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Full-Text Articles in Law

Capital, An Elusive Tax Object And Impediment To Sustainable Taxation, Henry Ordower Jan 2020

Capital, An Elusive Tax Object And Impediment To Sustainable Taxation, Henry Ordower

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Sustainable taxation requires stability and predictability. Sustainable taxation is a tax or taxes that collect sufficient revenue to support the governmental goods and services the society needs and wants. The taxes must provide for 1) even-handedness -- something akin to horizontal equity, 2) distributional fairness -- a concept emerging from notions of vertical equity, 3) transparency in application so that the populace understands and accepts the tax and the need for it and 4) collection mechanisms that do not favor some societal groups, especially those with resources to secure creative tax advisors, over others who lack the resources. Narrow base taxes – fuel ...


Federalism Of Personal Finance: State & Federal Retirement Plans, William Birdthistle Jan 2018

Federalism Of Personal Finance: State & Federal Retirement Plans, William Birdthistle

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In this Article, I consider possible approaches that attempt to improve the plans through which millions of Americans tend to their life savings. I begin by considering the inadequacies of our current system of defined contribution accounts and then address two possible alternatives: the first being a federal account universally available to Americans based largely on the model of the Thrift Savings Plan; the second being a system of statebased retirement accounts like those that have already been developed in a handful of states. Though I conclude that a single, federal plan would be superior, either alternative approach would be ...


Distributive Justice And Donative Intent, Alexander Boni-Saenz Jul 2017

Distributive Justice And Donative Intent, Alexander Boni-Saenz

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The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic ...


The Other Securities Regulator: A Case Study In Regulatory Damage, Anita Krug Jan 2017

The Other Securities Regulator: A Case Study In Regulatory Damage, Anita Krug

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Although the Securities and Exchange Commission is the primary securities regulator in the United States, the Department of Labor also engages in “securities regulation.” It does so by virtue of its authority to administer the Employee Retirement Income Security Act (ERISA), the statute that governs the investment of retirement assets. In 2016, the DOL used its securities regulatory authority to adopt a rule that, for the first time, designates securities brokers who provide investment advice to retirement investors as fiduciaries subject to ERISA’s stringent transaction prohibitions. The new rule’s objective is salutary, to be sure. However, this Article ...


Access To Capital Or Just More Blues? Issuer Decision-Making Post Sec Crowdfunding Regulation, Patricia Hureston Lee Jan 2016

Access To Capital Or Just More Blues? Issuer Decision-Making Post Sec Crowdfunding Regulation, Patricia Hureston Lee

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Crowdfunding is an alternative for Issuers seeking funds for their businesses. On October 2015, the Securities Exchange Commission (SEC) released final crowdfunding regulations that became effective May 20162 as a charge of the Jobs Act, Title III (the “Crowdfund Act”). Issuers can now secure crowdfunded investments without a securities registration.

This article evaluates investment-based crowdfunding from the perspective of one group that has been neglected from the crowdfunding scholarship — Issuers that seek financing under this new framework. In Section I, the author summarizes the new crowdfund regulations, which create a new financing opportunity vastly different from previous types of debt ...


Uncertain Futures In Evolving Financial Markets, Anita Krug Jan 2016

Uncertain Futures In Evolving Financial Markets, Anita Krug

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Today’s publicly offered investment funds, including mutual funds, have ever more diverse investment strategies, as they increasingly invest in financial instruments that, in earlier years, had been the province of only the most sophisticated investors. Although the new landscape of investment possibilities may substantially benefit retail investors, one financial instrument attracting increasing amounts of retail investors’ assets is acutely troublesome: the commodity futures contract. Futures originated as a means for farmers and other producers of agricultural commodities to ensure that their products could be sold at reasonable prices. Early on, the goals of futures regulation centered on one particular ...


The Surety's Exposure For Wages And Related Liabilities, Lisa D. Sparks, Marc A. Campsen Sep 2015

The Surety's Exposure For Wages And Related Liabilities, Lisa D. Sparks, Marc A. Campsen

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A surety faces potential exposure to a multitude of liabilities under payment and performance bonds issued for state and federally funded bonded projects as well as from the express obligations imposed by private common law performance and payment bonds. This paper, however, focuses only on a surety’s potential exposure for wage and related liabilities.

Under federal law, a surety faces possible liability under a Miller Act Payment Bond to laborers for the bonded principal’s failure to pay wages. Union trusts may also recover against a surety under a Miller Act Payment Bond for the bonded principal’s failure ...


Investing And Pretending, Anita Krug May 2015

Investing And Pretending, Anita Krug

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One of the more prominent components of Dodd–Frank’s regulatory changes was Title VII, providing for the regulation of the over-the-counter derivatives known as “swaps.” A swap is a financial instrument whose value is based on an asset—the “reference asset”—that is wholly unrelated to the swap itself. Although there was much ado about swap regulation immediately after Dodd–Frank’s enactment, the same cannot be said of the many rules that the Commodity Futures Trading Commission (“CFTC”) has subsequently adopted pursuant to its authority under Title VII. This Article critically evaluates the CFTC’s “swap rules” and ...


Downstream Securities Regulation, Anita Krug Oct 2014

Downstream Securities Regulation, Anita Krug

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Securities regulation wears two hats. Its “upstream” side governs firms in connection with their obtaining financing in the securities markets. That is, it regulates firms’ and issuers’ offers and sales of securities, whether in public offerings to retail investors or in private offerings to institutional investors. Its “downstream” side, by contrast, governs financial services providers, who assist with investors’ activities in those markets. Their services include providing advice regarding securities investments, as investment advisers do; aggregating investors’ assets for purposes of enabling those investors to invest their assets collectively, as mutual funds do; and acting as “middlemen” between buyers and ...


Post-Racial Lending?, Cassandra Jones Havard Jan 2014

Post-Racial Lending?, Cassandra Jones Havard

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Should lenders have absolute discretion when setting mortgage loan prices regardless of the borrower's creditworthiness? How should a regulatory framework evaluate lending decisions for racial bias to determine if demographic or other variables are used as proxies for race? Congress enacted the Home Mortgage Disclosure Act in order to acquire data on mortgage lending patterns and to discourage geographical disinvestment. Basic HMDA data indicates that mortgage loan applications from black and Hispanic households are more likely to be denied than are applications from whites. Loan denial rates for blacks, Hispanics, and Asians are higher than white applicants at all ...


The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug Mar 2013

The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita Krug

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This Article first recalls the primary contours of Adolf Berle and Gardiner Means’s acclaimed observations regarding the separation of ownership and control in the “modern corporation,” as well as their conclusions about the implications of those observations for the doctrine of shareholder primacy. Second, the Article describes how the activities of FSHCs generally differ from what we think corporations do and, certainly, from what Berle and Means conceived of as the purpose of corporations or, indeed, any business enterprise. Third, this Article articulates how those business activities render more acute the problem of the separation of ownership and control ...


Rethinking U.S. Investment Adviser Regulation, Anita Krug Jan 2013

Rethinking U.S. Investment Adviser Regulation, Anita Krug

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(Excerpt)Now, in the aftermath of Dodd-Frank's enactment and the SEC's associated bout of rulemaking, one might think that the Advisers Act's regulatory regime is a workable and effective one, equipped to address - and address efficiently - the investor-protection risks that the twenty-first-century investment adviser industry produces. In fact, however, Dodd-Frank did not touch - and, indeed, Dodd-Frank's crafters indicated no awareness of - many of the Advisers Act's longstanding troubles. Additionally, the changes Dodd-Frank brought about have their own considerable deficiencies. As this Article contends, the U.S. investment adviser regulatory regime, now seventy-four years old, is ...


Chevron, Greenwashing, And The Myth Of 'Green Oil Companies', Miriam A. Cherry, Judd F. Sneirson Jan 2012

Chevron, Greenwashing, And The Myth Of 'Green Oil Companies', Miriam A. Cherry, Judd F. Sneirson

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As green business practices grow in popularity, so does the temptation to “greenwash” one’s business to appear more environmentally and socially responsible than it actually is. We examined this phenomenon in an earlier paper, using BP and the Deepwater Horizon catastrophe as a case study and developing a framework for policing dubious claims of corporate social responsibility. This Article revisits these issues focusing on Chevron, an oil company that claims in its advertisements to care deeply about the environment and the communities in which it operates, even as it faces an $18 billion judgment for polluting the Ecuadorean Amazon ...


Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita Krug Dec 2011

Institutionalization, Investment Adviser Regulation, And The Hedge Fund Problem, Anita Krug

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This Article contends that more effective regulation of investment advisers could be achieved by recognizing that the growth of hedge funds, private equity funds, and other private funds in recent decades is a manifestation of institutionalization in the investment advisory context. That is, investment advisers today commonly advise these “institutions,” which have supplanted other, smaller investors as advisory clients. However, the federal securities statute governing investment advisers, the Investment Advisers Act of 1940, does not address the role of private funds as institutions that now intermediate those smaller investors’ relationships to investment advisers. Consistent with that failure, investment adviser regulation ...


"On The Take": The Black Box Of Credit Scoring And Mortgage Discrimination, Cassandra Jones Havard Apr 2011

"On The Take": The Black Box Of Credit Scoring And Mortgage Discrimination, Cassandra Jones Havard

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Subprime credit, a relatively new method of risk-based pricing, has been hailed as a way to open up markets and provide access to credit to those who would otherwise be excluded. Evidence suggests that subprime mortgage segmentation increases rather than reduces exclusionary practices in lending. Furthermore, what is unclear is how lenders determine who qualifies as a subprime borrower. This concern became manifested when studies demonstrated that minority borrowers, regardless of creditworthiness, are more likely to receive expensive, sub-prime loans. The disparity is properly attributed to lenders’ credit pricing policies which included discretionary increases despite the objectively-determined risk-based interest rate ...


Book Review (Reviewing Leonard Orland's A Final Accounting), Adeen Postar Jan 2011

Book Review (Reviewing Leonard Orland's A Final Accounting), Adeen Postar

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Leonard Orland is the Oliver Ellsworth Professor of Law at the University of Connecticut. He has written a fine, if a bit unwieldy, book that traces the sad history of money and other assets deposited in supposedly sacrosanct Swiss banks by European Jews during the Nazi era to its long overdue resolution by the American justice system. The book provides background and perspective on how and why the $12.1 billion in pre-war dollars (about $250 trillion today) of financial assets of Holocaust victims disappeared into thin air in the years following World War II. These assets were given over ...


Beyond Profit: Rethinking Corporate Social Responsibility And Greenwashing After The Bp Oil Disaster, Miriam A. Cherry, Judd F. Sneirson Jan 2011

Beyond Profit: Rethinking Corporate Social Responsibility And Greenwashing After The Bp Oil Disaster, Miriam A. Cherry, Judd F. Sneirson

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The explosion of the BP-leased Deepwater Horizon and subsequent oil spill stands as an indictment not just of our national energy priorities and environmental law enforcement; it equally represents a failure of Anglo-American corporate law and what passes for corporate social responsibility in business today. Using BP and the disaster as a compelling case study, this Article examines green marketing and corporate governance and identifies elements of each that encourage firms to engage only superficially in corporate social responsibility yet trumpet those efforts to eager consumers and investors. The Article then proposes reforms and protections designed to increase corporate social ...


Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong Jan 2010

Reply: Clawback To The Future, Miriam A. Cherry, Jarrod Wong

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In an earlier article also available on Scholarship Commons, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, Minnesota Law Review, Vol. 94, p. 368, 2009, Professors Miriam Cherry and Jarrod Wong set out an initial description and analysis of contractual clawback provisions. In this Reply, Profs. Cherry and Wong address three aspects of Michael Macchiarola's Response: its application of the clawback doctrine to the recoupment of executive compensation; the criticism that the clawbacks doctrine introduces latent subjectivity into contractual analysis; and the apparent operational difficulties in implementing clawbacks.


Private Fund Adviser Registration Act Hr-3818, Anita Krug Nov 2009

Private Fund Adviser Registration Act Hr-3818, Anita Krug

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This paper comments on the Obama administration's 2009 proposal for the regulation of hedge fund investment advisers.


Financial Regulatory Reform And Private Funds, Anita Krug Jul 2009

Financial Regulatory Reform And Private Funds, Anita Krug

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This white paper comments on the Obama administration's June 2009 proposal for the regulation of hedge fund investment advisers.


The Regulatory Response To Madoff, Anita Krug Mar 2009

The Regulatory Response To Madoff, Anita Krug

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This white paper evaluates investor protection mechanisms in the securities regulatory regime at the time the Madoff fraud was exposed. It considers whether the post-Madoff call for additional regulation of hedge funds and/or their managers - and/or their respective activities - was warranted.


The Hedge Fund Transparency Act Of 2009, Anita Krug Feb 2009

The Hedge Fund Transparency Act Of 2009, Anita Krug

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This white paper provides a review and critique of a bill introduced by Senators Charles Grassley (R-Iowa) and Carl Levin (D-Mich.) in the Senate in early 2009 that, if enacted, would have imposed certain registration and disclosure requirements on hedge funds and certain other private funds.


Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong Jan 2009

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

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In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of ...


Efficiencies In Merger Analysis: Alchemy In The Age Of Empiricism?, Thomas L. Greaney Jan 2009

Efficiencies In Merger Analysis: Alchemy In The Age Of Empiricism?, Thomas L. Greaney

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One is hard-pressed to find in law an undertaking more fraught with uncertainty than the application of the efficiencies defense in merger analysis. Generalist fact finders (judges) and politically-attuned government officials (prosecutors and regulators) are charged with two Herculean tasks: (1) predicting the outcome of organic changes in business enterprises and (2) comparing the magnitude of those changes to the equally uncertain amount of harm to future competition that the transaction will cause. Given the enormous, perhaps intractable, uncertainty of this inquiry, it is therefore paradoxical that many of the strongest advocates for strengthening the role of efficiencies analysis in ...


"Goin' 'Round In Circles" ... And Letting The Bad Loans Win: When Subprime Lending Fails Borrowers: The Need For Uniform Broker Regulation, Cassandra Jones Havard Jan 2008

"Goin' 'Round In Circles" ... And Letting The Bad Loans Win: When Subprime Lending Fails Borrowers: The Need For Uniform Broker Regulation, Cassandra Jones Havard

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This Article provides a framework for regulating mortgage brokers. After introductory comments about the prevalence of this industry and its functional importance in today's consumer mortgage finance market, the article briefly explores the underlying structural framework of the mortgage broker industry. Explaining the market in which mortgage brokers make sub-prime loans as a largely unregulated one, it examines the economics of the mortgage loan transaction from the perspective of the borrower and concludes that lenders are comfortable with the reckless nature of sub-prime home lending. Next, the article examines the dual banking system and its attendant concern of federalism ...


Thirty Years Of Solicitude: Antitrust Law And Physician Cartels, Thomas L. Greaney Jan 2007

Thirty Years Of Solicitude: Antitrust Law And Physician Cartels, Thomas L. Greaney

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Over the last thirty years the Federal Trade Commission and the Department of Justice have challenged dozens of physician cartels, networks, and other arrangements that they alleged constituted price fixing or other restraints of trade under the antitrust laws. In addition, the antitrust agencies have issued numerous advisory opinions, published detailed statements of enforcement policy, and made dozens of public statements on the issue of physician collaboration. The puzzle explored in this essay is why the government's deployment of unparalleled enforcement resources has not curtailed physician attempts to engage in collective bargaining and other attempts to restrain price competition ...


Advancing The Cra—Using The Cra's Strategic Plan Option To Promote Community Inclusion: The Cra And Community Inclusion, Cassandra Jones Havard Jan 2006

Advancing The Cra—Using The Cra's Strategic Plan Option To Promote Community Inclusion: The Cra And Community Inclusion, Cassandra Jones Havard

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Banks, banking regulators, and community organizations have spent nearly thirty years interpreting and re-interpreting the simple but ambiguous mandate of the Community Reinvestment Act (CRA). The statute imposes an affirmative duty requiring "regulated financial institutions to have continuing... obligations to help meet the credit needs of the local communities in which they are chartered." The CRA was met with much resistance and lax enforcement for almost a decade. Active protest from community groups, a more defined CRA exam, and innovative, profitable lending strategies, have resulted in a dramatic increase in community reinvestment dollar commitments and in loans to low- and ...


Democratizing Credit: Examining The Structural Inequities Of Subprime Lending, Cassandra Jones Havard Jan 2006

Democratizing Credit: Examining The Structural Inequities Of Subprime Lending, Cassandra Jones Havard

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This Article critiques the current regime of mortgage lending, which favors economic subordination. Minorities and low-and moderate income persons, regardless of their creditworthiness, are receiving higher loan rates. This is due to three market phenomena- the dominance of sub-prime lenders in the market in which prime lenders are more restricted to lend, the segmentation of the market so that certain products are offered to certain consumers, and the liquidity of the secondary market, which encourages lenders to make loans that are easily sold, but which may be inappropriately and impermissibly priced. Only by incorporating some transparency into the process will ...


To Lend Or Not To Lend: What The Cra Ought To Say About Sub-Prime And Predatory Lending, Cassandra Jones Havard Jul 2005

To Lend Or Not To Lend: What The Cra Ought To Say About Sub-Prime And Predatory Lending, Cassandra Jones Havard

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Policies that support the expansion of affordable housing for low- and moderate-income persons must be reconciled with those policies that undercut the sustainability of home ownership. The sub-prime market represents a much needed expansion of credit markets to those who have been denied access to credit though they are creditworthy. The high failure rate of the sub-prime market indicates that market forces are ineffective in halting this economic abuse. This article argues that the public policy choices and justifications for certain practices have marginalized the concerns of particular consumer classes. It challenges the premise that the free market can and ...


Mission, Margin, And Trust In The Nonprofit Health Care Enterprise, Thomas L. Greaney, Kathleen Boozang Jan 2004

Mission, Margin, And Trust In The Nonprofit Health Care Enterprise, Thomas L. Greaney, Kathleen Boozang

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The law governing charitable corporations remains neglected and thoroughly muddled. Still unsettled are central issues regarding the accountability of directors and management, legal standards governing organic changes by nonprofit institutions, and mechanisms to ensure fidelity to the organization's charitable mission. For nonprofit corporations in the health care sector, which represent a large proportion of all health services supplied nationwide, particularly charity care, these shortcomings have had serious repercussions. The central issue addressed in this Article is how fidelity to the mission of the charitable health care corporation should be monitored. It advances the normative perspective that the law should ...