Law Commons^™

The Regulation Of Foreign Banks In Canada: Milelli Marks A Decade Of Ambiguity, Gillian Lester

Faculty Scholarship

The recent decision of the Ontario Court of Appeal in R. v. Milelli culminates a decade of ambiguity in the laws regulating foreign banks in Canada. The case deals with the interpretation of s. 302(1)(a) of the Bank Act, which prohibits foreign banks from undertaking "any banking business" in Canada. The provisions are cryptic and contain no definition of the term "banking business". This has left foreign banks at the caprice of the statute. They are uncertain about the extent to which they are permitted either to deal with Canadian customers directly, or to participate in co-operative transactions (such as …

Rethinking The Regulation Of Coercive Creditor Remedies, Robert E. Scott

Faculty Scholarship

The phenomenal growth of personal installment credit over the past forty years has generated inevitable pressures for regulatory reform of consumer credit markets. Much of the impetus for consumer protection has stemmed from the perceived abuses that mark the process of coercive collection upon default. Some of these abuses have been identified, quite properly, as the sort of deceptive or fraudulent practices often associated with industries experiencing rapid growth. But other creditor remedies, though troublesome to many observers, cannot be as easily characterized. For example, many critics have challenged the common practice of self-help repossession and resale of consumer goods …

On The Nature Of Bankruptcy: An Essay Of Bankruptcy Sharing And The Creditor's Bargain, Thomas H. Jackson, Robert E. Scott

Faculty Scholarship

Finance theorists have long recognized that bankruptcy is a key component in any general theory of the capital structure of business entities. Legal theorists have been similarly sensitive to the substantial allocational and distributional effects of the bankruptcy law. Nevertheless, until recently, underlying justifications for the bankruptcy process have not been widely studied. Bankruptcy scholars have been content to recite, without critical analysis, the two normative objectives of bankruptcy: rehabilitation of overburdened debtors and equality of treatment for creditors and other claimants.

The developing academic interest in legal theory has spurred a corresponding interest in expanding the theoretical foundations of …

The Mechanisms Of Market Efficiency, Ronald J. Gilson

Faculty Scholarship

Of all recent developments in financial economics, the efficient capital market hypothesis ("ECMH") has achieved the widest acceptance by the legal culture. It now commonly informs the academic literature on a variety of topics; it is addressed by major law school casebooks and textbooks on business law; it structures debate over the future of securities regulation both within and without the Securities and Exchange Commission; it has served as the intellectual premise for a major revision of the disclosure system administered by the Commission; and it has even begun to influence judicial decisions and the actual practice of law. In …

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.

Abusive Debt Collection – A Model Statute For Virginia, Robert E. Scott, Diane M. Strickland

Faculty Scholarship

Among the many by-products of the phenomenal growth of consumer credit in the last two decades has been the attempt on the part of existing legal institutions to grapple with the problem of coercive debt collection. The existence of the problem is no longer disputed, and the nature and extent of the abuse surrounding debt collection practices has been the subject of voluminous commentary. Given the dynamics of the competing interests involved when a creditor attempts to collect a just debt which the debtor is unable to pay, an essential conflict requiring regulated resolution becomes apparent. Unfortunately, the problem is …

Marginal Cost Pricing, Investment Theory And Catv, Victor P. Goldberg

Faculty Scholarship

In his article, Marginal Cost Pricing, Investment Theory and CATV, James Ohls makes a number of erroneous assertions concerning the optimum pricing of CATV. Most of his problems stem from a failure to properly define the environment in which the optimum price is to be set and the role that an optimum price should play. If one alters Ohls' implicit (and sometimes contradictory) assumptions and if one keeps in mind the purpose prices should serve in an economic system, a number of Ohls' conclusions are altered.

Constructive Trust And Equitable Lien: Status Of The Conscious And The Innocent Wrongdoer In Equity, Henry P. Monaghan

Faculty Scholarship

The field of restitution, broadly considered, involves all those situations in which a person who holds property (or has consumed it) must deliver it (or its value) to the claimant in order to prevent the unjust enrichment of the holder. In this sense the ancient common law writs for the recovery of chattels or their value (detinue, replevin, and trover) and land (ejectment) are perceived to be restitutionary in character. A more modem development in the law courts, the allowance of quasi-contractual relief upon the common counts in general assumpsit, rests upon the same basis. In a leading English case, …