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Full-Text Articles in Law

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal Dec 2014

Liquidity, Systemic Risk, And The Bankruptcy Treatment Of Financial Contracts, Riz Mokal

Riz Mokal

Parties to repos, and to swaps and other derivatives are accorded privileged treatment under the bankruptcy laws of several dozen countries. Several key international “best practice” standards urge legislators in other jurisdictions to provide likewise. The beneficiaries of these privileges are solvent counterparties enabled, unimpeded by bankruptcy moratoria, to implement close-out netting arrangements and to dispose of collateral. The purported rationale is mitigation of systemic risk.
Taking a broad international perspective, this Article explores the “domino” contagion view of distress that motivates the privileges. This view derives from the outdated “microprudential” understanding of systemic risk, and is theoretically flawed and ...


Remic Tax Enforcement As Financial-Market Regulator, Bradley T. Borden, David J. Reiss Dec 2013

Remic Tax Enforcement As Financial-Market Regulator, Bradley T. Borden, David J. Reiss

David J Reiss

Lawmakers, prosecutors, homeowners, policymakers, investors, news media, scholars and other commentators have examined, litigated, and reported on numerous aspects of the 2008 Financial Crisis and the role that residential mortgage-backed securities (RMBS) played in that crisis. Big banks create RMBS by pooling mortgage notes into trusts and selling interests in those trusts as RMBS. Absent from prior work related to RMBS securitization is the tax treatment of RMBS mortgage-note pools and the critical role tax enforcement should play in ensuring the integrity of mortgage-note securitization.

This Article is the first to examine federal tax aspects of RMBS mortgage-note pools formed ...


Deposit Accounts Under The New World Order, Ingrid Michelsen Hillinger, David Line Batty, Richard K. Brown Jan 2012

Deposit Accounts Under The New World Order, Ingrid Michelsen Hillinger, David Line Batty, Richard K. Brown

Ingrid Michelsen Hillinger

The new world is upon us. Repent. Revised Article 9 is the law in every state. Commercial deposit accounts are now available as original collateral. Bringing commercial deposit accounts into the Article 9 fold significantly complicates the planning of an Article 9 secured transaction. Attorneys for banks, non-bank creditors and debtors need to understand the new world order and the risks it poses to their clients. They need to develop strategies to minimize those risks so as to protect their clients' positions. Part II of this article describes the new legal framework and some of the risks it creates. Part ...


Making Debtor Remedies More Effective, Melissa B. Jacoby Apr 2010

Making Debtor Remedies More Effective, Melissa B. Jacoby

Melissa B. Jacoby

Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other ...


Learning From Our History: Evaluating The Modern Housing Finance Market In Light Of Ancient Principles Of Justice, Brian M. Mccall Dec 2008

Learning From Our History: Evaluating The Modern Housing Finance Market In Light Of Ancient Principles Of Justice, Brian M. Mccall

Brian M McCall

Since I first accepted an invitation to join this symposium, the subprime mortgage crisis has exploded into a systemic financial crisis. Analysis and pundits alike seem on a quest to outdo each other in using dramatic phrases to describe its historic proportions. The causes of a crisis so large must have a multiplicity of causes lying in the realms of bank regulation and supervision, the operation and regulation of the securitization market and the derivatives and insurance markets. Yet, the root and spark of the various financial reverberations initiated in the home mortgage finance market. My presentation will focus on ...


It's Just Secured Credit: The Natural Law Case In Defense Of Some Forms Of Secured Credit, Brian M. Mccall Dec 2008

It's Just Secured Credit: The Natural Law Case In Defense Of Some Forms Of Secured Credit, Brian M. Mccall

Brian M McCall

For decades scholars have been debating whether of not the institution of security can be explained and justified. After much discussion from varying points of view and hermeneutics, although some insights have been gained, the answer to the original question remains unresolved. This article attempts to bring new life to this debate by building on Professors Mooney and Harris’ idea of security interest as property right while taking account of the valid concerns of scholars such as Elizabeth Warren and Lyn Lopucki that certain results produced by the current system seem unjust. This reconciliation of these two strands of secured ...