Law Commons^™

A Comparative Assessment Of Eu, Uk, French, Australian And Japanese Responses To Auditor Independence: The Case Of Non-Audit Tax Services, Richard Thompson Ainsworth

Faculty Scholarship

Auditor independence was a global concern of financial regulators in the 1990's. Some observers saw this in a positive light, a natural development. Adjusting auditor independence rules was a manifestation of global convergence in corporate governance structures. New rules, especially rules leaning toward a harmonized system were welcome.

There was a more sobering view. This view held that global regulators were less concerned with convergence than they were with a sense of impending disaster. Things had gone too far. Significant, maybe even radical change was needed. The independence of corporate auditors had eroded; trust had been fundamentally compromised in the …

Examining The Merits Of Dual Regulation For Single-Stock Futures: How The Divergent Insider Trading Regimes For Federal Futures And Securities Markets Demonstrate The Necessity For (And Virtual Inevitability Of) Dual Cftcsec Regulation For Single-Stock Futures, Zachary T. Knepper

The University of New Hampshire Law Review

[Excerpt] "Single-stock futures are a recent addition to the financial landscape in the United States and provide retail and institutional investors with a new tool for investment or speculation. So far, the market response to these instruments has been cool. Some observers have argued that the regulatory framework for single-stock futures is a cause of the lack of investor interest. Single-stock futures are regulated by both the Commodities Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”), and this system of dual regulation has been criticized as overly burdensome and unnecessary."

The Defined Contribution Paradigm, Edward A. Zelinsky

Articles

Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. I suggest that, over the last generation, something even more fundamental has occurred, something that can justly be called a paradigm shift. Americans today primarily conceive of and implement retirement savings in the form of individual accounts. Such accounts have become primary instruments of public policy, not just for retirement savings, but increasingly for health care and education as well.

Does Soft Dollar Brokerage Benefit Portfolio Investors: Agency Problem Or Solution?, Stephen M. Horan, D. Bruce Johnsen

George Mason University School of Law Working Papers Series

With soft dollar brokerage, institutional portfolio managers pay brokers “premium” commission rates in exchange for rebates they use to buy third-party research. One hypothesis views this practice as a reflection of the agency problem in delegated portfolio management; another views it as a contractual solution to the agency problem that aligns the incentives of investors, managers, and brokers where direct monitoring mechanisms are inadequate. Using a database of institutional money managers, we find that premium commission payments are positively related to risk-adjusted performance, suggesting that soft dollar brokerage is a solution to agency problems. Moreover, premium commissions are positively related …

Bankruptcy Law And Inefficient Entitlements, Irit Haviv-Segal

ExpressO

The question as to the justification of bankruptcy law remains unanswered. The literature tends to emphasize the conflict and inability to compromise between the different normative outlooks of the insolvency law system. A deeper reflection on the existing theories of bankruptcy law reveals, however, that all theories share the same starting point: All theories share the understanding that efficiency considerations justify the enforcement of contractual bankruptcy arrangements. When the social theories call for increased levels of coercion and redistribution, these theories rely on normative considerations of distributive justice and rehabilitation values. They by no means rely on efficiency grounds. This …

Strict Liability For Gatekeepers: A Reply To Professor Coffee, Frank Partnoy

University of San Diego Law and Economics Research Paper Series

This article responds to a proposal by Professor John C. Coffee, Jr. for a modified form of strict liability for gatekeepers. Professor Coffee’s proposal would convert gatekeepers into insurers, but cap their insurance obligations based on a multiple of the highest annual revenues the gatekeepers recently had received from their wrongdoing clients. My proposal, advanced in 2001, would allow gatekeepers to contract for a percentage of issuer damages, after settlement or judgment, subject to a legislatively-imposed floor. This article compares the proposals and concludes that a contractual system based on a percentage of the issuer’s liability would be preferable to …

Encumbered Shares, Shaun Martin, Frank Partnoy

University of San Diego Law and Economics Research Paper Series

The fundamental assumptions in the law and economics literature about shareholder voting and the one-share/one-vote rule are flawed. The classic view is that share ownership is necessary and sufficient to create voting rights and that such rights should be directly proportional to share ownership. We demonstrate that this assumption is unfounded, both for shares that are “economically encumbered” (held by shareholders who are not pure residual claimants; e.g., a shareholder who owns one share and is also short one or more shares) as well as shares that are “legally encumbered” (held or associated with more than one shareholder; e.g., shares …

Estate Tax Repeal And The Budget Process, Karen C. Burke, Grayson M.P. Mccouch

University of San Diego Law and Economics Research Paper Series

This article examines the Bush Administration’s proposal, as part of its proposed fiscal year 2005 budget, to extend permanently the repeal of the federal estate tax. The article considers the budgetary impact of permanent estate tax repeal and discusses procedural impediments to use of the reconciliation process for permanent tax cuts. The article also notes the possibility of a durable compromise solution involving retention of the estate tax with lower rates and a higher exemption.

Does The Tax Law Discriminate Against The Majority Of American Children: The Downside Of Our Progressive Rate Structure And Unbalanced Incentives For Higher Education?, Lester B. Snyder

University of San Diego Law and Economics Research Paper Series

Our graduate income tax structure provides an incentive to shift income to lower-bracket family members. However, some parents have much more latitude to shift income to their children than do others. Income derived from services and private business-by far the majority of American income-is less favored than income derived from publicly traded securities. The rationale given for this discrimination is that parents in services or private business, as opposed to those in securities, do not actually part with control of their property. This article explores these tax broader (yet subtle) tax benefits and their impact on the majority of children …

Bankruptcy And Mortgage Lending: The Homeowner Dilemma, A. Mechele Dickerson

Faculty Publications

No abstract provided.

Why (Consumer) Bankruptcy?, Richard M. Hynes

Faculty Publications

No abstract provided.

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …

Islamic Financial Structures As Alternatives To International Loan Agreements: Challenges For American Financial Institutions, Babback Sabahi

ExpressO

In the past few decades, the Muslim countries have witnessed considerable economic growth. The markets of these countries spanning from North Africa to South East Asia, are expanding at a fast pace, and gradually are turning into important international economic centers. The expansion and sophistication of the Islamic markets, as well as increasing demand for Islamic financial products by borrowers, have spurred a movement toward Islamization of different aspects of economic activities in these markets. This movement has resulted in the creation of an Islamic financial market alongside the conventional financial markets. The data on the size of the Islamic …

Banking The Poor: Policies To Bring Low-Income Americans Into The Financial Mainstream, Michael S. Barr

Law & Economics Working Papers Archive: 2003-2009

Low-income households in the United States often lack access to bank accounts and face high costs for conducting basic financial transactions through check cashers and other alternative financial service providers. These families find it more difficult to save and plan financially for the future. Living paycheck to paycheck leaves them vulnerable to medical or job emergencies that may endanger their financial stability, and lack of longer-term savings undermines their ability to improve skills, purchase a home, or send their children to college. High-cost financial services and inadequate access to bank accounts may undermine widely-shared societal goals of reducing poverty, moving …

Racial Dimensions Of Credit And Bankruptcy, David A. Skeel, Jr.

Washington and Lee Law Review

No abstract provided.

Credit Where It Counts: The Community Reinvestment Act And Its Critics, Michael S. Barr

ExpressO

Despite the depth and breadth of U.S. credit markets, low- and moderate-income communities and minority borrowers have not historically enjoyed full access to credit. The Community Reinvestment Act (CRA) was enacted to help overcome barriers to credit for low- and moderate-income communities, and minority borrowers. Scholars have long leveled numerous critiques against CRA as unnecessary, ineffectual, costly, and lawless. But I argue, using recent empirical evidence, that CRA has enhanced access to credit for low-income, moderate-income, and minority borrowers at relatively low cost. I contend that market failures and discrimination exacerbate credit problems in low-income and minority communities and justify …

Good Faith In The Cisg: Interpretation Problems In Article 7, Benedict C. Sheehy

ExpressO

ABSTRACT: This article examines the dispute concerning the meaning of Good Faith in the CISG. Although there are good reasons for arguing a more limited interpretation or more limited application of Good Faith, there are also good reasons for a broader approach. Regardless of the correct interpretation, however, practitioners and academics need to have a sense of where the actual jurisprudence is going. This article reviews every published case on Article 7 since its inception and concludes that while there is little to suggest a strong pattern is developing, a guided pattern while incorrect doctrinally is preferable to the current …

Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann

ExpressO

This paper is the first part of a wide-ranging study of the role of intellectual property in the software industry. Unlike previous papers, which focus primarily on software patents – which generally are held by firms that are not software firms – this paper provides a thorough and contextually grounded description of the role that patents actually play in the software industry itself.

The bulk of the paper considers the pros and cons of patents in the software industry. On the positive side, the paper starts by emphasizing the difficulties that pre-revenue startups face in obtaining any value from patents. …

Expensing Isn't The Only Option: Alternatives To The Fasb's Stock Option Expensing Proposal, Benjamin A. Templin

ExpressO

This paper reviews the arguments for and against the Financial Accounting Standard Board's (FASB) proposal to require that corporations expense options. It identifies two major goals of the proposed rule -- 1) clarity in financial statements and 2) a reduction of corporate fraud by removing the incentive of options. To address these two goals, I adopt a framework of Information Reforms v. Rules of the Game Reforms. The article starts with a history of FASB Statement No. 123 Accounting for Stock-based Compensation and also analyzes the Congressional legislation that attempts to block the measure, the Stock Option Accounting Reform Act. …

La Reprogramación De Los Depósitos Y El Proceso De Exclusión De Activos Y Pasivos De Entidades Financieras. Un Fallo En Defensa Del Instituto De Exclusión, Gaston Mirkin

Gaston Mirkin

No abstract provided.

Expanding Homeownership Opportunity: The Softsecond Loan Program, 1991-2003, Jim Campen

Gastón Institute Publications

The SoftSecond Loan Program emerged at the end of a tumultuous year of struggle over community reinvestment issues that began on January 11, 1989. The lead story in that day’s Boston Globe reported that a draft study by researchers at the Federal Reserve Bank of Boston had found that there was a pattern of “racial bias” in Boston’s mortgage lending, that the number of mortgage loans in the predominantly black neighborhoods of Roxbury and Mattapan would have been more than twice as great “if race was not a factor,” and that “this racial bias is both statistically and economically significant.” …

La Exclusion De Activos Y Pasivos. Sus Criticas Y Beneficios, Gaston Mirkin

Gaston Mirkin

No abstract provided.

Reconsidering The Prohibition Against General Solicitation During Section 3(C)(7) Offerings, Daniel P. Taub

ExpressO

This paper examines the seventy year history of the general solicitation prohibition during private offerings and then analyzes its continuing relevance as applied to Section 3(c)(7) offerings. The S.E.C. Staff recently issued a report questioning the continuing value of prohibiting general solicitation during private offerings made pursuant to Section 3(c)(7) of the Investment Company Act. If the S.E.C. were to follow the recommendation in the S.E.C. Staff Report, this would have tremendous implications for a growing number of hedge funds, and other investment companies utilizing the Section 3(c)(7) exemption. By allowing general solicitation, the S.E.C. would be reversing a policy …

A Politically Viable Approach To Sovereign Debt Restructuring, A. Mechele Dickerson

Faculty Publications

The failure to enact a statutory system to restructure sovereign debt suggests that the international community is still unwilling to adopt a unified global response to insolvency issues. Since nations refused to enact uniform legislation to facilitate more orderly business insolvencies within a sovereign, it is not surprising that recent attempts to create uniform legislation that addresses the insolvency of sovereigns themselves have been unsuccessful. While a comprehensive statutory approach can predictably and efficiently restructure all of a sovereign's debts, the failed experience with uniform cross-border insolvency legislation suggests that sovereigns will not accept an inflexible statutory scheme that contains …

So You've Been Preempted-What Are You Going To Do Now?: Solutions For States Following Federal Preemption Of State Predatory Lending Statutes, Christopher R. Childs

BYU Law Review

No abstract provided.

How History Can Inform Practice In Modern U.S. Competition Policy, Timothy Muris

ExpressO

No abstract provided.

24th Annual Conference On Legal Issues For Financial Institutions, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 24th Annual Conference on Legal Issues for Financial Institutions held by UK/CLE in April of 2004.

Operational Risk In Bashel Ii, Michael E. Blieier

North Carolina Banking Institute

No abstract provided.

The New Rule 10b-18: How The Wachovia Merger Continues To Plague The Future Of The Banking Industry, James E. Langston Jr.

North Carolina Banking Institute

No abstract provided.

Federal Preemption And The Challenge To Maintain Balance In The Dual Banking System, Robert C. Eager, C. F. Muckenfuss Iii

North Carolina Banking Institute

No abstract provided.