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Series

Boston College Law School

Banking and Finance Law

2016

Articles 1 - 6 of 6

Full-Text Articles in Law

Investment Treaties Are About Justice, Frank J. Garcia Oct 2016

Investment Treaties Are About Justice, Frank J. Garcia

Boston College Law School Faculty Papers

This Perspective argues that investment law is ripe for a paradigm shift away from pure capital protection. Rather, investment law should be recognized as part of a comprehensive global economic governance system for ensuring justice and the rule of law, in this case in the allocation of investment capital.


Trusts No More: Rethinking The Regulation Of Retirement Savings In The United States, Natalya Shnitser Aug 2016

Trusts No More: Rethinking The Regulation Of Retirement Savings In The United States, Natalya Shnitser

Boston College Law School Faculty Papers

The regulation of private and public pension plans in the United States begins with the premise that employer-sponsored plans resemble traditional donative, or gift, trusts. Accordingly, the Employee Retirement Income Security Act of 1974 (ERISA) famously “imports” major principles of donative trust law for the regulation of private employer-sponsored pension plans. Statutes regulating state and local government pension plans likewise routinely invoke the structure and standards applicable to donative trusts. Judges, in turn, adjudicate by analogy to the common law trust.

This Article identifies the flaws in the analogy and analyzes the shortcomings of a regulatory framework that, despite dramatic ...


21st Century Investment Agreements: Justice, Governance And The Rule Of Law, Frank J. Garcia Jul 2016

21st Century Investment Agreements: Justice, Governance And The Rule Of Law, Frank J. Garcia

Boston College Law School Faculty Papers

Investment treaty law can no longer be managed as if it were merely a system of private ordering setting out the protected rights of capital owners. This philosophy has contributed to the ongoing legitimacy crisis affecting investment law today, including the TPP and TTIP negotiations. In response to a similar legitimacy crisis in the 1990s, the international trade system began a profound paradigm shift, recognizing that trade law was not simply a technical regime for liberalizing economic flows, but a system of treaty-based governance for managing transnational economic resources for the good of society as a whole.

Investment law has ...


Countercyclical Regulation And Its Challenges, Patricia A. Mccoy Jul 2016

Countercyclical Regulation And Its Challenges, Patricia A. Mccoy

Boston College Law School Faculty Papers

Historically, U.S. financial regulation has normally been procyclical, with federal regulators and Congress relaxing oversight during bull markets and cracking down once financial crises hit. After 2008, the wisdom of this approach came under attack. Critics argued that procyclical regulation left financial institutions undercapitalized and unable to withstand panics. Other critics asserted that economic downturns could be mitigated and even averted if regulators took steps to puncture asset bubbles. The concept of countercyclical regulation responds to both of these critiques. This new approach posits that financial regulation would be more effective if financial regulation clamped down during financial expansions ...


Representations And Warranties: Why They Did Not Stop The Crisis, Patricia A. Mccoy, Susan Wachter Jun 2016

Representations And Warranties: Why They Did Not Stop The Crisis, Patricia A. Mccoy, Susan Wachter

Boston College Law School Faculty Papers

During the run-up to the 2008 financial crisis, representations and warranties (contractual statements enforceable through legal action) may have given investors false assurance that mortgage loans were being properly underwritten. This assurance in turn may have contributed to overinvestment in mortgage-backed securities in two ways. First, the assumption that legally enforceable penalties associated with reps and warranties would deter lax underwriting may have led to less monitoring of these contracts than would otherwise have occurred. In turn, the lack of monitoring of actual underwriting practices enabled the spread of lax lending practices. The existence of these reps and warranties and ...


A New Coalescence In The Housing Finance Reform Debate?, Patricia A. Mccoy, Susan Wachter Jun 2016

A New Coalescence In The Housing Finance Reform Debate?, Patricia A. Mccoy, Susan Wachter

Boston College Law School Faculty Papers

This policy brief examines recent proposals for reform of the housing finance system.