financial stability, regulation and politics August 25, 2016
Posted by Bradley in : financial regulation , add a commentI will be talking about my current draft of my financial stability paper at the University of Miami Law School next Wednesday lunchtime (August 31, 12.30-2pm).
licci v lebanese canadian bank: 2nd circuit follows its decision in kiobel that there is no corporate liability for alien tort statute claims August 24, 2016
Posted by Bradley in : mgl , add a commentFrom the judgment in Licci et al. v. Lebanese Canadian Bank, SAL:
We conclude that Plaintiffs’ complaint alleges conduct by LCB that touched and concerned the United States, and that the same conduct, upon preliminary examination, states a claim for aiding and abetting Hezbollah’s violation of the law of nations, with sufficient force to displace the presumption against extraterritoriality. ccordingly, Plaintiffs have surpassed the jurisdictional hurdle set forth in Kiobel II, 133 S. Ct. at 1669… Nevertheless, Kiobel I forecloses Plaintiffs’ claims against LCB. In Kiobel I, we established that the law of nations, while imposing civil liability on individuals for torts that qualify under the ATS, immunizes corporations from liability. Kiobel I, 621 F.3d at 120. Specifically, Kiobel I held that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS.†..Neither party disputes that LCB is a corporation. Accordingly, we cannot exercise subject matter jurisdiction over Plaintiffs’ ATS claims pursuant to that statute.”
Memo to file: incorporate before aiding and abetting such a tort. A footnote in the judgment discussing the Court’s earlier decision not to reconsider Kiobel I (on the basis that cases excluded by the Supreme Court’s Kiobel II decision would be “largely co-extensive” with the cases excluded under this no corporate liability approach) notes:
This case, in which defendants are accused of domestic acts that aided and abetted torts committed abroad, may illustrate a category of cases that surpass Kiobel II’s extraterritoriality inquiry but do not survive Kiobel I’s bar on corporate liability. At present, how large a class of cases that may be is difficult to know.
why did the link to “your voice in europe” disappear from the eu commission’s front page? August 24, 2016
Posted by Bradley in : consultation , add a commentThe EU Commission’s front page changes from time to time, and recently there was one change I dislike: there used to be a link right on the front page to a page with the title Your Voice in Europe with links to open consultations being carried out by the Commission. I don’t think all of the Commission’s consultations in fact appeared on this page. I mostly pay attention to what is going on in financial regulation, but every now and then I would come across a consultation that didn’t seem to be shown on the Your Voice in Europe page or at least showed up there after it was initiated. Anyway, the page is still there, but it isn’t linked to directly from the front page. There is a link for Commission at Work which shows a list of “popular links” which include a link to the Your Voice in Europe page, as well as to a separate Contribute to EU Law-Making page (which has links to other pages including the Your Voice in Europe page), a page on Citizens Initiatives.
Obviously business stakeholders and others who are highly motivated will find out what consultations are relevant to their interests – for them it doesn’t really matter if you have to search around a bit to find out what is going on. But for others it does matter. The Commission should be doing more to figure out how to encourage citizens to participate in the policy process. A recent article (Epstein, Dmitry and Leshed, Gilly (2016) “The Magic Sauce: Practices of Facilitation in Online Policy Deliberation,” Journal of Public Deliberation: Vol. 12: Iss. 1, Article 4. Available at: http://www.publicdeliberation.net/jpd/vol12/iss1/art4) states:
Online policy deliberation spaces have higher barriers to entry for the public than the popular discourse would like us to believe… Interfacing with bureaucratic policymaking institutions, policy deliberation is constrained by structures, regulations, procedures, practices, and processes that require a very particular kind of participatory literacy. Effective participation in policy deliberations requires a certain level of subject matter expertise as well as reason-giving and, where possible, evidence-based substantiation of one’s opinions on specific issues… Novice participants, however, often default to voting-like behaviors of registering their preferences or unsubstantiated sentiment expression. Lacking depth and reasoning, mass online civic participation (e.g., online petitions) is often viewed as disappointing in its usefulness to decision-makers.”
For the authors facilitation by moderators is key. But figuring out how to get citizens engaged in general in the policy development process is also important.
google payday loan ad policy update August 23, 2016
Posted by Bradley in : consumers , add a commentToday a “borrow money” search produces ads with some different language that shows tailoring to the policy. The APR statement at rapidloansdirect.com, a business which seeks to match borrowers with lenders, includes this language:
Offers provided to consumers who originated via a paid Google advertisement feature rate quotes of no greater than 35.99% APR with terms from 61 days to 180 months. Your actual rate depends upon credit score, loan amount, loan term, credit usage and history and will be agreed upon between you and the lender.
But this seems like a new policy. Best company’s bottom line is:
RapidLoansDirect is not the best option for obtaining a personal loan. High-interest rates between 19% – 420% can be expected regardless of your credit history. Their customer service has had its share of issues, currently having a “C†rating with the Better Business Bureau. For these reasons, we do not recommend them as a personal loan company at this time.
A search for “payday lending” produces an ad for bluetrustloans.com which states:
APR’s range from 471.7846% to 841.4532% depending on the duration of the loan and the loan origination fees.
Like 471.7846% is so much lower than 472% that it makes sense to quote the rate to 4 decimal places!
google payday loan ad policy August 21, 2016
Posted by Bradley in : consumers , add a commentEarlier this year Google announced that it would be banning certain payday loan ads. Today I searched for payday lending and at the top of the results page were 3 ads. The top one was for Big Picture Loans. That also happens if I search for “need money fast,” or even “borrow money.” The page the ad link takes me to says this:
Annual Percentage Rate (APR) may vary based on when your first payment is scheduled, pay frequency, total loan duration, and the amount funded. Your payment schedule will be included in the Truth in Lending Act (TILA) section of your Loan Agreement. You can reduce finance charges by paying more than your minimum scheduled amounts. There are no prepayment penalties. Typical installment loan APR Range based on an initial payment scheduled 21 days from the effective date of the loan and all payments thereafter being every 14 days: 780.03% – 788.62%. Click Rates to view our loan and APR calculator and payment schedules. Returned payments, late payments and non-payments may result in additional fees or charges to your account pursuant to the terms of the loan agreement and as allowable under Tribal law and may result in additional fees from your financial institution. If you default on your loan, we may report the account status of your loan to a consumer reporting agency, which could have a negative impact on your credit report. This is an installment loan product, therefore, loans do not automatically renew. For more details, please refer to the loan agreement.
A month after the policy was supposed to come into effect and I think this ad violates or should violate any sensible payday loan policy. The ad does refer to installment loans – a potential weakness in the Google policy I identified in May. But the specified APR is so high that in itself it should result in the ad not being shown, shouldn’t it?
new school year: orientations and brexit August 16, 2016
Posted by Bradley in : eu , add a commentWe had a day of living law talks yesterday as part of our orientation for the new 1Ls. I went to some of my colleagues’ fascinating presentations – there were others I would have liked to see but couldn’t. I talked about Brexit. Here is more or less what I said (there were some interesting questions which aren’t reflected here):
Will Brexit break the EU?
UK citizens voted for Brexit in June. What actually happens next, however, will be the product of the incomplete text of the EU treaty, and political, rather than legal, negotiations which may end up changing UK law. In the meantime, businesses will need to take account of the new uncertainties in planning their actions and in their contracts. This talk begins to explore just how lawyers will help businesses do that.
I want to talk about Brexit in three separate ways: in terms of perspective or viewpoint; by thinking about lawyers’ interests in the issue, and in terms of how transactional lawyers rather than litigators may think about Brexit.
The UK held a referendum in June 2016 in which a majority of the voters voted to leave the EU. There were regional variations in the result, for example in Scotland a majority of voters wishes to remain, and younger voters tended to want to remain whereas older voters said they wanted to leave the EU. The referendum result raises huge numbers of questions for academics and for practising lawyers. For me personally it raises the question whether it makes sense to carry on teaching EU law.
For a political scientist, here are some of the issues the Brexit vote raises: How did this happen? What are the implications for uses of referendum in future – in the UK, and in other countries? How do the facts that led to the UK vote affect voters in other EU member states? Here I mean austerity, worries about immigration, security, lack of hope about the future (some issues that are visible in the US in the context of the upcoming election). How does Brexit affect international relations and geopolitics?
What are the implications for transnational governance more generally? The development of the EU is part of a more general development of institutions of transnational governance since the second world war. Over time the EU has gone through a process of widening and deepening, expanding its membership and intensifying relationships between the Member States. A UK exit would be the first time a Member State has left the EU. It would be a step backwards.
I think lawyers also are and should be concerned with these issues. They are clearly issues that some academic lawyers care about, but they are also issues that should concern lawyers involved in the practise of law.
Lawyers are also going to be interested in some more technical legal questions. For example, the EU Treaty provision that deals with withdrawal of a Member State has been in effect only since 2009 and has never been used. It imagines that the Member State would give a notification of its intention to withdraw, and imagines negotiations of terms of withdrawal. The Member State would leave after 2 years unless a negotiation culminated in agreement before then or the 2 year period were extended by the other Member States unanimously and the leaving state. There are gaps in the provision: it does not say anything about whether or when a Member State might be required to notify, or whether a notification could be withdrawn. The terms of withdrawal can be agreed by a qualified majority of remaining states but the terms of any ongoing relationship would need unanimous agreement. There are many legal uncertainties.
For UK government lawyers there are some other issues. For example there are questions about who has the power to decide that the UK should make the notification. Is it a matter for the Government or for Parliament. There is ongoing litigation about this question. And there is litigation about whether the UK can in fact leave the EU, for example it is argued that the Northern Ireland peace accord, the Good Friday Agreement should prevent this step.
For me, as an academic interested in relationship between money law and geography, the most interesting question relates to the implications of Brexit for London as a financial centre. Is being part of the EU single market crucial for the UK or not?
Brexit leads to some very practical questions for lawyers advising clients. UK citizens working in other EU Member States and citizens of other EU member states living and working in the UK want to know what their rights are.
Business lawyers need to think about how to identify the risks a business is subject to, and how to deal with or minimize risks. As the law changes they need to think about how to adjust to new rules. And they need to imagine how the law may evolve and react, for example by responding to proposals for changes to the law, and by thinking about what you can do with contract terms when the unexpected happens.
From the perspective of contracting, Brexit is a lesson in the need to plan for the unexpected. Of course this only leads to the next question of how you do this. But lawyers do need to be thinking about the question we started with: will Brexit break the EU?
uk and the eu single market after brexit June 30, 2016
Posted by Bradley in : brexit , add a commentReading Hansard for yesterday when David Cameron reported on his meeting with the European Council I am struck again by the various ways in which politicians talk about the single market. I have a paper to be published in the Fordham International Law Journal in which I look at how the sigle market idea has evolved over time. There never has been one agreed idea of what is required for a single market. At the same time, right from the beginning the common market meant free movement of goods persons services and capital. What is required of the EU Member States with respect to these freedoms has evolved, but the core ideas have been there since the beginning. From that perspective saying we want freedom to sell our goods and services to you without paying tariffs but we won’t agree to the free movement of persons which represents the human part of the capital equation just doesn’t compute. It’s distressing to see the fact free posturing continuing in such precarious times.
eu law June 25, 2016
Posted by Bradley in : eu , add a commentThis past semester I taught EU law for the first time since 2012 although it was a regular part of my teaching since I came to Miami for a long time until I began teaching contracts. Over the years I have written a number of articles which focus on or refer to EU law. I studied European Community Law before there even was a European Union. All of a sudden I belong to a country which is going to leave that Union. And although I can understand that some people might think that one can teach EU law generally – direct effect, supremacy, free movement without a sense of the domestic law context in which EU law operates, for me it was always important to have an idea about the relationship between EU law and a domestic legal system. And the one I knew about was the UK (well, England and Wales). So probably if I teach EU law in the future it will be a different sort of EU law course from the one I taught for many years.
This past semester I asked my students to read speeches by Lady Justice Arden and Lord Mance – provocative and interesting speeches with ideas about the future development of EU law. Ideas which will be lost.
day 1 after brexit vote June 24, 2016
Posted by Bradley in : eu , add a commentMarket chaos (Mark Carney tries to calm the waters). Political chaos: Cameron resigns and the potential successors are intensely depressing. The UK is described (convincingly) as a “post-factual democracy”. The result was very close, but you can’t really tell from most of the reactions of the people who campaigned for Brexit. So there are inter-generational tensions: many young voters feel let down: over 70% of voters aged 18-24 supported remaining in the EU. And two very different views of what the UK is and should be: connected to and involved with the rest of the world, or stuck in a dream of once splendid isolation.
brexit – into uncharted territory June 24, 2016
Posted by Bradley in : britishness, eu, governance , add a commentThe BBC says that 52% of UK voters voted to leave the EU and 48% voted to remain. Winners take all – or rather lose all and impose significant losses on everyone else. The pound fell to the lowest rate against the dollar since 1985. Keith Vaz said the result was terrible. Nigel Farage said it was a victory for real people, ordinary people, decent people (I suppose the 48% who voted for remain are not real, ordinary, or decent). But all those people who believed they were taking back control are about to discover that it was all an illusion and they are even worse off than they were before. If Scotland becomes independent and joins the EU I wonder if I could get a Scottish passport (my mother was born in Edinburgh)?