Volume 85, Number 5 (July, 2012)
Re: Defining Securitization
Article by Jonathan C. Lipson
This Article fills a gap in commercial finance law. Despite the fact that “securitization” has become enormously important to capital markets–and is sometimes blamed for the financial crisis–we have no agreed understanding of the term. Various regulators and commentators have generated a wide range of definitions, but many are vague or omit crucial elements. Perhaps more surprising, the Dodd-Frank financial services reform–the most aggressive attempt yet to regulate securitization–does not defin...
What Is Securitization? And for What Purpose?
Article by Steven L. Schwarcz
In Re: Defining Securitization, Professor Jonathan Lipson attempts to define a “true” securitization transaction, ultimately characterizing it as “a purchase of primary payment rights by a special purpose entity that (1) legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and (2) results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” There is much to admire in Lipson’s atte...
Why (and How to) Define Securitization? A Sur-Reply to Professor Schwarcz
Article by Jonathan C. Lipson
In his brief essay, What Is Securitization? And for What Purpose? (“Purpose”), Professor Steven Schwarcz does me a great honor in responding to my article, Re: Defining Securitization (“Re: Defining”), where I ask what, exactly, does the term “securitization” mean? As serious observers of, and participants in, securitization know, Professor Schwarcz is one of the leading authorities on the subject. His works–for both professional and academic audiences–are must-reads. Thus, if, as I say in Re...
Article by Alexandra Natapoff
Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet, ten million petty cases are filed every year, and the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these characteristic...
LEEDing in the Wrong Direction: Addressing Concerns with Today’s Green Building Policy
Note by Kaleb Keller
There is a movement afoot in this country to “go green,” and part of this movement is in green building. Green building is summarized as “the practice of increasing the efficiency of buildings and their use of energy, water and materials, and reducing building impacts on human health and the environment through better siting, design, construction, operation, maintenance and removal.” So, why are we seeing a move to “go green” in building? According to a 2009 study commissioned by the U.S. Depart...
The State of Treasury Regulatory Authority After Mayo Foundation: Arguing for an Intentionalist Approach at Chevron Step One
Note by Joana Que
On January 11th, 2011, the Supreme Court unanimously held in Mayo Foundation for Medical Education and Research v. United States that all agency regulations, including Treasury regulations, should be afforded the standard of deference set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc, a case that prescribed how courts should review agency regulations. Before Mayo, Chevron did not have very much influence in the tax world–Chevron had been cited in only a few Supreme Court...
Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions
Postscript (Response) by Eve Brensike Primus
Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contr...
Bulk Misdemeanor Justice
Postscript (Response) by Stephanos Bibas
Alexandra Natapoff’s article, Misdemeanors, shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. For many decades, academics have dwelt ad nauseam on the biggest, sexiest criminal cases, especially capital and other serious felonies such as murder and rape. Courts and commentators have spun out elaborate accounts of the precise procedural guarantees that should govern adversarial combat between prosecutors and appointed defense c...
Misdemeanor Injustice and the Crisis of Mass Incarceration
Postscript (Response) by Jonathan Simon
Every generation it seems, a criminal law scholar arises like an Old Testament prophet and attempts to compel their colleagues to confront the uncomfortable fact that the kind of criminal justice the overwhelming majority of their fellow citizens experience involves misdemeanor crimes, adjudicated (if you can call it that) at the lowest level of courts, with little or no lawyering, few rules, and lots of scope for nasty prejudice. For this generation, Alexandra Natapoff is that Jeremiah. For her...
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