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We use normal accident theory to analyze the financial sector, especially that part of the financial sector that processed home mortgages, and the mortgage meltdown. We maintain that the financial sector was highly complex and tightly coupled in the years leading up to the mortgage meltdown. And we argue that the meltdown exhibited characteristics of a system or normal accident; the result of a component failure (unusually high mortgage defaults) that, in the context of unique conditions (which included low interest rates and government policy encouraging home loans to less credit-worthy households), resulted in complex and tightly coupled interactions that financial elites and government officials were ill-equipped to control. We also consider the role that agency and wrongdoing played in the design of the financial system and the unfolding of the mortgage meltdown. We conclude that a fundamental restructuring of the financial system, so as to reduce complexity and coupling, is required to avert future similar financial debacles. But we also conclude that such a restructuring faces significant obstacles, given the interests of powerful actors and the difficulties of labeling those responsible for the meltdown as wrongdoers.

This volume includes two major explanations of the meltdown that I critically discuss. The first is a “normal accident theory” arguing that the complexity and coupling of the financial system caused the failure. Although these structural characteristics were evident, I argue that the case does not fit the theory because the cause was not the system, but behavior by key agents who were aware of the great risks they were exposing their firms, clients, and society to. The second interpretation is a neoinstitutional one, emphasizing that ideologies, worldviews, cognitive frames, mimicry, and norms were the source of behaviors that turned out to be disastrous for the elites and others. The implication is that elites were victims, not perpetrators. I argue that while ideologies, etc., can have real effects on the behavior of many firm members and society in general, in this case financial elites, to serve personal ends, crafted the ideologies and changed institutions, fully aware that this could harm their firms, clients, and the public. Complexity and coupling only made deception easier and the consequences more extensive. For anecdotal evidence I examine a decade of deregulation, examples of elected representative, regulatory officials, firms, and the plentiful warnings.

The Supreme Court’s decision in Federal Trade Commission v. Actavis, Inc. is a challenge to conventional antitrust analysis. Conventional civil antitrust cases are decided by a preponderance of the evidence. This means that conduct challenged under the rule of reason is only condemned if the conduct resulted in more competitive harm in the actual world than a world without the alleged violation. Under conventional analysis, the intent of the parties also plays only a supporting role in determining whether the conduct was anticompetitive. A holder of a valid patent has a right to exclude others practicing the patented technology. And, the patent holder is not assumed to have market power because it expended resources in maintaining exclusionary rights. Actavis creates doubts about these propositions in circumstances beyond the “reverse” payment settlement of a patent suit that may have delayed an alleged infringer market entry. This chapter explores whether applying Actavis logic to antitrust litigation can result in condemnation of practices where there is little chance of an anticompetitive effect, where the patent holder likely has a valid and infringed patent, where there is little reason to believe that the patent holder has market power, and where only one party, or no parties, to an agreement have an anticompetitive intent. This chapter also investigates whether Actavis creates new problems with standing analysis, damages calculations, and the balancing of efficiencies against anticompetitive effects. Nevertheless, the lower courts have begun to extend the logic of Actavis. This is apparent in the condemnation of no-Authorized-generic settlements.

The research for this study engages and assesses the relationship of the media from the 20th to the 21st century, combining scholar activism and public leadership in the disability rights movement. Having chronicled the disability rights movement from its roots, this chapter presents the discourse of media and movement, sampling mainstream media along with the advocacy and alternative media in support of disability rights. A range of media forms are engaged from advocacy bulletins to mainstream news media to public broadcasts that represent the diversity and complexity of the movement as it continues into the 21st century, pressing for the universalism of human rights for all.

This chapter proposes that corporate lawyers be studied as committed to their clients, asking how they advance exercises of power by those whom they have chosen to represent. Currently, corporate lawyers are studied as independent from their clients, asking how they resist client demands. Such research continues despite repeated findings that corporate lawyers are not independent. This chapter explains the puzzling persistence of independence by cultural understandings of both professionalism and law. It recovers a submerged historic voice in which corporate lawyers are judged by their position in a network of relations. It argues that it was the organization of the corporate law firm as a factory which allowed it to become a professional ideal. Market competition has led corporate law firms to move away from a factory model to one in which commitment to clients, not independence from them, is the organizing principle.