Alphabetized Bibliography Entries

Published in cooperation with the American Bar Association Section of Dispute Resolutio

Broad-Based Emergency Liquidity Programs

In this paper, we analyze broad-based emergency liquidity (BBEL) programs. Our main purpose is to assist policymakers who are considering establishing a BBEL program in designing the most effective program possible as efficiently as possible. Our insights are derived from 33 case studies the Yale Program on Financial Stability produced and existing literature on the topic. Liquidity provision is a long-established mandate of central banks and was a function that private entities performed even before the establishment of central banks. We survey a sampling of cases from the 19th through 21st centuries, drawn from 10 countries and regions, to distill what elements make for effective BBEL programs and which factors can jeopardize a program’s effectiveness. In our review of these cases, we identified five major themes: (1) early deployment of credible BBEL assistance in the acute phase of a crisis can serve to arrest or moderate the crisis and stop it from evolving into an extended chronic phase; (2) relying on existing authorities, programs, or administrative frameworks enables the efficient design and deployment of BBEL programs; (3) if the liquidity constraint persists, we often see the use of multiple BBEL programs to provide wide access to a broad range of participants; (4) other interventions also commonly employed alongside BBEL programs include credit and account guarantees in the acute phase and asset purchases, recapitalizations, and loan guarantees in the chronic phase; and (5) in all phases, clear communication is a valuable policy tool to drive utilization, and positive announcement effects are possible

A Survey and Some Commentary on Federal Tort Reform

In Part I, I survey the potential types of federal tort reform. While many of these types of reform measures could be adopted at the state level as well as nationally, some important ones could not. It is on those uniquely federal measures that I focus much of my attention. This section also considers the interrelationships of the branches of government as well as the political and legal advantages and disadvantages of various types of reform. In Part II, I discuss some of the legislation adopted in the wake of the September 11th terrorist attacks. That legislation provides a useful summary of what can be done at the federal level by combining the various avenues for reform available to the national government. It also gives one a good indication of the extent, and simultaneously, the subtlety of federal power in the American constitutional order

The Class Action Fairness Act in Perspective: the Old and the New in Federal Jurisdictional Reform

The Class Action Fairness Act of 2005 (CAFA) was the product of an extended and well-organized political campaign. In Congress, its passage required a grinding eight-year effort, several modifications to the original proposal, numerous committee hearings, multiple reports by both Houses, political compromises that drew some Democratic support, two unsuccessful attempts to terminate debate in the Senate by imposing cloture, and strenuous efforts to amend in both the House and Senate when the bill came to the floor for a final vote. Passage also required Republican control of both Houses of Congress and the presidency as well

Event Jurisdiction and Protective Coordination: Lessons from the September 11th Litigation

Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy’s victims and victims’ families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead. The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action “for damages arising out of” the terrorist related aircraft crashes; it gave the Southern District of New York original and exclusive jurisdiction over all actions “resulting from or relating to the terrorist-related aircraft crashes.” Finally, it implemented a liability cap by limiting recovery in all actions to the defendants’ available liability insurance. These jurisdictional aspects of the “traditional” litigation option under the ATSSSA contain unusual and practically unprecedented elements, yet they have received almost no scholarly attention. This Article attempts to fill that gap by telling the story of the course of the September 11th litigation, tracking the challenges and issues that have arisen as a result of the ATSSSA coordination mandate, and exploring the relationship between federalization of forum and aggregation of claims. The jurisdictional puzzles seen in the September 11th litigation call for two new labels. “Event jurisdiction” refers to Congress’s choice to give the federal courts subject matter jurisdiction over an “event” of perceived national importance, rather than locating subject matter jurisdiction over a certain class of cases or type of claim. The second phenomenon deserves the label “protective coordination” because, like protective jurisdiction, it evinces a congressional desire to protect certain real or perceived federal interests by manipulating the shape and direction of certain classes of lawsuits. The Article concludes by suggesting how Congress might better evaluate post-disaster litigation legislation in the future