Law Commons^™

The Fiduciary Duty Of Dissent, Joseph W. Yockey

Villanova Law Review

No abstract provided.

Educating Deal Lawyers For The Digital Age, Heather Hughes

Fordham Law Review

Courses and programs that address law and emerging technologies are proliferating in U.S. law schools. Technology-related issues pervade the curriculum. This Essay presents two instances in which new technologies present challenges for deal lawyers. It explores how exposing students to closing opinions practice can prepare them to engage these challenges. Both examples involve common commercial contexts and lessons relevant to students of business associations and of the Uniform Commercial Code. The first, which deals with enforceability opinion letters, presents technical legal difficulties arising from recent developments in law and technology. The second, involving complex doctrines at the heart of financial …

A Look Back In Time: Analyzing The Success And Value Of The 2014 Amendments To Rule 2a-7 And Reporting On Form N-Cr In Light Of The March 2020 Market Events, Jocelyn Near

Catholic University Law Review

Money market funds have frequently been a target of regulation by the Securities and Exchange Commission (“SEC”). Perhaps the most expansive regulation came as a response to the 2008 financial crisis, in which the Reserve Primary Fund “broke the buck.” The SEC’s misguided 2014 reforms exacerbated the inherent risks of money market funds, including the risk of runs and first mover advantage, particularly with the implementation of Form N-CR. Form N-CR requires a money market fund to publicly report when various events occur, including when a retail or government money market fund’s current net asset value per share deviates downward …

The Truth About Fibs (Financial Institution Bonds) In Mississippi: When Express Terms Conflict With Statutory Requirements, Ronald J. Rychlak

Mississippi College Law Review

In Mississippi, Financial Institution Bonds (FIBs) are statutorily-required financial instruments that cover officers or employees of a bank (or other financial institution) to protect financial institutions against losses caused by matters such as dishonesty; forgery; fraud; kidnapping, ransom, or extortion; and counterfeiting. State statutes set forth the terms that are to be included in the FIB, but standard forms are promulgated by the Surety Association of America (SAA) or on special forms drafted by the surety.

A problem can arise if the terms on the executed bond form do not coincide with the requirements of the state statute.

Future Foresight And Its Impact On The Application Of Iso 22301 Business Continuity Management System In The Commercial Banking Sector In Jordan, ثروت الحوامدة, حنان بو طه

Jerash for Research and Studies Journal مجلة جرش للبحوث والدراسات

The study aimed to identifying the effect of future foresight in the application of the ISO 22301 standard for business continuity management system in the commercial banking sector in Jordan. Whose number is (400) employees, the study sample consisted of (196) employees, were randomly selected. The study followed the descriptive and analytical approach. The questionnaire was used as a tool for data collection. The results of the study showed that the relative importance of the future foresight was high, and the relative importance of applying the ISO 22301 standard for business continuity management system was high, as it came after …

Emerging Technologies And Perfection Of Security Interests: A Financial University Of Uncertainty, Elizabeth M. Wagenbach

Brooklyn Law Review

Since the founding of Bitcoin in 2009, digital assets, such as cryptocurrency, have exploded in popularity. Cryptocurrency has been associated with stories of immense profit and immense loss. The lucky transactors have been able to capitalize on the price fluctuations of cryptocurrency, while the unlucky transactors became victims of the same volatility, losing tremendous amounts of money. The novelty and ingenuity of cryptocurrency has been coupled with mass confusion to transactors and regulators alike. These early days of cryptocurrency have been characterized by a sort of regulatory tug of war that is a direct result of confusion of what cryptocurrency …

In The Midst Of Bankruptcy: How Cryptocurrency's Classification Affects Creditors Who Were Once Customers, Mia Qu

Washington Law Review

In 2022, Congress proposed the Digital Commodities Consumer Protection Act to amend the Commodity Exchange Act and define a new type of commodity: digital commodity. The definition of digital commodity encompasses cryptocurrency and provides the Commodity Futures Trading Commission with jurisdiction over digital asset transactions. This definition of digital commodity has two important implications. First, it signals the lawmakers’ tendency to generalize cryptocurrency as a commodity. Second, it brings complications into how creditors—especially individual crypto account holders—can recover in the recent bankruptcy cases involving prominent crypto companies. This Comment contains four components. First, it provides a brief explanation of cryptocurrency …

From Crypto Wild West To Regulated Frontier: Unleashing The Potential Of Blockchain Technology, Pawan Jain

West Virginia Law Review

The emergence of blockchain technology has transformed the financial landscape in many ways. From creating new cryptocurrencies to facilitating decentralized exchanges and smart contracts, blockchain has the potential to disrupt traditional financial institutions and reshape the way we conduct business. However, the adoption of blockchain technology has also raised concerns about its potential risks and challenges, such as its susceptibility to fraud, market manipulation, and money laundering. These concerns have led to calls for regulating blockchain technology to mitigate these risks and ensure the integrity and stability of financial markets. Recent collapses in the crypto market caused by the bankruptcy …

From Canonical Law To Offshore Finance: Confessing To Priests And Bankers In Luxembourg, Samuel Weeks

Journal of Global Catholicism

In this article, I address two recurring tendencies that I heard during a recent period of research on banking secrecy in Luxembourg. First, my banker interviewees frequently mentioned personal transgressions for why many of their clients hide assets “offshore.” The wrongdoings my interlocutors cited included not only clients’ tax evasion, bankruptcy, and avoidance of liability – but also divorce, adultery, and the existence of out-of-wedlock children. Second, with a similar frequency, my interviewees drew parallels between the secrecy laws covering bankers and those afforded to other professionals in the country. Article 458 of Luxembourg’s Penal Code, dating from the nineteenth …

Money Talks: Implementing Open Banking In The United States, Hailey Marie Petit

Arkansas Law Review

An open banking system exists when a third-party financial service provider has access to consumer financial information. What if the United States could be on the forefront of the next banking industry change? A well implemented system would mean a new, accessible way to make a transaction. This Comment will explore how the United States can implement an open banking system. First, this Comment defines open banking against the backdrop of the traditional transaction model. Next, this Comment describes the United Kingdom’s adoption of open banking, focusing on the benefits and detriments created by its adoption. Third, this Comment describes …

Where You Lead, I Will Follow: Professional Athletes' Ability To Influence Loyal Fans' Cryptocurrency Investments And The Broader Need For Cryptocurrency Regulation, Anna D'Eramo

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Decentralized Autonomous Organizations: To Statutorily Organize Or Not?, David M. Grant, Eric M. Kirby, Steven Hawkins

Wyoming Law Review

This Article explores the evolving concept of decentralized autonomous organizations (DAOs) in the context of Web3 technology. It raises critical questions about whether DAOs truly represent a step forward in limiting liability in entity governance structures or if they risk centralizing the decentralized. The text discusses the potential of DAOs to address regulatory and tax challenges while also highlighting concerns about their legitimacy and security. It compares the governance structures of traditional entities to DAOs and contemplates the reasons for formal organization pursuant to state statute. The Article further delves into some of the statutory laws in specific states recognizing …

Wanted: A Prudential Framework For Crypto Assets, Lee Reiners, Sangita Gazi

Arkansas Law Review

This Article summarizes the limited publicly available data on banks’ exposure to crypto assets and offers several specific examples of how U.S. banks engage in crypto-related businesses. It then examines past guidance issued by U.S. bank regulators and explains why this guidance lacks sufficient detail to clarify the prudential requirements associated with the various crypto-related activities in which banks are engaged. The Article then assesses the adequacy of the Basel Committee on Banking Supervision’s final prudential standard for crypto-asset exposures, issued in December 2022, and finds that the measure fails to adequately address the unique risks various crypto-asset activities pose …

Just Because They Say It: Does The U.S. Really Have The “First-Ever Comprehensive Framework” For Digital Assets?, Carol R. Goforth

Arkansas Law Review

On March 9, 2022, President Biden made history by signing an Executive Order on Ensuring Responsible Development of Digital Assets. On September 16, 2022, the White House released a fact sheet proclaiming that it had produced the “First Ever Comprehensive Framework for Responsible Development of Digital Assets,” based on nine reports stemming from the Executive Order. This Article is divided into two main parts. Part one reviews the reports received by the White House, explaining what they address while pointing out open issues for which no particular direction is established. Part two assesses regulatory gaps in the crypto space in …

Keynote Address By Cftc Commissioner Kristin Johnson, Kristin N. Johnson

Arkansas Law Review

Today, our markets are witnessing a transformative moment marked by exceptional, rapidly evolving innovation. To better understand this transformation, we might inquire about the nature of these novel financial instruments, intermediaries, and the underlying technologies that fuel an ever-expanding adoption. Thinking critically about these issues may inform our understanding of the intermediaries or lack thereof, and financial products that characterize this moment in the history and evolution of financial markets.

Translating A Cbdc Dollar Into A Constitutional Dollar, Christopher P. Guzelian

St. Mary's Law Journal

The constitutional Dollar was a silver coin. Federal and state paper moneys were

unconstitutional, and gold and copper coins were not Dollars. Consequently, notable

constitutional originalists claim any Dollar not constructed from silver—including the

current widely circulating paper Federal Reserve note—is unconstitutional. But the Dollar

soon may undergo an unprecedented technological metamorphosis: in 2022, the White

House and the Federal Reserve Bank Board of Governors advocated the possible adoption

of a U.S. Central Bank Digital Currency (“CBDC” Dollars). Private commercial

electronic bank credits have been issued for some time, but a CBDC Dollar would be

America’s first electronic government currency. …

Public Law 86-272 And The Texas Margin Tax, Marvin J. Williams

St. Mary's Law Journal

No abstract provided.

Failing To Learn The Lessons Of Madoff: Problems With Applying Iqbal To Fraud Claims, Howard Gutman, Chris Garino

University of Massachusetts Law Review

The Iqbal standard requires all civil actions filed in federal courts to provide detailed proof at the pleading stage for the claim to proceed. Under this standard, cases are adjudicated without the aid of discovery or deposition of witnesses. Cases are decided at the pleading stage based on the documents and statements provided by the one accused of fraud. The tools to uncover deception are not available at this stage. This article argues that the Iqbal pleading standard fails to allow civil courts to adequately detect and adjudicate fraud claims. This article explores fraudulent financial schemes, the Iqbal standard, the …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Stakeholder Governance As Governance By Stakeholders, Brett Mcdonnell

Seattle University Law Review

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …

Corporate Law In The Global South: Heterodox Stakeholderism, Mariana Pargendler

Seattle University Law Review

How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This Article offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law, such as the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and the large-scale program of Black corporate ownership and empowerment in South Africa, among many …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

How To Interpret The Securities Laws?, Zachary J. Gubler

Seattle University Law Review

In discussions of the federal securities laws, the SEC usually gets most of the attention. This makes some sense. After all, it is the agency charged with administrating the securities laws and regulating the industry as a whole. It makes the majority of the laws; it engages in enforcement actions; it reacts to crises; and it, or sometimes even its individual commissioners, intervene publicly in policy debates. Often overlooked in such discussion, however, is the role of the Supreme Court in shaping securities law, and a new book by Adam Pritchard and Robert Thompson demonstrates why this is an oversight. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …