The Examiners: Venue Choice Has Pros and Cons but Shouldn’t Be Reformed

An op-ed by Mark Roe. Should bankruptcy laws that allow companies broad latitude in selecting a venue be reformed? The venue statute effectively allows those filing the case to choose which district’s bankruptcy court will hear the case. That ability to choose leads many firms whose business is located elsewhere to file for bankruptcy in Delaware’s bankruptcy court or in the Southern District of New York. Is this a bad thing? In two dimensions, it is.

Founders Would Approve of Arizona’s Meddling

An op-ed by Noah Feldman. To the Founding Fathers, democracy was a dirty word. What James Madison and his colleagues wanted was a republic — defined in terms of representative government, not government directly by the public. “We the People” ordained the Constitution — but we the people were never supposed to govern directly, or heavens knew what trouble we might get into. The U.S. Supreme Court on Monday will consider the question of whether to take the Framers’ anti-democratic instincts seriously. At issue is how Arizona shapes the districts for elections to Congress.

Smile! Alito Revisits 19th Century Law

An op-ed by Noah Feldman. I caution my students against seeing the U.S. Supreme Court’s conservative justices as antiquarians, eager to take our jurisprudence back to the 18th or 19th centuries. Whatever guise originalism wears, it’s an evolving and, in many ways, forward-looking way of seeing the world. But every so often there’s an opinion that conforms to the stereotype. Justice Samuel Alito issued such an opinion Wednesday in an otherwise obscure case about — not joking — teeth-whitening in North Carolina.

A Financial System Still Dangerously Vulnerable to a Panic

An op-ed by Glenn Hubbard and Hal Scott. Dodd-Frank restrictions on the Federal Reserve’s powers to act as lender-of-last-resort, coupled with restrictions on federal guarantees for bank deposits and money-market funds, pose a threat to U.S. and global financial stability…The Dodd-Frank Act (July 2010) pulled back the Fed’s lender-of-last-resort powers for non-banks. They can now be exercised only with the approval of the Treasury secretary, and the Fed cannot lend to a single institution as it did with AIG . It must now only lend under a broad program, and must also meet heightened collateral requirements. In addition, the FDIC cannot expand guarantees to bank depositors without congressional approval, and the Treasury can’t do the same to money-market funds without new legislative authority. These changes could make it difficult for the Fed and other regulatory bodies to act effectively in the next crisis.

Is Supreme Court’s chief justice ready to take down ObamaCare?

U.S. Supreme Court Chief Justice John Roberts faced a conservative backlash after casting a decisive vote to save ObamaCare in 2012. Now he must weigh in on the law once again. The case of King v. Burwell, set for arguments before the Court on Wednesday, threatens to gut the law by invalidating subsidies to help millions of people buy insurance in the roughly three-dozen states relying on the federally run marketplace…“When interpreting statutory text, Roberts isn’t as fixated on isolated words and phrases as some Justices sometimes are,” Laurence Tribe, a Harvard law professor who taught Roberts as a student, wrote in an email. “He pays close attention to the context in which phrases appear and to a statute’s overall purpose. That became especially clear when he joined Justice Ginsburg’s plurality opinion on Feb. 25 holding that fish didn’t count as ‘tangible objects.’”

A law student’s easy fix for King v. Burwell

The conservative think tanks behind King v. Burwell aren’t the only ones giving a close reading to the Affordable Care Act’s text. The Obama administration says it has no contingency plan should the Supreme Court bar health insurance subsidies in states that failed to set up their own exchanges. If true, the president’s legal team should take a look at an article published in early January by a Harvard law student, whose own close reading of the law says there is a perfectly legal and relatively easy workaround. Writing in the student-run Harvard Journal on Legislation, Freilich Jones, JD16, says a section buried deep in the law gives HHS Secretary Sylvia Burwell the authority to set up an exchange for a state either “directly or through an agreement with a not-for-profit entity” (emphasis added by Jones). Elsewhere in the law, exchanges are defined as “a government agency or nonprofit entity that is established by a state.”

Pack power beats lone wolf lawyers, accountants and consultants (registration)

A colleague who headed an overseas editorial bureau of the Financial Times once called me to ask my advice: did I think he should devote more time to managing the journalists in his team or to writing front page scoops? Easy, I replied. Unless the bureau was so dysfunctional that its output dried up, he should concentrate on news gathering. A similar answer still applies to a whole range of professions, from consulting to law to accounting, where successful lone wolves are celebrated, workhorses tolerated and managers quietly denigrated…Collaboration, by definition, makes for poor drama. But it does yield excellent results, according to a study of a range of professions, by Heidi Gardner of Harvard Law School. Summarising the work in the latest Harvard Business Review, she writes that when specialists work together across their areas of expertise, their employers “earn higher margins, inspire greater client loyalty and gain a competitive edge”.

The Next Fight for Net Neutrality

An op-ed by Noah Feldman. The congressional battle over net neutrality may be over, and the Federal Communications Commission has voted to regulate the Internet as a public utility. But that just means the fight over net neutrality will likely move back to the courts. And this time, expect the First Amendment to be front and center. Thus far, legal battles surrounding net neutrality have focused on the FCC’s authority to regulate. Now that the political process has established a statutory responsibility, opponents of net neutrality — primarily Internet service providers — need a constitutional argument to ask the courts to reverse the result.

Banks of Tax Haven Mauritius Pursue Wealth Management

Mauritius has long played a unique role in international finance…The shift toward private banking may present challenges, says Stephen Shay, a professor of practice at Harvard Law School and former deputy assistant secretary for international tax affairs at the U.S. Department of the Treasury. “With such a robust financial intermediary industry already, the decision to expand into a more heavily regulated space is not without risks.”

US, Mexico Transboundary Hydrocarbons Agreement For GoM Takes Shape

About once a week Robert Sebastian’s phone rings and a frantic caller is on the other end, desperately seeking the answer to a question. Nearly nine out of 10 times, it’s about the transboundary agreement between Mexico and the U.S. concerning oil and gas operations in the Gulf of Mexico…“The first thing that the treaty stipulates is there is an obligation to report from both sides and share information,” said Guillermo J. Garcia Sanchez, [SJD candidate] an affiliated scholar at the University of Houston’s Center for U.S. and Mexican Law. This includes exploration or development plans, the filing of seismic and drilling permits and upon determining the likely existence of a transboundary reservoir. “They have to start negotiating a unitization agreement. This means that the field has to be treated as a unit. Both sides can cross the border technically and do exploration of wells.”