Jeff Schwartz

Fairness, Utility, and Market Risk

In this Article, I argue that we lack a satisfactory theory about how disclosure, the centerpiece of securities regulation, serves investor interests. To close this gap, I contend that the regulations should be viewed as part of a broader societal framework that protects individuals from stock-market risk. I flesh out this notion in three ways. First, I set out to justify protection from market risk as a valid societal goal. To do so, I appeal to Rawlsian and utilitarian notions of justice. These moral theories contain the principle that a just society helps individuals manage risk. I argue that this principle applies to the risk in the stock market - its volatility. Second, I describe how society currently protects investors from market swings. I contend that securities regulation provides one form of protection. Beyond that, I argue, we rely on a largely market-based paradigm, where individuals are expected to manage volatility on their own by diversifying their portfolios and investing for the long term. In the final part of the Article, I look at the normative implications of this analysis. I ask whether today’s risk-management framework is effective, efficient, and fair. I argue that it comes up short in these regards and consider avenues of reform. I posit that reforms to securities regulations offer little upside, but that we can help investors through the creation of institutions exogenous to the market that facilitate better portfolio diversification and the equitable sharing of market risk across society and generations.

Workplace Rights and Illegal Immigration: How Implied Repeal Analysis Cuts Through the Haze of Hoffman Plastic, its Predecessors and its Progeny

This piece focuses on the Supreme Courts decision in Hoffman Plastic Compounds, Inc. v. National Labor Relations Board. In Hoffman, the Court held that undocumented workers discharged in violation of the National Labor Relations Act could not recover back pay because the Immigration Reform and Control Act of 1986 (the IRCA) trumped the National Labor Relations Act (the NLRA). This holding threatened the rights of undocumented workers in other contexts, for if the IRCA could trump the NLRA, then potentially it could be cited as the basis for a broader scale-back of immigrant rights. We argue that the Supreme Court reached the wrong result in Hoffman because it did not analyze the interaction of immigration and labor law at issue in the case through an implied repeal paradigm. Moreover, we contend that application of this framework in the case, and in those cases that preceded it, would have lent clarity to this body of law and laid a solid groundwork for lower court judges, who have so far been unsuccessful in grappling with Hoffmans dubious reasoning.