June 27, 2014
Gender and Conference Questions
Posted by Usha Rodrigues

Like Elizabeth I attended Seattle University's fantastic Berle VI conference.  The quality of the talks was uniformly high, and the tone of the conference was one of engagement and dialogue, not ideology.  In short, it was a great conference.

Unusually for me, I didn't present a paper, but was a mere participant (or, as I like to think of it, "invited guest").  I felt it my duty  as invited audience member to ask questions, even though I was always the last to raise my hand in elementary school, college, and even law school.

This is what I want to type next: here's the secret about law conferences--and, I'd be willing to guess, academic conferences in general.  The women in the audience are counting.  Always.  They're counting the number of women speakers.  They're counting the number of questions women ask.  Particularly if the speaker calls on his own questioners, they're aware of how many women he calls on and whether he ignores women who have had their hands up for some time to call on men who raise their hand later.  A constant back-of-the-mind tally is part and parcel of the woman academic's conference world.

I don't know if that's true, though--that's why I'm uncertain about the authoritative tenor of the prior paragraph.  It's something I've talked about with women academics many times.  Never with men.  But it's something I do almost subconsciously.  If I had my druthers I'd take a while to frame my question, hear what others have to say, see if I have anything to add, formulate and reformulate.  But if there's a 15-minute Q-and-A period and no woman has raised her hand at the 10-minute mark, I start to feel a lot of pressure to say something.  Anything.  Particularly at my home institution, since it's the deep South and I don't want it to look like we're some backwater where women are oppressed/unengaged/unintellectual.

Berle VI was an ideal conference in gender terms--centered around an article by 2 women academics, nearly half the attendees women, which is almost unheard of in corporate or securities law.  Thus it seems like a good time to voice these thoughts.  This is something  that feels quite personal, and something I've never blogged about--nor read about--but have thought about a lot.  Hence the title of this post-- I'm posing a question about conference questions and how others perceive them.  How many women feel this way?  How many men have any clue that they do?


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June 10, 2014
Emory Law Conference on Teaching Transactional Law and Skills
Posted by Usha Rodrigues

On Friday I had the pleasure of attending Emory Law's Fourth Biennial Conference on Teaching Transactional Law and Skills.  This is always a fun conference, and it was nice to see old Friends of Glom like Joan Heminway--who I'm pleased to welcome to new gig as a permablogger at Business Law Prof Blog! Congrats BLPB on that excellent acquisition!

I enjoyed the keynote from Tina Stark, who re-imagined the law school curriculum using some insights from Cornell's veterinary school.  I then attended Joan's panel with co-blogger Marcia Narine--both of whom are doing exciting things in the classroom to supplement their students' learning experiences.  Joan has students draft board resolutions, and Marcia uses several exercises.  As everyone knows, scaling is the kicker in introducing skills into traditional doctrinal courses--almost everyone thinks it's a great idea, but everyone also struggles with scaling feedback.  My question to the panel was, "Do you sleep?" and the answer, to my chagrin, was "Not much!"

My colleague Carol Morgan and I next presented on our Business Ethics class, which it occurs to me I haven't blogged much about. It's a really fun class, and I'll try to blog about it more this summer.

Unfortunately I missed Saturday's talks, but kudos to Emory on a great conference!

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April 16, 2014
AALS Mid-year Meeting on Corporate and Financial Law
Posted by Erik Gerding

A friendly notice about the AALS-Mid-Year meeting on "Blurring Boundaries"...

The AALS Workshop on Blurring Boundaries of Financial and Corporate Law will be held June 7-9 in Washington, DC.

The workshop is designed to explore the various ways in which the lines separating distinct, identifiable areas of theory, policy, and doctrine in business law have begun to break down.  The workshop sessions will focus on: research; teaching; complexity; modern regulatory approaches; innovation; competition; and collaboration in international financial markets; and political dynamics.  A workshop objective is to bring together law faculty representing a variety of financial and corporate disciplines, scholarship traditions and pedagogical practices and perspectives. 

The workshop provides a unique opportunity for faculty members to make connections between their primary fields and other fields in financial and corporate law, making it relevant to a broad spectrum of law scholars and teachers.  Law faculty in all business fields should find the workshop useful to their scholarship and teaching.

If you’re interested in attending, check out the program and register online.  

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April 12, 2014
One Love, One Law
Posted by Usha Rodrigues

I really enjoyed this conference! One of the best parts about it was that it threw together people who think quite differently about corporate law. One of the great things about Steve Bainbridge is his openness to critics and his genuine desire to engage in a conversation with opposing viewpoints. Most people just want to hear that they're right. Steve doesn't, and that's a rare thing in this business.

As is often the case, as the panels unfolded a thought kept percolating in my mind and never made it to a question. Luckily, I'm a blogger, so I can keep talking!

In the first panel proponents of the director primacy, shareholder primacy, and team production model made their case. The next panel critiqued them, and yours truly was tasked with Steve Bainbridge's director primacy. One concern I voiced about both team production and director primacy it that they don't map on to closely held corporations particularly well. Both Blair & Stout and Bainbridge generally concede this point, focusing on public corporations.

But whenever Steve starts his director primacy riff, he says that he set out to explain the Delaware code as it is. And the Delaware code, as I remind my BA students when we move to the close corporation setting, doesn't consist of a "public corporation" law and a "private corporation" law. It's just corporate law--with the weird and relatively seldom used statutory close corporation provisions thrown in. So if you start with the code you have to deal with that basic point--it's the same code for private and public corporations--shouldn't your explanatory theory explain both?

The next panel talked about implications for corporate purpose, and we got to talk hot-button Supreme Court cases. Margaret Blair said something I'd been thinking for a while. Part of what bollixes up the Court is this same one-size-fits-all corporate form. Hobby Lobby is a big corporation, but it's a private corporation. The Justices talk about a little kosher or halal slaughterhouse which we all know is different from a large publicly traded corporation. Yet it's the same form and the same law. Why? I suggest to my students that it's because states, most pointedly Delaware, find more value in a large bank of corporate law precedents than in having categories of corporations to which different laws apply. That is, if Delaware is marketing its rich corporate case law as part of its competition for corporate charters, it's not going to want to divide up its precedents into close corporation law versus public corporation law. Divide and suffer, precedentially speaking. But this "one law" approach causes problems because we know, intuitively and as a matter of reality, that public and private corporations are different.

Citizens United is even more problematic, because there you do have a different code, and actually a different organizational form--the nonprofit. As I wrote in Entity and Identity, form matters. A nonprofit corporation is quite different from a for-profit one, and according a non-profit certain speech rights doesn't necessitate the same for a for-profit.

These nuances get elided, though, if you lump everything together as a "corporation." And, of course, the corporate codes--Delaware and the Model Act--are guilty of that on the public/close corp front, if not on the for/nonprofit one.

"Let's get together and feel all right" is a great plan for a conference (thanks again, Steve!), but does it work as well for corporate law?

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April 11, 2014
A Conference and Micro-Symposium on Competing Theories of Corporate Governance
Posted by Usha Rodrigues

Today I am excited to be flying cross-country to attend a Conference and Micro-Symposium on Competing Theories of Corporate Governance at UCLA Law, organized my my friend and Friend of Glom Professor Steve Bainbridge. 

A "micro-symposium," for those not in the know, means that you write 750 words on the subject at hand.  Which was a challenge, but also a lot of fun.

Looking forward to a great conversation about shareholder primacy, director primacy, and team production! 


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February 10, 2014
I <3 Securities Regulators
Posted by Urska Velikonja

Thanks, Usha, for the introduction. Let Us rule!

I am delighted to join The Conglomerate for a brief stint. I am an enthusiastic follower of the blog and an occasional commenter, so I am thrilled to have the microphone for the next two weeks.

I have some specific topics I plan to post about but I would like to start off the discussion with a meta question. I have been writing about securities law and going to conferences for a few years, inlcuding those of the law & economics variety. At these events, I often cross paths with tax professors, and I have noticed one curious difference between tax and corporate & securities folk: tax professors like tax collectors. Overwhelmingly so. They recognize that the IRS is not perfect, but when in doubt, they generally side with the IRS, not taxpayers.

Not so for corporate and securities professors. At every milestone anniversary of the creation of the SEC someone proposes that the Commission be abolished. So I am wondering why? It could be that my samples are biased. Or it could be that both sets of people like regulators, but corporate & securities people are just grumpier and less likely to express nice things about securities regulators. Or perhaps the difference is real.

Whatever the reason, I am going to reveal my personal bias here: I like securities regulators. That does not imply that I love every idea that comes out of the SEC. But as between the regulated entities and the SEC, my default is to side with the securities regulator. What is yours?

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December 18, 2013
National Business Scholars Conference CFP
Posted by Usha Rodrigues

The National Business Law Scholars Conference (NBLSC) will be held on Thursday, June 19th and Friday, June 20th at Loyola Law School, Los Angeles. This is the fifth annual meeting of the NBLSC, a conference which annually draws together dozens of legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Presentations should focus on research appropriate for publication in academic journals, especially law reviews, and should make a contribution to the existing scholarly literature. We will attempt to provide the opportunity for everyone to actively participate. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a presentation, email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu with an abstract or paper by April 4, 2014. Please title the email “NBLSC Submission – {Name}”. If you would like to attend, but not present, email Professor Chaffee with an email entitled “NBLSC Attendance.” Please specify in your email whether you are willing to serve as a commentator or moderator. A conference schedule will be circulated in late May.  More information is available here:  http://lls.edu/resources/events/listofevents/eventtitle,81539,en.html

Conference Organizers

Barbara Black (The University of Cincinnati College of Law)
Eric C. Chaffee (The University of Toledo College of Law)
Steven M. Davidoff (The Ohio State University Moritz College of Law)
Kristin N. Johnson (Seton Hall University School of Law)
Elizabeth Pollman (Loyola Law School, Los Angeles)
Margaret V. Sachs (University of Georgia Law)


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October 09, 2013
1933 Act Symposium at Kentucky Law
Posted by Usha Rodrigues

My blogging has been a bit light lately, as I've been scrambling to finish working on a paper for what looks to be a great conference: The Securities Act of 1933 at 80: Does It Provide a Fair and Efficient Access to Capital? The paper is on post-JOBS IPOs, and I will try to post some data and observations after the conference.

I look forward to seeing some Masters (Joan Heminway, Don Langevoort) and friends of Glom (Bob Thompson) in beautiful Lexington, KY.  And now, I'm going to see a man about a horse.

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August 17, 2013
ASU's Fifth Annual Aspiring Law Professors Conference -- Sept. 28, 2013
Posted by Christine Hurt

For those of you going through the FAR conference this Fall or thinking about it in the near future, here is information on the upcoming Arizona State Aspiring Law Professors Conference.  I'll be there!


5th Annual

Aspiring Law Professors Conference

Sandra Day O’Connor College of Law at ASU


On Saturday September 28, 2013 ASU will be hosting its 5th annual Aspiring Law Professors’ Conference.   The conference website has more information but the conference is: 

Designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market,
but valuable to anyone considering a career as a law professor.

Attendees will: 


  • Learn to succeed in the entry-level law
    teaching market
  • Obtain an insider’s perspective on the
    appointments process from faculty with extensive hiring experience
  • Those going on the market this year may participate
    in a mock interview and/or mock job talk and gain feedback from experienced

Delivering this year’s keynote address is Christine Hurt, Illinois law professor, Co-Director of the Program in Business Law & Policy, and well-known contributor to The Conglomerate blog.  Also in attendance will be the Deans of ASU and UofA as well as number of faculty from other institutions who participated in prior years of the conference. 

The Aspiring Law Professors’ Conference is being offered free of charge to all attendees and will take most of the day on the 28th.  We have reserved some hotel rooms—but space is limited so please register soon! And, for former attendees who are now teaching, please email Doug Sylvester (douglas.sylvester@asu.edu)—we are interested in hearing your stories and, if you are interested, having you come and help educate the next generation of potential scholars.


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May 10, 2013
Me on JOBS General Advertising in Vanderbilt Law Review En Banc
Posted by Usha Rodrigues

Just out today, here's a link to one of my projects for my semester "off": Vanderbilt Law Review asked me to contribute to an online symposium offering advice for the SEC in its JOBS Act rulemaking.  There's no abstract, but here's my opener:

Watch enough late night television and you’ll see advertisements for weight-loss elixirs, hair restoratives, and cures for ailments you never dreamed existed. Imagine, if you will, yet another huckster, this one touting PrivateDeal, a “never-before-available investment opportunity, the chance of a lifetime! Get in on the ground floor of a start-up boasting triple-digit growth!” The PrivateDeal hawker goes on to declare: “This investment was previously only available to the ultrarich, but now, thanks to recent developments in the law, it can be yours!”

Jim, an intrigued investor, calls the 800 number on the bottom of his screen, expecting to encounter an operator ready to take his credit card information. Instead, he gets an agent who starts peppering him with questions about his income and net worth. Gradually it dawns on Jim that he may not be able to invest in PrivateDeal after all. Indeed, five minutes into the conversation, the agent confirms that he is not qualified to invest.

“But. . .why. . .” Jim begins to splutter.

“Sir,” the agent explains patiently—Jim senses she has started this speech many times already tonight—“The fine print in the ad specifies that only accredited investors are eligible to buy shares in PrivateDeal.”

To which Jim responds: “Well, what’s an accredited investor?” 

Welcome to post-JOBS Act private investing.

As you can tell, I had fun with the piece--my opening might (or might not) have been the product of bad late night television that I may (or may not) have been watching while up feeding my small one.  I reveled in the freedom of the hybrid blogpost/essay form.  I've done a few of these short online pieces for law reviews (here on SPACs for the Harvard Business Law Review), here for the Texas Law Review to respond to a Brian Galle article, and I've found each to be quite satisfying. I welcome the opportunity to produce timely, easy-to-digest morsels of scholarship.  

Let me know what you think of the piece, and head over to Vanderbilt Law Review's website to check out offerings from my friends Andrew Schwartz of Colorado Law and Doug Ellenoff, a practitioner whom I met in the course of my SPAC research.  


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April 25, 2013
Call for Papers: First Annual Workshop for Corporate and Securities Litigation
Posted by Christine Hurt
My colleague Verity Winship and Jessica Erickson of the University of Richmond School of Law have asked me to pass on this interesting piece of news about a new conference in the Fall in Chicago, IL:

The University of Illinois College of Law and the University of Richmond School of Law invite submissions for the First Annual Workshop for Corporate & Securities Litigation. This workshop will be held on Friday, November 8, 2013, in Chicago, Illinois.

OVERVIEW: This annual workshop will bring together scholars focused on corporate and securities litigation to present their works-in-progress. Papers addressing any aspect of corporate and securities litigation or enforcement are eligible. Appropriate topics include, but are not limited to, securities litigation, fiduciary duty litigation, or comparative approaches to business litigation. We welcome scholars working in a variety of methodologies, including empirical analysis, law and economics, law and sociology, and traditional doctrinal analysis. Authors whose papers are selected will be invited to present their work at a workshop hosted by the University of Illinois College of Law in Chicago, Illinois, on Friday November 8, 2013. Local costs (lodging and workshop meals) will be covered. Participants are asked to pay for their own travel expenses. The workshop is designed to maximize discussion and feedback. All participants will have read the selected papers. The author will provide a brief introduction to the paper, but the majority of the individual sessions will be devoted to collective discussion of the paper involved.

SUBMISSION PROCEDURE: If you are interested in participating, please send an abstract of the paper you would like to present to Jessica Erickson at jerickso@richmond.edu not later than Friday, May 31, 2013. Please include your name, current position, and contact information in the e-mail accompanying the submission. Authors of accepted papers will be notified by Friday, June 28.

QUESTIONS: Any questions concerning the workshop should be directed to the organizers—Professor Verity Winship (vwinship@illinois.edu) and Professor Jessica Erickson (jerickso@richmond.edu).

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April 24, 2013
Conference Announcement: Midwestern Law & Economics Association 2013
Posted by Christine Hurt

From my colleagues at the University of Illinois:

The University of Illinois College of Law and the Illinois Program on Law, Behavior & Social Science are hosting the Twelfth Annual Midwest Law & Economics Association on October 11 & 12, 2013 in Champaign, Illinois. Participants need not be an economist, a Midwesterner, or a Midwestern economist. The event consists of law professors and economists presenting papers with varying degrees of law-and-economics content, ranging from empirical analyses and formal economic modeling to legal philosophy and doctrinal papers infused with economic thinking. Presentations will begin Friday morning and end early- to mid-afternoon on Saturday. There is no membership fee or registration fee, but participants should expect to pay their own expenses. A block of rooms at the iHotel has been reserved for conference participants.

To submit a presentation, e-mail Robert Lawless at rlawless@illinois.edu with an abstract or paper by August 1, 2013. Presentation invitations will be sent out by August 15, 2013. A conference schedule and RSVP information for conference meals will be circulated closer to the conference date. Hotel contact info will be posted at this web page soon. Submission is open to all, so feel free to share this announcement with colleagues.

 The website is here.

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December 13, 2012
New Powers In International Economic Law
Posted by David Zaring

Elizabeth Trujillo, Jason Yackee, Sonia Rolland, and yours truly are the new leadership of the American Society of International Law's International Economic Law Group, Sonia and I in the vice-chair role.  So hurrah and all that.

The historiography of this group is a bit different from that of the usual business law outfits.  Corporate and securities regulation academics have been thinking about Delaware and the SEC for a very long time, and it seems to me that the new areas of research - executive compensation, what to do about private equity, and so on - fit within the Delaware and SEC framework.  International economic law meant, until about 2000, one thing, and one thing only: the WTO (well, maybe also letters of credit, not that there's a lot of research on that).  Then it meant two things that don't really overlap - the WTO and investment arbitration.  Now there is a third group of financial regulation scholars in the mix, and the next emerging outfit will likely be one focusing on debt instruments.  So what you see on the committees, and at the conferences, are trade specialists, investment specialists, and financial regulatory specialists, with sovereign debt to come.  It isn't easy to knit those research interests together.  But that is why we have the IELG.

So I'm excited to add VCASILIELG to my already impressive acronymic title roster (see also CCABAALSILC)

Anyway, the official announcement follows.

Elizabeth Trujillo from Suffolk University Law School and Jason Yackee from University of Wisconsin School of Law have been elected to be Co-Chairs of the International Economic Law Interest Group for ASIL.   Jason and Elizabeth are stepping in after 2 years as being Co-Vice Chairs under the wonderful leadership of Sungjoon Cho and Claire Kelly.  New Co-Vice-Chairs are David Zaring and Sonia Rolland.  The election took place at the ASIL-IEcLIG Biennial conference held at George Washington Law School in Washington DC on Nov. 29-Dec. 1, 2012.  The new leadership will be assuming their positions at the ASIL 2013 Annual Meeting in April.  The ASIL-IEcLIG Biennial, in cooperation with George Washington University School of Law and the Federal Trade Commission, was on "Re-Conceptualizing International Economic Law: Bridging the Public/Private Divide."  Keynote speakers included Professor Ralph Steinhardt from GW Law School, the Honorable Donald C. Pogue, Chief Judge United States Court of International Trade, and Amelia Porges from the Law Offices of Amelia Porges.  There were over 100 registered participants from all over the world including the U.S., Europe, Latin America, New Zealand, and Asia.

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November 16, 2012
Shadow Banking From the Top-Down or Bottom-Up?: at the Clearing House Annual Meeting
Posted by Erik Gerding

I just returned from speaking at a panel at the Clearing House’s Annual Meeting in New York that focused on the regulation of shadow banking. My fellow panelists included Amias Gerety (Deputy Assistant Secretary for Financial Stability, U.S. Dept. of Treasury), Ed Greene (Senior Counsel, Cleary Gottlieb), Sandy Krieger (Executive Vice President, FRBNY), and Barney Reynolds (Moderator, Shearman & Sterling).

Our first bone of contention was whether shadow banking is actually a useful concept for financial regulation. I think it is, as I have written elsewhere.   Shadow banking describes how a series of financial instruments, markets, and institutions came to perform the same economic functions as banks:

  • credit intermediation/credit risk transfer,
  • maturity transformation, and  
  • liquidity transformation (i.e. creating money-like instruments that have theoretically high liquidity and low credit risk) (see Morgan Ricks).

We discussed several of these instruments and institutions at the panel including: securitization, money market funds, repos, and prime brokerage. These markets not only performed similar economic functions as banks, in the Panic of 2007-08, they also suffered runs and solvency crises just like banks.

In response, the federal government refashioned some of the same conceptual tools historically used to address banking crisis to staunch a shadow banking crisis. What, after all, was TARP and the alphabet soup of Federal Reserve liquidity facilities other than the government:  

  • acting as lender-of-last resort,
  • providing deposit insurance to investors in shadow banking markets, and  
  • resolving institutions that failed because of shadow banking investments (albeit resolution without wiping out existing shareholders).

So if it quacks like a bank, suffers runs like a bank, and is saved like a bank, it needs to be regulated like a bank.

The difficulty is how to narrowly tailor bank-like regulations (from capital requirements to liquidity regulations) to address the specific forms of risk posed by each kind of shadow market. As I put it, you don’t regulate a turkey the same as a duck or a chicken. This turducken problem led some of my co-panelists to believe a bottom-up approach to regulation (one that focuses on market failures of individual instruments) makes more sense than a top-down approach (starting with the conceptual problems of shadow banking and then figuring out how to tailor policy approaches to particular contexts).

I continue to think a top-down approach helps focus on what are the big picture market failures and systemic risks that we should care about – bank runs and liquidity crises; high leverage; and correlated risk-taking and herd behavior by financial institutions.

Here were my takeaway points from a great panel discussion:

The bottom-up approach may also obscure a couple of key problems, including:

  • These markets – from securitization to repos to money market funds – have been tightly connected. For example, asset-backed securities often “collateralized” repo loans. Money market funds invested in asset-backed commercial paper and repo markets. A focus on instruments means less attention is given to the network as a whole.
  • If you want to regulate a network, you focus on the hubs. Who were at the hubs of the shadow banking network? Investment banks! They have their finger in every shadow banking pot, including via: 
    • Securitizing assets off their own balance sheet;
    • Sponsoring securitizations and underwriting asset-backed securities;
    • Purchasing asset-backed securities;
    • Borrowing through repos...

I could go on – the whole business of investment banks is to “make markets” and serve as the intermediary of a web of transactions.  Focusing exclusively on instruments means we may overlook the role of critical institutions in making the plumbing of shadow banking work.

  • Perhaps the greatest myth of the shadow banking system is that only unregulated entities were involved. In fact, regulated entities were deeply involved. Banks securitized assets off their balance sheets. Banks, investment banks, insurance companies, and a host of other institutional investors purchased asset-backed securities. They also issued securities that were bought by money-market funds, which, in turn, are regulated by the SEC.
  • Indeed, the real sweet spot of the crisis, came not with heavily regulated institutions or unregulated institutions (like hedge funds), but less regulated affiliates of heavily regulated entities. Think AIG’s London affiliate that wrote all those credit derivatives or Bear Stearns’ hedge funds. These examples indicate that conglomerates were playing games to transfer the benefits of government guarantees (explicit or implicit) and other subsidies from regulated to less-regulated affiliates.
  • In many cases, it was not a lack of regulation that caused shadow banking to flourish, but the presence of regulation. In other words, Congress and regulators often granted preferences that allowed the markets for various shadow banking instruments to flourish. For example, Congress exempted repos (and later swaps) from various bankruptcy rules. (see Roe) Or, to pick a hot topic, consider the 1983 SEC rule change that allowed money market funds to price their shares at a fixed Net Asset Value, which made these investments appear more safe and bank-deposit-like. (see Birdthistle).

Shadow banking provides a vital conceptual framework to remind policymakers why and what they should regulate. It also provides a field guide to studying new financial instruments. When new financial innovations arise, when should financial regulators take heed and what should they watch for.

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November 12, 2012
Financial Regulation at Brooklyn Law
Posted by Erik Gerding

David and I presented at a great financial regulation workshop at Brooklyn Law School on Friday. Many thanks to Claire Kelly and Roberta Karmel for putting together a great program (particulary during a few extraordinary weeks in Brooklyn).

Among the doom and gloom at the conference: banks are taking on unknown amounts of commodities risk, coco bonds and TRUPs aren’t all they are cracked up to be, and auditors make lousy agents for financial regulators.

Among the bright spots: there may be better ways to fix the tax incentives for financial institution leverage, and the Volcker Rule may offer opportunities to address the market structure for OTC swaps markets.

Illuminated: why EU counties and other went gaga over collective action clauses in sovereign debt, what international financial regulation can teach international public law, and new insights into the corporate governance role of credit derivatives.

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