Downloadable Articles by Tamar Frankel


Law and Culture

2021

Tamar Frankel, Professor of Law Emerita, Boston University School of Law & Tomasz Braun, Adjunct Professor of Law, Lazarski University, Warsaw

Introduction

We often speak of law and culture in one breath. That may be so because both systems impose on each person and organization required rules of behavior. Yet, law and culture are quite different, though they relate to and affect each other. Therefore, it is desirable to examine their similarities and differences and their relationship. While the structures of law and culture are more similar than we might expect, their differences greatly affect the enforcement of the rules issued under each.

To be sure, both systems consist of rules and their enforcement. Most of our thoughts and knowledge, and many aspects of our lives and livelihood, in whatever form they take, are subject to rules and their enforcement. Here we speak of rules that are directives of behavior by humans, backed by enforcement of other humans. Yet, law and culture differ in fundamental details, including: (a) the identity of those who initiate the rules; (b) the rules’ underlying purposes and values; (c) how these rules are (i) initiated, (ii) developed, (iii) expressed, (iv) and enforced; and (d) the extent of their acceptance by those to whom they apply.

Available at https://www.bu.edu/bulawreview/2021/12/30/law-and-culture


Transnational Fiduciary Law

05/2020

Tamar Frankel, Boston University School of Law

Abstract

Fiduciary law is expanding throughout the world. Fiduciary law aims at encouraging fiduciary relationships, which are beneficial to society. Increasing globalization has increased the need for fiduciary law. Consequently, fiduciary law has spread in both common law and civil law jurisdictions, leading to a need for a unified approach, which would provide many advantages. The two systems share the same goals but achieve them through different means. International fiduciary standards and self-regulation may be helpful in promoting trust to encourage use of fiduciary services. The impact of fiduciary law is predicted to increase because of the increasing importance of trust and trust relationships and increasing interdependence of nations.

Recommended Citation

Tamar Frankel, Transnational Fiduciary Law, 5 UC Irvine Journal of International, Transnational, and Comparative Law 15 (2020).

Available at https://scholarship.law.uci.edu/ucijil/vol5/iss1/3


Insider Trading

10/2018

Tamar Frankel, Boston University School of Law

This article focuses on the nature and position of corporate insiders. The discussion leads to a suggestion that one punishment of insiders who misappropriated what is not theirs—the information—is to disqualify them for a position of corporate power.

Recommended Citation

Tamar Frankel, Insider Trading, 71 SMU L. Rev. 783 (2018)

Available at https://scholar.smu.edu/smulr/vol71/iss3/11


The Law Officer (LO) and Compliance Officer (CO): Status, Function, Liabilities, and Relationship

10/2018

Tamar Frankel, Boston University School of Law

Abstract

The rise of Compliance officers (COs) has raised questions about their status in institutions and comparisons to the Legal Officers (CLOs). While both officers deal with law and its enforcement, their functions and positions differ in fundamental ways. And while LOs position is recognized, the status of COs is evolving. However, these differences are slowly becoming clearer.

  1. While the LO’s function is to provide legal advice to the institutional client, the CO’s function is to (i) evaluate the institution’s activities before violations take place and (ii) help prevent violations of the law by the institution. The CO should detect and help prevent institutional violations, avoiding the need to defend the client. Therefore, COs and LOs might focus on different issues and provide different advice to clients.

Recommended Citation

Tamar Frankel, The Law Officer (LO) and Compliance Officer (CO): Status, Function, Liabilities, and Relationship, No. 18-25 Boston University School of Law, Law and Economics Research Paper (2018).

Available at https://scholarship.law.bu.edu/faculty_scholarship/413


The Rise of Fiduciary Law

08/2018

Tamar Frankel, Boston University School of Law

Abstract

The law that defines and regulates fiduciary relationships appears in many legal areas, such as family law, surrogate decision-making, international law, agency law, employment law, pension law, remedies rules, banking law, financial institutions’ regulation, corporate law, charities law not for profit organizations law, and the law concerning medical services.

Fiduciary relationships, and the concepts on which they are grounded, appear not only in the law. They appear in other areas of knowledge: economics, psychology; moral norms and pluralism. Fiduciary law has a very long history. It was recognized in Roman law and the British common law and appeared decades ago in religious laws, such as Jewish law, Christian law, and Islamic law. Internationally, fiduciary law has a place in European legal system in Chinese law, Japanese law and Indian law.

This article offers an explanation to the evolution and expansion of fiduciary principles and a prediction of their future. Part One opens with a short description of fiduciary relationships, and the conditions under which they arise. Part Two describes the evolution of specialization of living being–from genetic to chosen cooperative specialization. Part Three notes the positive and negative social impact of fiduciary relations and the response of the law designed to encourage the relationships while discouraging the abuse they might lead to. Part four of the article highlights the criticism of fiduciary law and alternative solutions to the issues raised by fiduciary relationships. Part Five offers a prediction about the future of fiduciary law.

Recommended Citation

Tamar Frankel, The Rise of Fiduciary Law, 18-18 Boston University School of Law, Public Law Research Paper (2018).

Available at https://scholarship.law.bu.edu/faculty_scholarship/345


Did Commissioner Gallagher Violate SEC Rules?

07/2015

Tamar Frankel, Boston University School of Law

Abstract

Recently SEC Commissioner Daniel M. Gallagher issued a paper, titled Did Harvard Violate Federal Securities Law? (described on the Forum here and in a WSJ article here). The paper, co-authored with Professor Joseph Grundfest, expressed the Commissioner’s opinions regarding shareholder proposals and the Harvard Law School clinic that assisted public pension funds filing those proposals in the previous three years. The Commissioner did not mince his words. In his opinion, Harvard University and its clinic violated the securities laws by assisting proponents that failed to include references to academic studies contrary to the views of those proponents. The Commissioner was clearly presenting a threat to the University and its clinic. However, his statements also raise a number of questions about his own behavior.

To begin with, the Commissioner should have recognized that, as Professor Macey has shown in a series of posts (available on the Forum here, here, and here), his accusations are without merit and the proposals were entirely consistent with current SEC rules, policies and practices. Furthermore, in making his accusations, the Commissioner deviated from standard SEC procedures and practices.

Recommended Citation

Tamar Frankel, Did Commissioner Gallagher Violate SEC Rules?, The Harvard Law School Forum on Corporate Governance and Financial Regulation (2015).

Available at https://scholarship.law.bu.edu/shorter_works/83


Why We Need to Restructure the Big Bank Holding Companies

07/2014

Tamar Frankel, Boston University School of LawFollow

Abstract

Many contributors helped bring about the most recent financial crisis, bank holding companies among them. The problems with bank holding companies stem less from lax rules or weak enforcement than from the way they are structured.

Recommended Citation

Tamar Frankel, Why We Need to Restructure the Big Bank Holding Companies, American Banker (2014).

Available at https://scholarship.law.bu.edu/shorter_works/82


The Failure of Investor Protection by Disclosure

05/2013

Tamar Frankel, Boston University School of Law

Abstract

This Article deals with the issue of investor protection by disclosure. It discusses the evolution of disclosure in the financial area during the past thirty years, the role of disclosure in the regulation of intermediaries, and the current strong disagreements concerning the Dodd–Frank Act’s mandate applicable to market brokers. The Article notes the role of disclosure in the restructured financial intermediation system, its failure to protect investors, and concludes with suggestions to partially correct the failure and restore the rationale for effective disclosure. Disclosure should apply to the risks posed by the intermediaries rather than to the dangers and risks posed by the investments that the intermediaries offer.

Recommended Citation

Tamar Frankel, The Failure of Investor Protection by Disclosure, 81 U. Cin. L. Rev. (2013)

Available at https://scholarship.law.uc.edu/uclr/vol81/iss2/2


Fiduciary Law in the Twenty-First Century

05/2011

Tamar Frankel, Boston University School of Law

Abstract

How does one embrace the riches of the knowledge presented in this Conference? This Conference’s participants have presented the fiduciary relationship from so many points of view: interdisciplinary perspectives, current issues, and particular fascinating narrower topics. Does this event suggest that critics are correct, and that fiduciary law as a category is incoherent?1 Arguably, fiduciary relationships and the rules that govern them are too varied. Yet I maintain that the variety presented in this Conference leads to the opposite conclusion, and that the papers in this Conference provide support for my claim: that fiduciary law should be viewed and understood as one legal category.

Recommended Citation

Tamar Frankel, Fiduciary Law in the Twenty-First Century, 91 Boston University Law Review 1289 (2011).

Available at https://scholarship.law.bu.edu/faculty_scholarship/714


Let the Securities and Exchange Commission Outsource Enforcement by Litigation: A Proposal

01/2010

Tamar Frankel, Boston University School of Law

Abstract

The stories of Stanford’s suspected Ponzi scheme, and Madoff s proven scheme, as well as the Securities and Exchange Commission’s lenient settlements with very large suspected violators, and its focus on the numerous, small accused, have raised questions about the Commission’s enforcement resources. This Article suggests that the Commission outsource civil cases against very large defendants when the examination of the defendant finds signs of wrongdoing under the securities acts. The Commission already outsources two types of legal services and the United States government practices extensive outsourcing. This article suggests that with appropriate limitations and controls outsourcing of enforcement litigation against powerful and wealthy defendants may serve the country well.

Recommended Citation

Tamar Frankel, Let the Securities and Exchange Commission Outsource Enforcement by Litigation: A Proposal, 11 Journal of Business & Securities Law 111 (2010).

Available at https://scholarship.law.bu.edu/faculty_scholarship/1015


The New Financial Assets: Separating Ownership from Control

01/2010

Tamar Frankel, Boston University School of Law

Abstract

In The Modern Corporation and Private Property, Adolf A. Berle and Gardiner Means wrote about the separation of ownership from control in corporations. They noted that the interests of the controlling directors and managers can diverge from those of the shareholder owners of the firm. . . . There are those who consider such a decoupling beneficial. Others express the same concern that Berle and Means have expressed. And depending on what one focuses on in viewing the pluses and minuses of these separations, one could reach different conclusions. I reach a number of conclusions. First, the separation of ownership from control creates the problems that Berle, Means, and Laski noted, regardless of how sophisticated, complex, or enticing the separation is. That is, those who control but do not own may control corporations inefficiently and sometimes dishonestly. Second, there is a need to maximize the benefits from decoupling while minimizing the potential losses by those who do not have their “skin” in the losses. Above all, the aspects of decoupling that pose a threat to the financial system must be controlled by private and public regulation. The time has come to raise the scholarly and public awareness about these issues.

Recommended Citation

Tamar Frankel, The New Financial Assets: Separating Ownership from Control, 33 SEATTLE U. L. REV. 931 (2010)

Available at https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1007&context=sulr


Corporate Boards of Directors: Advisors or Supervisors

01/2008

Tamar Frankel, Boston University School of Law

Abstract

What makes for a well-functioning corporate board? In this Article I argue that one important condition is that board members must understand and agree upon the group’s objectives and its roles. If a corporate board of directors (Board) does not agree on what it is supposed to do; or, worse still, if Board members disagree about the Board’s mission and its implementation, then the Board is likely to become dysfunctional-inefficient and ineffective. The Board’s missions, however, may be mixed and their forms of implementation may conflict. In this case, the balance between the two missions must be established, and it is that balance on which Board members must agree and follow. This Article examines the Board’s two roles: One is the Board’s role as advisors to Chief Executive Officers and corporate management (CEOs); the other is the Board’s role as supervisors of CEOs. This Article discusses the many ways in which the two roles differ and the balance that must be achieved between them to create a functional Board.1 Understanding the balance between the Board’s roles depends on the corporation’s history, present condition, its business, and the personality of the actors. These factors are manifested by the Board’s culture, that is, the implicit assumptions that Board members make in their interactions with each other and with the other actors in the corporation. These assumptions are neither specified nor debated, nor clarified, except in times of crises. Usually such assumptions are taken for granted, just as we assume in this country that businesspersons do not hire assassins to eliminate their competitors. This Article suggests that Board efficiency varies, depending on the extent to which their members understand and agree on the dual roles they should play as advisors and supervisors of their CEOs, and the appropriate balance between these roles. In addition, Boards must trust * Professor of Law, Michaels Faculty Research Scholar, Boston University Law School.

Recommended Citation

Tamar Frankel, Corporate Boards of Directors: Advisors or Supervisors, 77 University of Cincinnati Law Review 501 (2008).

Available at https://scholarship.law.bu.edu/faculty_scholarship/1042


Court of Law and Court of Public Opinion: Symbiotic Regulation of the Corporate Management Duty of Care

Tamar Frankel, Boston University School of Law

01/2007

Abstract

In In re Walt Disney Co. Derivative Litigation the Delaware court exonerated the defendants for their handling of the Ovitz Affair, and yet condemned them. It is a classic example of how a court of law can make law without making law. By an obiter dictum, the Chancellor established the facts of the case and footnoted the sources much like a treatise or a casebook, recounted the general principles of the law, used strong words to describe the defendants’ behavior, delved into the moral and business judgment of the defendants, and assisted the market in judging and enforcing its best practices. The Disney decision is a political masterpiece. (1) It pleases management because it sets a legal standard that is admittedly lower than the market “best practices” standard and issues a judgment for the defendants. As to the duty of care, the court elevates market morals above legal morals. (2) It pleases the Delaware Bar and perhaps members of other bars, as well as the shareholders’ advocates, because it lowers the standard of demand requirement and opens the door to class actions. Hence it does not reduce the number of cases against management. (3) It discloses and documents aspects of internal management, including the personalities and behavior of the actors, thus inviting critics, public opinion and the media to supervise management and influence management’s business judgment. It maintains the courts’ “hands off” approach and low standard of negligence in evaluating the business judgment of management and board of directors. (4) It allows the courts to establish the facts and offer their opinion without serious threat of being overruled by higher courts or the legislature. (5) The decision shifts the burden of chastising management in cases such as Disney to the market and the media. All in 120 pages. The issue is whether this is a good way to go about resolving situations such as Disney. I conclude that it is. Unlike criminal cases, in which the Court of Public Opinion may prejudice the jury, the Court of Public Opinion is more suitable than the Court of Law to judge excesses by corporate directors and management so long as those do not amount to violations of trust and honesty (the duty of loyalty).

Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 07-03

Recommended Citation

Tamar Frankel, Court of Law and Court of Public Opinion: Symbiotic Regulation of the Corporate Management Duty of Care, 3 NYU Journal of Law & Business 353 (2007).

Available at https://scholarship.law.bu.edu/faculty_scholarship/686


Trust Relationships: Introduction

04/2001

Tamar Frankel, Boston University School of Law

Abstract

Law and trust interact. Law addresses trust among individuals and within institutions and societies. As Professor Miller demonstrates, law addresses physicians’ trustworthiness, imposing constraints on many aspects of physicians’ activities, including research and patients’ care.’ Professor Seligman highlights the impact of law on trust when legal status, which prevailed in the past, moved to the current contract freedom. Legal status provided established clear predictable roles, which inspired confidence. Contract allowed people to play multiple roles of their choice. The variety of roles reduced predictability and transformed historic confidence into relationships fraught with uncertainty, which he called trust.

Recommended Citation

Tamar Frankel, Trust Relationships: Introduction, 81 Boston University Law Review 321 (2001).

Available at https://scholarship.law.bu.edu/faculty_scholarship/739


Trusting and Non-Trusting on the Internet Symposium: Trust Relationships

01/2001

Tamar Frankel, Boston University School of Law

Abstract

The Puzzle: The Internet is a wonderful innovation, allowing people around the world to communicate, trade, and obtain services. Convenient and rich in choices and opportunities, the Internet is tremendously attractive to buyers. Naturally, businesses are flocking to the Internet. The warning has been sounded that those who do not stake a claim in this incredible new communication medium will be left behind to perish. Yet, with all the enthusiasm, many buyers hesitate to take a serious plunge. Businesses are told repeatedly that they must obtain their customers’ trust, yet find it more difficult to gain this trust in cyberspace than in real space. Trust has become a serious stumbling block to developing e-commerce (electronic commerce). Why is trust so important? How does trust in cyberspace differ from trust in real space? And, if it is important, how can businesses become trusted? This article addresses these questions

Recommended Citation

Tamar Frankel, Trusting and Non-Trusting on the Internet Symposium: Trust Relationships, 81 Boston University Law Review 457 (2001).

Available at https://scholarship.law.bu.edu/faculty_scholarship/740


Non-Compete Obligations of Departing Star Partners and the Right of Clients to Their Continued Services

01/2001

Tamar Frankel, Boston University School of Law

Abstract

The interests of advisers and their clients may conflict in unexpected ways. One such situa[1]tion arises when the adviser’s partners or managers (portfolio managers) sign a non-compete agree[1]ment with the adviser and later, when they leave, are sought after by clients who wish to continue the relationship. The case is clear if the departing portfolio manager solicits the clients of the adviser in violation of its non-compete undertaking. The case is less clear when the clients wish to follow the departing portfolio manager and press to engage her in violation of the non-compete undertaking. The conflict here is between the adviser’s right to protect itself against unfair competition by disloyal portfolio managers and to enforce its rights against breach of contract by portfolio managers, and the right of clients to have a portfolio manager of their choice.

Recommended Citation

Tamar Frankel, Non-Compete Obligations of Departing Star Partners and the Right of Clients to Their Continued Services, 2 Vill. J.L. & Investment. Mgmt. 6 (2001).

Available at https://digitalcommons.law.villanova.edu/vjlim/vol2/iss2/1


The Delaware Business Trust Act Failure as the New Corporate Law

01/2001

Tamar Frankel, Boston University School of Law

Abstract

The Internet transcends boundaries and time, reduces and shifts the cost of receiving and disseminating information. It poses unusual pressures of change on the common law. Internet jurisprudence demonstrates the vitality of the common law, yet highlighted its limitations. The Article describes how the common law addresses Internet issues and the relationship of judicial cases and congressional actions. The Article praises common law system of “muddling through,” evolving piecemeal, addressing particular conflicts, not always uniformly nor predictably. This is lawmaking for the risk-averse, reducing the risk and cost of correcting big mistakes. The price: higher learning costs and fewer clear, bright-line and predictable laws. It is worth it.

Recommended Citation

Tamar Frankel, The Delaware Business Trust Act Failure as the New Corporate Law, 23 Cardozo Law Review 325 (2001).

Available at https://scholarship.law.bu.edu/faculty_scholarship/543


Non-Compete Obligations of Departing Star Partners and the Right of Clients to Their Continued Services

01/2001

Tamar Frankel, Boston University School of Law

Abstract

The interests of advisers and their clients may conflict in unexpected ways. One such situation arises when the adviser’s partners or managers (portfolio managers) sign a non-compete agreement with the adviser and later, when they leave, are sought after by clients who wish to continue the relationship. The case is clear if the departing portfolio manager solicits the clients of the adviser in violation of its non-compete undertaking. The case is less clear when the clients wish to follow the departing portfolio manager and press to engage her in violation of the non-compete undertaking. The conflict here is between the adviser’s right to protect itself against unfair competition by disloyal portfolio managers and to enforce its rights against breach of contract by portfolio managers, and the right of clients to have a portfolio manager of their choice.

Recommended Citation

Tamar Frankel, Non-Compete Obligations of Departing Star Partners and the Right of Clients to Their Continued Services, 2 Villanova Journal of Law and Investment Management 6 (2001).

Available at https://scholarship.law.bu.edu/faculty_scholarship/1034


Of Theory and Practice

01/2001

Tamar Frankel, Boston University School of Law

Abstract

Much has been written about theory and practice in the law, and the tension between practitioners and theorists. Judges do not cite theoretical articles often; they rarely “apply” theories to particular cases. These arguments are not revisited. Instead the Essay explores the working and interaction of theory and practice, practitioners and theorists.

The Essay starts with a story about solving a legal issue using our intellectual tools – theory, practice, and their progenies: experience and “gut.” Next the Essay elaborates on the nature of theory, practice, experience and “gut.” The third part of the Essay discusses theories that are helpful to practitioners and those that are less helpful. The Essay concludes that practitioners theorize, and theorists practice. They use these intellectual tools differently because the goals and orientations of theorists and practitioners, and the constraints under which they act, differ. Theory, practice, experience and “gut” help us think, remember, decide and create. They complement each other like the two sides of the same coin: distinct but inseparable.

Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 01-14

Recommended Citation

Tamar Frankel, Of Theory and Practice, 77 Chicago-Kent Law Review 5 (2001).

Available at https://scholarship.law.bu.edu/faculty_scholarship/722


The Managing Lawmaker in Cyberspace: A New Power Model

01/2001

Tamar Frankel, Boston University School of Law

Abstract

This paper is about the power of The Internet Corporation for Names and Numbers (ICANN). It examines how this power was created, augmented, strengthened, and reigned in. ICANN poses a puzzle. It is essentially an unregulated and undemocratic monopoly. Yet, ICANN’s exercise of power has been fairly contained. Since ICANN is a monopoly, what prevents it from taking a far more high-handed and extensive ruling posture?

Even though at first blush my analogy is counterintuitive, I analogize ICANN to a managing lawmakers of market infrastructures, such as the New York Stock Exchange, while recognizing their differences. Unlike theExchange, ICANN has close affinity to a political unit as well.

The emergence of ICANN, its staying power, and the limitations on the exercise of its power, can be partly explained by an analogy to the economic theory of “contestable markets.” The theory deals with price. I equate price to power. High prices denote a high level of power. Low prices denote a lower level of power. In essence the theory suggests that under certain conditions a monopolist would charge low prices as if it operated in a competitive market. That is because higher prices will bring less efficient competitors into the market until prices fall and they will exit. This theory highlights a special “balance of power” and its restraining effect. I believe that a similar idea helps understand ICANN’s environment.

The paper notes that ICANN exercises “power in default.” All the strong constituents seem to have agreed not to claim exclusive control over the Internet infrastructure. The paper discusses the bases for ICANN’s continuous power: its constitutional documents, and contracts, which have become part of its constitution, and its role as mediator among Internet large stakeholders. ICANN has augmented its power by a stable and able management, and arguably maintained and strengthened its following by doing its share to support thestability of the Internet.

ICANN’s rising power is demonstrated by the controversies concerning the country code Top Level Domain names (ccTLDs).

The paper concludes that ICANN’s power is still being shaped. It could emerge along a market model, as a central catalyst for consensus building among parties with different interests. Alternatively, ICANN could also move towards a more regulatory model of consensus-based decision making. These decisions may then constitute precedents and mature into rules. Or ICANN can combine the two models to form a more structured market and more flexible regulatory body. The market model is likely to make experiment in thedevelopment of more than one root easier than the regulatory model. As the telephone experience has shown, the time may come for a multi-root cooperative Internet structure. Or we may face a technology that is today a mere twinkle in someone’s eye.

Recommended Citation

Tamar Frankel, The Managing Lawmaker in Cyberspace: A New Power Model, No. 01-17 Boston University School of Law Working Paper Series, Public Law & Legal Theory (2001).

Available at https://scholarship.law.bu.edu/faculty_scholarship/873


Trends in the Regulation of Investment Companies and Investment Advisers

01/1999

Tamar Frankel, Boston University School of Law

Abstract

Statutes, rules and enforcement actions are tea leaves we can read to predict future trends of mutual fund regulation. While statutes and rules are specific, the trends they signify are far more speculative. This Essay engages in such speculation to envision the long-term implications of the recent new N- 1A dissclosure form, the plain English Rule, and the profile. More generally, the Essay speculates on future trends in Securities and Exchange Commission enforcement, and predicts a continued and stronger use of informal enforcement by the Commission.

Recommended Citation

Tamar Frankel, Trends in the Regulation of Investment Companies and Investment Advisers, 1 Vill. J.L. & Investment. Mgmt. 3 (1999).

Available at https://digitalcommons.law.villanova.edu/vjlim/vol1/iss1/1


The Internet, Securities Regulation, and Theory of Law

01/1999

Tamar Frankel, Boston University School of Law

Abstract

Rarely has a change in the environment affected society as dramatically as the Internet. It has transformed the way we retain, transfer, and exchange information. At minimal cost, the Internet offers us far more information at a faster pace than ever before. It enables us to interact around the globe with more people than at any time in the past. When such dramatic environmental changes occur, drastic changes in the law often follow. 1 The Internet affects the environment in which securities markets operate, and the laws that govern them. 2 The use of the Internet has already begun to change the way information about securities is disseminated and the way in which securities are traded, 3 two activities that are regulated by the securities laws. 4 When the environment changes drastically, the gap between law in action and law on the book, between practice and theory, tends to widen. This Article is aimed at bridging this gap. Should the securities laws be adapted to the use of the Internet? If so, how? What path of inquiry should be taken to answer the questions and how should we think about adapting law to a changing environment of actors and actions subject to law? The main purpose of the Article is to begin this inquiry.

Recommended Citation

Tamar Frankel, The Internet, Securities Regulation, and Theory of Law, 73 Chicago-Kent Law Review 1319 (1999).

Available at https://scholarship.law.bu.edu/faculty_scholarship/917


Securitization: The Conflict Between Personal and Market Law (Contract and Property)

01/1999

Tamar Frankel, Boston University School of Law

Abstract

The road to securitization – transforming debt and loans into securities – is littered with obstacles. These obstacles seem unrelated. Yet, upon reflection, many legal and business problems arising in the securitization process can be traced to one source: the inherent conflict between contract law governing personal relations among creditors and debtors, and property law governing the same relations converted into “commodities” issued or traded in the market among investors. Identical terms can be characterized as contract loans in personal context, and as personal property (securities or bonds) in market context.

Recommended Citation

Tamar Frankel, Securitization: The Conflict Between Personal and Market Law (Contract and Property), 18 Annual Review of Banking Law (now Review of Banking & Financial Law) 197 (1999).

Available at https://scholarship.law.bu.edu/faculty_scholarship/1008


Cross-Border Securitization: Without Law, But Not Lawless

04/1998

Tamar Frankel, Boston University School of Law

Abstract

The Article discusses two puzzles posed by cross-border securitization.

First, why do the innovators in this area “give away” their creations through publications and other means rather than attempt to extract licensing fees by registering copyrights, patents, and trade names? The Article shows that innovators benefit from “giving away” their innovations through fees of the first clients or future clients to a greater extent than through licensing fees. Second, how can securitization markets develop under fragmented and unpredictable laws? The Article argues that cross-border securitization is flourishing under a “law merchant,” which is later incorporated into domestic laws. In fact, innovations and standardization of law are developing in tandem and the same professionals that innovate are those that work on standardization of the law. The Article concludes that cross-border securitization serves as a case study of legal change from the bottom up, rather than from the top down.

Recommended Citation

Tamar Frankel, Cross-Border Securitization: Without Law, But Not Lawless, 8 Duke Journal of Comparative & International Law 255-282 (1998)

Available at https://scholarship.law.duke.edu/djcil/vol8/iss2/3


Lessons from the Past: Revenge Yesterday and Today Symposium

02/1996

Tamar Frankel, Boston University School of Law

Abstract

Professor Seipp’s Paper transports us to the Middle Ages to discover a society that views crime and tort quite differently from the way we view these categories today. Yet our discovery of that society offers a perspective about our own. In Professor Seipp’s world the victim of a wrong had a choice: demand revenge by determining how the wrongdoer would be punished, or demand monetary compensation. These two entitlements were mutually exclusive. The victim could choose either one, but to some extent, especially in earlier times, the right of revenge was considered a higher right that the victim was expected to exercise, and sometimes even to administer. This view of revenge as a higher right may have reflected the mores of the community,’ exerting pressure on the victim to exercise the right.

Recommended Citation

Tamar Frankel, Lessons from the Past: Revenge Yesterday and Today Symposium, 76 Boston University Law Review 89 (1996).

Available at https://scholarship.law.bu.edu/faculty_scholarship/743


Knowledge Transfer: Suggestions for Developing Countries on the Receiving End

01/1995

Tamar Frankel, Boston University School of Law

Abstract

Developing countries have a substantial and urgent need for knowledge transfers to perform certain services and tasks because their people do not possess this knowledge.’ To obtain it, these countries can choose from essentially three options. One option is to use foreign consultants already knowledgeable to perform the desired tasks. A second option is to use foreign teachers, in class or guided practice. The people in the country would then acquire the knowledge and perform the tasks. A third option is to use a mix of the services of consultants and teachers.

Recommended Citation

Tamar Frankel, Knowledge Transfer: Suggestions for Developing Countries on the Receiving End, 13 Boston University International Law Journal 141 (1995).

Available at https://scholarship.law.bu.edu/faculty_scholarship/1009


The Legal Infrastructure of Markets: The Role of Contract and Property Law Essay

05/1993

Tamar Frankel, Boston University School of Law

Abstract

Markets are social institutions that facilitate exchange transactions. Therefore, they require a regime of freedom to exchange-a contract regime. Markets can be made more efficient by reducing the transaction and information costs for market actors. Such a reduction can be effected by standardizing the products exchanged, the terms of the transactions, and the nature of the rights transferred. Information costs can be reduced by publicizing the transactions’ and by using the services of intermediaries

Recommended Citation

Tamar Frankel, The Legal Infrastructure of Markets: The Role of Contract and Property Law Essay, 73 Boston University Law Review 389 (1993).

Available at https://scholarship.law.bu.edu/faculty_scholarship/741


What Can Be Done about Stock Market Volatility

11/1989

Tamar Frankel, Boston University School of Law

Abstract

Volatility is as old as the financial markets. The bull market of 1986 and the crash that followed in 1987 were but the latest of periodic market gyrations that started with the South Sea Bubble and the Lombard Street run on commercial paper and have continued ever since.’ Volatility in the financial markets would not be very important if market activity simply mirrored economic activity. Volatility would be much less important if the markets moved independently of the economy. But if we believe, as I do, that the markets and the economy are interdependent, and that their volatility is generally out of sync (because financial assets move much faster than the economy), then volatility in the financial markets can create “bubbles” and “runs.”2 Therefore, instability in the financial markets can magnify instability in the economy.

Recommended Citation

Tamar Frankel, What Can Be Done about Stock Market Volatility, 69 Boston University Law Review 991 (1989).

Available at https://scholarship.law.bu.edu/faculty_scholarship/755


The Inapplicability of Market Theory to Adoptions

01/1987

Tamar Frankel, Boston University School of Law

Abstract

Judge Posner addresses an important issue. More than 130,000 couples in this country want to adopt children, and plenty are available. But most couples want healthy, white infants, and those children are in short supply. To get the child of their choice, these couples are forced to pay large sums of money to intermediaries. On the other hand, many unwed, teenage women face unwanted pregnancies. Many of them opt for abortion, which is relatively inexpensive, or for carrying to term and raising the children themselves, which is governmentally subsidized. But few of these women choose to have the child and give it up for adoption, in part because there is no financial incentive to do so. Judge Posner aims to change that

Recommended Citation

Tamar Frankel, The Inapplicability of Market Theory to Adoptions, 67 Boston University Law Review 99 (1987).

Available at https://scholarship.law.bu.edu/faculty_scholarship/754


Corporate Directors Duty of Care: The American Law Institute Project on Corporate Governance

01/1984

Tamar Frankel, Boston University School of Law

Abstract

The American Law Institute’s Principles of Corporate Governance and Structure: Restatement and Recommendations (ALI Project) has triggered a sharp debate on corporate directors’ duty of care. The history of the ALI Project and the events that led to its establishment have received different interpretations. All agree, however, that the Project was prompted by a movement to internalize control over the managements of large American corporations through independent, trustworthy boards of directors to which courts will defer; a movement towards increased corporate self-governance The debate over the ALl Project’s statement of the duty of care is important because the results of the debate may provide the acid test of the corporate governance movement and approach.

Recommended Citation

Tamar Frankel, Corporate Directors Duty of Care: The American Law Institute Project on Corporate Governance, 52 George Washington Law Review 801 (1984).

Available at https://scholarship.law.bu.edu/faculty_scholarship/925


The Power Struggle Between Shareholders and Directors: The Demand Requirement in Derivative Suits

01/1983

Tamar Frankel, Boston University School of Law

Abstract

This article examines the demand shareholders must make on a corporation’s board of directors prior to bringing a derivative suit. The article is divided into two parts. The first part analyzes the nature of the demand requirement and its implications generally. The second part evaluates the demand requirement in a narrow federal statutory context: section 36(b) of the Investment Company Act of 1940.

Recommended Citation

Tamar Frankel, The Power Struggle Between Shareholders and Directors: The Demand Requirement in Derivative Suits, 12 Hofstra Law Review 39 (1983).

Available at https://scholarship.law.bu.edu/faculty_scholarship/944


Regulation of Variable Life Insurance

01/1973

Tamar Frankel, Boston University School of Law

Abstract

On November 29, 1971 the American Life Convention and Life Insurance Association of America filed a petition with the Securities and Exchange Commission (SEC) to exempt certain variable life insurance policies and separate accounts funding them from the provisions of the federal securities acts. The petition had been preceded by informal negotiations by the insurance industry for a decision by the SEC “not to assert jurisdiction” over such policies and accounts. The Commission’s staff declined to recommend primarily because the staff felt that other interested parties ought to be heard before a determination was made which might adversely affect them.’ After lengthy hearings the Commission decided that the securities acts should apply to variable life insurance policies. The Commission further determined to exempt certain policies from the provisions of the Investment Company Act of 1940 and the Investment Advisors Act of 1940.” This article discusses the nature of variable life insurance policies, the problems concerning their regulation, and the implications of the Commission’s decision.

Recommended Citation

Tamar Frankel, Regulation of Variable Life Insurance, 48 Notre Dame Lawyer 1017 (1973).

Available at https://scholarship.law.bu.edu/faculty_scholarship/1150


Variable Annuities, Variable Insurance and Separate Accounts

01/1971

Tamar Frankel, Boston University School of Law

Abstract

The variable annuity is a novel retirement plan. It was devised to minimize the inadequacies of a fixed-dollar annuity as a retirement device. Inflation and an accelerating standard of living have left persons receiving fixed-dollar annuities with only a fraction of the income required to meet their needs.

Recommended Citation

Tamar Frankel, Variable Annuities, Variable Insurance and Separate Accounts, 51 Boston University Law Review 177 (1971).

Available at https://scholarship.law.bu.edu/faculty_scholarship/757


The Governor’s Private Eyes

10/1969

Tamar Frankel, Boston University School of Law

Abstract

In his inaugural speech on January 3, 1967, Florida Governor Claude Kirk declared a War on Crime. For this purpose he announced the creation of a unique War on Crime Program. Its activities were to include a Citizen’s Awareness Program, but its main function was directed to the investigation of crimes. As the Program’s director, the Governor appointed Mr. George Wackenhut, the president of the Wackenhut Corporation, a large private investigation firm. Mr. Wackenhut agreed to provide his services for one dollar a year; his corporation was simultaneously retained to supply the Program with the necessary administrative facilities and investigative manpower.’ Payment for these services was expected to be covered by donations from hopeful and grateful citizens of Florida.

Recommended Citation

Tamar Frankel, The Governor’s Private Eyes, 49 Boston University Law Review 627 (1969).

Available at https://scholarship.law.bu.edu/faculty_scholarship/756