-
Las Ficciones del Derecho Latinoamericano
Jorge L. Esquirol
Reseña escrita por el Profesor Diego Lopez Medina sobre el libro "Las ficciones del derecho latinoamericano" escrito por Jorge L. Esquirol: Como descubrirá el lector a lo largo del ibro, las ficciones que describe el profesor Esquirol son fundamentalmente dos. En primer lugar, que el derecho latinoamericano es concebido como una mera proyección del europeo y, en segundo lugar, que el derecho latinoamericano, no importa cuánto lo intente, continúa siendo un esfuerzo social fallido porque casi nunca cumple adecuadamente con las funciones básicas del derecho que sí se satisfacen en sociedades "bien ordenadas". La primera de estas ficciones proviene de la construcción del derecho comparado clásico en la primera mitad del Siglo XX; la segunda, es propia del derecho y de las políticas públicas comparadas de los últimos 50 años. Ambas mantienen indudable vigencia y el propósito de Esquirol, en estas páginas, es diseccionarlas vivas para ver si logramos comprender su funcionamiento y neutralizar su poder. Para lograr dichos objetivos, este libro resulta ser un aporte esencial dentro de las ciencias jurídicas de la actualidad: la lectura de la obra de Esquirol es imprescindible para entender la posición estructural de Latinoamérica en el Derecho y las políticas comparadas contemporáneas y nos ofrece un camino para repensarnos en el mapa global del derecho y para superar ideas que han dominado por tanto tiempo.
-
Regulation of Derivative Financial Instruments (Swaps, Options and Futures) : Cases and Materials
Ronald H. Filler and Jerry W. Markham
As a result of the Dodd-Frank Act Wall Street Reform and Consumer Protection Act of 2010, derivatives regulation has become a hot topic on Wall Street and is, therefore, of much interest to law firms with financial institutions as clients. An increasing number of classes on this subject are being taught at law schools around the country, but, to date, there has been no casebook on the subject. This casebook explores the regulation of swaps, futures and options by the Commodity Futures Trading Commission and the Securities and Exchange Commission. It examines the regulatory history of derivative instruments and traces the development of modern market structures while addressing the role of the exchanges, the clearinghouses, and market participants, such as futures commission merchants, swap dealers, and hedge funds that act as commodity pool operators. Structured in a traditional format, this casebook uses cases to teach students important points of law and industry practices needed to understand the role played by derivative instruments in modern finance. The cases are accompanied by commentary from the authors expanding on the points raised in the cases.
-
Versions of academic freedom from professionalism to revolution
Stanley Fish
Analyzes various arguments for the value of academic freedom: Is academic freedom a contribution to society's common good? Does it authorize professors to critique the status quo, both inside and outside the university? Does it license and even require the overturning of all received ideas and policies? Is it an engine of revolution?
-
The Rise of Risk-based Regulatory Capital: Liquidity and Solvency Standards for Financial Intermediaries
Jose Gabilondo
In a capitalist economy, a private firm seeking finance must negotiate with prospective investors in the open market, which establishes standards about the terms on which debt and equity investment will be forthcoming. In addition to these market-financing standards, the capital structure of some financial firms—particularly broker-dealers, federally insured depository institutions, and insurance companies—must satisfy other requirements imposed by federal or state regulators to promote liquidity and solvency. Regulators take a heightened interest in these firms because they serve a public function in providing credit and other financial services. To grasp what regulatory capital rules try to accomplish, the reader must make a conceptual shift to see these financial firms as highly leveraged borrowers, contending with the demands of their own creditors. From this perspective, the financial stability of these firms becomes a matter of public concern. The first section explains regulatory capital as a corporate finance issue about how capital structure can protect creditors—especially unsecured ones – from unexpected financial losses. The rest of the chapter examines the major features of the regulatory capital regimes that apply to financial intermediaries. The second section starts with depository institutions, i.e., banks. These standards have become the locus of policy debates about risk-based capital. The third section discusses the regulatory capital rules that apply to broker-dealers registered with the U.S. Securities and Exchange Commission (“SEC”).1 Broker-dealers have long been subject to net capital rules that promote the firm’s liquidity in order to promote orderly self-liquidation. More recently, large broker-dealers have been allowed to adopt a risk-based method—akin to that used in bank capital—for meeting their net capital requirements. The fourth section considers insurance companies, which adhere to risk-based capital standards imposed by state law. The fifth section warns that large, complex financial organizations may find themselves inadvertently subject to bank-style capital rules if deemed “systemically important” by the newly created Financial Stability Oversight Council (“FSOC”).
-
The Rise of Risk-Based Regulatory Capital : Liquidity and Solvency Standards for Financial Intermediaries
Jose M. Gabilondo
This essay traces the risk of risk-based capital standards for regulated financial intermediaries. In a capitalist economy, a private firm seeking finance must negotiate with prospective investors in the open market, which establishes standards about the terms on which debt and equity investment will be forthcoming. In addition to these market financing standards, the capital structure of some financial firms – particularly broker-dealers, federally insured depository institutions, and insurance companies- must also satisfy other requirements imposed by federal or state regulators to promote liquidity and solvency. Regulators take a heightened interest in these firms because they serve a public function in providing credit and other financial services. Part I explains regulatory capital as a corporate finance issue about how capital structure can protect creditors – especially unsecured ones - from unexpected financial losses. The rest of the chapter examines the major features of the regulatory capital regimes that apply to financial intermediaries. Part II starts with depository institutions, i.e., banks. These standards have become the locus of policy debates about risk-based capital. Part III discusses the regulatory capital rules that apply to broker-dealers registered with the U.S. Securities and Exchange Commission. Broker-dealers had long been subject to net capital rules that promote the firm's liquidity so as to promote orderly self-liquidation. More recently, large broker-dealers have been allowed to adopt a risk-based method – akin to that used in bank capital – for meeting their net capital requirements. Part IV considers insurance companies, which adhere to risk-based capital standards imposed by state law. Part V warns that large, complex financial organizations may find themselves inadvertently subject to bank-style capital rules if deemed 'systemically important' by the newly created Financial Stability Oversight Council (FSOC).
-
Dusty Order: Law Enforcement and Participant Cooperation at Burning Man
Manuel A. Gomez
Media depictions of Burning Man focus on the picturesque and eccentric appearance of the weeklong affair. The event is sometimes misportrayed as a lawless environment where participants are encouraged to engage in rowdy behavior. Most carnivalesque events offer an escape from reality and are generally thought to enable unruly conduct. Despite stereotypes, Burning Man is a different beast. Not only is the crime rate in Black Rock City lower than any other city of comparable size, but Burners show a high level of cooperative and law abiding behavior that helps maintain the social order without depending on official means of external social control. Looking at the interplay between the Black Rock Rangers, law enforcement agencies and participants themselves helps clarify how this works.
"Helping lost souls to find their way home": the Black Rock Rangers.
-
First Amendment Law: Freedom of Expression and Freedom of Religion, 3rd ed.
Arthur D. Hellman, William D. Araiza, and Thomas E. Baker
This casebook rests on a straightforward premise: The First Amendment can be viewed as history, as policy, and as theory, but from a lawyer's perspective, it is above all law-albeit a special kind of law. One thing that is special is that the governing texts have receded into the background. The law is the cases, and the cases are the law. Close analysis of precedent is therefore the principal tool of argumentation and adjudication. The purpose of this casebook is to help students to learn the law in a way that will enable them to use it in the service of clients. Several features of the book promote this goal. The cases are edited with a relatively light hand. Notes and questions provide guidance in working with the opinions. The structure of the book-closely tracking the structure that the Supreme Court has imposed-helps to reinforce learning. Non-case materials (including drafts and memoranda from the Justices' private papers) are used to shed light on what was established by existing precedents and how a new decision changes (or does not change) the law. By giving primacy to the Justice' won words and the Court's own doctrinal structure, the book offers maximum flexibility for teachers to place their own imprint on the course.
-
Prosecuting Those Bearing "Greatest Responsibility": The Contributions of the Special Court for Sierra Leone
Charles C. Jalloh
The Special Court for Sierra Leone ("SCSL” or "the Court") was established through a bilateral treaty between the United Nations (UN) and the government of Sierra Leone signed on January 16, 2002. The SCSL’s jurisdiction ratione materiae included crimes against humanity war crimes, other serious violations of international humanitarian law, as well as various offenses under Sierra Leonean law prohibiting the abuse of underage girls, wanton destruction of property, and arson. Although the Sierra Leonean conflict started in March 1991, the jurisdiction ratione temporis only covers the crimes perpetrated after November 30, 1996. This means that, over the objections of the national authorities, the international community, as represented by the UN, only supported prosecution of the atrocities committed during the second half of the conflict. With respect to ratione loci jurisdiction, the Court was authorized to prosecute the crimes that occurred within the territory of Sierra Leone. Given the SCSL’s limited subject matter, temporal, and territorial jurisdiction, it is evident that the UN's goal was to establish an ad hoc tribunal with a narrower and more focused mandate compared to the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR). The ICTY and ICTR were created by the Security Council (“UNSC” or "the Council") in 1993 and 1994, respectively, partly as ways of addressing the threats to international peace and security caused by genocide in the Balkans and in East Africa.
Article 1(1) of the UN-Sierra Leone Agreement, and its annexed statute, defined the Court's ratione personae jurisdiction - that is, the "power to bring a person into its adjudicative Process.” It gave the SCSL competence in the following terms: "to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law ... including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.”
-
A Positive (Not Perfect) Legacy
Charles Chernor Jalloh
The Special Court for Sierra Leone (SCSL) is the third modern international criminal tribunal supported by the United Nations and the first to be situated where the crimes were committed. This timely, important, and comprehensive book is the first to critically assess the impact and legacy of the SCSL for Africa and international criminal law. The collection, containing 37 original chapters from leading scholars and respected practitioners with inside knowledge of the tribunal, analyzes cutting-edge and controversial issues with significant implications for international criminal law and transitional justice. These include joint criminal enterprise; the novel crime against humanity of forced marriage; the war crime prohibiting enlisting and using child soldiers in the first court to prosecute that offense; the prosecution of the war crime of attacks against United Nations peacekeepers in the first tribunal where this offense was prosecuted; the tension between truth commissions and criminal trials in the first country to simultaneously have the two; and the questions of whether it is permissible under international law for states to unilaterally confer blanket amnesties to local perpetrators of universally condemned international crimes, whether the immunities enjoyed by an incumbent head of a third state bars his prosecution before an ad hoc treaty-based international criminal court, and whether such courts may be funded by donations from states without compromising judicial independence.
-
Assessing the Legacy of the Special Court for Sierra Leone
Charles Chernor Jalloh
The Special Court for Sierra Leone (SCSL) is the third modern international criminal tribunal supported by the United Nations and the first to be situated where the crimes were committed. This timely, important, and comprehensive book is the first to critically assess the impact and legacy of the SCSL for Africa and international criminal law. The collection, containing 37 original chapters from leading scholars and respected practitioners with inside knowledge of the tribunal, analyzes cutting-edge and controversial issues with significant implications for international criminal law and transitional justice. These include joint criminal enterprise; the novel crime against humanity of forced marriage; the war crime prohibiting enlisting and using child soldiers in the first court to prosecute that offense; the prosecution of the war crime of attacks against United Nations peacekeepers in the first tribunal where this offense was prosecuted; the tension between truth commissions and criminal trials in the first country to simultaneously have the two; and the questions of whether it is permissible under international law for states to unilaterally confer blanket amnesties to local perpetrators of universally condemned international crimes, whether the immunities enjoyed by an incumbent head of a third state bars his prosecution before an ad hoc treaty-based international criminal court, and whether such courts may be funded by donations from states without compromising judicial independence.
-
Comparative Analysis of Global Securities Regulation
Jerry W. Markham
This chapter will compare the "functional" system of regulation in the United States with the single regulator and "twin peaks" approaches used elsewhere. Under "functional" regulation, different regulators are appointed to regulate particular financial services, even if the same firm offers those services. This has resulted in much overlap and regulatory conflict in the U.S., and proved to be troublesome during the Financial Crisis in 2008. Although elsewhere in the world financial services regulation is mostly consolidated into a single regulator, that model also proved to be wanting during that crisis. That the functional regulatory system in the U.S. was flawed should not have been a surprise. It is a haphazard system that is not the result of a design or reasoned blueprint. Rather, it is a set of accumulated responses to a long history of financial crises, scandals, happenstance, personalities, and compromises among a broad and competing array of industry and governmental bodies.
-
Fraud, Manipulation and other Prohibited Practices
Jerry W. Markham
The federal securities laws seek to prohibit fraud manipulation and other abuses associated with securities transactions. The most prominent of these prohibitions is found in Section l0(b) of the Securities Exchange Act of 1934 (the "34 Act") and Rule l0b-5 promulgated thereunder by the Securities Exchange Commission ("SEC"). There are, however, additional anti-fraud provisions in others of the so-called federal securities laws, including the Securities Act 1933 (the "33 Act") and the Investment Advisers Act of 1940 (the "1940 Act"). This chapter will focus principally upon Section l0(b) of the 34 Act, but it will also more briefly describe the anti-fraud provisions in the 33 and 1940 Acts.
-
Law Enforcement and the History of Financial Market Manipulation
Jerry W. Markham
Price manipulation techniques are intentionally difficult to understand, detect, and prove, and the rise of high-frequency trading has further complicated the task. This book maps the issues and traces the U.S. government's efforts to properly regulate, monitor, and prevent financial speculation and price manipulation in various markets. The coverage begins with the period from the late nineteenth century to the first congressional efforts at regulation in the 1930s and continues on to the present, with a full chapter on the legal and financial aspects of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. All the U.S. financial institutions involved with such regulation--the most prominent of which are the Securities and Exchange Commission created in 1934 and the Commodity Futures Trading Commission created in 1974--are discussed here in detail. Also covered are major financial imbroglios such as the Enron scandal and the ill-timed speculation in natural gas prices that brought down the Amaranth Advisors hedge fund. The last chapter discusses the difficulty of initiating successful prosecutions of financial fraud and price manipulation and proposes a new approach to preventing manipulative practices.
-
Regulation of Derivative Instruments
Jerry W. Markham
This chapter will focus on the regulation of derivative instruments by the Commodity Futures Trading Commission ("CFTC") under the Commodity Exchange Act of 1936 ("CEA") and the Securities and Exchange Commission ("SEC") under the federal securities laws. This chapter will describe and define the various derivative instruments that are subject to regulation under those regulatory schemes. This chapter also describes various aspects of the regulation of derivative instruments and compares the regulatory schemes of the CFTC and SEC. The jurisdiction of those two agencies is increasingly overlapping, but their regulatory structures have significant differences in providing customer protection and in the regulation of industry participants. This chapter will further describe amendments to the CEA by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Dodd-Frank Act"). The Dodd-Frank Act broadly regulated over-the counter instruments such as swaps that had previously been unregulated. Dodd-Frank divided regulatory jurisdiction over those instruments between the SEC and CFTC.
-
The Federal Securities Laws - An Overview
Jerry W. Markham
This fascinating Handbook provides a clear explanation of the securities market regulation regime in the United States. A diverse set of contributors offer a comprehensive overview of the regulatory process, Dodd-Frank, the principal securities statutes, and the regulators and market participants involved. In addition to a general summary of the topic, this volume provides detailed explanations of the process for registering securities, exemptions from registration, secondary distributions, and the underwriting process.
-
Corporate Governance and the Regulation of Mergers and Acquisitions
Jerry W. Markham and Rigers Gjyshi
The first part of the chapter addresses provisions in state and federal securities laws that regulate corporate governance. This includes restrictions on boards of directors and executive managers. The second part addresses requirements in state and federal securities laws governing mergers and acquisitions of corporations. It focuses on a discussion of the Williams Act, which is the federal law (along with applicable SEC regulations) that regulates corporate takeovers through tender offers.
-
Codification and the Constitution of Cádiz
Matthew C. Mirow
This study seeks to explore the private law side of the Constitution of Cádiz, in particular its use and reference to the legal revolution of codification that was well underway by 1812. By engaging questions of codification and private law, this study explores the relationship between private law and public law at a transformative moment in both areas. In public law, unwritten, ancient constitutions were just beginning to be replaced by written constitutions attempting to limit government and to define individual rights. In private law, centuries of the ius commune tradition were being reorganized and shaped into codes. Thus, an examination of the idea and place of codification in the Constitution of Cádiz should reveal clues about these important changes. First, this study discusses the placement of Article 258, the constitutional article referring to codes, within the text of the Constitution itself. It then addresses other aspects of the Constitution that point towards codification as a logical outgrowth of the political and legal transformations contemplated by the Constitution. The third topic addressed here is the way Article 258 came into the Constitution through the reports of the debates in the Cortes and what these statements reveal about the perception of codes at the Cortes. This study ends with some concluding comments about the place of the Constitution of Cádiz in the history of Latin American codification.
-
Teaching Latin American Legal History
Matthew C. Mirow
This essay discusses themes and English-language source materials for teaching Latin American Legal History.
-
International Water Law Principles and Frameworks: Perspectives from the Nile River Basin
Ryan B. Stoa
With the current body of international water law limited to customary principles and nascent treaty instruments, the potential for major transboundary water resources conflict is high. Nowhere is this more apparent than in the Nile River Basin. At about 6,825 km long, the Nile is the longest river in the world, sustaining the livelihoods of more than 180 million people in 11 riparian countries. And yet, the Nile River continues to flow without a binding cooperative management treaty or agreement. While the Nile Basin Cooperative Framework Agreement (CFA) may soon come into force, it lacks the support and participation of two of the largest players in the region, downstream Egypt and Sudan. Meanwhile, basin countries’ interpretations of customary international water law highlight the inherent and predictable difficulties of reconciling the principles of equitable use and no significant harm. Considering the Nile River Basin’s critical importance to the economic development of basin states, the absence of a binding cooperative management agreement places the Nile River Basin at risk of conflict and continued mismanagement. This chapter analyzes the legal status of Nile River Basin water allocations through the lens of contemporary international water law, a developing body of law struggling to resolve transboundary disputes such as those found in the Nile River Basin.
-
Child Soldiers: Children's Rights in the Time of War and Genocide
Hannibal Travis
The experiences of children during cases of genocide are varied. Children may be affected as persons succumbing to the deliberate imposition of conditions leading to death from hunger or disease, and as refugees and internally displaced persons, and may even be involved as perpetrators of killings planned by adults. This chapter begins with definitions of children and child soldiers and turns to legal developments surrounding the definitions and their practical impact. The next section of the chapter will deal with genocides involving children or child soldiers in important roles and highlight key aspects of the jurisprudence of the international criminal tribunals relating to child soldiers in the context of genocide or politicide. In this chapter, the main focus will be on child soldiers in the twentieth and twenty-first centuries. However, child soldiers have existed throughout the history of mankind (Afua 2003). Yet, political and military elites largely neglected and in some ways aggravated the problem until the late 1990s. The large-scale wars and genocides of the twentieth and twenty-first centuries have influenced the development of an international legislation relating to child soldiers.
-
Skills and Values: Constitutional law
William D. Araiza, Thomas E. Baker, Olympia Duhart, and Steven I. Friedland
Skills and Values: Constitutional Law brings practical context to what is possibly the most abstract and thus, for many students, frustrating course in the basic law school curriculum. The heart of the book are problems which pose constitutional law issues in the context of situations a lawyer is likely actually to encounter in her practice. As practical problems they require the student to perform functions required of a practicing lawyer, ranging from deposition preparation to letter-drafting to presentation of legal concepts to lay audiences. The problems thus require students to demonstrate mastery of doctrine in the context of real-world problems that call for practical lawyering skills.
-
(Re)Defining Crimes Against Humanity for a Jus Post Bellum World
Charles C. Jalloh
"This collection of essays brings together jus post bellum and transitional justice theorists to explore the legal and moral questions that arise at the end of war and in the transition to less oppressive regimes. Transitional justice and jus post bellum share in common many concepts that will be explored in this volume. In both transitional justice and jus post bellum, retribution is crucial. In some contexts criminal trials will need to be held, and in others truth commissions and other hybrid trials will be considered more appropriate means for securing some form of retribution. But there is a difference between how jus post bellum is conceptualized, where the key is securing peace, and transitional justice, where the key is often greater democratization. This collection of essays highlights both the overlap and the differences between these emerging bodies of scholarship and incipient law"--Provided by publisher.
-
Self-Representation and the Use of Assigned, Standby and Amicus Counsel
Charles C. Jalloh
The emergence of international criminal courts, beginning with the International Criminal Tribunal for the former Yugoslavia and including the International Criminal Court, has also brought an evolving international criminal procedure. In this book, the authors examine selected issues that reflect a blending of, or choice between, civil law and common law models of procedure. The topics include background on civil law and common law legal systems; plea bargaining; witness proofing; written and oral evidence; self-representation and the use of assigned, standby, and amicus counsel; the role of victims; and the right to appeal.
-
Equality of Arms in International Criminal Law: Continuing Challenges
Charles C. Jalloh and Amy Elizabeth DiBella
This chapter considers the meaning of “equality of arms” between the prosecution and defense in modern international criminal law. The analysis reveals the disparity between the theory and practice, and shows how this oft mentioned principle in the jurisprudence and the literature is a lofty goal that seems to be applied feebly. The paper starts out by examining how international criminal courts define and apply the phrase in concrete cases, and offers multiple examples of courts shying away from ensuring the substantive equality of the parties in favor of reading the right as a mere procedural guarantee. Following a brief discussion of the link between equality of arms and the right to a fair and public trial, the authors argue that equality of arms is more than a simple fair trial right; it is an expansive institutional entitlement which is impacted by the lack of structural independence of defense offices in all but one international criminal court. The chapter uses the glaring inequality in investigative resources between the prosecution and the defense as a case study to advocate for special attention to the substantive enjoyment of equality of arms during the important investigative stages of such trials. In addition, the authors assess the out-of-court structural and resource inequalities that further stack the deck against defendants. They show how greater prosecution compliance with the statutory duty to collect and disclose both incriminating as well as exculpatory evidence in the permanent International Criminal Court could serve as one mechanism to help improve the substantive position of the defense and the fairness of international criminal trials.
-
Épocas en la Historia del Derecho en los EE.UU
Matthew C. Mirow
A very brief legal history of the United States in Spanish.
