Securities Law Commons^™

Notes From The Border: Writing Across The Administrative Law/Financial Regulation Divide, Robert B. Ahdieh

Robert B. Ahdieh

A central feature – if not the central feature – of legal scholarship today is analysis across divides.

It is surprising, then, how little has been written across the divide that separates administrative law and financial regulation. That is perhaps especially so, given the modest nature of the relevant divide: one that is intra- rather than interdisciplinary, one that operates within rather than across geographic boundaries, and one that involves no temporal dimension but operates entirely within current-day law.

For all the proximity in their interests, targets of study, and even analytical tools, however, scholars of administrative law and of …

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

Patricia A. McCoy

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

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

Patricia A. McCoy

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 …

Democratizing Startups, Seth C. Oranburg

Seth C Oranburg

The Jumpstart Our Business Startups Act of 2012 intends to “help entrepreneurs raise the capital they need to put Americans back to work and create an economy that’s built to last.” The goal is to “democratize startups” by making capital available to diverse entrepreneurs in new geographies. Yet the net effect of securities regulations and market conditions is the opposite. Startup companies are encouraged to stay private so capital is consolidating in large, mature firms instead of recycling into new startups. Evidence of consolidation is that once-rare “Unicorns” (billion-dollar startups) now number over 111. More money is going into huge …

Has The Cftc Gone Too Far In Trying To Keep The American Economy Safe From Cross-Border Swaps?, Gabriel Lau

Gabriel Lau

With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) in 2010, the Commodity Futures Trading Commission (“CFTC”) received the daunting task regulating swap markets. Following two iterations of proposed guidance and comment periods, the CFTC released its finalized “Interpretive Guidance and Policy Statement Regarding Compliance with Certain Swap Regulations” (“Guidance”) on July 26, 2013. In the Guidance, the CFTC gives its interpretation and policy outlook for promulgating rules with respect to the regulation of cross-border swaps. This paper examines both the critiques of the Guidance, including issues of international comity and rule promulgation procedures, and …

Financial Institution Executive Compensation: The Problem Of Financially Motivated Excessive Risk-Taking, The Regulatory Response, And Common Sense Solutions, Jesse D. Gossett

Jesse D Gossett

This article addresses the issue of executive compensation at financial institutions as it relates to encouraging excessive risk-taking at these firms. First, I examine the economics of compensation and its relationship to risk-taking at financial firms. Next, I take a critical look at compensation provisions of Dodd-Frank (and to a lesser extent, Sarbanes-Oxley) and describe not only what Dodd-Frank does, but more importantly what it does not do. I then make specific recommendations for rules regulators should adopt under Dodd-Frank for the purpose of using compensation plans as a way of reducing excessive risk at financial institutions. I make these …

Too Complex To Perceive?: Drafting Cash Distribution Waterfalls Directly As Code To Reduce Complexity And Legal Risk In Structured Finance, Master Limited Partnership, And Private Equity Transactions, Ralph Carter Mayrell

Ralph Carter Mayrell

The intricate procedural and data-driven decision trees that play a critical role in complex financial contracts like cash distribution waterfalls in structured finance agreement indentures (e.g., collateralized debt obligations (CDOs)), master limited partnership agreements, and private equity fund agreements are inefficiently depicted as written contracts. As Professor Henry Hu explains in Too Complex to Depict?, the difficulty of translation—or depiction—between original mathematical models, plain English prospectuses, legal contracts, and programmed execution means that often the written depictions that form the basis of disclosures do not accurately define the act of execution. To overcome this, the SEC proposed an amendment to …

Dodd-Frank Regulators, Cost-Benefit Analysis, And Agency Capture, Paul Rose, Christopher J. Walker

Christopher J. Walker

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) has raised the stakes for financial regulation by requiring more than twenty federal agencies to promulgate nearly 400 new rules. Scholars, regulated entities, Congress, courts, and the agencies themselves have all recognized — even before Dodd-Frank — the lack of rigorous cost-benefit analysis in the context of financial rulemaking. The D.C. Circuit has struck down several financial regulations because of inadequate cost-benefit analysis, with three more challenges to be decided this summer. Members of Congress have introduced legislation to address this problem, including a call for the President to intervene …

Liquid Assets: A Coasian Economic Analysis Of Oregon's Allocation Of Conserved Water Program, Richard A. Grisel

Richard A Grisel

Diversions for residential, agricultural, recreational, commercial, industrial, and other beneficial uses have had the effect of removing water from rivers and tributaries throughout the western U.S. Another, more recent, competing use is ecological, demonstrated by the legal recognition of instream beneficial uses in some jurisdictions. As awareness of the progressively acute need for reallocation has increased in the arid West, so has interest in water markets and other mechanisms to facilitate transfers across beneficial uses. However, governments and water users face a legacy prior appropriation system that prohibits instream beneficial uses, encourages maximal diversion, stifles water right fungibility, and generally …

Will Law Firms Go Public?, Roberta S. Karmel

Roberta S. Karmel

Law in the United States is a big business and big law firms are a global business. Currently, under rules of the American Bar Association (ABA) and most states law, firms are not allowed either to include non-lawyers as partners or accept equity investments from non-lawyers. This Article will argue that (even if law firms retain the form of partnerships) they eventually will accept investments from third parties, and possibly even go public, but this development could lead to a loss of professionalism, as it has with other industries, and could also lead to the end of self-regulation. Among the …

Dodd-Frank’S Confict Minerals Rule: The Tin Ear Of Government-Business Regulation, Henry Lowenstein

Henry Lowenstein

This paper examines an unusual provision included in the Dodd-Frank Wall Street Reform and Consumer Protection Act (2010), Section 1502 known as the Conflict Minerals Rule. This provision, having nothing to do with the subject matter of the act itself, attempts to place a chilling effect on the trade of four identified minerals from the Democratic Republic of Congo. The provision and its subsequent rule, surprisingly delegated to the U.S. Securities and Exchange Commission (an agency lacking subject matter expertise in minrals) presents a case and object lession of almost every cost, procedural and legal error that can take place …

The Importance Of Cost-Benefit Analysis In Financial Regulation, Paul Rose, Christopher J. Walker

Christopher J. Walker

This report reviews the role, history, and application of cost-benefit analysis in rulemaking by financial services regulators.

For more than three decades — under both Democratic and Republican administrations — cost-benefit analysis has been a fundamental tool of effective regulation. There has been strong bipartisan support for ensuring regulators maximize the benefits of proposed regulations while implementing them in the most cost-effective manner possible. In short, it is both the right thing to do and the required thing to do.

Through the use of cost-benefit analysis in financial services regulation, regulators can determine if their proposals will actually work to …

How To Sufficiently Consider Efficiency, Competition, And Capital Formation In The Wake Of Business Roundtable, Ian D. Ghrist

Ian D. Ghrist

This article applies ideas from the Law and Economics movement to the D.C. Circuit's 2011 decision in Business Roundtable v. Securities and Exchange Commission. The article lays out a framework for cost-benefit analysis that, if followed, should increase new rules' chances of surviving the heightened arbitrary and capricious review standard imposed by the National Securities Markets Improvement Act of 1996.

The Dodd-Frank Act comprises the broadest financial reforms since the 1930s. The Act, however, makes surprisingly few important decisions and instead, almost exclusively defers to agency rulemaking or the creation of a new organization. The Act mandates the promulgation of …

Rise Of The Intercontinentalexchange And Implications Of Its Merger With Nyse Euronext, Latoya C. Brown

Latoya C. Brown, Esq.

This paper examines the impending merger between the IntercontinentalExchange (ICE) and NYSE Euronext against the backdrop of the current structure of the global financial services industry. The paper concludes that the merger embodies what the financial services industry is becoming and captures the model that will allow exchanges to remain competitive in today’s marketplace: mega-exchanges with broader asset classes and electronic platforms. As technology and globalization threaten their vitality, exchanges will need to continue reinventing and adapting. Increasingly over the last decade they have done so by merging and by moving, at least a part of, their operations on screen. …

Gaming The System: Bio-Economics, Game Theory, & Fisheries Management, Richard A. Grisel

Richard A Grisel

This paper argues that game theory provides powerful, effective new tools to analyze externalities that occur in the context of strategic, multi-party, interactive decision-making. I will attempt to treat this as a non-technical paper and avoid the complex mathematics better left to economists and mathematicians. Instead, a more achievable goal is to illustrate how high-seas open-access fishing is virtually identical to a game situation, treat the fundamentals of game theory, and demonstrate that game theoretic analyses are well-suited and fruitful for designing effective policy responses to fisheries management, particularly with respect to the straddling stocks problem. Indeed, one seminal fisheries …

La Transparencia En La Protección De Datos Personales, Bruno L. Costantini García

Bruno L. Costantini García

La Transparencia en la Protección de Datos Personales, ponencia elaborada dentro de los trabajos del VII Congreso Nacional de Organismos Públicos Autónomos (OPAM)

Aspectos Generales Dela Publicidad En México. "La Publicidad De Productos, Servicios, Y Actividades Reguladas Por La Ley General De Salud", Bruno L. Costantini García

Bruno L. Costantini García

Introducción a las generalidades de la regulación en materia de publicidad de insumos para el consumo humano (salud) en México.

Geothermal Resources Under The Mining Law Regime--Problems & Possibilities, Richard A. Grisel

Richard A Grisel

The development of geothermal resources has been greatly hampered by the legal and institutional framework governing geothermal energy resources. This framework has been plagued by conflicting mining and water laws, anachronistic common law systems of property rights, problematic legal classifications of geothermal resources, and jurisdictional variances from state to state and between states and the Federal government. These issues have combined to significantly hinder the development of what will be a vital resource for our nation’s future energy needs.

This thesis concerns one way to address the suboptimal development of geothermal energy resources. Using the Federal acquisition of exclusive airspace …

Noción Y Elementos Existenciales Del Título De Crédito, Bruno L. Costantini García

Bruno L. Costantini García

Discernir la noción y elementos de existencia de los títulos de crédito, considerando la doctrina y la denominación expresada en nuestra Ley General de Títulos y Operaciones de Crédito, conceptualizando el término de los documentos que consignan un derecho crediticio propio de su naturaleza y deslindando de manera dogmatica y exegética los elementos que lo forman y le dan su funcionamiento, mediante una visión de las instituciones jurídicas que les dan su existencia y aplicación dentro del devenir de los actos de comercio.

Generalidades De La Propiedad Intelectual En México, Bruno L. Costantini García

Bruno L. Costantini García

Presentación de las Generalidades de la Propiedad Intelectual en México (Propiedad Industrial y Derechos de Autor), legislación que la rige, aplicación y modalidades

La Jurisprudencia En México, Bruno L. Costantini García

Bruno L. Costantini García

Breve presentación de la jurisprudencia en México, su aplicación, objetivos y fines para el Derecho Mexicano. ¿Por qué es util para el derecho? ¿Quién la emite?

Notariado Y Correduria Y Su Registro En México, Bruno L. Costantini García

Bruno L. Costantini García

Introducción al Derecho Notarial y Registral en México, cuyo objeto es conocer los elementos de las figuras del notario y del corredor público, la formalización de sus actos y su registro.

Los Problemas De Agencia Entre Los Acreedores Y El Liquidador: Una Aproximación A Las Soluciones Desde La Jurisprudencia Administrativa, Pierino Stucchi

Pierino Stucchi

No abstract provided.

La Ciudadanía Económica En El Perú: El Consumidor, Pierino Stucchi

Pierino Stucchi

No abstract provided.

El Derecho De Sucesiones Se Debe Atemperar A Los Cambios De La Sociedad Del Siglo Xxi, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.

Appellate Jurisdiction Of The Supreme Court Of India, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Islamic Banking In India, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Child Labour In India, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Escrow Mechanism Under Foreign Direct Investment, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.

Environmental Refugees, Mubashshir Sarshar

Mubashshir Sarshar

No abstract provided.