The Bankruptcy-Law Safe Harbor for Derivatives: A Path-Dependence Analysis

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This article argues that these rights and immunities result from a form of path dependence, a sequence of industry-lobbied legislative steps, each incremental and in turn serving as apparent justification for the next step, without a rigorous and systematic vetting of the consequences. Because the resulting “safe harbor” has not been fully vetted, its significance and utility should not be taken for granted; and thus regulators, legislators, and other policymakers—whether in the United States or abroad—should not automatically assume, based on its existence, that the safe harbor necessarily reflects the most appropriate treatment of derivatives transactions under bankruptcy and insolvency law or the treatment most likely to minimize systemic risk

Strange quark suppression from a simultaneous Monte Carlo analysis of parton distributions and fragmentation functions

We perform the first simultaneous extraction of unpolarized parton distributions and fragmentation functions from a Monte Carlo analysis of inclusive and semi-inclusive deep-inelastic scattering, Drell-Yan lepton-pair production, and single-inclusive $e^+ e^-$ annihilation data. We use data resampling techniques to thoroughly explore the Bayesian posterior distribution of the extracted functions, and use $k$-means clustering on the parameter samples to identify the configurations that give the best description across all reactions. Inclusion of the semi-inclusive data reveals a strong suppression of the strange quark distribution at parton momentum fractions $x \gtrsim 0.01$, in contrast with the ATLAS observation of enhanced strangeness in $W^\pm$ and $Z$ production at the LHC. Our study reveals significant correlations between the strange quark density and the strange $\to$ kaon fragmentation function needed to simultaneously describe semi-inclusive $K^\pm$ production data from COMPASS and inclusive $K^\pm$ spectra in $e^+ e^-$ annihilation from ALEPH and SLD, as well as between the strange and light antiquark densities in the proton.Comment: 6 pages, 4 figures; version to appear in Phys. Rev.

Peeling Back the Student Privacy Pledge

Education software is a multi-billion dollar industry that is rapidly growing. The federal government has encouraged this growth through a series of initiatives that reward schools for tracking and aggregating student data. Amid this increasingly digitized education landscape, parents and educators have begun to raise concerns about the scope and security of student data collection. Industry players, rather than policymakers, have so far led efforts to protect student data. Central to these efforts is the Student Privacy Pledge, a set of standards that providers of digital education services have voluntarily adopted. By many accounts, the Pledge has been a success. Since its introduction in 2014, over 300 companies have signed on, indicating widespread commitment to the Pledge’s seemingly broad protections for student privacy. This industry participation is encouraging, but the Pledge does not contain any meaningful oversight or enforcement provisions. This Article analyzes whether signatory companies are actually complying with the Pledge rather than just paying lip service to its goals. By looking to the privacy policies and terms of service of a sample of the Pledge’s signatories, I conclude that noncompliance may be a significant and prevalent issue. Consumers of education software have some power to hold signatories accountable, but their oversight abilities are limited. This Article argues that the federal government, specifically the Federal Trade Commission, is best positioned to enforce compliance with the Pledge and should hold Pledge signatories to their promises

Health Insurance Exchanges: Legal Issues

Health insurance exchanges (HIE) are entities that organize the market for health insurance by connecting small businesses and individuals into larger pools that spread the risk for insurance companies, while facilitating the availability, choice and purchase of private health insurance for the uninsured. While there are legal issues that warrant consideration under a federal, state, or private exchange framework, those issues are not insurmountable barriers to implementation

Algorithmic Jim Crow

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on the back end in the form of designing, interpreting, and acting upon vetting and screening systems in ways that result in a disparate impact

Regulating Shadows: Financial Regulation and Responsibility Failure

In the modern financial architecture, financial services and products increasingly are provided outside of the traditional banking system—and thus without the need for bank intermediation between capital markets and the users of funds. Most corporate financing, for example, no longer is dependent on bank loans but raised through special-purpose entities, money-market mutual funds, securities lenders, hedge funds, and investment banks. This shift, referred to as “disintermediation” and described as creating a “shadow banking” system, is so radically transforming finance that regulatory scholars need to rethink their assumptions. Two of the fundamental market failures underlying shadow banking—information failure and agency failure—were also prevalent in the bank-intermediated financial system. By amplifying systemic risk, however, disintermediation greatly increases the importance of what scholars long have viewed as a third market-failure category: externalities. Viewing externalities as a distinct category of market failure is misleading, though: externalities are fundamentally consequences, not causes, of failures; and all market failures can result in externalities. Focusing on externalities also obscures who should be responsible for causing the externalities. This article argues that the third market-failure category should be reconceptualized as a “responsibility failure”: a firm’s ability to externalize a significant portion of the costs of taking a risky action. That not only would more precisely describe the market failure but also would help to illuminate that sometimes the government itself, not merely individual firms, should bear responsibility for causing externalities, and that exercising this responsibility may require the government to enact laws that require firms to internalize those costs

Validating the Right to Counsel

This Essay, written as part of a Symposium celebrating the 50th Anniversary of Gideon v. Wainwright, focuses on the elaboration of the Gideon right in the context of ineffective assistance of counsel litigation. First, I describe how ineffective assistance of counsel claims came to dominate and define federal habeas corpus litigation, changing the structure of state post-conviction rules in reaction to the new prominence of ineffective assistance of counsel claims at the federal level, expanding to consider assistance of counsel during plea bargaining, and raising complex questions for post-conviction courts. Despite the ubiquity of ineffective assistance of counsel claims, the constitutional test is shot through with a prejudice analysis, as well as with a set of strong substantive blinders: judgments that only certain types of failures by counsel will be regulated. Second, I ask whether the approach towards judging effectiveness of defense counsel could be “validated” by social science evidence, or at least be better informed by it. The bar has increasingly engaged with science and social science to provide improved standards for effective defense representation. In turn, social scientists might more closely study the effectiveness of defense lawyering across stages of the criminal process. Over time, this work may help to validate the right to counsel

Respecting Working Mothers with Infant Children: The Need for Increased Federal Intervention to Develop, Protect, and Support a Breastfeeding Culture in the United States

The author argues that the benefits of breastfeeding are overwhelming and that more needs to be done to ensure that all women have a viable option to continue breastfeeding upon returning to work, particularly the working poor and minorities. Those least likely to breastfeed are more likely to be part of an at risk population in terms of health. Most significantly, the lack of a cohesive policy in the workplace has had a disparate impact on the most vulnerable populations of breastfeeding mothers and their children. The lack of federal protection and a patchwork of protection in the states have contributed to our failure to achieve breastfeeding goals set in the 1990\u27s. Federal laws and decisions are reviewed. The author has undertaken a comprehensive review of the state statutes to demonstrate the disparities in protection. The review also serves as a guide for potential federal legislation. Federal legislation must provide a floor beneath which no mother may fall. The author proposes what components are crucial in enacting such legislation and examines a bill recently introduced in the House of Representatives