Law Commons^™

Regulating Risk Not Function, Heidi Mandanis Schooner

Scholarly Articles

This Article examines our current scheme of bank regulation through an analysis of banks' securities activities -- how such activities are currently regulated and how they might be regulated in the future.

Part I summarizes the major restrictions on banks' securities activities, emphasizing recent regulatory initiatives aimed toward expanding banks' participation in the securities business.

Part II examines the application of the federal securities laws to banks' securities activities. (While banks enjoy some exemptions from the federal securities laws, they are subject to many of the most important provisions.) In addition, Part II sets forth the division of responsibility for …

Re-Examining Truth In Lending: Do Borrowers Actually Use Consumer Disclosures?, Ralph J. Rohner

Scholarly Articles

No abstract provided.

Recent Challenges To The Persistent Dual Banking System, Heidi Mandanis Schooner

Scholarly Articles

This essay begins with a brief discussion of the history of the dual banking system in Part I. Part II reviews the justifications for, and criticisms of, the dual banking system. Part III details the recent challenges to the dual banking system. Part IV looks to the future of the dual banking system and concludes that Congress has chosen not to preempt entirely the states' authority despite the continued erosion of states' authority over safety and soundness issues. This leaves the states with a continuing opportunity to serve as laboratories of innovation in bank regulation. If the states seize this …

Who Determines When Enough Is Enough - Refocusing Regulatory Limitations On Banks’ Compensation Practices, Heidi Mandanis Schooner

Scholarly Articles

This article examines the banking agencies' authority-both old and new-to regulate banks' compensation practices. The article considers whether the agencies' implementation of their statutory authority is appropriate. In evaluating the appropriateness of regulation in this area, the regulators' mandate to preserve the safety and soundness of banks is balanced against the banks' need to compete in an increasingly competitive marketplace.' 9 Also, the banking agencies' activities in this area are viewed against the backdrop of considerable legal and management scholarship addressing issues of compensation. Parts I, II and III of the article address the sources of the agencies' authority to …

Whither Truth In Lending?, Ralph J. Rohner

Scholarly Articles

No abstract provided.

Fiduciary Duties’ Demanding Cousin: Bank Director Liability For Unsafe Or Unsound Banking Practices, Heidi Mandanis Schooner

Scholarly Articles

The term "unsafe or unsound banking practices" serves as a statutory trigger for virtually every key administrative sanction available against bank directors. Congress has not defined either the term "unsafe or unsound banking practices" or its counterpart "safety and soundness," leaving the federal banking agencies considerable discretion in the interpretation and application of the term. Given the potential breadth of the term, the banking agencies have the ability to seek administrative remedies in cases covering a broad range of director conducL Thus, "unsafe or unsound banking practices" is a potent source of director liability.

Professor Schooner argues that "unsafe or …

Exporting Bank Credit Card Rates And Charges, Ralph J. Rohner

Scholarly Articles

Banks enjoy virtually unlimited authority to export interest rates, late fees, and over-limit charges across state lines. Open issues include the exportability of other fees, the viability of consumer common law claims such as unconscionability, and the effect of home-state choice-of-law.

Multiple Sources Of Consumer Law And Enforcement (Or: 'Still In Search Of A Uniform Policy'), Ralph J. Rohner

Scholarly Articles

In 1972 the National Commission on Consumer Finance surveyed and made recommendations for improving the legal and marketplace environments for consumer credit. Twenty years later, industry, consumer groups, government agencies, and the national and state legislatures are still groping for a coherent approach to the regulation of consumer credit. It is time for another national commission, or similar group, to make an objective and informed assessment of appropriately uniform policy for consumer financial services, and to craft a blueprint for future developments.

Banking Affiliate Regulation Under Section 23a Of The Federal Reserve Act, Veryl Victoria Miles

Scholarly Articles

Before committing a bank's financial resources to an affiliate, bankers must be aware of the scope of the term "affiliate" under Section 23A of the Federal Reserve Act. Section 23A places restrictions on the financial dealings between banks and their affiliate companies. The author analyzes Section 23A and the relevant regulatory and compliance issues that have recently surfaced. The author concludes that in the event of Glass-Steagall repeal, interaffiliate regulation of the financial dealings between banks and securities affiliates, as accomplished by Section 23A, would be a viable method of permitting the merger of investment and commercial banking.

1981 Annual Survey Of Consumer Financial Services Law Developments, Ralph J. Rohner

Scholarly Articles

No abstract provided.

In Search Of A Uniform Policy: State And Federal Sources Of Consumer Financial Services Law, Ralph J. Rohner, Fred H. Miller

Scholarly Articles

Any effort to project the vectors of development in the law affecting consumer financial services for the 1980s must take into account the sources from which the legal ground rules will emanate. Those sources are in one sense bifurcated-i.e., the states have long had a significant role in regulating consumer credit and related consumer transactions, and, since 1968, the federal government has been substantially and increasingly involved in standard setting for consumer financial transactions.

At these two levels of government there is further fragmentation of the lawmaking function. Each of the fifty states, and countless local government entities, enact laws …

Truth In Lending 'Simplified': Simplified?, Ralph J. Rohner

Scholarly Articles

Disclosure of credit terms has been viewed as a primary means of protecting consumers from fraud and deception in credit transactions. To enhance the value of disclosure, Congress enacted the Truth in Lending Simplification and Reform Act of 1980. Professor Rohner analyzes this attempt to simplifij crcdit cost disclosures and finds that the new Act is no more likely to increase consumer protection than the original Truth in Lending Act. The new Act does solve some problems, but does nothing about others and even introduccs further complexities into credit transactions. Among the difficulties left unaddressed by the new Act are …

1980 Annual Survey Of Consumer Financial Services Law Developments, Ralph J. Rohner

Scholarly Articles

No abstract provided.

The 'Most Favored Lender' Doctrine For Federally Insured Financial Institutions: What Are Its Boundaries?, Ralph J. Rohner, Coreen S. Arnold

Scholarly Articles

The legislative history for the DIDMCA amendments is sparse, and agency interpretations have barely begun to explore the possible nuances of a rule that allows one lender to borrow the rate structure authorized for other lenders. Opinions on these issues under the older National Bank Act are limited, and there is little definitive judicial construction of the DIDMCA amendments. Meanwhile, several bills are pending which would completely preempt state usury laws for all consumer credit transactions, thus rendering moot many questions about of the scope of the most favored lender doctrine. But the enactment of such preemptive legislation is speculative, …

Problems Of Federalism In The Regulation Of Consumer Financial Services Offered By Commercial Banks: Part Ii, Ralph J. Rohner

Scholarly Articles

The first portion of this article reviewed the array of federal and state consumer protection laws affecting commercial banks and described the many areas of friction created by such multiple lawmaking. This half of the article addresses the question of how these various laws are enforced by the federal and state bank supervisory agencies and concludes with an evaluation of the many options for improving the overall regulatory and enforcement structure for consumer protection.

A Functional Analysis Of Truth In Lending, Ralph J. Rohner, Jonathan M. Landers

Scholarly Articles

The purpose of this Article is to take a hard look at the possible objectives of a disclosure statute such as Truth In Lending, and ask the basic question whether these objectives are attainable, and if so, what type of a statute can best effectuate the legislative policies. Given the lawmakers' fascination with disclosure-type legislation in the scheme for protecting consumers, and the myths that accompany such legislation, this undertaking should prove useful.

Equal Credit Opportunity Act, Ralph J. Rohner

Scholarly Articles

No abstract provided.

New Directions In The Enforcement Of Consumer Credit Laws: From Public To Private And Back Again, Ralph J. Rohner

Scholarly Articles

The response of sympathetic lawmakers to perceived abuses in the consumer credit field is almost totally predictable. One group will urge the enactment of disclosure rules so that well-informed consumers will be able to look out for themselves in the marketplace. Another group will urge the passage of laws directly prohibiting the distasteful practice, or mandating a corrective mechanism. Both groups will then engage in endless rhetorical debate over the costs and benefits of either approach, the infringements on competition and marketplace freedom, and the burdens on small business.

All of these responses take for granted that the disappearance of …

Marquette: Bad Law And Worse Policy, Ralph J. Rohner

Scholarly Articles

The Marquette National Bank case unjustifiably exalts the status of national banks over all other lenders in their dealings with out-of-state customers. It ought to be reversed by Congress.

Problems Of Federalism In The Regulation Of Consumer Financial Services Offered By Commercial Banks, Part I, Ralph J. Rohner

Scholarly Articles

In this first half of a two-part article, the author reviews the complex structures through which federal and state consumerprotection laws are enacted and enforced with respect to commercial banks. Problems arisefrom the multiolicity of law-making bodies, the dual banking system, unclear preemption standards, and expandingfederal domination of the consumer creditfleld The secondpart of the article, which will appear in the next issue of this Review, analyzes the actual enforcement activities of the federal and state banking agencies. It concludes with a series of recommendationsfor improving the combined federal-state consumer protection programs affecting commercial banks.

For Lack Of A National Policy On Consumer Credit: Preliminary Thoughts On The Need For Unified Federal Agency Rulemaking, Ralph J. Rohner

Scholarly Articles

No abstract provided.