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Full-Text Articles in Banking and Finance Law

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo Dec 2017

Making Innovation More Competitive: The Case Of Fintech, Rory Van Loo

Faculty Scholarship

This Article examines recent financial technology (“fintech”) developments to diagnose the federal regulatory institutional framework surrounding innovation. Startups offer artificially intelligent financial assistants, touchless payments, and other potentially game-changing products for individuals. Yet unlike more lightly regulated industries such as retail goods, in consumer finance barriers to entry have insulated the largest businesses from competition. Regulatory insulation helps explain why “Too Big To Fail” banks have become bigger, U.S. innovation has lagged that of foreign countries, and consumers pay higher prices. Taking an institutional lens to this problem reveals an overlooked shortcoming in financial regulation: the organizational design of ...


Seeking To Have Banks Sing To The Same Tune: The Basel Committee Addresses Credit Risk–Weighted Assets, O. Jean Strickland Dec 2017

Seeking To Have Banks Sing To The Same Tune: The Basel Committee Addresses Credit Risk–Weighted Assets, O. Jean Strickland

University of Miami Business Law Review

The objective of this Comment is to provide a critical assessment of the recent debate about the Basel Committee for Banking Standards’ (“BCBS”) reforms to risk–weighted assets (“RWA”) calculations used to measure credit risk and to establish international standards for bank capital requirements. After introducing the interests and objectives of both the regulators and the banking industry relative to this issue, the second part of this Comment will cover the origins of the approaches to the calculation of RWAs for regulatory capital requirement purposes. Using loans as the focus of the analysis, the third part of this Comment will ...


Floating On A Sea Of Funny Money: An Analysis Of Money Laundering Through Miami Real Estate And The Federal Government’S Attempt To Stop It, Gary Mcpherson Dec 2017

Floating On A Sea Of Funny Money: An Analysis Of Money Laundering Through Miami Real Estate And The Federal Government’S Attempt To Stop It, Gary Mcpherson

University of Miami Business Law Review

Miami is experiencing a money laundering controversy the likes of which have not been seen since the “Cocaine Cowboys” era of 1980’s Miami. Condominiums and other mega developments are popping up at an unprecedented pace, immediately after the housing market crash that caused the Great Recession. Adding to this questionable boom in development is the fact that the vast majority of Miami’s population cannot afford to live in places like these. So, the question presented is who is fueling this explosion in development? Criminals, that’s who. Federal agents believe criminals are buying coveted Miami real estate through ...


The Value Of Cryptocurrencies: How Bitcoin Fares In The Pockets Of Federal And State Courts, Brandon M. Peck Dec 2017

The Value Of Cryptocurrencies: How Bitcoin Fares In The Pockets Of Federal And State Courts, Brandon M. Peck

University of Miami Business Law Review

A recent Eleventh Judicial Circuit Court of Florida decision has raised concerns over how both federal and state courts consider the unregulated cryptocurrency, Bitcoin. In State of Florida v. Michell Abner Espinoza, Judge Teresa Pooler held that Bitcoin did not fall under the statutory definitions of “payment instrument” or “monetary instrument” because virtual currency is not directly specified nor could it be included within one of the defined categories listed in Fla. Stat. § 560.103(29) or 896.101(2). Furthermore, Judge Pooler, alluding to the doctrine of lenity, refused to hold Espinoza responsible under a statute that is “so ...


The Unicorn Governance Trap, Renee Jones Dec 2017

The Unicorn Governance Trap, Renee Jones

Boston College Law School Faculty Papers

The recent trend of large-scale start-up companies delaying an IPO creates a new kind of corporate governance problem. The prevalence of “unicorns” – privately held companies with market valuations of $1 billion or more – means the disciplinary mechanisms on which investors traditionally relied no longer function to prevent misconduct or mismanagement by unicorn founders. High profile frauds by unicorns like Zenefits and Theranos, and the recent travails of Uber highlight the need to rethink unicorn governance structure. These burgeoning controversies call for reconsideration of legal reforms that allow unicorns to remain for protracted periods in an ill-defined limbo between private and ...


Crowdfunding Signals, Darian M. Ibrahim Nov 2017

Crowdfunding Signals, Darian M. Ibrahim

Popular Media

No abstract provided.


Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott Nov 2017

Collection Of Cryptocurrency Customer-Information: Tax Enforcement Mechanism Or Invasion Of Privacy?, Austin Elliott

Duke Law & Technology Review

After granting permission to the Internal Revenue Service to serve a digital exchange company a summons for user information, the Federal District Court for the Northern District of California created some uncertainty regarding the privacy of cryptocurrencies. The IRS views this information gathering as necessary for monitoring compliance with Notice 2014-21, which classifies cryptocurrencies as property for tax purposes. Cryptocurrency users, however, view the attempt for information as an infringement on their privacy rights and are seeking legal protection. This Issue Brief investigates the future tax implications of Notice 2014-21 and considers possible routes the cryptocurrency market can take to ...


Legitimacy And Impartiality As Basic Principles For Sovereign Debt Restructuring, Odette Lienau Nov 2017

Legitimacy And Impartiality As Basic Principles For Sovereign Debt Restructuring, Odette Lienau

Odette Lienau

This essay suggests that attentiveness to the principles of legitimacy and impartiality may contribute to the instrumental success of any sovereign debt restructuring, and highlights institutional elements or practices often associated with these goals. An additional question can be raised as to whether these principles might have a further claim to special consideration, as part of emerging customary international law or general principles of law. Any determination along these lines is made difficult by the fact that legitimacy is a composite principle, constituted of multiple procedural and substantive norms, and perhaps lacks the necessary specificity to be a legal rule ...


Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley Nov 2017

Collaborative Gatekeepers, Stavros Gadinis, Colby Mangels University Of California - Berkeley

Stavros Gadinis

In their efforts to hold financial institutions accountable after the 2007 financial crisis, U.S. regulators have repeatedly turned to anti-money-laundering laws. Initially designed to fight drug cartels and terrorists, these laws have recently yielded billion-dollar fines for all types of bank engagement in fraud and have spurred an overhaul of financial institutions’ internal compliance. This increased reliance on anti-money-laundering laws, we argue, is due to distinct features that can better help regulators gain insights into financial fraud. Most other financial laws enlist private firms as gatekeepers and hold them liable if they knowingly or negligently engage in client fraud ...


Canadian Bank Act And Its Implementation Under The Nafta, Michelle Brown Berziel Oct 2017

Canadian Bank Act And Its Implementation Under The Nafta, Michelle Brown Berziel

Law and Business Review of the Americas

No abstract provided.


Bankruptcy - The Last Resort: Protecting The Diocesan Client From Potential Liability Judgments, John B. Jarboe Oct 2017

Bankruptcy - The Last Resort: Protecting The Diocesan Client From Potential Liability Judgments, John B. Jarboe

The Catholic Lawyer

No abstract provided.


The Role Of A Banking System In Nation-Building, John L. Douglas Oct 2017

The Role Of A Banking System In Nation-Building, John L. Douglas

Maine Law Review

It seems strange to have a discussion of nation-building devoted to the importance of a banking system. After all, when we think of nations, we think of constitutions, borders, and functioning governments. When we think of failed nations, we think of a lack of effective government, a loss of control over society, and a breakdown in law and order. Banks hardly figure into that discussion at all. Indeed, in our society, while banks play an important role, they usually reside quietly in the background. Many of us never set foot in a bank. Our paychecks may be deposited in a ...


Odious Debts And Nation-Building: When The Incubus Departs, Lee C. Buchheit, G. Mitu Gulati Oct 2017

Odious Debts And Nation-Building: When The Incubus Departs, Lee C. Buchheit, G. Mitu Gulati

Maine Law Review

To most people, the notion that the citizens of a country lucky enough to have ousted a dictator should spend the rest of their lives paying off the debts incurred by that dictator in the name of the state is morally repugnant. This is a situation in which a strict requirement of the law (that governments automatically succeed to, and must honor, the debt obligations of their predecessors) is incongruent with most people’s sense of the morally right outcome. At a superficial level, state responsibility for debts incurred by prior governments resembles the belief that a country carries a ...


Crossing The Line: Prime, Subprime, And Predatory Lending, Nathaniel R. Hull Oct 2017

Crossing The Line: Prime, Subprime, And Predatory Lending, Nathaniel R. Hull

Maine Law Review

The cornerstone of the “American Dream” has long been marked by the purchase of a home. Most families cannot afford to purchase a home with cash and, almost universally, need financing. Financing for a home purchase begins when a person or couple applies and is preliminarily approved for a home loan by a lender. The lender’s decision to approve is based on a number of different factors that are thought to predict how likely it is for the borrower to repay the loan according to its terms. The factors used to make this prediction have undergone drastic reformulations over ...


Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, Monde Marshall Oct 2017

Investor-State Dispute Settlement Reconceptionalized: Regulation Of Disputes, Standards And Mediation, Monde Marshall

Pepperdine Dispute Resolution Law Journal

This paper argues that the current criticisms of Investor-State Dispute Settlement (ISDS) are ill-informed, and attempts at reforming the system are misguided. The definition of ISDS itself has been, for a long time, limited to investment quasi-judicial bodies or at best arbitration. Analysis of the roots of the ever growing backlash reveals that the main causes for concern are politically negotiated investment treaties, an inherently biased system, lack of transparency, and inconsistent decision-making. Examination of the core reasons behind these complaints leads to the conclusion that the EU Commission’s solution to reform ISDS through a permanent court raises more ...


Maine's Foreclosure Mediation Program: What Should Constitute A Good Faith Effort To Mediate?, Jesse D. Stewart Oct 2017

Maine's Foreclosure Mediation Program: What Should Constitute A Good Faith Effort To Mediate?, Jesse D. Stewart

Maine Law Review

The collapse of the housing bubble and subsequent financial downturn of 2008 unleashed a flood of foreclosure filings in the Maine courts, threatening the fundamental aspiration of homeownership for many Maine residents. This Comment examines the significant steps Maine has taken to address increased foreclosure filings through the implementation of a foreclosure mediation program and offers concrete suggestions to further improve the program.


Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia Oct 2017

Leverage: State Enforcement Actions In The Wake Of The Robo-Sign Scandal, Raymond H. Brescia

Maine Law Review

In the fall of 2010, the revelations that tens of thousands of foreclosure filings across the nation were likely fraudulent—if not outright criminal—sparked a nation-wide investigation by all fifty state attorneys general to assess the extent of the scandal and its potential impacts, but also to consider likely legal and policy responses to such behavior. One of the tools at the state attorneys general’s disposal that might rein in this behavior includes each state’s Unfair and Deceptive Acts and Practices (UDAP) laws. Such laws typically prohibit “unfair” and “deceptive” practices, which are described loosely in these ...


Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp Oct 2017

Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp

Faculty Scholarship

“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.

Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual ...


Supremacy Of Law Or Religion: Congress's Power To Amend The Constitution Bypassing Constraints Of The Constitutional Process, Roman Sankovych Sep 2017

Supremacy Of Law Or Religion: Congress's Power To Amend The Constitution Bypassing Constraints Of The Constitutional Process, Roman Sankovych

DePaul Business and Commercial Law Journal

No abstract provided.


The Netflix Tax: Chicago's Extension Of Its Amusement Tax To Include Electronically Delivered Entertainment Faces Numerous Changes And Sets The Stage For Taxing On Streaming-Based Entertainment, Stephanie Cueman Sep 2017

The Netflix Tax: Chicago's Extension Of Its Amusement Tax To Include Electronically Delivered Entertainment Faces Numerous Changes And Sets The Stage For Taxing On Streaming-Based Entertainment, Stephanie Cueman

DePaul Business and Commercial Law Journal

No abstract provided.


Dodd-Frank Wall Street Reform And Consumer Protection Act: The Evolution Of Whistleblower Protections, Employment Contracts And Mandatory Arbitration Agreements, Florence Shu-Acquaye Sep 2017

Dodd-Frank Wall Street Reform And Consumer Protection Act: The Evolution Of Whistleblower Protections, Employment Contracts And Mandatory Arbitration Agreements, Florence Shu-Acquaye

DePaul Business and Commercial Law Journal

No abstract provided.


The Eleventh Circuit's Second Shot At Getting It Right: Nonconsensual Nondebtor Releases In Bankruptcy Court, Pierce G. Hand Iv Sep 2017

The Eleventh Circuit's Second Shot At Getting It Right: Nonconsensual Nondebtor Releases In Bankruptcy Court, Pierce G. Hand Iv

DePaul Business and Commercial Law Journal

No abstract provided.


Tales From A Form Book: Stock Stories And Transactional Documents, Susan M. Chesler, Karen J. Sneddon Sep 2017

Tales From A Form Book: Stock Stories And Transactional Documents, Susan M. Chesler, Karen J. Sneddon

Montana Law Review

Tales from a Form Book: Stock Stories and Transactional Documents


Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert Aug 2017

Regulating Robo Advice Across The Financial Services Industry, Tom Baker, Benedict G. C. Dellaert

Faculty Scholarship

Automated financial product advisors – “robo advisors” – are emerging across the financial services industry, helping consumers choose investments, banking products, and insurance policies. Robo advisors have the potential to lower the cost and increase the quality and transparency of financial advice for consumers. But they also pose significant new challenges for regulators who are accustomed to assessing human intermediaries. A well-designed robo advisor will be honest and competent, and it will recommend only suitable products. Because humans design and implement robo advisors, however, honesty, competence, and suitability cannot simply be assumed. Moreover, robo advisors pose new scale risks that are different ...


The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring Jul 2017

The New Human Equity Transactions, Shu-Yi Oei, Diane M. Ring

Shu-Yi Oei

This article begins to explore the legal and policy implications of a new form of financing -- income sharing agreements -- which have raised concerns that the effectively created "equity" in humans.


Choice-Of-Law Rules For Secured Transactions: An Interest-Based And Modern Principles-Based Framework For Assessment, Charles W. Mooney Jr. Jul 2017

Choice-Of-Law Rules For Secured Transactions: An Interest-Based And Modern Principles-Based Framework For Assessment, Charles W. Mooney Jr.

Faculty Scholarship

This essay examines the law applicable to secured transactions. It addresses in particular the codification of the choice-of-law rules for secured transactions (STCOL rules). These rules address the laws applicable to the creation, perfection, priority, and enforcement of security interests (security rights)—a form of legislative or statutory dépeçage. It draws on the 2016 UNCITRAL Model Law on Secured Transactions (Model Law) as well as relevant North American law (Uniform Commercial Code Article 9 and the Canadian provincial Personal Property Security Acts). The STCOL rules lie at the heart of the emerged and emerging modern principles of secured transactions law ...


The Government’S Role In Unleashing Impact Investing’S Full Potential, Chelsea Mcgrath Jul 2017

The Government’S Role In Unleashing Impact Investing’S Full Potential, Chelsea Mcgrath

Pepperdine Law Review

Impact investing refers to investments made in organizations, companies, or funds with the intent to generate measurable social or environmental impact along with a financial return. Since its start in 2008, this industry has become a vibrant tool to address a wide variety of local and global issues, resulting in higher standards of living, lower rates of prison recidivism, clean technology and more. Impact investing is no longer a novel concept. Rather, it has successfully pushed the boundaries from the separate methods of conventional investing and philanthropy, blending them together to create sustainable solutions to social and environmental problems. By ...


Discretion To Act: How The Federal Reserve's Decisions Whether To Provide Emergency Loans During The Financial Crisis Were Discretionary And Why Dodd-Frank Falls Short Of Preventing Future Bailouts, John De Vito Jul 2017

Discretion To Act: How The Federal Reserve's Decisions Whether To Provide Emergency Loans During The Financial Crisis Were Discretionary And Why Dodd-Frank Falls Short Of Preventing Future Bailouts, John De Vito

The Journal of Business, Entrepreneurship & the Law

The housing market crash of 2007–2008 threatened to cause the collapse of the United States and global economies. By early 2008, Bear Stearns, Lehman Brothers, and American International Group all faced the strong possibility of bankruptcy absent government intervention. The Federal Reserve Board of Governors activated its emergency lending powers pursuant to Section 13(3) of the Federal Reserve Act to “bail out” Bear Stearns and American International Group, but elected to let Lehman Brothers fail. Lehman’s bankruptcy led to a run on money market mutual funds, made it impossible for corporations to raise capital, led to widespread ...


The Perfect Storm Is Brewing Once Again: What Scaling Back Dodd-Frank Will Mean For The Credit Default Swap, Daniel Isaacson Jul 2017

The Perfect Storm Is Brewing Once Again: What Scaling Back Dodd-Frank Will Mean For The Credit Default Swap, Daniel Isaacson

The Journal of Business, Entrepreneurship & the Law

The current presidential administration has expressed a concerted desire to “scale back” and even “get rid of” the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank). Focusing specifically on Dodd–Frank’s regulation of the credit default swap (CDS), this Article explores two timely queries. First, whether Dodd–Frank’s regulatory response to these financial instruments is a justifiable one, and second, what effect a repeal may have. This Article will show that the “perfect storm” CDS—which contributed so significantly to the 2007–2010 financial crisis—flourished in a regulatory environment that contained two key weaknesses ...


$=€=Bitcoin?, Hilary J. Allen Jul 2017

$=€=Bitcoin?, Hilary J. Allen

Maryland Law Review

Bitcoin (and other virtual currencies) have the potential to revolutionize the way that payments are processed, but only if they become ubiquitous. This Article argues that if virtual currencies are used at that scale, it would pose threats to the stability of the financial system—threats that have been largely unexplored to date. Such threats will arise because the ability of a virtual currency to function as money is very fragile—Bitcoin can remain money only for so long as people have confidence that bitcoins will be readily accepted by others as a means of payment. Unlike the U.S ...