Cross-Border Securitization: Without Law, But Not Lawless

Abstract

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