Euro Collapse or European Banking Union

By Professor Jeffery Atik

The implementation of the Basel III banking reforms in Europe has spanned two financial crises. And the European legislation is haunted by two specters: a possible collapse of the Euro; and -- in the alternative -- a blind leap into a European banking union.

The first crisis of course was the 2007 global financial meltdown that led to significant bank failures and costly bank bailouts. The Basel III reforms were designed to prevent a re-occurrence of this kind of banking crisis through various new mandates and disciplines. The Basel III response was negotiated within the Group of 20, where Europe had a substantial presence and an important influence. Based on the past record of enthusiastic adoption of Basel norms by Europe, one might have expected the passage of Europe's CRD IV legislative package to be largely a technical exercise. It has not proven to be one.

This is due in part to the timing. The complex European legislative process -- extending well over a year -- coincided with the outbreak of the second severe crisis, one more specifically centered on Europe. This second -- and ongoing -- crisis is the sovereign debt crisis (or the Euro crisis). Initially involving Greece, the sovereign debt crisis has spread to Italy and Spain, sharply raising borrowing costs of these seriously indebted countries and miring their respective populations into social misery.

The European sovereign debt crisis is in large part also a banking crisis, though different in many aspects from the 2007 global financial crisis. The Euro crisis reveals the inherent weakness of the current arrangement: Eurozone countries share a common currency and somewhat coordinate monetary policies, but borrow Euro-denominated funds in their respective sovereign capacities. Moreover, they bear primary oversight responsibilities for the banks headquartered within their respective territories.

The residual sovereign control Eurozone states maintain over their banks means that a bank in crisis will look toward its national authority (and its national authority alone) for deposit insurance coverage, bailouts and eventual resolution procedures. Which works well enough for those healthy Eurozone countries with large economies and small banks.

ACTA's slow European demise

By Professor Jeffery Atik

The Anti-Counterfeiting Trade Agreement (ACTA) reached the end of the road on July 4, when the European Parliament rejected the treaty, by a stunning vote of 39 for and 478 against (with 165 courageous MEPs abstaining). The profound reversal is all the more remarkable given that the governments of all EU member states had earlier supported ACTA (reflected in a unanimous approval of the EU Council in December 2011). Throughout, ACTA continued to enjoy the support of the EU's administrative arm, the European Commission.

ACTA was promoted as an articulation of higher IP enforcement standards by the 'like-minded' First World states (chiefly the United States, Japan and Europe) that control the greater stock of the world's valuable intellectual property. There was a wide range of objections to ACTA, but the greater concerns expressed in Europe was its potential disregard for due process and its potential inconsistency with Europe's strong privacy rights. While ACTA may ultimately come to life (upon ratification of six signatory parties), it has little practical import in the absence of European participation.

The first cracks in European support for ACTA appeared in the course of Member State approvals. As a so-called mixed agreement - a treaty involving both Brussels-level authority and residual Member State sovereignty - ACTA required approval of all 27 EU Member States, as well as ratifications by the relevant EU institutions. Twenty-two EU Member States signed ACTA on January 26 of this year, but five Member States (including Germany and the Netherlands) hesitated. As the months progressed and opposition to ACTA mounted, ACTA's prospects in the holdout Member States declined further. And several EU Member States - led by Poland - sought to negate their prior approvals within their respective national ratification processes. As Member States began to defect from the accord, ACTA's days were numbered.

Ballot Initiative Season Has Begun, and it's Not Exactly a Good Thing

By Associate Clinical Professor Jessica Levinson

[This post originally appeared on KCET's SoCal Focus Blog.]

Ready, set, go. Ballot initiative season is officially upon us. The 11 (yes, 11) ballot initiatives that we will be voting on in November now have numbers, which means the fundraising race will kick into high gear. Expect many advertisements via your television, radio, mailbox and likely your computer screen as well.

We will be voting on tax increases (courtesy of Governor Jerry Brown, attorney Molly Munger and billionaire Tom Steyer), changes to the budget process, how labor unions and corporations can spend money in elections, auto insurance rates, the death penalty, human trafficking, the three-strikes law and the labeling of genetically modified food.

We are simply weighing in on too many decisions via a flawed process.

I've said it before, and I'll say it again: The ballot initiative process is riddled with problems. As it currently stands it does not provide citizens with a good process to make vitally important decisions about the laws that govern us.

The ballot initiative process asks voters to make crucially important decisions in isolation. Our government is too big and too complex to make decisions on a piecemeal basis.

In addition, it is entirely rational for each voter to vote in favor of more services and against revenue increases. The ballot initiative process does not require that voters weigh the consequence of their decisions. Further, voters are accountable only to themselves, not a group of constituents, so quite reasonably may make decisions for their benefit.

The idea behind the ballot initiative process -- to empower citizens to enact legislation when the legislature couldn't or wouldn't act because of the power of special interests -- was a good one. However, moneyed interests, not grassroots organizations, now control the initiative process. This is bad for the voters and bad for the state.

Disability Treaty Makes Progress

By Associate Dean Michael Waterstone

Last week, the United States Senate held an important hearing on the UN Convention on the Rights of People with Disabilities (UNCRPD). The UNCRPD was adopted in December 2006, making it the fastest negotiated human rights treaty in UN history. There are currently 153 signatories to the Convention (with 117 countries having ratified) and 90 signatories to the Optional Protocol (with 66 countries having ratified). President Obama signed the treaty shortly after entering office, and this hearing is the first significant step toward ratification. An account of the hearing by Professor Gerard Quinn (one of the intellectual founders of international disability law) can be found here.

Loyola has been an important center of developing knowledge about the Convention. In March of 2010, we had the privilege of hosting a symposium entitled "The Significance of the United Nations Convention on the

Rights of Persons with Disabilities." We were able to bring together a unique collection of participants from all over the world. We were fortunate to have influential academics, key policymakers, individuals who were active in the negotiations and officials who will be responsible for implementing and monitoring the UNCRPD in countries throughout the world. Consistent with the mantra "Nothing about us without us," many of our participants were people with disabilities or individuals with family members who have disabilities. Our speakers performed the crucial function of telling and dissecting the story of the Convention's origins, navigating through the UN processes, eventual adoption and entry into force, and the beginning work of implementation and enforcement. They also offered candid assessments of the Convention's ability to create change, and its successes and shortcomings as an international human rights instrument. You can find the papers from this symposium, which have been widely cited and influential in policy development, here.

Precedents and Presidents: Broadening the Horizons of Disability Law

This is a blog post from one of our recent alumni, Andrew Haas, J.D., Class of 2010, who is doing international human rights work this summer with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland.

This summer I had the honor of working with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland. My assignment was to conduct research on people with intellectual disabilities in prison systems around the world as it relates to a new movement in international disability law after the drafting of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006. This included a week long "Summer School" that provided an intensive training on the CRPD and its application. The 6-day program, hosted by CDLP and the Harvard Disability Law Project, brought in experts from every corner of the globe, all eager to discover new ways to implement this new legal instrument. Many of the attendees and speakers were part of the original drafters of the CRPD and offered invaluable insights into the treaty and its intended purpose. The President of Ireland, a human rights advocate of his own accord, even gave an inspiring inaugural address to kick-off the conference, and was particularly warm and engaging with the students (I've got pictures of us chatting it up). Interestingly, neither Ireland nor the United States[1] has ratified the treaty, though both nations have signed and positioned legal scholars and lawyers at the forefront of its implementation.

The CRPD proposes the large-scale notion of a "paradigm shift" in the legal perspective on disability law. Under the CRPD, disability law is a human rights issue. It is grounded in principles of upholding equality and human dignity. This new wave of legal theory, or paradigm shift, does not in itself create new rights to be specially applied only to this group. Rather, the CRPD contends to be an assertion of rights that are summarily denied to people with disabilities, but held by all. For example, Article 12 of the CRPD mandates that "persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." This right to legal capacity, the lifeblood of the Convention, is routinely denied to people with disabilities for myriad reasons when coming into contact with the legal system. But without legal capacity, there is no hope for equality. This assertion discards even the progressive ideals that we hold in the U.S. of meeting the needs of people with disabilities. Rather, it aims to put all people on equal footing with proper support in determining each person's will and intent instead of merely being objects of social programming or paternalistic courts, so people can be the experts in their own lives.

It was inspiring to see so much optimism and passion in a room full of international lawyers and the CRPD offers a truly remarkable opportunity to create change. Broadening the horizons of disability law as a human rights issue can be used not only as a tool to further the rights for people with disabilities, but a powerful tool to further human rights for all. I really enjoyed spending the summer in Ireland and working with the CDLP, a major spearhead of the paradigm shift. It was a grand experience.

[1]The United States Senate Foreign Relations Committee held a hearing on July 12, 2012 at which Committee Chairman John Kerry, along with John McCain, Bob Dole, and disability rights advocacy groups urged ratification of the treaty.

Bank Capital Reform in the Shadow of the Euro Crisis

By Professor Jeffery Atik

European banking reform continues to develop alongside of - and perhaps in spite of - the ongoing Euro crisis. A significant EU reform package - involving a new directive (Capital Requirements Directive IV, or CRD IV) and a new regulation (Capital Requirements Regulation, or CRR) - is making its way through the EU legislative institutions. These reforms are driven in large part by Europe's undertakings within the global Basel system: Europe has committed to implement much of the most recent Basel package of reforms (known as Basel III) by January 2013.

One of the chief requirements of the Basel III reforms is to increase both the quantity and quality of the 'regulatory capital' banks must hold. This capital is intended to operate as a financial shock absorber in the event of large losses - assuring a bank's continued solvency and sparing shareholders (and - in a worse case - taxpayers) pain. Basel III is a system of minimum standards - countries are expected to comply with Basel III's requirements but are free to impose higher standards. And several countries (Switzerland, for example) have determined to require their banks to maintain even more regulatory capital than what Basel III demands.

ExxonMobil to 'decide' China-Vietnam dispute in South China Sea

By Professor Jeffery Atik

Later this month, the ASEAN foreign ministers will meet in Phnom Penh - and the continuing disputes over the South China Sea will occupy much of the attention of the attendees.

The intricate and intriguing conflicts between China and its various Southeast Asian neighbors - particularly Vietnam and the Philippines - over the development of oil and gas reserves in the South China Sea may be resolved, in part, by corporate decisions of multinational oil firms such as ExxonMobil.

At first blush, the South China Sea is yet another vexing territorial dispute, with competing states advancing arguments more designed to indulge the nationalistic impulses of domestic constituencies than to follow contemporary international law. China's claim to the South China Sea in its broadest form - the so-called 'nine-dash map' - is the most extravagant, and the flimsiest. To be fair, China merely references the nine-dash map; it avoids expressly claiming sovereignty over what is by far the greater part of the sea.

Two major developments have significantly aggravated these disputes. The first is the prospect of finding substantial reserves of oil and gas under the South China Sea. Control of these resources is of immense financial and strategic importance to the rival claimants. The second is the adoption of modern legal principles - fixed in the UN Convention on the Law of the Sea or UNCLOS - that motivate the states to make gestures that otherwise would seem incoherent. While the possibility of a hot conflict persists, the eventual resolution of the South China Sea disputes may result from commercial considerations - including decisions taken in corporate boardrooms.

Professor Dan Schechter's Bill Becomes Law

Four years ago, Professor Dan Schechter and several other members of the Insolvency Law Committee of the Business Section of the California State Bar proposed and drafted a bill to extend antideficiency protection to homeowners who had refinanced their purchase money loans. After several versions and amendments, that bill was signed into law by Governor Jerry Brown on July 9, 2012. Schechter was one of the primary drafters of the Legislative Comments that accompany the newly-amended statute.

The Supremes Say It's Okay to Steal Your Valor

By Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

This case began when a true lowlife, Xavier Alvarez, told people at a meeting of the Three Valleys Municipal Water District governing board in Los Angeles County that he was a Marine who received the Medal of Honor. Seemingly the only honor Alvarez received was being a member of the water district governing board.

Alvarez was prosecuted under the Stolen Valor Act and eventually pleaded guilty to violating it.

With Text-to-Donate Now in Play, Younger Voters May Have a Bigger Voice

By Associate Clinical Professor Jessica Levinson

Last year, California became the first state to permit campaign contributions via text message, a move that was followed up by the Federal Election Commission in June, setting the stage for text-to-donate in national elections.

But the question is why. The purpose behind new policy is to allow more people to participate in the electoral and political processes. The idea is text message contributions will make it quicker and easier for small dollar contributors to give. In addition, the belief is that it will be the younger members of the electorate, who do not typically give campaign donations, who will disproportionately take advantage of these new rules.

These are real and important goals. Younger members of the electorate do not vote nearly as much as older members. Perhaps if they buy in, both literally and figuratively, to the electoral process they will feel compelled to make their voices heard at the ballot box in greater numbers.

In addition, bringing in new contributors by allowing contributions by text message could change the tone and substance of the debate. If candidates feel that young people and/or small contributors are engaged in the process, they could hear more from, and hence be more responsive to, the concerns of more segments of the electorate.

The new rules largely enjoy bipartisan support. A cynic would say this is in part because it looks bad for any politician to come out against a proposal that could increase civic engagement. In addition, which politician wouldn't like the chance to collect more campaign contributions?

Happy texting, campaign contributors.

Professor Dan Selmi Argues Successful Case in CA Supreme Court

Professor Dan Selmi, an advocate for environmental reform, was counsel in a case against paint manufacturers in a unanimous decision from the California Supreme Court. Selmi represented the South Coast Air Quality Management District which regulates pollution from sources other than vehicles. The new environmental standards require the development of new technology to prevent pollution.
[Read the full article from the Los Angeles Times here.]