Volume 41, Number 3


WHAT’S NEW ABOUT THE NEW NORMAL: THE EVOLVING MARKET FOR NEW LAWYERS IN THE 21ST CENTURY

Bernard A. Burk

Summary: While some observers predict a return to business as usual as the economy recovers, this Article is skeptical of that account. The Article identifies significant structural changes in the way that the services BigLaw has traditionally provided are being produced, staffed, and priced that diminish BigLaw’s need for junior lawyers, both immediately and in the longer term. These observations suggest that entry-level BigLaw hiring, and thus the market for new lawyers overall, will remain depressed below pre-recession levels well after demand improves to or beyond pre-recession levels. At the same time, even though entry-level demand may remain static, new lawyers’ job prospects may nevertheless improve as the contraction in the legal academy now underway reduces the number of new graduates competing for work.
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PAY AS RISK REGULATION

Andrew C.W. Lund

How do we prevent financial institutions from taking excessive risk when the public fisc serves as creditor? This is one of the central questions left over after the recent financial crisis and, for the past five years, there has been no shortage of proposed answers. Two of the more popular candidates for ex ante regulation—proprietary trading restrictions and enhanced capital requirements—are on their way to being enacted in one form or another, albeit with some controversy over their cost and ultimate efficacy. Meanwhile, a third, more indirect approach has sprouted in the pages of law and finance journals under which bank managers’ compensation packages would be adjusted to include bank debt, thereby altering their risk-taking incentives. This approach has even been put in place at certain non-U.S. financial institutions. This Article offers a critical appraisal of regulating bank risk-taking through executive pay design. “Risk regulation by pay” is less likely to ameliorate risktaking than more direct approaches because bank managers with career concerns will continue to face significant incentives to take on high levels of firm risk. Moreover, regulating by pay is an inapt solution where marginal monitoring costs for creditors are relatively low as is the case with bank monitoring. Instead, the case for regulating bank risk through pay redesign must be grounded in a pessimistic view of regulator agency costs in a system of prudential regulation. It is hard, however, to see how compromised regulators faced with broad discretion would be much better at implementing a pay regulation regime. Thus, the most effective version of risk regulation by pay will be afflicted with largely the same implementation problems as traditional, direct risk regulation. Even worse, the very fact of risk regulation by pay, no matter how modestly proposed, makes it more likely that traditional direct monitoring will further atrophy, leaving the government-as-creditor worse off than before.
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THE ORIGIN OF PARENTAL RIGHTS: LABOR, INTENT, AND FATHERS

Dara E. Purvis

Most theories of parentage fail to explain the genesis of the right to parent—for example, why does a biological relationship generate parental rights? This Article shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized as legal parents, even if they are not genetically related to the child. A laborbased understanding of parentage may even reach to gestational work performed by the pregnant woman.
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RECONSIDERING REGULATORY UNCERTAINTY: MAKING A CASE FOR ENERGY STORAGE

Amy L. Stein

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and applies this framework to the uncertainty surrounding the classification of energy storage. It finds that this uncertainty operates against high baseline levels of uncertainty in the energy industry, is limited in its scope, and is intentionally embraced by the federal regulators in an effort to realize the benefits of regulatory uncertainty. This Article asserts that this form of uncertainty is one that can be managed in a way to avoid stifling the development of this important technology. This Article sets forth strategies for regulators and regulated entities to continue to function, even within this zone of regulatory uncertainty.
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IMPORTING GERMAN DEFAMATION PRINCIPLES: A CONSTITUTIONAL RIGHT OF REPLY

Joshua Crawford

In the realm of defamation and media access law, United States jurisprudence is an international outlier. If these areas of law are meant to balance the interests of the press with the interests of individuals, U.S. law has certainly weighted the scales quite favorably to the press. Court decisions, like New York Times v. Sullivan, Miami Herald Publishing Co. v. Tornillo, and Gertz v. Welch, have restricted an American individual’s ability to defend herself against a press whose editorial discretion has been left mostly unbridled. This state of affairs might be even more troubling today considering that some scholars view the press as becoming more powerful than it was when the Supreme Court decided these cases.
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RETAIL INVESTMENTS IN PRECIOUS AND INDUSTRIAL METALS: MINING FOR PROPER REGULATION AIMED TOWARD INVESTOR STRATEGY

Tanya Lambrechts

In his famous words to the shareholders of his company in 2002, Warren Buffet, a man whose name resonates with many households as an extremely wealthy investment guru, condemned derivatives as “financial weapons of mass destruction.” Buffet made this comment in the context of Berkshire Hathaway’s own institutional investment dealings in regulated areas of derivatives, such as futures and options, where he has employed top analysts from across the country to utilize these investment vehicles to hedge against risk. But, if one of the most notable investors in American history has such strong criticism of this investment product, what does this mean for the average “Joe Schmo” investor who does not have the sophisticated investment knowledge as, say, a fortune 500 company and is investing in derivatives not as a hedge but as a dangerous speculative investment? Even further, what does this mean for Joe when he decides to invest in an unregulated over-the-counter derivative for purposes of profiting off of volatile market movements? Does Joe need and deserve the protections of regulation? Does he want such protections?
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