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Articles 1 - 14 of 14
Full-Text Articles in Banking and Finance Law
Rethinking "Political" Considerations In Investment, David H. Webber
Rethinking "Political" Considerations In Investment, David H. Webber
Faculty Scholarship
Five years ago, Professor David H. Webber was invited to deliver an address both to our Delaware Law School community and to the Delaware Bench and Bar as Visiting Scholar in Residence of Corporate and Business Law. Webber's Speech, "Rethinking 'Political' Considerations in Investment," made several predictions about the rise of politicized investment which were quite prescient. As relevant today as when it was delivered, this piece explores the consideration of investment factors outside the traditional realm of shareholder profit maximization, both in its current state and in the future. Webber's analysis of how investors balance the role of capital …
Transnational Fiduciary Law, Tamar Frankel
Transnational Fiduciary Law, Tamar Frankel
Faculty Scholarship
Fiduciary law is expanding throughout the world.1 It seems to be a new phenomenon, but in reality, it is not. Fiduciary law is ancient. It existed centuries ago in Mesopotamia, 2 Rome, 3 Egypt,4 Greece,5 as well as in Jewish 6 and Christian laws.7 Fiduciary duties arguably developed later in Great Britain when master landlords left for the holy land on religious crusades and had to rely on others to manage their estates.8 The ancient rules, such as those found in agency law in Mesopotamia, may not have been as sophisticated as the current ones-such …
Testimony On Third Party Financing Of Lawsuits, Maya Steinitz
Testimony On Third Party Financing Of Lawsuits, Maya Steinitz
Faculty Scholarship
In this written testimony, Professor Steinitz addresses bills pending in the New York State Senate and Assembly relating to consumer litigation finance. Among other things, she suggests (1) establishing a “Minimum Payment” for plaintiffs, instead of (or in addition to) flat rates or interest caps; and (2) defining the scope of application by applying an “Unsophisticated Plaintiff” test rather than by focusing on the financing amount. She also addresses other matters implicated by the bills such as whether lawyers should be permitted to provide financial advice, prohibition of prepayment penalties, registration requirements, and right of rescission in the context of …
The Impact Of Recent Sec Financial Reporting Probes On Shareholder Wealth: Companies, Competitors, And Consequences, Stephen Warde
The Impact Of Recent Sec Financial Reporting Probes On Shareholder Wealth: Companies, Competitors, And Consequences, Stephen Warde
Honors Projects in Finance
During an undergraduate college career, an accounting major devotes a great part of his or her time to learning how publicly traded businesses prepare financial statements in compliance with Generally Accepted Accounting Principles (GAAP) and federal securities laws. These accounting principles, standards, and procedures are ultimately enforced by the U.S. Securities and Exchange Commission (SEC) to protect investors, uphold fair markets, and promote public trust in the capital market system. To fulfill its mission, the SEC Division of Enforcement conducts investigations into possible violations of the federal securities laws and administers enforcement actions. Naturally, SEC investigations and the anticipation of …
Reshaping Third-Party Funding, Victoria Sahani
Reshaping Third-Party Funding, Victoria Sahani
Faculty Scholarship
Third-party funding is a controversial business arrangement whereby an outside entity—called a third-party funder—finances the legal representation of a party involved in litigation or arbitration or finances a law firm’s portfolio of cases in return for a profit. Attorney ethics regulations and other laws permit nonlawyers to become partial owners of law firms in the District of Columbia, England and Wales, Scotland, Australia, two provinces in Canada, Germany, the Netherlands, New Zealand, and other jurisdictions around the world. Recently, a U.S.-based third-party funder that is publicly traded in England started its own law firm in England. In addition, some U.S. …
The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug
The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug
All Faculty Scholarship
This Article first recalls the primary contours of Adolf Berle and Gardiner Means’s acclaimed observations regarding the separation of ownership and control in the “modern corporation,” as well as their conclusions about the implications of those observations for the doctrine of shareholder primacy. Second, the Article describes how the activities of FSHCs generally differ from what we think corporations do and, certainly, from what Berle and Means conceived of as the purpose of corporations or, indeed, any business enterprise. Third, this Article articulates how those business activities render more acute the problem of the separation of ownership and control that …
Lawyers In The Shadows: The Transactional Lawyer In A World Of Shadow Banking, Steven L. Schwarcz
Lawyers In The Shadows: The Transactional Lawyer In A World Of Shadow Banking, Steven L. Schwarcz
Faculty Scholarship
This article examines how the role of transactional lawyers should change in the new world of shadow banking. Although transactional lawyers should consider the potential systemic consequences of their client's actions, their actions should be tempered by their primary duties to the client and by their responsibilities to the l,egal system more broadly.
The Challenge Of Optimism And Complexity: Inadequately Addressed By The Fcic's Report, Timothy E. Lynch
The Challenge Of Optimism And Complexity: Inadequately Addressed By The Fcic's Report, Timothy E. Lynch
Faculty Works
No abstract provided.
Message In Mortgage: What Dodd-Frank's 'Qualified Mortgage' Tells Us About Ourselves, David Reiss
Message In Mortgage: What Dodd-Frank's 'Qualified Mortgage' Tells Us About Ourselves, David Reiss
Faculty Scholarship
No abstract provided.
My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky
My Brother's Keeper: An Empirical Study Of Attorney Facilitation Of Money-Laundering Through Commercial Transactions, Lawton P. Cummings, Paul T. Stepnowsky
Faculty Scholarship
In recent years, various “gatekeeping initiatives” have been introduced through inter-governmental standard-setting organizations, such as the Financial Action Task Force, as well as through federal legislation in the United States, which seek to apply the mandatory customer due diligence, record keeping, and suspicious activity reporting obligations contained in the existing anti-money laundering regime to lawyers when they conduct certain commercial transactions on behalf of their clients. The organized bar has argued against such attempts to regulate it, in part, due to the lack of empirical data showing that, as a threshold matter, lawyers unwittingly aid money laundering in a significant …
Chasing The Greased Pig Down Wall Street: A Gatekeeper’S Guide To The Psychology, Culture And Ethics Of Financial Risk-Taking, Donald C. Langevoort
Chasing The Greased Pig Down Wall Street: A Gatekeeper’S Guide To The Psychology, Culture And Ethics Of Financial Risk-Taking, Donald C. Langevoort
Georgetown Law Faculty Publications and Other Works
The current financial crisis has once again focused attention on lawyers, corporate directors and auditors as gatekeepers, who are expected to introduce some degree of cognitive independence to the task of risk assessment and risk management in public companies, including financial services firms. This essay examines the psychological and cultural forces that may distort risk perception and risk motivation in hyper-competitive firms, beyond the standard economic incentives associated with agency costs and moral hazards, warning gatekeepers against too easily assuming that all is well when insiders display high levels of intensity, focus and devotion to hard-to-achieve goals. In fact, these …
Being Virtuous And Prosperous: Sri’S Conflicting Goals, Benjamin J. Richardson, Wes Cragg
Being Virtuous And Prosperous: Sri’S Conflicting Goals, Benjamin J. Richardson, Wes Cragg
Articles & Book Chapters
Can SRI be a means to make investors both virtuous and prosperous? This paper argues that there can be significant tensions between these goals, and that SRI (and indeed all investment) should not allow the pursuit of maximizing investment returns to prevail over an ethical agenda of promoting social and economic justice and environmental protection. The discourse on SRI has changed dramatically in recent years to the point where its capacity to promote social emancipation, sustainable development and other ethical goals is in jeopardy. Historically, SRI was a boutique sector of the market dominated by religious-based investors who sought to …
Lawyer Liability In Third Party Situations: The Meaning Of The Kaye Scholar Case, Geoffrey C. Hazard Jr.
Lawyer Liability In Third Party Situations: The Meaning Of The Kaye Scholar Case, Geoffrey C. Hazard Jr.
All Faculty Scholarship
The Kaye Scholer I case has excited much attention and alarm within the legal profession. 2 It is interpreted as greatly expanding the scope of lawyer liability to third parties and heralding much greater regulatory intervention into the relationship between lawyer and client. In some respects this interpretation is accurate. The Kaye Scholer proceeding is at least a "wake up call" to the legal profession, signalling that lawyers should be much more attentive to their legal and ethical obligations in transactional and regulatory matters. However, there is also much misunderstanding about Kaye Scholer, particularly the supposition that it created novel …
From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.
From Tort To Crime: Some Reflections On The Criminalization Of Fiduciary Breaches And The Problematic Line Between Law And Ethics, John C. Coffee Jr.
Faculty Scholarship
Within the context of mail and wire fraud prosecutions, criminal liability for breach of fiduciary duties is being imposed with increasing frequency. Professor Coffee discusses the disturbing failure of the courts to require that the fiduciary's conduct have caused legally cognizable harm to the beneficiary. He concludes that an affirmative defense should be available to fiduciaries to show the lack of proximate cause between a breach and the injury. In addition, federal enforcement should occur only after state and private remedies have proven inadequate.