Cross-Border Securitization: Without Law, But Not Lawless

The Article discusses two puzzles posed by cross-border securitization. First, why do the innovators in this area give away their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from giving away their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a law merchant, which is later incorporated into domestic laws. In fact, innovations and standardization of law are developing in tandem and the same professionals that innovate are those that work on standardization of the law. The Article concludes that cross-border securitization serves as a case study of legal change from the bottom up, rather than from the top down

The Scope and Jurisprudence of the Investment Management Regulation

This Article reviews three periods of investment company regulation by the Securities and Exchange Commission (“Commission”). It focuses on the period of 1975 to 2000 in which the Commission granted exemptions on conditions, thus deregulating and reregulating, case-by-case and finally codifying the exemptions in an exemptive rule. The Article analyzes this form of rule-making and compares it to prosecution, settlements, and initial rule-making that typifies the recent years. The Article concludes that the common law method of legislation, especially when it involves a “bargain” between the regulators and law-abiding regulated institutions who wish to innovate, is likely to lead to optimal rules, provided the conditions (re-regulation) are rigorously enforced

Governing by Negotiation: The Internet Naming System

This Article is about the governance of the Internet naming system. The subject is fascinating, not simply because the naming system is an important system affecting the Internet, although it is; and not because the Internet is important, although it is. The subject is fascinating because it offers a rare opportunity to examine and learn from the evolution of an incoherent governance structure. The naming system is special in that it is the product of a new technology; it reflects the changes and pressures brought by the new technology, and involves the interests of government and private entities, domestic and international. And while this combination is complex and special, the players are known and their motivations are quite familiar: a quest for power and money, a professional pride and national patriotism, and deep commitments to various ideologies. Can we predict or even speculate with some certainty how this governance system will develop? Regardless of whether we can, what lessons can we learn from what we see? How should we approach the questions? How can we generalize our findings

Trends in the Regulation of Investment Companies and Investment Advisers

Statutes, rules and enforcement actions are tea leaves we can read to predict future trends of mutual fund regulation. While statutes and rules are specific, the trends they signify are far more speculative. This Essay engages in such speculation to envision the long-term implications of the recent new N- 1A disclosure form, I the plain English Rule,2 and the profile. 3 More generally, the Essay speculates on future trends in Securities and Exchange Commission ( Commission ) enforcement, and predicts a continued and stronger use of informal enforcement by the Commission

The Power Struggle Between Shareholders and Directors: The Demand Requirement in Derivative Suits

This article examines the demand shareholders must make on a corporation\u27s board of directors prior to bringing a derivative suit. The article is divided into two parts. The first part analyzes the nature of the demand requirement and its implications generally. The second part evaluates the demand requirement in a narrow federal statutory context: section 36(b) of the Investment Company Act of 1940

Trust Relationships: Introduction

Law and trust interact. Law addresses trust among individuals and within institutions and societies. As Professor Miller demonstrates, law addresses physicians\u27 trustworthiness, imposing constraints on many aspects of physicians\u27 activities, including research and patients\u27 care.\u27 Professor Seligman highlights the impact of law on trust when legal status, which prevailed in the past, moved to the current contract freedom. Legal status provided established clear predictable roles, which inspired confidence. Contract allowed people to play multiple roles of their choice. The variety of roles reduced predictability and transformed historic confidence into relationships fraught with uncertainty, which he called trust