. To reduce opportunities for exploitive behavior, the SEC required that companies disclose their repurchase activity in their quarterly filings beginning in January 2004. This Article tracks 365 repurchase programs announced in 2004 and finds that, since the SEC disclosure requirement went into effect, companies are more likely to complete their announced repurchases and do so within a shorter time period after the repurchase announcement. Michael Simkovic will be a professor at Seton Hall Law School starting in Fall 2010. He authored this article as a John M. Olin Fellow in Law and Economics at Harvard Law School. He thanks the School's John M. Olin Center for Law, Economics, and Business for its generous support. He also thanks his faculty advisor, Guhan Subramanian, for his guidance. Finally, he thanks his research assistants, Victoria Salisbury, Laura Dauban, Ian J. Pohl, Yifei Chen, Joshua Reilly, and Winnie Nip for their assistance gathering and coding data. The views expressed are those of Michael Simkovic and do not reflect the views of Harvard Law School, the Olin Center, or any other organization. Email: msimkovic@gmail.com. Mobile Phone: 516-423-9187. Effect of Mandatory Disclosure on Open-Market Stock Repurchases","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115742797","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 Role of Money Market Funds in the U.S. Financial System ................. 76 The Financial Crisis and the "Run" on Money Market Funds ....................... 80 The Systemic Risks of Money Market Funds ............................................... 82 The Systemic Benefits of Money Market Funds .......................................... 85 Addressing the Risks Without Eliminating the Benefits ................................ 90
{"title":"Money Market Funds - Preserving Systemic Benefits, Minimizing Systemic Risks","authors":"M. Perlow","doi":"10.15779/Z38FG32","DOIUrl":"https://doi.org/10.15779/Z38FG32","url":null,"abstract":"The Role of Money Market Funds in the U.S. Financial System ................. 76 The Financial Crisis and the \"Run\" on Money Market Funds ....................... 80 The Systemic Risks of Money Market Funds ............................................... 82 The Systemic Benefits of Money Market Funds .......................................... 85 Addressing the Risks Without Eliminating the Benefits ................................ 90","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124842935","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":"Shareholder Proposals: A Catalyst for Climate Change-Related Disclosure, Analysis, and Action","authors":"Elise N. Rindfleisch","doi":"10.15779/Z386003","DOIUrl":"https://doi.org/10.15779/Z386003","url":null,"abstract":"TABLE OF CONTENTS","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130855916","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 develops a theory that sheds light on recent evidence that shows that high-quality issuers antitakeover adopt defenses during an IPO, and keys this behavior to the existing literature on private benefits of control. The Article then analyzes the decision of the pre-IPO owners concerning takeover defenses. Their decision is shown to be influenced by the quality of the venture that goes public. High quality in firms that go public often means an abundance of growth and business opportunities, rather than sizeable existing assets. In such ventures, managers are unlikely to consume many harmful control benefits. Nevertheless, managers derive a great deal of non-monetary control benefits from their stint in the promising entity. Consequently, takeover defenses help the pre-IPO owners to preserve their non-monetary control benefits without causing too much harm to the value of the enterprise. This Article also shows that even if we take as given the conventional assumption that antitakeover defenses are harmful to shareholders, the inimical influence of takeover defenses is hard to trace since the issuers that adopt them are those whose antitakeover charter provisions' influence is the least harmful. Finding a matching sample for the adopting issuers, as some have tried before, may therefore be an impossible task. This Article thus considers possible extensions that result from complications of asymmetric information, and concludes with the perils of federal intervention.
{"title":"The New World of Risk for Corporate Attorneys and Their Boards Post-Sarbanes-Oxley: An Assessment of Impact and a Prescription for Action","authors":"Beverley H. Earle, G. A. Madek","doi":"10.15779/Z38587P","DOIUrl":"https://doi.org/10.15779/Z38587P","url":null,"abstract":"This Article develops a theory that sheds light on recent evidence that shows that high-quality issuers antitakeover adopt defenses during an IPO, and keys this behavior to the existing literature on private benefits of control. The Article then analyzes the decision of the pre-IPO owners concerning takeover defenses. Their decision is shown to be influenced by the quality of the venture that goes public. High quality in firms that go public often means an abundance of growth and business opportunities, rather than sizeable existing assets. In such ventures, managers are unlikely to consume many harmful control benefits. Nevertheless, managers derive a great deal of non-monetary control benefits from their stint in the promising entity. Consequently, takeover defenses help the pre-IPO owners to preserve their non-monetary control benefits without causing too much harm to the value of the enterprise. This Article also shows that even if we take as given the conventional assumption that antitakeover defenses are harmful to shareholders, the inimical influence of takeover defenses is hard to trace since the issuers that adopt them are those whose antitakeover charter provisions' influence is the least harmful. Finding a matching sample for the adopting issuers, as some have tried before, may therefore be an impossible task. This Article thus considers possible extensions that result from complications of asymmetric information, and concludes with the perils of federal intervention.","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130953257","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 Impact of Regulatory Initiatives on Liquidity for Venture-Backed Companies","authors":"S. Bochner","doi":"10.15779/Z389K47","DOIUrl":"https://doi.org/10.15779/Z389K47","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127916470","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":"In Re Qwest Communications International, Inc.: The Tenth Circuit Hangs up the Phone on Qwest's Petition for Selective Waiver, but the Line Is Not Dead","authors":"S. Gomm","doi":"10.15779/Z38FC65","DOIUrl":"https://doi.org/10.15779/Z38FC65","url":null,"abstract":"","PeriodicalId":326069,"journal":{"name":"Berkeley Business Law Journal","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127442997","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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