Securities Law Commons^™

Self-Regulation In The Derivatives Markets: Stability Through Collaboration, Heath P. Tarbert

Northwestern Journal of International Law & Business

Sound financial regulation does not require choosing between governmental and private action. Instead, optimal regulatory solutions often blend the expertise and adaptability of private-sector influence with the stabilizing effects of federal oversight. This collaborative framework has a rich history in U.S. derivatives regulation, which has long relied on self-regulatory organizations (“SROs”) like exchanges, clearinghouses, and the National Futures Association to help promote market stability and customer protection. SROs remain subject to oversight by the Commodity Futures Trading Commission (“CFTC”), which guards against the proverbial fox-in-the-henhouse scenario while advancing quintessential government functions like mitigating systemic risk.

The advantages of this self-regulatory …

Modern Day Bucket Shops? Fantasy Sports And Illegal Exchanges, John T. Holden, Ryan Rodenberg

Texas A&M Law Review

The rapid emergence of online daily fantasy sports has raised questions as to why the contests are allowed, while other forms of gambling are restricted. Historically, “bucket shops” were banned enterprises where businesses would effectively accept wagers on whether companies’ stock prices would go up or down. There was never an underlying investment in companies themselves, only a deposit into a “bucket.” While bucket shops have largely faded, we examine whether they have disappeared in name only. Our analysis opens up another avenue for regulators beyond the antiquated skill-versus-chance evaluation typically applied to gambling activities and suggests that certain fantasy …

'Deriving' An Understanding Of The Extraterritorial Applicability Of The Commodity Exchange Act, Gabrielle Schwartz

St. John's Law Review

(Excerpt)

This Note argues that courts should return to using a holistic approach, similar to the traditional “conducts” and “effects” test previously used by courts to analyze extraterritorial securities and commodities claims, to assess claims brought under the CEA. Furthermore, this Note argues that both the Commodity Futures Trading Commission and private individuals including foreign plaintiffs, should be permitted to bring these claims to uphold Congress’s intent in establishing a regulatory regime and maintaining the integrity of the international derivatives market. Part I discusses the history of derivative regulation and how both court decisions and statutory changes have created the …

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: (1) few restrictions on excessive speculation; and (2) the …

Over-The-Counter Derivatives In A Global Financial Marketplace: The Case For Uniform Global Identifiers And Compatible Reporting Requirements In Substituted Compliance Comparability Determinations, Kimberly R. Thomasson

Catholic University Law Review

The 2008 financial crisis prompted a global regulatory overhaul of over-the-counter derivative markets. The Dodd-Frank Act mandated the CFTC and SEC to issue new rules and regulations to bring the majority of the OTC derivative market out of the dark on onto regulated exchanges. Similar action was taken in the European Union and other G20 nations. There has been a push to harmonize rules for OTC derivatives across jurisdictions to make the market more efficient and eliminate regulatory arbitrage. This Comment focuses on the process for a regulated entity in the US and EU to “substitute compliance” with its home …

The Cftc's Attempt To Impose Speculative Position Limits On Off-Exchange Swap Contracts Likely To Face Continued Legal Challenge, Bob Bernstein

Touro Law Review

No abstract provided.

Kegs, Crude, And Commodities Law: On Why It Is Time To Reexamine The Suitability Doctrine, Andrew M. Pardieck

Nevada Law Journal

No abstract provided.

International Regulatory Responses To Derivative Crises: The Role Of The U.S. Commodity Futures Trading Commission , Brooksley Born

Northwestern Journal of International Law & Business

Over the past decade, as derivatives markets - and particularly the over-the-counter ("OTC") market - have become increasingly global in nature, the U.S.. Commodity Futures Trading Commission ("CFTC") - the federal regulatory agency that oversees futures and commodity option trading' - has played an active role in fostering international regulatory cooperation. The technology of the information age, allowing instant communication and electronic trading, has revolutionized financial markets, instituting around-the-clock, around-the-globe trading, globally active market users and market intermediaries, and an increasing pace of market innovation. Market crises now have the potential for widespread financial impact and require international regulatory response. …

Hedge Funds, Hot Markets And The High Net Worth Investor: A Case For Greater Protection, Helen Parry

Northwestern Journal of International Law & Business

shares; that, if proprietary exchanges are allowed to act as regulators, they should be subject to some constraints as to how they perform this function; and that, contrary to the ordinary case where we have reason to believe that markets discipline firms, a vigorous market for control of exchanges could have harmful effects. The concern that underlies these conclusions is a concern that a country's national interest in protecting its domestic capital markets for the benefit of domestic enterprise and investors is likely to be undermined in a world where exchanges act just like any other business. Management, are clearly …

New Legislation Permitting Stock Futures: The Long And Winding Road, William J. Brodsky

Northwestern Journal of International Law & Business

This article will explain how the stock futures issue arose, how Congress handled it last year, and the application of the legislation to this new product. While I believe that the approach taken in the CFMA will allow stock futures to trade on a level regulatory playing field in many areas with stock options, which are regulated solely as securities, it will not remove all the disparities between these two competing products. That will only occur when Congress acquires the political will to merge the SEC and the CFTC to create a modem regulatory system for the U.S. equity markets.

Arbitration Of Securities Disputes: Rodriguez And New Arbitration Rules Leave Investors Holding A Mixed Bag, William C. Hermann

Indiana Law Journal

No abstract provided.

United States Regulation Of Foreign Currency Futures And Options Trading: Hedging For Business Competitiveness Comment , Gary W. Glisson

Northwestern Journal of International Law & Business

This Comment first summarizes the existing regulatory scheme and identifies the restrictions imposed on foreign currency futures and options trading.'9 These restrictions undercut much of the apparent flexibility found in the CFTC's recent clarification of its hedging definition. The discussion continues with an explanation of the benefits 20 and costs2' of hedging against currency risk in today's economic climate. On balance, the benefits of the trading activity-increased competitiveness and financial product innovation-appear to justify the costs of potential abuse and threats to the congressional intent of the CEA. This result justifies a fresh approach to the scheme.22 Therefore, regulatory changes …