Download this Paper Open PDF in Browser

The Value of Uncertainty

17 Pages Posted: 6 Jan 2016 Last revised: 22 Apr 2016

Cathy Hwang

Stanford Law School; University of Utah - S.J. Quinney College of Law

Benjamin P. Edwards

University of Nevada, William S. Boyd School of Law

Date Written: January 1, 2016

Abstract

In recent years, federal courts have heard, without clear subject matter jurisdiction, contract disputes involving billions of dollars worth of securitized financial instruments (SFIs). These SFI disputes are litigated in federal court under the federal interpleader statute, which specifies that a federal court has subject matter jurisdiction over these cases only when parties deposit the disputed amount with the court. SFI litigants have ignored this requirement, so courts have, at best, uncertain jurisdiction over these cases. Why have no parties raised the jurisdictional defect, even though some would stand to gain from raising it? This Essay advances game theoretical explanations for litigants’ puzzling silence in these major post-financial crisis cases, and argues that parties may strategically value litigating in federal court under jurisdictional uncertainty over other alternatives.

Keywords: securitized financial instruments (SFI), SFI disputes, post financial crisis cases

JEL Classification: K00, K22

Suggested Citation

Hwang, Cathy and Edwards, Benjamin P., The Value of Uncertainty (January 1, 2016). Northwestern University Law Review Online, Vol. 110, p. 19, 2015 (reprinted in Northwestern University Law Review, Vol. 1, No. 1, p. 283, 2015); Rock Center for Corporate Governance at Stanford University Working Paper No. 215. Available at SSRN: https://ssrn.com/abstract=2711781

Cathy Hwang (Contact Author)

Stanford Law School ( email )

Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Benjamin Edwards

University of Nevada, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Paper statistics

Downloads
114
Rank
204,592
Abstract Views
789