{"id":4233,"date":"2016-07-31T23:35:25","date_gmt":"2016-08-01T03:35:25","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hblr\/?page_id=4233"},"modified":"2025-02-18T17:53:04","modified_gmt":"2025-02-18T22:53:04","slug":"hblr-online-volume-3","status":"publish","type":"page","link":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-3\/","title":{"rendered":"Volume 3 (2012\u20132013)"},"content":{"rendered":"
ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

WHY ARE FOREIGN INVESTMENTS IN DOMESTIC ENERGY PROJECTS NOW UNDER CFIUS SCRUTINY?<\/strong><\/a>
\n<\/i><\/h3>\n
Stephen Heifetz and Michael Gershberg<\/i><\/h6>\n

CFIUS now actively reviews and sometimes alters transactions that result in foreign control of U.S. energy companies. There are three primary drivers behind this recent scrutiny.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

THE FEDERAL RESERVE’S SUPPORTING ROLE BEHIND DODD-FRANK’S CLEARINGHOUSE REFORMS<\/strong><\/a>
\n<\/i><\/h3>\n
Colleen Baker (April 20, 2013)<\/i><\/h6>\n

Although largely overlooked, failures in PCS systems both domestically and internationally exacerbated the financial crisis of 2008. The Federal Reserve\u2019s critical and significant role in responding to some of these disruptions has similarly been largely overlooked.<\/p>\n

\n
ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

UNREASONABLE DELAYS: CFIUS REVIEWS OF ENERGY TRANSACTIONS<\/strong><\/a>
\n<\/i><\/h3>\n
Joshua C. Zive (April 18, 2013)<\/i><\/h6>\n

Unfortunately, delays and burdens associated with CFIUS are playing an increasingly significant and frustrating role in energy transactions. These delays frustrate the intended role of CFIUS review and make it unnecessarily difficult for energy transactions to be designed and executed in an efficient manner.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

CLEARINGHOUSE HOPE OR HYPE? WHY MANDATORY CLEARING MAY FAIL TO CONTAIN SYSTEMIC RISK<\/strong><\/a>
\n<\/i><\/h3>\n
Sean J. Griffith<\/i><\/h6>\n

Clearinghouses may not be the last and best solution to the problem of systemic risk and that further regulatory experimentation may be desirable. Policy-makers should strive instead for a structure that fosters diversity and experimentation.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

MARGIN COSTS OF OTC SWAP CLEARING RULES<\/strong><\/a>
\n<\/i><\/h3>\n
Paul Watterson, Joseph Suh & Craig Stein<\/i><\/h6>\n

Clearing requirements affect margin requirements, a key mechanism used to mitigate counterparty risk. New clearing rules may substantially costs for users of cleared derivatives because of the higher margin delivery requirements applicable to such transactions.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

REGULATION OF CROSS-BORDER SWAPS<\/strong><\/a>
\n<\/i><\/h3>\n
David Felsenthal and Lily Chu<\/i><\/h6>\n

We do not believe that there is any simple, one size-fits-all remedy for regulation of cross-border swaps. We propose therefore that each transaction-level requirement be considered separately, and that specific rules be adopted for each type of transaction-level requirement.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

CREDIT DEFAULT SWAPS: DUBIOUS INSTRUMENTS<\/strong><\/a>
\n<\/i><\/h3>\n
Charles W. Murdock<\/i><\/h6>\n

Derivatives and other \u201cinnovative\u201d financial instruments such as CDOs and synthetic CDOs were largely responsible for the collapse of the economy in 2008. There is little justification for the existence of CDSs and especially naked CDSs. The issue raised CDSs need to be examined in light of how they add or detract from our overall long-term prosperity.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

DETERRING DISRUPTION IN THE DERIVATIVES MARKETS<\/strong><\/a>
\n<\/i><\/h3>\n
Matthew Kluchenek and Jacob Kahn<\/i><\/h6>\n

Dodd-Frank Act amendeded section 4c(a) of the CEA to add three types of prohibited transactions deemed to be \u201cdisruptive of fair and equitable trading.\u201d Market participants in the ever-growing commodities and swaps markets should not take comfort in the CFTC’s delay in filing suit.<\/p>\n

\n
TAXATION \u2022 SECURITIES & FINANCIAL REGULATION<\/h5>\n

TOWARD AN ECONOMIC MODEL FOR THE TAXATION OF DERIVATIVES AND OTHER FINANCIAL INSTRUMENTS<\/strong><\/a>
\n<\/i><\/h3>\n
David S. Miller<\/i><\/h6>\n

On January 24, the Chairman of the House Ways and Means Committee, released the discussion draft of a bill that would tax derivatives under a mark-to-market system of taxation. This proposal would replace our entire federal system of taxing derivatives with a radically different but infinitely simpler model that would finally correspond to economic reality.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

FROM REACTION TO PREVENTION: PRODUCT APPROVAL AS A MODEL OF DERIVATIVES REGULATION<\/strong><\/a>
\n<\/i><\/h3>\n
Saule T. Omarova<\/i><\/h6>\n

This article outlines the contours of a regulatory scheme based on mandatory pre-market government licensing of complex financial instruments, including derivatives. This model of product approval regulation explicitly aims to control the amount and types of risk being introduced into the financial system.<\/p>\n

\n
ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

THE PRIVATE ROLE IN PUBLIC FRACTURING DISCLOSURE AND REGULATION<\/strong><\/a>
\n<\/i><\/h3>\n
Hannah J. Wiseman<\/i><\/h6>\n

Recent domestic growth in oil and gas natural gas production from shales and sandstones called \u201ctight\u201d formations\u2014largely enabled by a modified technology called slickwater hydraulic fracturing\u2014has driven both economic growth and environmental concerns. Public concerns have often focused on the chemicals used in the fracturing process, yet federal regulations requiring disclosure of chemicals are weak. In the midst of initial \u201cthreats\u201d of federal intervention, industry\u2014along with state regulators\u2014developed a website that enabled chemical disclosure. State regulations later mandated disclosure through this website, or allowed it as one option within a mandatory disclosure regime. Independently, gas companies also have begun to experiment with less toxic fracturing chemicals and to take other substantive efforts toward identifying and limiting the risks of tight oil and gas development. This example of a public-private effort to enhance informational access in fracturing, and to make limited substantive changes, may offer important lessons for other oil and gas regulation moving forward.<\/p>\n

\n
ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

SIXTH CIRCUIT PUSHES BACK ON EPA OIL AND GAS SOURCE AGGREGATION UNDER THE CLEAN AIR ACT<\/strong><\/a>
\n<\/i><\/h3>\n
William Bumpers and Paulina Williams<\/i><\/h6>\n

On August 7, 2012, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) issued an opinion that has significant Clean Air Act (CAA) regulatory implications for oil and gas development projects. In Summit Petroleum Corp. v. EPA, the court vacated an Environmental Protection Agency (EPA) determination that Summit Petroleum Corporation\u2019s natural gas sweetening plant and sour gas production wells spread over forty-three square miles constituted a single stationary source for CAA permitting purposes. The Summit Petroleum case is encouraging for oil and gas developers whose operations are often spread over substantial areas, though EPA indicates it does not intend to extend the decision\u2019s reach beyond the Sixth Circuit at this time.<\/p>\n

\n
ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

SHALE GAS DEVELOPMENT: THE IMPLICATIONS OF THE SHALE GAS REVOLUTION FOR THE NATURAL GAS INDUSTRY<\/strong><\/a>
\n<\/i><\/h3>\n
Mark R. Haskell and Levi McAllister<\/i><\/h6>\n

Shale gas has the potential to create new producing regions, but it requires the creation of new infrastructure or the redesign and redeployment of existing infrastructure to access markets. Shale gas also carries with it the potential for the transformative disruption of existing supply and transportation networks. This article explores some of the implications of the \u201cshale gas revolution.\u201d<\/p>\n

\n
ENVIRONMENTAL, SOCIAL, & GOVERNANCE<\/h5>\n

AMERICA’S NATURAL GAS: FROM SHALE GAS TO LNG EXPORTS<\/strong><\/a>
\n<\/i><\/h3>\n
Susan Sakmar<\/i><\/h6>\n

According to the U.S. Energy Information Administration\u2019s (EIA) Annual Energy Outlook 2012, U.S. natural gas production is expected to increase almost twenty-nine percent from 21.6 trillion cubic feet in 2010 to 27.9 trillion cubic feet in 2035. Much has been written about shale gas being either an \u201cenergy game changer\u201d or an environmental hazard depending on whom you ask. In contrast, far less attention has been focused on whether the U.S. should export its newfound abundance of shale gas as liquefied natural gas (LNG) to foreign countries.<\/p>\n

\n
HUMAN RIGHTS & LABOR \u2022 SECURITIES & FINANCIAL REGULATION<\/h5>\n

SPACS AND THE JOBS ACT<\/strong><\/a>
\n<\/i><\/h3>\n
Usha Rodrigues<\/i><\/h6>\n

Consider the story of the emerging growth company (EGC), or \u201cInitial Public Offering (IPO) on-ramp,\u201d provision of the Jumpstart Our Business Startups Act (JOBS Act). In its first few months on the books, this provision had effects far different from what its drafters envisioned. The JOBS Act\u2019s IPO on-ramp was intended to ease regular companies\u2019 path to going public; instead, it has inadvertently made it easier for the average investor to get a taste of private equity via special purpose acquisition corporations (SPACs). This piece will briefly describe SPACs, the IPO on-ramp, and how shell companies have taken advantage of a legislative provision intended to bring cash-hungry young companies directly to market. This piece will close with a few thoughts on lessons the story of SPACs\u2019 interaction with the JOBS Act may offer regarding the increasingly indistinct line that divides public and private investment.<\/p>\n

\n
LEGAL & REGULATORY COMPLIANCE<\/h5>\n

THE LESSONS FROM LIBOR FOR DETECTION AND DETERRENCE OF CARTEL WRONGDOING<\/strong><\/a>
\n<\/i><\/h3>\n
Rosa M. Abrantes-Metz and D. Daniel Sokol<\/i><\/h6>\n

This essay explores the use of econometric screens, either by enforcement authorities or firms themselves, as a tool to both improve detection of potential price fixing cartel behavior and police illegal firm behavior.<\/p>\n

\n
SECURITIES & FINANCIAL REGULATION<\/h5>\n

COMPLEXITY OF REGULATION<\/strong><\/a>
\n<\/i><\/h3>\n
Chester S. Spatt<\/i><\/h6>\n

While our financial system is itself very complex, our financial regulators would benefit in many cases by designing simple and robust approaches that build off of basic principles and that emphasize the role and importance of economic incentives and markets. While I recognize that to some degree complexity in financial structure breeds complexity in regulation, often the causality is reversed. Complexity in regulation leads to complexity in financial structures and systems, particularly in light of the efforts of market participants to mitigate the costs and complications induced by regulation, including attempts to engage in regulatory arbitrage.<\/p>\n","protected":false},"excerpt":{"rendered":"

ENVIRONMENTAL, SOCIAL, & GOVERNANCE WHY ARE FOREIGN INVESTMENTS IN DOMESTIC ENERGY PROJECTS NOW UNDER CFIUS SCRUTINY? Stephen Heifetz and Michael […]<\/p>\n","protected":false},"author":6,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"class_list":["post-4233","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/PgKEUK-16h","jetpack-related-posts":[{"id":5276,"url":"https:\/\/journals.law.harvard.edu\/hblr\/environment-social-governance\/","url_meta":{"origin":4233,"position":0},"title":"Environment, Social, & Governance","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 15 \u2022 COLUMNS ACTIVISM ON HOLD: THE LEGAL BARRIERS TO SHAREHOLDER IMPACT LITIGATION Dennis Ronel In recent years, shareholder activism in the United States has surged, driven by the rise of Environmental, Social, and Governance (ESG) policies and heightened corporate stewardship. This Column examines the challenges shareholder activists face\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4332,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-6-issue-2\/","url_meta":{"origin":4233,"position":1},"title":"Volume 6, Issue 2 (2017)","author":"ehansen","date":"January 5, 2017","format":false,"excerpt":"TAXATION EVALUATION BEPS: A RECONSIDERATION OF THE BENEFITS PRINCIPLE AND PROPOSAL FOR UN OVERSIGHT Reuven S. Avi-Yonah & Haiyan Xu The Financial Crisis of 2008 and Great Recession that followed have exacerbated income inequality within and between countries. In the aftermath of the economic turbulence, politicians have turned their attention\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5255,"url":"https:\/\/journals.law.harvard.edu\/hblr\/politics-economics\/","url_meta":{"origin":4233,"position":2},"title":"Politics & Economics","author":"wgu","date":"February 15, 2025","format":false,"excerpt":"VOLUME 15 \u2022 COLUMNS THICKER THAN ARTIFICIAL INTELLIGENCE Olivia Schwartz Saudi Arabia and the United States have a strong history together. As Saudi Arabia implements Vision 2030, it may do so in a way that jeopardizes this longstanding relationship. Saudi Arabia is in the midst of creating an artificial intelligence\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":4231,"url":"https:\/\/journals.law.harvard.edu\/hblr\/hblr-online-volume-6\/","url_meta":{"origin":4233,"position":3},"title":"Volume 6 (2015\u20132016)","author":"ehansen","date":"July 31, 2016","format":false,"excerpt":"SECURITIES & FINANCIAL REGULATION IT AIN'T BROKE: THE CASE FOR CONTINUED SEC REGULATION OF P2P LENDING Benjamin Lo In 2008, the Securities and Exchange Commission made waves by deciding to regulate the nascent peer-to-peer lending industry. Only two lending platforms survived the SEC\u2019s entry into a previously lightly-regulated market. Under\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":5461,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-15-issue-3\/","url_meta":{"origin":4233,"position":4},"title":"Volume 15, Issue 3","author":"Olivia Schwartz","date":"November 13, 2025","format":false,"excerpt":"THE OVERLOOKED REALITY OF SHAREHOLDER ACTIVISM IN CHINA: DEFYING WESTERN EXPECTATIONS Zhou Chun, Zhang Wei, & Dan W. Puchniak1 Shareholder activism in China remains largely unexplored, despite the country having the world\u2019s second largest economy. Using unique hand-collected data, we reveal that shareholder activism in China is thriving, with 156\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":1214,"url":"https:\/\/journals.law.harvard.edu\/hblr\/volume-1-issue-1\/","url_meta":{"origin":4233,"position":5},"title":"Volume 1, Issue 1 (2011)","author":"wpengine","date":"June 24, 2011","format":false,"excerpt":"FOREWORD Lucian A. Bebchuk SECURITIES & FINANCIAL REGULATION ON THE DODD-FRANK ACT Edolphus \"Ed\" Towns SECURITIES & FINANCIAL REGULATION ON THE DODD-FRANK ACT Bobby L. Rush SECURITIES & FINANCIAL REGULATION DERIVATIVES AND THE LEGAL ORIGIN OF THE 2008 CREDIT CRISIS Lynn A. Stout Experts still debate what caused the credit\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/4233","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/comments?post=4233"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/pages\/4233\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/hblr\/wp-json\/wp\/v2\/media?parent=4233"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}