Law Commons^™

Shocking Financed Emissions: The Effect Of Economic Volatility On The Portfolio Footprinting Of Financial Institutions, Ilmi Granoff, Tonya Lee

Sabin Center for Climate Change Law

Many financial institutions are now calculating and disclosing their financed emissions, a class of metrics enabling these institutions to calculate the greenhouse gas (GHG) emissions associated with investment and lending activities. These institutions have widely adopted the metric to estimate exposure to climate-related financial risk associated with GHG-emitting activities and to provide shareholders and investors a picture of how their financial activity impacts global climate change. Financed emissions metrics, despite widespread adoption, face two key methodological challenges: lack of comparability of outputs within and between portfolios, and vulnerability of calculations to portfolio volatility. Markets are naturally volatile, but the economic …

Emerging School Finance Litigation In Mississippi, Lajuana Davis

Mississippi College Law Review

This year marks the twentieth anniversary of the implementation of Mississippi's education funding statute, the Mississippi Adequate Education Program (MAEP), which requires the state to fully fund public elementary and secondary education. In those two decades, Mississippi has largely avoided the education finance lawsuits faced by other states, despite the state legislature having only fully funded MAEP twice since its enactment. Although courts have been reluctant to push state legislatures to increase funding to achieve greater equity and adequacy of public school education, some plaintiffs have been successful in reforming education finance laws in other states. Recently, and for the …

Ending 30 Years Of Imf Exceptionalism: A Call For An Accountability Mechanism At The International Monetary Fund, Luiz Vieria

Perspectives

This year marks the 30^th anniversary of the World Bank’s Inspection Panel (WBIP or Panel), created as the result of grass-roots and international pressure on the Bank to address the well-documented negative impacts on marginalised communities of the Bank-financed Narmada dam and similar projects.

The establishment of the world’s first independent accountability mechanism (IAM) at the World Bank led to the creation of similar mechanisms at nearly all international financial institutions (IFIs), with the IMF an important exception. The establishment of the WBIP and other IAMs was a step-change in accountability, as previously IFIs were only accountable to shareholders …

Loophole Entrepreneurship, Brian M. Sirman

Fordham Journal of Corporate & Financial Law

All entrepreneurs seek favorable legal or regulatory treatment for their businesses. Sometimes this leads an entrepreneur to build a business within a gap in the law—a loophole. In so doing, these “loophole entrepreneurs” may avoid steep regulatory compliance costs that otherwise would beset (or perhaps prohibit) their businesses, thereby gaining advantages over competitors. Despite these benefits, loophole entrepreneurship is fraught with risks. Loopholes, by nature, are fragile, and their contours are often uncertain. Moreover, the stigma of “exploiting a loophole” (which connotes unfairness or deception) can provoke ill will among competitors, policymakers, and the public.

The ranks of loophole entrepreneurs …

Expanding Mfw: Delaware Law Should Offer A Business Judgment Rule Safe Harbor For All Conflicted Controller Transactions, Alex Lindsey

Fordham Journal of Corporate & Financial Law

While courts usually defer to a board’s business decisions under the business judgment rule, courts will apply a much less deferential standard of review due to loyalty concerns if a conflicted controller is involved in a business decision such as a merger. However, in Kahn v. M & F Worldwide (“MFW”) when a squeeze out merger was challenged by a minority stockholder, the Delaware Supreme Court reviewed the transaction under the deferential business judgment rule standard because the Court found that the structure of the transaction neutralized the controller loyalty concerns. Building on this reasoning, the Court developed a checklist …

Cryptocurrency: Regulate Or Facilitate? How States' Approaches To Cryptocurrency Can Be Applied On A Federal Level, Kelly Mahoney

Journal of the National Association of Administrative Law Judiciary

Within the past two years, the cryptocurrency market exceeded a record $2 trillion. As of November 2021, there are seventy-five million Bitcoin (a type of cryptocurrency) users and counting. Many states have implemented regulations and policies in response to this massive growth of the crypto market. While some states like Wyoming and Texas welcome cryptocurrency other states, such as New York and Washington, are more apprehensive and seek to constrain cryptocurrency due to its volatility and novelty. In contrast, federal agencies are still debating on how to address cryptocurrency, and glimpses of federal regulation can be seen through the 2021 …

Interest Rates, Venture Capital, And Financial Stability, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

Following several prominent bank failures and as central banks continue to tighten interest rates to fight inflation, there is increasing interest in the relationship between monetary policy and financial stability. This Article illuminates one path through which the prolonged period of low interest rates from 2009-2021 has impacted financial stability: it traces how yield-seeking behavior in the wake of the Global Financial Crisis and Covid pandemic led to a bubble in the venture capital industry, which in turn spawned a crypto bubble as well as a run on the VC-favored Silicon Valley Bank. This Article uses this narrative to illustrate …

Modelling Climate Litigation Risk For (Re)Insurers, Martin Lockman

Sabin Center for Climate Change Law

In response to the growing threat of climate change, the insurance industry has made significant investments in modelling and quantifying physical climate risks. However, the emerging risk of climate litigation has proven particularly difficult to model. In 2015 Mark Carney, then-Governor of the Bank of England and Chairman of the Financial Stability Board, warned that climate litigation poses “long-tail risks” for insurers that may be “significant, uncertain and non-linear.” Since that warning, the number of climate-related cases has more than doubled, and the scope and financial significance of climate litigation has become increasingly clear. However, insurers and regulators still struggle …

Regulatory Managerialism Inaction: A Case Study Of Bank Regulation And Climate Change, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

In November of 2029, Hurricane Penelope struck New York City as a category two storm. Work had started on a wall to protect Manhattan from rising sea levels and storm surges, but the work was incomplete, and significant damage to Manhattan real estate was sustained. While almost all that real estate was insured, insurance companies were compromised by the sheer magnitude of the losses. Even with significant federal subsidies, they were unable to meet their full commitments on insurance policies. Some commercial real estate firms, who had never really recovered from the shift to remote working during the Covid pandemic, …

Defi: Shadow Banking 2.0?, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The growth of so-called “shadow banking” was a significant contributor to the financial crisis of 2008, which had huge social costs that we still grapple with today. Our financial regulatory system still hasn’t fully figured out how to address the risks of the derivatives, securitizations, and money market mutual funds that comprised Shadow Banking 1.0, but we’re already facing the prospect o fShadow Banking 2.0in the form of decentralized finance, or “DeFi.” DeFi’s proponents speak of a future where sending money is as easy as sending a photograph–but money is not the same as a photograph. The stakes are much …

Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen

Articles in Law Reviews & Other Academic Journals

The recent U.S. Supreme Court decision West Virginia v. EPA has cast a pall over the discretion of administrative agencies at a very inopportune time. The private sector is currently adopting new technologies at a rapid pace, and as regulated industries become more technologically complex, administrative agencies must innovate technological tools of their own in order to keep up. Agencies will increasingly struggle to do their jobs without that innovation, but the private sector is afforded something that is both critical to the innovation process, and often denied to administrative agencies: “permission to fail.” Without some grace for the inevitable …

Changemakers: Master Of Studies In Law: "Exactly What I Needed...": John Marion, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Without Reservation: Ensuring Uniform Treatment In Bankruptcy While Keeping In Mind The Interests Of Native American Individuals And Tribes, Connor D. Hicks

Fordham Journal of Corporate & Financial Law

The Bankruptcy Code (“Code”) exists as a mechanism for good faith debtors to discharge debts and seek a “fresh start” in life and finance. 11 U.S.C. § 106(a) ensures that not only are all debtors treated uniformly, but that all creditors, including governmental creditors which may otherwise enjoy immunity from suit, are equally subject to the jurisdiction of Bankruptcy courts and bound to the provisions of the Code.

However, a recent circuit split has demonstrated one niche yet significant instance in which a debtor may not receive the same treatment as their counterparts. While § 106 contains an express waiver …

Beware The Proposed Us Crypto Regulation— It May Be A Trojan Horse, Hilary J. Allen

Popular Media

Following the spectacular failure of crypto exchange FTX International, there have been renewed calls for crypto legislation (including from the industry itself).But many of the proposals so far would be worse than the status quo — at least for the general public. Crypto firms such as FTX were involved in drafting many of the mooted US bills. The exchange’s implosion should not become a pretext for rushing these into law.

The 'Merge' Did Not Fix Ethereum, Hilary J. Allen

Popular Media

The Ethereum blockchain that facilitates much of the crypto world last month finally accomplished the long-promised and oft-delayed “Merge”, a technical switch in the way it works.

The Environmental, Social, Governance (Esg) Debate Emerges From The Soil Of Climate Denial, Lawrence J. Trautman, Neal Newman

Faculty Scholarship

It has been almost six decades since Rachel Carson’s ominous warning of pending environmental disaster. During 2019 the United Nations requested urgent action from world leaders, given that “just over a decade is all that remains to stop irreversible damage from climate change.” With every passing year, damage resulting from destructive climate change causes increased pain, suffering, death and massive property loss. During 2020 and 2021 alone, severe weather events have included: destructive fires in California; record breaking freeze, power outage, and threat to the electrical grid in Texas; continuation of disruptive drought in U.S. Western states; and record-breaking high …

Law School News: Staff Person Of The Year 2022: Ann Marie Thompson 05/17/2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Support New Business To Solve Old Problems With Kentucky’S Keystone Waste From Bourbon & Brewing, Samuel C. Kessler

Commonwealth Policy Papers

Provided here is a policy solution from the backside of Kentucky bourbon and brewing to upcycle Kentucky’s “keystone” wastes and grow businesses in the process. Potential effects range from removing the bottleneck on bourbon production and producing GHG-friendly biogas to lowering the price of milk.This full whitepaper brief provides an incentive model for keystone wastes which have a provider and a use. It is equally applicable for policymakers or advocates wishing to place a policy incentive behind waste-to-product upcycling, businesses involved with methane sequestration & renewable biogas energy, and shifting regulatory and penalizing models of pollution into incentive model for …

Fintech And Anti-Money Laundering Regulation: Implementing An International Regulatory Hierarchy Premised On Financial Innovation, Nicholas A Roide

Texas A&M Law Review

Innovations in financial technology (“fintech”) have rippling effects across global markets. Fintech firms utilizing virtual assets and disintermediating blockchain technology continue to rapidly grow in strength and number. As systemic risk mounts due to the inter-jurisdictional nature of fintech, antimony laundering (“AML”) regulators must search for an international answer to maintain global financial stability and protect consumers against illicit activities. A variety of solutions have appeared within local AML regulatory frameworks. These frameworks tend to function as a hierarchy with three ordered objectives: market integrity, rule clarity, and innovation. However, frameworks often place too much emphasis on market integrity and …

Law School News: National Housing Advocate Named To Lead Rwu's New Real Estate Initiatives 02/08/2022, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Foreword: Arthur E. Wilmarth, Jr., A Scholar Of Uncommon Conviction, Integrity, And Boldness, Patricia A. Mccoy

University of Colorado Law Review

No abstract provided.

The Role Of Rival Litigation In Wilmarth's New Glass-Steagall, Heidi Mandanis Schooner

University of Colorado Law Review

No abstract provided.

The Tailors Of Wall Street, Graham S. Steele

University of Colorado Law Review

The narrative that emerged in the aftermath of the COVID-19 financial crisis has focused on nonbank financial intermediation as the primary vulnerability that plagued financial markets starting in March of 2020 and the exogenous nature of a public health crisis as a unique precipitating event. As a result, the crisis has largely been viewed as vindication for financial regulation as it applies to banks, with the Federal Reserve playing the role of heroic rescuer of the financial system.

This Article offers an alternative-and critical-analysis of the performance of banks during the COVID-19 financial crisis and the Fed's role as a …

Who's Looking Out For The Banks?, Jeremy C. Kress

University of Colorado Law Review

When the Gramm-Leach-Bliley Act authorized financial conglomeration in 1999, Professor Arthur Wilmarth, Jr. presciently predicted that diversified financial holding companies would try to exploit their bank subsidiaries by transferring government subsidies to their nonbank affiliates. To prevent financial conglomerates from taking advantage of their insured depository subsidiaries in this way, policymakers instructed a bank's board of directors to act in the best interests of the bank, rather than the bank's holding company. This symposium Article, written in honor of Professor Wilmarth's retirement, contends that this legal safeguard ignores a critical conflict of interest: the vast majority of large-bank directors also …

Afterword: Why "Taming The Megabanks" Should Remain A Top Priority For Financial Regulators And Policymakers, Arthur E. Wilmarth Jr.

University of Colorado Law Review

No abstract provided.

Hearing On “Stablecoins: How Do They Work, How Are They Used, And What Are Their Risks?” Before The U.S. Senate Committee On Banking, Housing, And Urban Affairs, Hilary J. Allen

Congressional and Other Testimony

THE COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS will meet in OPEN SESSION, HYBRID FORMAT to conduct a hearing entitled “Stablecoins: How Do They Work, How Are They Used, and What Are Their Risks?” The witnesses will be: Ms. Alexis Goldstein, Director of Financial Policy, Open Markets Institute; Mr. Dante Disparte, Chief Strategy Officer and Head of Global Policy, Circle; Ms. Jai Massari, Partner, Davis Polk & Wardwell, LLP; and Professor Hilary J. Allen, American University Washington College of Law

Data Privacy Issues In West Virginia And Beyond: A Comprehensive Overview, Jena Martin

Consumer Law Scholarship

This white paper was commissioned by the Center for Consumer Law and Education, a joint initiative launched by West Virginia University and Marshall University to “coordinate the development of consumer law, policy, and education research to support and serve consumers.”

As such, this paper has a dual purpose. First, it provides a comprehensive overview of the many different legal issues that affect data privacy concerns (both nationally and in West Virginia). Second, it documents and discusses the result of a survey and specific focus groups that were undertaken throughout the fall of 2019 into January 2020 where individuals within the …

Law School News: Staff Person Of The Year 2021: Ann Marie Thompson 05/18/2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Insider Trading As A Precursor To Modern Business Ethics, Robyn Coleman

Finance Undergraduate Honors Theses

There has been a recent change in business that there is more focus on the “stakeholder approach” than shareholder primacy. This can be attributed to the early actions and illegality of insider trading that expected a step beyond a solely economic approach. This attitude was then replicated to become what we see as the modern business approach. Business now includes ethical investing, environmental focus, corporate citizenship, and emphasis on multiple stakeholders that was not always there. Companies have embraced this position while others have been criticized for not doing so. As this approach develops and changes, it will be enlightening …

Law School News: The View From The Statehouse 04-27-2021, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.