Coordination and Conflict: The Persistent Relevance of Networks in International Financial Regulation

This thesis presents SiGe(C)/Si(C) multi quantum well (MQW) layers individually or in combination with Si(C) Schottky diodes as material structures to detect infrared (IR) radiation. The performance of devices was investigated in terms of SiGe/Si periodicity and quality of SiGe/Si interface. The structures were grown by chemical vapour deposition using GeH4 and SiH4 sources at 650 °C and processed into pixel arrays with sizes of 25×25, 100×100 and 200×200 μm2. The device response to thermal variations was expressed by temperature coefficient of resistance (TCR) and the signal-to-noise-ratio was evaluated by noise measurements. The strain relaxation in SiGe layers was investigated by implementing oxygen at the interface of SiGe/Si or during SiGe growth. A minor amount of 10 ppb oxygen at the interface can be detected by noise measurements while the material characterizations could reveal defects for significantly higher defect density. Oxygen and water contaminations should be accounted for in low temperature epitaxy (350-650 °C) of the layers. Furthermore, an empirical model was developed to describe the kinetics of the SiGe growth using Si2H6 and Ge2H6 as precursors at low temperature. The model takes into account the energy for dissociation of gas molecules, diffusion of the molecules from the gas boundaries toward the substrate and the incorporation of absorbed molecules. A good consistency was observed between the experimental and calculated data.QC 20150211</p

Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O\u27Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests. This article - prepared for a symposium on Missouri v. Holland - draws on the prism of coordination, as well as related analysis of standard-setting, to question two conventional assumptions about the relationship of sub-national, national, and international institutions. First, there is the common notion that a coherent foreign affairs regime requires one voice to speak for the nation. Second is the perception of some inherent conflict in the interaction of international norms and sub-national interests - a sense of international law as silencing (or at least disregarding) sub-national voices. Familiar as they are, both these claims are wrong. Coordination can be achieved in foreign affairs even with multiple voices. International law, meanwhile, may increasingly offer opportunities for states and localities to be heard. Once we appreciate as much, we can begin to develop a richer account of the interaction of sub-national, national, and international institutions, as our federalism reaches abroad

The Role of Groups in Norm Transformation: A Dramatic Sketch, in Three Parts

Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story. Using the latter by way of illustration, this essay explores the potential role of groups as mechanisms of norm transformation. In appropriate circumstances, it suggests, groups may offer an intermediate path of change between regulatory mandate and decentralized markets. Where a pattern of private behavior is at once inefficient but resistant to decentralized market change, groups may effectively stand in for the market - relying on private rather than public incentives to define outcomes, yet offering an infrastructure of coordination lacking in a pure market dynamic. Building on this conception, the essay offers a potential framework for the analysis of groups - as market substitutes in their internal dynamics, as market-mediating in their external interactions, and, most counter-intuitively, as contributing to norm change not exclusively through their strength, but also through their weakness

The Strategy of Boilerplate

That boilerplate is pervasive is hardly surprising. In a variety of ways, standardized terms in day-to-day contracts serve an essential cost-saving function. By this measure, one might expect less frequent reliance on boilerplate in high-value contracts among sophisticated parties. Yet standard terms would appear to be no less widespread in contracts among the sophisticated. Notwithstanding their representation by able counsel, charged to craft comprehensive and detailed, but also particularized, contracts, such parties will commonly conclude agreements comprised heavily of traditional terms--contracting norms of a sort-rather than terms tailored to the distinct features of their particular bargain. Examples of seemingly suboptimal but persistent contracting norms the choice of standard contract terms over Pareto preferred tailored ones are abundant. Several scholars have highlighted the longstanding inclusion of unanimous action clauses in sovereign debt contracts, notwithstanding the widespread perception of such terms as inefficient. To similar effect, Michael Klausner and Marcel Kahan have pointed to the standard put-at-par remedy offered in event risk covenants, as well as the use of a standardized rating decline trigger, as suboptimal technologies. Bill Bratton, finally, has noted the curious absence of business covenants restricting the creation and offering of certain new classes of preferred stock

Law\u27s Signal: A Cueing Theory of Law in Market Transition

Securities markets are commonly assumed to spring forth at the intersection of an adequate supply of, and a healthy demand for, investment capital. In recent years, however, seemingly failed market transitions - the failure of new markets to emerge and of existing markets to evolve - have called this assumption into question. From the developed economies of Germany and Japan to the developing countries of central and eastern Europe, securities markets have exhibited some inability to take root. The failure of U.S. securities markets, and particularly the New York Stock Exchange, to make greater use of computerized trading, communications, and processing technologies, meanwhile, seems to suggest market resistance to technological modernization. In light of this pattern, one must wonder: How are strong markets created and maintained, and what might be law\u27s role in this process?This Article attempts to articulate a model for understanding the needs of efficient market transition and the resulting role of law in that process. Specifically, it suggests a cueing function for law in market transition. Grounded in largely ignored lessons of game theory and microeconomic analysis of so-called network effects, cueing theory identifies the coordination of market participants\u27 expectations as law\u27s central role in market transition. Building on recent legal literature on private regulation, social norms, and the expressive function of law, this theory suggests that in securities market transition - whether it be market creation in central and eastern Europe or market restructuring in the United States - law primarily serves to convene, encourage, inform, and facilitate.A cueing role for law constitutes an important extension of traditional conceptions of what law does, particularly in securities regulation, but in other areas as well. Regulatory cues are neither coercive nor outcome determinative and involve a close intertwining of public and private regulation. The exceptional character of law in this context, and the recent growth in areas where regulatory cues might have fruitful application, may explain why such a role has not previously been analyzed. Yet in securities markets and other industries exhibiting network economies - from electricity transmission and interstate transportation to telecommunications and the Internet - a cueing function for law may be central to efficient transition. It may explain much of why law matters in the modern economy

The Dialectical Regulation of Rule 14a-8: Intersystemic Governance in Corporate Law

In recent years, Rule 14a-8 of the Securities Exchange Act - first adopted more than sixty years ago to increase shareholder participation in corporate governance - has been the subject of a flurry of litigation, scholarly analysis, and SEC rulemaking. Most recently, following several years of debate, the SEC issued a significant clarification of the rule, reversing the Second Circuit\u27s hotly contested interpretation of it in AFSCME v. AIG. For the most part, the debates surrounding Rule 14a-8 - including in the latter case - have focused on the scope of the rule\u27s exceptions. This paper, selected for reprinting in the Securities Law Review\u27s forthcoming volume of the year\u27s top securities law articles, attempts to go beyond those exceptions, to suggest a fundamental rethinking of the nature and operation of the rule. Specifically, the paper explores Rule 14a-8 as an occasion for what I have termed intersystemic governance - an embrace of cross-jurisdictional overlap and engagement in regulatory design and function. In its very structure, thus, Rule 14a-8 calls on the SEC to interpret and apply state law. Properly utilized, this scheme offers an opportunity for the development of regulatory norms that meaningfully integrate both federal and state values of corporate governance and shareholder participation. To this end, among other reforms, I propose a shift in the SEC presumptions applicable to no-action letters, praise Delaware\u27s recent constitutional amendment to permit SEC certification of questions to the Delaware courts, and highlight various opportunities for heightened discourse. By means such as these, a more integrated - and ultimately more efficient - regime of shareholder participation may begin to emerge

Beyond Individualism in Law and Economics

The study of law and economics was built upon two pillars. The first is the familiar assumption of individual rationality. The second, less familiar, is the principle of methodological individualism. Over the last twenty years, law and economics has largely internalized behavioral critiques of the rationality assumption. By contrast, the field has failed to appreciate the implications of growing challenges to its methodological individualism. Where social norms shape individual choices, network externalities are strong, coordination is the operative goal, or information is a substantial determinant of value, a methodology strongly oriented to the analysis of individuals overlooks at least as much as it reveals. Among other potential distortions, indicia of consent may be given greater weight than they deserve, the evolution of law and norms may be underemphasized, and our regulation of information, knowledge, and even the financial markets may be flawed. As with the shift toward a more careful approach to rationality, then, attention to the limits of methodological individualism may lead us to a richer account of law and economics

Coordination and Conflict: The Persistent Relevance of Networks in International Financial Regulation

Over the last two decades, scholarly enthusiasm about transnational regulatory networks has seen something of a boom-and-bust cycle. Such networks – informal groupings of mid-level national officials, convened to develop nonbinding “soft law” norms of behavior in specialized fields of regulation – were identified as an important new phenomenon, were studied widely, and came to be seen as central pillars of the international legal order, especially in financial regulation. Yet today, regulatory networks go largely unmentioned in polite academic conversation: a kind of “he-who-must-not-be-named” of international law.Among the many critiques of transnational networks that have contributed to this decline in interest in and engagement with them, this article seeks to respond to one in particular: the notion that the efficacy of regulatory networks is limited to those situations in which conflict is absent. To the contrary, once we understand the game theoretic dynamic that underlies the operation of networks – including Thomas Schelling’s seminal work on coordination games, focal points, and salience – regulatory networks may be quite effective in the face of conflict. At a minimum, a role for networks should not be categorically denied, absent some particularized indicia of their lack of utility in the given setting. As a matter of comparative institutional analysis, they may continue to represent the best means available to us – both in international financial regulation and in other regulatory arena

A Man in Full (A Tribute Remembering Professor David Bederman)

Robert B. Ahdieh provides a tribute remembering Professor David Bederman as a colleague and friend

The Fog of Certainty

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.” For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law. These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay\u27s invocation of Clausewitz’s “fog” of war - with its attendant distortions and misperceptions - is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance