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The Article examines a peculiar legal dilemma--implicating securities law, legal ethics, and evidence law--that arises when litigation finance companies (LFCs) become public companies. LFCs provide funding to litigants and law firms for prosecuting lawsuits in exchange for a share of the lawsuit recoveries. In recent years, LFCs have significantly altered the landscape of the civil justice system in common law jurisdictions. But their assets, which are just rights to proceeds from lawsuits, are notoriously opaque--who really can predict what a jury will do when it comes to liability and damages? When LFCs go public, this opacity frustrates public investors' legitimate expectations to be able to understand the company's accounts and operations. The problem is exacerbated by the applicable accounting rules, which outsource the task of valuing the assets to the LFCs themselves, vesting them with significant discretion to build their own financial statements. The resulting lack of clarity about basic valuation matters undermines the two main objectives of securities law: investor protection and market integrity. From a securities law perspective, the normal solution to an opacity problem is more and better disclosure. However, concerns over the possible waiver of evidentiary protections flowing from the attorney-client privilege and the work-product doctrine complicate matters for LFCs. To avoid the possibility of waiver of privileged, confidential information (which would, in most cases, undermine the cases underlying their assets), LFCs are circumspect when it comes to disclosing any details of the valuation models for their assets, much less relevant details about specific cases. The shadow of privilege waiver thus chills the entirety of LFC disclosure practice, foreclosing it as an effective corrective to the intrinsic opacity of LFC accounts. After detailing the sources and extent of this opacity problem, the Article explores two case studies. The first, involving the 2015 failure of Juridica Investments, illustrates how opaque LFC accounts can undermine the investor protection objective of securities law. The second, involving the 2019 "short attack" by hedge fund Muddy Waters on litigation funder Burford Capital, shows how the opacity problem can also undermine the market integrity objective. The Article concludes by laying out a framework for reform. [ABSTRACT FROM AUTHOR]

INTRODUCTION The European Union (EU) (1) is a supranational entity comprised of twenty-five member states, and vests rights with the individual citizens of those Member States. However, Europe as a [...]

Racial disparity discourse is one of the main modalities through which we discuss and experience race and racism in the United States today--in discussions with colleagues and friends, in scholarly work, on cable news, on social media, and in lecture halls. Despite its ubiquity, racial disparity discourse is under-theorized: what, exactly, is its intended purpose? This Essay argues that most discussion about racial disparities is predicated on the faulty premise--grounded in the Habermasian concepts of discourse and communicative rationality--that antiracists will convince their interlocutors by engaging in a practice of rationalistic discourse among participants who share the objective and expectation of consensus. Drawing on the work of political philosopher Charles Mills and sociologists Pierre Bourdieu and Moon-Kie Jung, the Essay explains why the pragmatic conditions of possibility for discourse of this sort concerning matters related to race in the United States are frequently absent. Specifically, Mills theorizes that a "racial contract," saturated with racialized hierarchies and subordinating logics, has always underwritten the American social contract, leaving in its wake an "epistemology of ignorance" that is today responsible for localized and global cognitive dysfunctions. Jung develops Bourdieu's concept of doxa to explain how, when it comes to the politics of race in the United States, individual agency and actions are always mediated by a classificatory, schematic, and hierarchical social structure in which race frequently plays a decisive organizing role. This Essay concludes by recommending that those committed to redressing vulnerability, precarity, and disposability along racialized lines should not focus their efforts on cobbling together a transracial coalition of the discursively convinced. Instead, it is argued that attentional and financial resources are better directed to develop and reinvigorate a radical, oppositional politics dedicated to eradicating racialized hierarchies and those elements of the political economy that reciprocally nurture and feed off them. Political theorist Chantal Mouffe's model of "agonistic pluralism," which centers the irreducibly conflictual nature of modern politics and proposes a politics that aims to confront and convert rather than to convince, is offered as a fruitful theoretical model to underwrite this non-discursive, radical politics. [ABSTRACT FROM AUTHOR]

This Article undertakes a critical examination of the unintended consequences for the legal system if we arrive at the futurist dream of a legal singularity--the moment when predictive, mass-data technologies evolve to create a perfectly predictable, algorithmicallyexpressed legal system bereft of all legal uncertainty. It argues that although the singularity would surely enhance the efficiency of the legal system in a narrow sense, it would also undermine the rule of law, a bedrock institution of any liberal legal order and a key source of the legal system's legitimacy. It would do so by dissolving the normative content of the two core pillars of the rule of law: the predictability principle and the universality principle, each of which has traditionally been conceived as a bulwark against arbitrary government power. The futurists heralding the legal singularity privilege a weak-form predictability principle that emphasizes providing notice to legal subjects about the content of laws over a strong-form variant that also emphasizes the prevention of arbitrary governmental action. Hence, an inattentive and hurried embrace of predictive technologies in service of the (only weak-form) predictability principle will likely attenuate the rule of law's connection to the deeper (strong-form) predictability principle. The legal singularity will also destabilize law's universality principle, by reconceiving of legal subjects as aggregations of data points rather than as individual members of a polity. In so doing, it will undermine the universality principle's premise that the differences among legal subjects are outweighed by what we--or, better still, "We the People" who are, as Blackstone put it, the "community in general"--have in common. A cautionary directive emerges from this analysis: that lawyers should avoid an uncritical embrace of predictive technologies in pursuit of a shrunken ideal of predictability that might ultimately require them to throw aside much of the normative ballast that has kept the liberal legal order stable and afloat. [ABSTRACT FROM AUTHOR]

Historically, bank regulators have restricted bank dividends as part of a larger effort to preserve banks' capital and make them more able to withstand losses. In today's dynamic banking markets, the formulaic and rigid ways by which regulators have traditionally policed dividends have become anachronistic. Against this background, the Federal Reserve Board has attempted to update and reinvigorate dividend regulation through two regulatory reforms: (1) the Comprehensive Capital Analysis and Review (CCAR) program and (2) the Dodd-Frank Act Stress Test program. This Article will explore the important practical and theoretical implications that result from these regulatory reforms. As a practical matter, the ability of banks to make distributions--the most basic method by which equity investors obtain returns on their capital investment--has been made contingent and contestable to an unprecedented degree. For example, over the past two years the Federal Reserve Board has required Bank of America, Citigroup, and Goldman Sachs to adjust their dividend plans. In a privatized system of banking, restrictions on the ability of stock investors to obtain returns potentially complicate bank funding. As for regulatory theory, these reforms are noteworthy because they unite, for the first time, what had previously been two separate sub-systems of the bank regulatory framework: the formal-mandatory dimension of bank regulation, exemplified by the formulaic, automatic application of traditional dividend restrictions, and the informal-discretionary dimension of bank regulation, exemplified by the context-specific regulation of "unsafe and unsound practices" and stress testing. These reforms provide further evidence of a broader trend in financial regulation towards greater emphasis on hypothetical and conjectural future stress scenarios. Finally, this Article links the CCAR program to the existing "risk regulation" literature that has developed in the environmental, health, and safety regulatory arenas. Although the risk regulation model has not yet taken hold in financial regulatory scholarship, the CCAR program provides a clear example of its relevance to the regulatory tasks of bank supervisors. By viewing the program through the risk regulatory lens, the Article frames future research questions concerning the utility of applying the risk regulatory model to risk-taking financial institutions. [ABSTRACT FROM AUTHOR]

The article examines the laws related to post-crisis reforms of the financial supervisory system that have focused on improving the resilience of individual firms. Topics discussed include ways in which post-crisis supervisory reform agenda promoted resilience and containment in high reliability organizations (HROs); importance of capital adequacy regulation and creating an orderly liquidation authority; and supervisory framework applicable to the largest U.S. financial institutions.

This Article examines the history of the regulation of risk management in the banking industry. Despite the centrality of risk management to contemporary banking law and regulation, its fundamental precepts have largely escaped scrutiny. This Article first summarizes what it means to manage risk and then contrasts a traditional story of risk management regulation with an alternative story. The traditional story posits that regulatory interventions are practical, functional responses to threats to the achievement of regulators' statutory mandates of system-wide financial stability and institution-level safety and soundness. In the course of summarizing this traditional account, the Article undertakes the first systematic review of the legislative and regulatory actions by which risk management became a public regulatory subject. The alternative story, by contrast, acknowledges the empirical fact of risk management as an enhanced regulatory priority, but interrogates its normative assumptions. It presents the regulatory focus on risk management as more of a cultural crutch in response to growing anxiety about endemic uncertainty in financial markets--as a reflection of the aspirations underlying the practice rather than the practice as such. Particular attention is given to how regulators have prioritized questions of risk control over more basic questions of risk assessment, and, in the process, have failed to take account of how banks and regulators view risk in different terms. Though its implications are troubling, this alternative story sheds light on where authorities should focus reform efforts to improve risk management regulation. [ABSTRACT FROM AUTHOR]