In December 2013, the Federal Deposit Insurance Corporation released a proposal on the so-called “Single Point of Entry” (SPOE) strategy as a means of resolving large failing banks without financial-market disruption. In a recent paper, AEI scholars Paul Kupiec and Peter Wallison raised questions about legal support for the SPOE strategy in Title II of the Dodd-Frank Act, whether the strategy can be used for resolving the largest failed banks, and the economic consequences of using the SPOE approach to attenuate the systemic risk of a large-bank failure. To facilitate a SPOE resolution, regulators recently proposed new requirements that large financial firms have enough long-term debt and equity — or total loss absorbing capacity — to cover potential losses and bank recapitalization. Mr. Kupiec and Mr. Wallison’s paper questions whether these measures will allow authorities to resolve large banks without a bailout or disorderly break-up.
Mr. Kupiec and Mr. Wallison will presented their paper and fielded audience questions during a live Teleforum conference call.
The relationship between treaties and national sovereignty is somewhat complex. On the one hand, a nation’s power to enter into treaties has long been viewed as a core incident of sovereignty. On the other hand, treaties generally confer not only mutual rights but also mutual obligations on their signatories. Therefore when a nation enters into a treaty, it theoretically both expands and limits its own national sovereignty by, on the one hand, obtaining other countries’ agreement to abide by the treaty’s limitations, but on the other hand accepting whatever obligations the nation undertakes pursuant to the treaty.
Several developments over the past few decades invite serious reflection about how the United States should think about this tradeoff. For one thing, treaties increasingly extend beyond customary areas of cooperation among nations to create various obligations on the part of countries with respect to how they treat their own citizens. For another, many international law advocates, and some courts, increasingly argue that these obligations are legally enforceable, either by domestic courts or international bodies, and regardless, in some instances, of whether a nation has actually agreed to them, or agreed to them with reservations. This exacerbates the danger that countries that believe more strongly in the rule of law will find themselves, as a practical matter, asymmetrically giving up sovereignty that less law-abiding countries effectively retain. On the other hand, the notion that there are supra-national norms that ought in some fashion to guide the conduct of nations has a long and distinguished pedigree, and has long been one of the lodestars of the United States’s involvement in the international arena.
The purpose of this conference is to stimulate reflection and discussion about these questions. It will do so in the context of hearing presentations based on research papers and comments on those presentations the following topics:
On Tuesday, January 20, the Supreme Court heard argument in Williams-Yulee v. The Florida Bar, a First Amendment case involving the manner in which elected judges may raise campaign funds for themselves. The issue is whether a widely adopted provision of the ABA Model Code of Judicial Conduct, which prohibits judicial candidates from personally soliciting campaign funds, violates the First Amendment. Personal solicitation of campaign funds raises concerns that prospective or sitting judges might favor or disfavor litigants and attorneys based on how they responded to such solicitation. On the other side of the issue, once States have decided to elect judges, free political speech becomes a critical component of any fair and democratic election process. In addition to broader arguments regarding the proper scope and function of the First Amendment in the context of judicial elections, this case will involve more focused First Amendment questions regarding whether the current rule, as adopted in Florida, is actually effective in preserving the existence or appearance of impartiality and whether there are less restrictive means – such as recusal – to further such goals.
On Wednesday, January 21, 2015, the Supreme Court heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. The Supreme Court has previously attempted twice to hear cases reaching the question of whether disparate impact claims are cognizable under the Fair Housing Act, in Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action, and in both instances the cases were settled less than a month before oral arguments. The Fair Housing Act makes it illegal to “refuse to sell or rent . . . or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race.” Do policies that can be demonstrated to have a discriminatory effect on certain racial groups, without a showing of discriminatory intent, violate the statute?