Copyright (c) 2009 Brooklyn Law School All rights reserved. http://works.bepress.com/brooklaw Recent documents in Selected Works @ Brooklyn Law School en-us Sun, 22 Nov 2009 03:44:47 PST 3600 http://works.bepress.com/david_reiss/34 http://works.bepress.com/david_reiss/34 Fri, 25 Sep 2009 13:06:44 PDT This is a book review of Dan Immergluck, FORECLOSED: HIGH-RISK LENDING, DEREGULATION, AND THE UNDERMINING OF AMERICA'S MORTGAGE MARKET (Cornell University Press 2009). David J. Reiss Banking and Finance Property-Personal and Real Housing Law Consumer Protection Law Securities Law Housing Finance http://works.bepress.com/edward_janger/28 http://works.bepress.com/edward_janger/28 Sun, 30 Aug 2009 17:01:37 PDT AbstractVirtual TerritorialityEdward J. JangerDavid M. Barse ProfessorBrooklyn Law SchoolCurrent efforts to unify the laws of secured credit and bankruptcy are predicated on the belief that regularizing the law of debtor's rights and creditor's remedies will cause global business to flourish, and benefit both developed and less-developed countries. Certain and predictable remedies for creditors will facilitate lending and development, and coordination among courts will create opportunities to protect the going concern value of troubled businesses. The benefits that accompany such legal harmonization may, however, come at a price. Centralizing control of a bankruptcy case may create opportunities for forum shopping, and local legal variation can be a product of local culture, considered policy choices, or innovation. As a result, excessive harmonization can sweep away cultural differences, produce political resistance and stifle efficient experimentation and evolution of the law. In this article I explore whether choice-of-law rules might be used to address these concerns about harmonization of bankruptcy law, and advocate a choice-of-law principle that I call "virtual territoriality." Virtual territoriality envisions a global, procedurally centralized bankruptcy case that, to the extent possible, respects the entitlements created by the various jurisdictions where the debtor does business. To accomplish this, a jurisdiction's bankruptcy procedure must be distinguished from that jurisdiction's law of substantive legal entitlements. The procedural bankruptcy laws of the "home" country should govern the case, but even in a case where all assets are administered centrally, the choice of substantive law should be determined by ordinary (non-bankruptcy) choice-of-law principles. I then seek to show that this principle can form the basis for a cross-border bankruptcy architecture that simultaneously (1) facilitates the administration of a global bankruptcy, and (2) facilitates the international acceptance of rescue based domestic insolvency regimes. First, this article describes existing and proposed choice-of-law regimes for cross-border bankruptcy cases, and shows that the dominant approach ("modified universalism") has caused forum choice to become a major fighting issue in cross-border cases. Second, the article explains how concerns about forum shopping, capture, and the need to respect local policy choices mandates a cross-border regime that, while procedurally centralized, respects the entitlements that exist under local debtor/creditor laws. Third, the article explores which bankruptcy rules must be governed by the law at the debtor's center of main interest, and which rules can be allowed to vary depending on national choices and private international law. Fourth and finally, it will give two examples of how principles of virtual territoriality already, as a practical matter, influence cross-border bankruptcy cases. Edward J. Janger Bankruptcy Law Commercial Law Conflict of Laws Contracts International Law Law and Economics http://works.bepress.com/dana_brakman_reiser/15 http://works.bepress.com/dana_brakman_reiser/15 Mon, 17 Aug 2009 14:45:20 PDT The boundary between charity and business has become a moving target. Social enterprises, philanthropy divisions of for-profit companies (most notably at Google), and legislation creating hybrid nonprofit/for-profit forms all use business models and practices to mold and pursue charitable objectives. This article asserts that charity law must be streamlined in order to respond to these and other dramatic charitable innovations. My new vision of charity law centers around two essential requirements. First, charity law must continue to demand that charities maintain an other-regarding orientation, pursuing benefits for someone other than their own leaders and managers. Second, existing charity law must be revised and supplemented to mandate that charities utilize group governance. Additionally, this dual focus should be intensified by removing the limits on commercial and political activity that currently clutter charity law. These reforms will enhance charity law's ability to regulate traditional charities. Moreover, focusing charity law on its essentials will reveal the tools necessary to respond to the exciting developments blurring the boundary between charity and business. Dana Brakman Reiser Corporations Taxation-Federal Income http://works.bepress.com/david_reiss/33 http://works.bepress.com/david_reiss/33 Thu, 23 Jul 2009 06:59:45 PDT This book chapter explores how the three largest rating agencies, Standard & Poor's, Moody's Investor Service and Fitch Ratings, exploited their privileged regulatory status to profit from the booming subprime mortgage market at the expense of homeowners. These rating agencies boosted their own bottom lines and assisted predatory lenders by effectively vetoing state consumer protection initiatives. While regulators have identified enhanced investor protection regulation of credit rating agencies as a priority, future regulation must ensure that the systemic biases of the rating agency industry are no longer permitted to trump legitimate state consumer protection initiatives. David J. Reiss http://works.bepress.com/david_reiss/32 http://works.bepress.com/david_reiss/32 Thu, 23 Jul 2009 06:54:06 PDT This book chapter describes the role of Fannie Mae and Freddie Mac in the ongoing financial crisis. The chapter first explains the hybrid public-private nature of Fannie and Freddie, which are what is known as Government Sponsored Enterprises (GSEs). Fannie and Freddie were originally chartered by the federal government to create a national mortgage market. The chapter then explains how the two GSEs morphed into extraordinarily large companies that profited enormously from their special relationship with the federal government, while providing only modest benefits to American homeowners. In what turned out to be a disastrous trade-off for American taxpayers, Fannie and Freddie ended up needing a bailout measured in the hundreds of billions of dollars. Ultimately, Fannie and Freddie exhibited the common failings of poor GSE design--after fulfilling their original purpose, they took on monstrously large lives of their own that defied political oversight. The chapter concludes that Fannie and Freddie should be privatized, with their remaining public functions assumed by pure government actors. David J. Reiss http://works.bepress.com/james_j_park/6 http://works.bepress.com/james_j_park/6 Thu, 02 Jul 2009 13:02:00 PDT James J. Park http://works.bepress.com/david_reiss/31 http://works.bepress.com/david_reiss/31 Wed, 24 Jun 2009 09:00:21 PDT This brief article reviews the various policies that the Obama Administration can choose from as it considers how Fannie Mae and Freddie Mac should exit conservatorship. It first reviews the benefits and costs associated with the two companies. It then reviews four broad positions regarding the appropriate role of Fannie and Freddie in the housing finance market. It argues that the two companies should be privatized because Fannie and Freddie pose a systemic risk to the financial system, unfairly benefit from their regulatory privilege and do not create net benefits for the American people. Finally, it reviews four concrete plans to fundamentally change Fannie and Freddie's structure, each involving different degrees of government involvement. It concludes that the two companies should be converted into generic financial holding companies and their public functions be reassigned to various federal instrumentalities. David J. Reiss http://works.bepress.com/david_reiss/30 http://works.bepress.com/david_reiss/30 Tue, 16 Jun 2009 12:51:56 PDT David J. Reiss http://works.bepress.com/anita_bernstein/60 http://works.bepress.com/anita_bernstein/60 Fri, 29 May 2009 15:22:48 PDT Anita Bernstein http://works.bepress.com/anita_bernstein/59 http://works.bepress.com/anita_bernstein/59 Tue, 28 Apr 2009 11:18:21 PDT Anita Bernstein