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Legal by Design: A New Paradigm for Handling Complexity in Banking Regulation and Elsewhere in Law 法律设计:处理银行监管和其他法律复杂性的新范式
Pub Date : 2014-12-16 DOI: 10.2139/SSRN.2539315
P. Lippe, D. Katz, D. Jackson
On August 5, 2014, the Federal Reserve Board and the Federal Deposit Insurance Corporation criticized shortcomings in the Resolution Plans of the first Systematically Important Financial Institution (SIFI) filers. In his public statement, FDIC Vice Chairman Thomas M. Hoenig said “each plan [submitted by the first 11 filers] is deficient and fails to convincingly demonstrate how, in failure, any one of these firms could overcome obstacles to entering bankruptcy without precipitating a financial crisis.”The first eleven SIFIs — Bank of America, Bank of New York Mellon, Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JPMorgan Chase, Morgan Stanley, State Street Corp. and UBS — include some of the largest organizations in the world, with sophisticated internal and external teams of professional advisors. According to Jamie Dimon of JPMorgan Chase in 2013, it took 500 professionals over 1 million hours per year to produce JPMorgan Chase’s annual Resolution plan. With regulatory pressure increasing, that number is likely to be consistent or increasing across first-wave filers, and suggests significant spending by all filers.So why were the plans criticized despite heavy compliance investment?The Fed and FDIC identified two common shortcomings across the first 11 SIFI filers: “(i) assumptions that the agencies regard as unrealistic or inadequately supported, such as assumptions about the likely behavior of customers, counterparties, investors, central clearing facilities, and regulators, and (ii) the failure to make, or even to identify, the kinds of changes in firm structure and practices that would be necessary to enhance the prospects for orderly resolution.” We believe this regulatory response highlights, in part, the need for lawyers (and other advisors) to develop approaches that can better manage complexity, encompassing modern notions of design, use of technology, and management of complex systems. In this paper, we will describe the information mapping aspects of the Resolution Planning challenge as an exemplary “Manhattan Project” of law: a critical enterprise that will require — and trigger — the development of new tools and methods for lawyers to apply in their work handling complex problems without resort to unsustainably swelling workforce, and wasteful diversion of resources. Fortunately, much of this approach has already been developed in innovative Silicon Valley legal departments and has been applied by leading banks. Although much of the focus of the Dodd-Frank Act is on re-organizing and simplifying banks, we will focus here on the information architecture issues which underlie much of what should — and will — change about how law is delivered, not just for Resolution Planning, but more broadly.
2014年8月5日,美国联邦储备委员会和联邦存款保险公司批评了首批系统性重要金融机构(SIFI)申报机构的解决方案存在的缺陷。FDIC副主席Thomas M. Hoenig在公开声明中表示,"(前11家提交的)每个计划都有缺陷,未能令人信服地证明,如果破产,这些公司中的任何一家如何能够克服进入破产的障碍,而不会引发金融危机。"首批11家sifi——美国银行、纽约梅隆银行、巴克莱银行、花旗集团、瑞士信贷银行、德意志银行、高盛、摩根大通、摩根士丹利、道富银行和瑞银集团——包括一些世界上最大的组织,拥有成熟的内部和外部专业顾问团队。根据2013年摩根大通的杰米·戴蒙的说法,500名专业人士每年要花费超过100万小时来制定摩根大通的年度解决方案。随着监管压力的增加,这一数字可能会在第一波申请中保持一致或增加,这表明所有申请机构都将投入大量资金。那么,尽管这些计划在合规方面投入了大量资金,为什么还是受到了批评?美联储和联邦存款保险公司在前11个SIFI申报文件中发现了两个共同的缺点:“(i)机构认为不现实或不充分支持的假设,例如对客户、交易对手、投资者、中央清算机构和监管机构可能行为的假设,以及(ii)未能做出,甚至无法识别公司结构和实践中的各种变化,这些变化对于增强有序解决的前景是必要的。”我们认为,这种监管反应在一定程度上突出了律师(和其他顾问)开发能够更好地管理复杂性的方法的必要性,这些方法包括设计、技术使用和复杂系统管理的现代概念。在本文中,我们将把解决方案规划挑战的信息映射方面描述为法律的典型“曼哈顿计划”:这是一个关键的企业,需要并触发律师在处理复杂问题时应用的新工具和方法的发展,而不诉诸于不可持续的劳动力膨胀,也不浪费资源。幸运的是,这种方法在很大程度上已经在创新的硅谷法律部门开发出来,并已被主要银行应用。虽然《多德-弗兰克法案》的重点是重组和简化银行,但我们在这里将重点放在信息架构问题上,这是法律执行方式应该和将要发生变化的基础,不仅仅是解决方案计划,而是更广泛的变化。
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引用次数: 10
A Graceful Exit: Redefining Terminal to Expand the Availability of Physician-Facilitated Suicide 优雅的退出:重新定义终端以扩大医生协助自杀的可用性
Pub Date : 2012-07-25 DOI: 10.2139/SSRN.2117304
B. Lewis
For almost ten years, Oregon stood alone as the state that permits terminally ill persons to choose the time and manner of their deaths. Finally, in 2009, Oregon received company when the state of Washington’s physician facilitated suicide statute officially went into effect in March of that year. Supporters of the statutes hailed the enactments as a victory for persons seeking to die with dignity. Persons from groups like Compassion & Choices vowed to seek similar legislation in the remaining states. Representatives from the Washington State Medical Association, hospice groups and hospitals argued that the mandates of the statutes place physicians in an unnatural position. In particular, the Medical Association’s spokesman stated that physicians take an oath to save lives, not to end them. The number of persons in the country who support physician-facilitated suicide has continued to grow. At the end of 2009, the Montana Supreme Court indicated that physician-facilitated suicide is not against the state’s public policy. In this article, instead of joining the debate about the legalization of physician assisted suicide, I analyzed the law in Oregon and Washington. That analysis shows that the legislatures in those states attempted to regulate the process in order to protect the interests of terminally ill patients and physicians. The statutory mandates are a step in the right direction, but there is still work that needs to be done. The statutes should be amended to close certain loop holes and to ensure that the physician-facilitated suicide option is available to all of the patients who need it. Persons suffering from physical conditions that will lead to death within six months should not be the only persons permitted to exit gracefully. As long as the safeguards included in the statutes are followed, there is no good reason to prohibit persons suffering from irreversible and incurable physical diseases that lead to death from being classified as terminal. In addition, persons diagnosed with irreversible and incurable brain disorders, like severe dementia or Alzheimer’s disease should be able to avail themselves of the rights provided by the physician-facilitated suicide statutes. Alzheimer’s patients suffer a slow, painful death. They revert to childhood and forget everyone around them. The mental death they suffer is similar to the physical death experienced by terminally physically ill patients. During the early stages of the disease, most Alzheimer sufferers are still competent enough to request physician-facilitated suicide. Therefore, the statutes should be amended or interpreted to give them that option.
近十年来,俄勒冈州是唯一一个允许绝症患者选择死亡时间和方式的州。终于在2009年,当华盛顿州的《医生协助自杀法》于当年3月正式生效时,俄勒冈州得到了同伴的支持。这些法规的支持者称赞这些法规是寻求有尊严地死去的人的胜利。来自“同情与选择”(Compassion & Choices)等组织的人士发誓要在其他州寻求类似的立法。来自华盛顿州医学协会、临终关怀组织和医院的代表认为,法规的授权将医生置于不自然的地位。医学协会的发言人特别指出,医生发誓要挽救生命,而不是结束生命。该国支持医生协助自杀的人数继续增加。2009年底,蒙大拿州最高法院指出,医生协助自杀并不违反该州的公共政策。在这篇文章中,我没有加入关于医生协助自杀合法化的争论,而是分析了俄勒冈州和华盛顿州的法律。分析表明,这些州的立法机构试图规范这一过程,以保护绝症患者和医生的利益。法定授权是朝着正确方向迈出的一步,但仍有工作要做。法律应该修改,以关闭某些循环漏洞,并确保所有需要医生协助的自杀选择可供所有患者使用。患有将在6个月内死亡的身体疾病的人不应是唯一被允许安然离开的人。只要遵守法规所载的保障措施,就没有充分理由禁止将患有不可逆转和无法治愈的导致死亡的身体疾病的人列为绝症患者。此外,被诊断患有不可逆转和无法治愈的脑部疾病,如严重痴呆或阿尔茨海默病的人,应能够利用医生协助自杀法规定的权利。阿尔茨海默病患者会经历缓慢而痛苦的死亡。他们回到童年,忘记身边的人。他们所遭受的精神死亡与身体疾病末期患者所经历的身体死亡相似。在疾病的早期阶段,大多数阿尔茨海默病患者仍然有足够的能力要求医生协助自杀。因此,应修改或解释成文法,使他们有这种选择。
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引用次数: 1
Is There Such A Thing As Too Much Free Speech 是否有太多的言论自由
Pub Date : 2012-01-01 DOI: 10.5406/illinois/9780252037115.003.0007
Randall P. Bezanson
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引用次数: 0
The Birth of a Logical System: Thurman Arnold and the Making of Modern Administrative Law 逻辑体系的诞生:瑟曼·阿诺德与现代行政法的制定
Pub Date : 2004-08-20 DOI: 10.2139/SSRN.587051
Mark Fenster
Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions - most notably administrative agencies and the judiciary - well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and James Landis, and on the contemporaneous challenge to their work raised by the legal realist Thurman Arnold. Arnold characterized early modern administrative law as a quasi-formalist effort to impose a logical system of procedure and judicial review on what he saw as pragmatic, functional regulatory agencies that were attempting to address the crisis of the Depression. Although he conceded the persuasive power of this logical system, Arnold predicted that its requirements, especially for adversarial litigation and judicial review, would ultimately impede the optimal operations of a modern administrative state. Although Arnold's eclectic alternative proposals had no influence, his predictions and critique remain incisive and relevant to an academic field and body of doctrine that regularly face regular bouts of intellectual and political crisis. The Article carries the historical disagreement between Arnold and his contemporaries into the present by connecting their debates first to the development of legal process theory as an approach to federal courts and constitutional law in the 1950s and then to similar debates in administrative law today. Arnold's challenge to early modern administrative law, the Article argues, remains relevant because American law still demands a systemic, legalistic conception of the administrative state. A logical system of administrative and legal process has enormous symbolic power even though, as its current detractors note, it often produces suboptimal regulatory practices. The recurring conflict between an enormously durable system and its critique, a conflict that continues to drive administrative law scholarship, began in the 1920s and 1930s; any efforts to reform the field should understand the terms and implications of the conflict's foundations.
我们所认识到的当代行政法大多出现在20世纪20年代和30年代,当时一群法律学者试图通过为联邦行政州制定合法体系来帮助进步时代和新政的监管努力。它们的制度规定有能力的专家机构- -特别是行政机构和司法机构- -具有明确的作用:机构将利用其广泛的专门知识和能力来纠正市场失灵,而法院将对机构的运作提供有限但至关重要的监督。本文既关注第一代行政法学者,其中最著名的是菲利克斯·法兰克福和詹姆斯·兰迪斯,也关注法律现实主义者瑟曼·阿诺德在同一时期对他们的工作提出的挑战。阿诺德将早期的现代行政法描述为一种准形式主义的努力,旨在将程序和司法审查的逻辑体系强加于他所认为的实用的、功能性的监管机构,这些机构试图解决大萧条的危机。尽管阿诺德承认这种逻辑体系的说服力,但他预测,它的要求,尤其是对抗性诉讼和司法审查的要求,最终将阻碍现代行政国家的最佳运作。虽然阿诺德折衷的替代方案没有影响,但他的预测和批评仍然是深刻的,并且与经常面临智力和政治危机的学术领域和学说体相关。这篇文章将阿诺德和他同时代的人之间的历史分歧延续到现在,首先将他们的辩论与20世纪50年代法律程序理论作为联邦法院和宪法的一种方法的发展联系起来,然后将他们的辩论与今天行政法中的类似辩论联系起来。文章认为,阿诺德对早期现代行政法的挑战仍然具有现实意义,因为美国法律仍然需要一个系统的、法律主义的行政国家概念。行政和法律程序的逻辑系统具有巨大的象征力量,尽管正如其目前的批评者所指出的那样,它经常产生次优的监管实践。一个极其持久的制度与其批判之间反复出现的冲突,这种冲突继续推动着行政法学术的发展,始于20世纪20年代和30年代;任何改革该领域的努力都应了解冲突基础的术语和影响。
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引用次数: 0
Thou shalt not kill as a defeasible heuristic: law and economics and the debate over physician-assisted suicide. 汝不应杀人作为一种失败的启发式:法律与经济学以及关于医生协助自杀的辩论。
Pub Date : 2004-01-01
Daniel Gilman
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引用次数: 0
An Attitudinal Theory of Expressive Law 表达法的态度理论
Pub Date : 2000-12-01 DOI: 10.2139/SSRN.253331
Richard Mcadams
Economic analysis typically assumes that law changes the expected cost of behavior, and thereby changes behavior, only because it imposes legal sanctions. Another possibility is that law operates "expressively" - that it changes behavior by what it says rather than what it does. This article proposes an informal model to explain how law could have such an expressive effect. In the model, law changes the expected cost of behavior by signaling attitudes of approval or disapproval. The model assumes (1) that individuals value approval either intrinsically or instrumentally, (2) that individuals have only imperfect information about what others approve, and (3) that certain identifiable categories of legislation are positively correlated with diffuse public opinion. As a result, these categories of legislation cause individuals to update their prior beliefs about the approval pattern, and this updated belief produces behavioral change. As an example, anti-smoking legislation signals greater disapproval of public smoking, which raises the expected costs from public smoking, thereby decreasing such smoking independent of the legal sanctions. The article explores several implications of this attitudinal model of expressive law. One is that local ordinances have a greater expressive effect than state or federal laws, because most approval and disapproval occurs locally. Second, judicial decisions have an expressive effect because they are positively correlated with diffuse public opinion. Third, parties wishing to influence the behavior of others will invest in capturing the state's expressive power, with the result that there is substantial political conflict over what appear to be matters of pure symbolism.
经济分析通常假设法律改变行为的预期成本,从而改变行为,只是因为它施加了法律制裁。另一种可能性是,法律的作用是“表达性的”——它通过它所说的而不是它所做的来改变行为。本文提出了一个非正式的模型来解释法律是如何产生这种表达效果的。在该模型中,法律通过表明赞成或反对的态度来改变行为的预期成本。该模型假设(1)个人从本质上或工具上重视认可,(2)个人对他人认可的信息只有不完善的信息,(3)某些可识别的立法类别与广泛的公众舆论呈正相关。因此,这些立法类别导致个体更新他们对认可模式的先前信念,这种更新的信念产生行为改变。例如,反吸烟立法表明对公共场所吸烟的更大反对,这提高了公共场所吸烟的预期成本,从而减少了这种不受法律制裁的吸烟。本文探讨了表达法态度模型的几个含义。其一,地方法令比州或联邦法律具有更大的表达作用,因为大多数批准和反对都发生在地方。其次,司法判决与民意扩散呈正相关,具有表达效应。第三,希望影响他人行为的政党将投资于夺取国家的表达权力,其结果是,在看似纯粹象征主义的问题上存在实质性的政治冲突。
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引用次数: 140
Protection of RU-486 as contraception, emergency contraception and as an abortifacient under the law of contraception. 根据《避孕法》保护RU-486作为避孕、紧急避孕和堕胎药。
Pub Date : 2000-01-01
R C Wyser-Pratte
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引用次数: 0
Reasons within Passions: Emotions and Intentions in Property Rights Bargaining 激情中的原因:产权讨价还价中的情绪和意图
Pub Date : 2000-01-01 DOI: 10.2139/SSRN.240505
P. H. Huang
This article discusses the role of emotions (or feelings or affects) in property rights bargaining. Real world people choose bargaining strategies based upon not only rational calculations, but also their gut feelings. This article considers the impact of anger and shame on bargaining over property rights and the Coase theorem. Such emotions may depend on beliefs (expectations or assessments) about whether particular strategic decisions should or will occur. Such beliefs can be viewed as attributions over the intentions of others.
本文讨论了情感(或感觉或影响)在产权交易中的作用。现实世界中,人们选择讨价还价的策略不仅基于理性的计算,还基于他们的直觉。本文考虑了愤怒和羞耻对产权讨价还价的影响以及科斯定理。这种情绪可能取决于对特定战略决策是否应该或将会发生的信念(期望或评估)。这样的信念可以看作是对他人意图的归因。
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引用次数: 29
Protecting patient-doctor discourse: informed consent and deliberative autonomy. 保护医患对话:知情同意和协商自主。
Pub Date : 1999-01-01
K M Gatter
{"title":"Protecting patient-doctor discourse: informed consent and deliberative autonomy.","authors":"K M Gatter","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82234,"journal":{"name":"Oregon law review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22316180","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}
引用次数: 0
Assisted suicide and the competent terminally ill: on ordinary treatments and extraordinary policies. 协助自杀和有能力的绝症患者:普通治疗和特殊政策。
Pub Date : 1995-01-01
M Strasser
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引用次数: 0
期刊
Oregon law review
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