Law Commons^™

Aligning Investment Treaties With Sustainable Development Goals, Lise Johnson, Lisa E. Sachs, Nathan Lobel

Columbia Center on Sustainable Investment Staff Publications

Policy makers and other stakeholders are currently asking fundamental questions about whether and to what extent international investment agreements (IIAs) are consistent with and are helping to advance sustainable development objectives at home and abroad.

A 2019 paper from CCSI examines the alignment of IIAs with the 2030 Sustainable Development Agenda, arguing that while FDI will play an important role in advancing development outcomes, existing treaties must be reformed and future IIAs reimagined in order to achieve deep alignment with the sustainable development goals.

The paper proposes that IIAs should be designed and evaluated with respect to their ability to …

Tax Policy For The Wider Cryptoverse, Arild B. Doerge

Student Scholarship

The rapid rise of Bitcoin and other “cryptoassets” offers many interesting technological capabilities but also comes with uncertainty and volatility in the markets for these assets. The diversity of types of cryptoassets is increasing rapidly, while public understanding and government policy have generally been slow to take account of this diversity. In regard to taxation policy related to cryptoassets, current IRS guidance merely categorizes cryptoassets as general property. The policy implications of this classification run contrary to fundamental goals of tax policy by inhibiting how people use cryptoassets, making compliance more complex and ambiguous than necessary, and taxing cryptoasset transactions …

Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz

Faculty Scholarship

Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way …

Washington’S 'Cutting-Edge' Technology Solution To Combating Sales Tax Fraud: Real-Time Data (Now), Real-Time Remittance In The Future, Richard Thompson Ainsworth, Robert Chicoine, Andrew Leahey, Sunder Gee

Faculty Scholarship

Globally, consumption tax compliance (value added tax and retail sales tax) has gone digital – digital invoices are becoming mandatory, centralized monitoring of transactions and tax payments are increasingly common, and artificial intelligence is assessing fraud risks in real-time. When tax is collected, it is increasingly being remitted in near-real-time. This is the trajectory for the modern retail sales tax (RST) imposed by most states in the US. While this may appear to be revolutionary to the average American, it is a well-worn path among global nations using the value added tax (VAT). The RST will eventually be following suit. …

Personal Property Security Law: International Ambitions And Local Realities, Giuliano G. Castellano, Andrea Tosato

All Faculty Scholarship

Personal property security law is a key element of “access to credit” and “financial inclusion”. The prevailing view is that a legal framework enabling the effective use of personal property as collateral markedly benefits both lenders and borrowers. Lenders can offer financing at a lower cost thanks to reduced credit risk; borrowers can access funding by leveraging the otherwise unavailable value of the assets integral to their operations.

Over the past century, the priorities of personal property security law have evolved fundamentally. As small and medium-sized enterprises (SMEs) and individual entrepreneurs have become the growth engine of both developed and …

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S ‘Netflix Tax’ (Part 4), Richard Thompson Ainsworth

Faculty Scholarship

This is the fourth paper examining the recent amendments to the New Zealand Goods and Services Tax (GST); amendments that are collectively known as the Netflix Tax. These papers assess the effectiveness of the Netflix provisions, and how they could be enhanced if New Zealand adopted the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This final paper considers:

(a) the treatment of domestic agents when they are used by remote service providers to facilitate sales to New Zealand customers;

(b) how New Zealand intends to respond to resident consumers who …

Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer

Georgetown Law Faculty Publications and Other Works

In response to debt crises, policy makers often feature Collective Action Clauses (CACs) in sovereign bonds among the pillars of international financial architecture. However, the content of official pronouncements about CACs suggests that CACs are more like doorknobs: a process tool with limited impact on the incidence or ultimate outcome of a debt restructuring. We ask whether CACs are welfare improving and, if so, whether they are pillars or doorknobs. The history of CACs in corporate debt suggests that CACs can be good, bad or unimportant depending on their vulnerability to abuse and the available alternatives, including bankruptcy and debt …

Law School News: A Busy, Busy Time In Admiralty Law 10-18-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Open Banking: Regulatory Challenges For A New Form Of Financial Intermediation In A Data-Driven World, Nydia Remolina

Centre for AI & Data Governance

Data has taken immense importance in the last years. Consider the amount of data that is being collected worldwide every day, industries are reshaping their activities into a data-driven business. The digital transformation of all industries, portent of the fourth industrial revolution, is creating a new kind of economy based on the datafication of almost any aspect of human social, political and economic activity as a result of the information generated by the numerous daily routines of digitally connected individuals and technology. The financial services industry is part of this trend. Embracing the digital revolution and creating the right foundations …

Public Or Private Venture Capital?, Darian M. Ibrahim

Faculty Publications

The United States has an unparalled entrepreneurial ecosystem. Silicon Valley startups commercialize cutting-edge science, create plentiful jobs, and spur economic growth. Without angel investors and venture capital funds (VCs) willing to gamble on these high-risk, high-tech companies, none of this would be possible.

From a law-and-economics perspective, startup investing is incredibly risky. Information asymmetry and agency costs abound. In the United States, angels and VCs successfully mitigate these problems through private ordering and informal means. Countries without the robust private venture capital system that exists in the United States have attempted to fund startups publicly by creating junior stock exchanges …

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Electronic Marketplaces) Part 3, Richard Thompson Ainsworth, Chang Che

Faculty Scholarship

This is the third paper examining the recent amendments to the New Zealand Goods and Services Tax (GST) that are commonly known as the Netflix Tax. A fourth paper will follow.

The importance and complexity of dealing with electronic marketplaces has made an independent paper on electronic marketplaces necessary. Taken together this set of four papers assess the effectiveness of the Netflix provisions, and how they can be enhanced by adopting the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This paper considers rules that allocate the responsibility for collecting, reporting …

State, Dep’T Of Bus. & Indus. V. Titlemax, 135 Nev. Adv. Op. 44 (Sept. 26, 2019), Alexis Taitel

Nevada Supreme Court Summaries

In an en banc opinion, the Nevada Supreme Court answered whether title lender TitleMax’s Grace Period Deferment Agreement (“GPPDA”), which applied to short-term, high-interest loans offered to Nevada consumers in 2014 and 2015, qualified as a true grace period under NRS 604A.210. The Court concluded that the GPPDA was not a true grace period, but was instead an impermissible extension of the 210-day loans. The Court reasoned that the GPPDA was an extension because TitleMax charged borrowers additional interest during the extended period and thus violated NRS 604A.445, a statute enacted by the Nevada Legislature in part to protect consumers …

The Increasing Reliance On Educational Loans By University Of Michigan Law School Graduates, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

Among graduates of the University of Michigan Law School in the classes of 1970 through 1979, about half borrowed to pay for their college or legal education. By the early 1980s the portion who borrowed had risen to about 80 percent and has remained at that level through the classes of early twenty-first century. Even greater growth has occurred in the average debt of those who incurred debt. In actual dollars, average debts among those with debt have increased twenty-fold from the 1970s to the early 2000s. Even in CPI-adjusted dollars, average debts have tripled. By the classes of 2000-2001, …

An Empirical Investigation Of Third Party Consumer Litigant Funding, Ronen Avraham, Anthony J. Sebok

Articles

This is the first large-scale empirical study of consumer third-party litigation funding in the United States. Despite being part of the American legal system for more than two decades there has been almost no real data-driven empirical study to date. We analyzed funding requests from American consumers in over 100,000 cases over a twelve year period. This proprietary data set was provided to us by one of the largest consumer litigation funder in the United States.

Our results are striking and important. We find that the funder plays an important role in the American legal system by screening cases. Our …

New Tech V. New Deal: Fintech As A Systemic Phenomenon, Saule T. Omarova

Cornell Law Faculty Publications

Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and machine learning are visibly "disrupting" traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: it is gradually recasting our collective understanding of the financial system in normatively neutral terms of applied information science. By making financial transactions easier, faster, and cheaper, fintech seems to promise a micro-level "win-win" solution to the financial system's many ills.

This Article challenges such narratives and presents an alternative account of fintech as a systemic, macro-level phenomenon. …

How Did We Get Here? Dissecting The Hedge Fund Conundrum Through An Institutional Theory Lens, Cary Martin Shelby

Scholarly Articles

This article dissects both the origins and resulting harms of what the author terms the "hedge fund conundrum," in which institutional investors, such as pension plans and endowments, have consistently increased hedge fund allocations over the past decade despite pervasive evidence of excessive fees and subpar returns. It then utilizes an historical institutionalist lens to examine how lawmakers may have enabled a conundrum of this magnitude. By and large, this phenomenon is a symptom of regulatory loopholes that have permitted the private hedge fund market to increase in "publicness" through its expanding access and subsequent harm to retail investors. Such …

Split Derivatives: Inside The World's Most Misunderstood Contract, Dan Awrey

Cornell Law Faculty Publications

Derivatives are the "bad boys" of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these misunderstandings by splitting derivative contracts open, identifying their constituent elements, and observing how these elements interact with one another. These elements include some of the world's most sophisticated state-contingent contracting, the allocation of property and decision-making rights, and relational mechanisms such as reputation and the …

Theory, Evidence And Policy On Dual-Class Shares: A Country-Specific Response To A Global Debate, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

Dual-class shares have become one of the most controversial issues in today´s capital markets and corporate governance debates around the world. Namely, it is not clear whether companies should be allowed to go public with dual-class shares and, if so, which restrictions (if any) should be imposed. Three primary regulatory models have been adopted to deal with dual-class shares: (i) prohibitions, existing in countries like the United Kingdom, Germany, Spain, Colombia, or Argentina; (ii) the permissive model adopted in several jurisdictions, including Canada, Sweden, the Netherlands, and particularly the United States; and (iii) the restrictive approach recently implemented in Hong …

Money's Past Is Fintech's Future: Wildcat Crypto, The Digital Dollar, And Citizen Central Banking, Robert C. Hockett

Cornell Law Faculty Publications

This Essay argues that crypto-currencies will soon go the way of the ‘wildcat’ banknotes of the mid-19th century. As central banks worldwide upgrade their payments systems, the Fed will begin issuing a ‘digital dollar’ that leaves no licit function for what the Author calls ‘wildcat crypto.’ But the imminent change heralds more than a shakeout in fintech. It will also make possible a new era of what the Author calls ‘Citizen Central Banking.’ The Fed will administer a national system of ‘Citizen Accounts.’ This will not only end the problem of the ‘unbanked,’ it will also simplify monetary policy. Instead …

The 'Too Big To Fail' Problem, Saule T. Omarova

Cornell Law Faculty Publications

“Too big to fail” – or “TBTF” – is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of “privatizing gains and socializing losses” it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.

Taking a …

Public And Private Enforcement Of Corporate And Securities Laws: An Empirical Comparison Of Hong Kong And Singapore, Wai Yee Wan, Christopher C. H. Chen, Say H. Goo

Research Collection Yong Pung How School Of Law

Current scholarship emphasises the correlation between enforcement of corporate and securities laws and strong capital markets. Yet, the issue of how private and public enforcement may achieve the objectives of compensation and optimal deterrence remains controversial. While enforcement strategies have been studied extensively in the US and the UK, comparatively less attention is placed on Asia, where concentrated shareholdings are the norm. This study fills the gap by focusing on Hong Kong and Singapore, two leading international financial centres in Asia. Post Asian financial crisis of 1997, Hong Kong and Singapore have changed their laws to strengthen the private enforcement …

An Agent-Based Model Of Financial Benchmark Manipulation, Gabriel Virgil Rauterberg, Megan Shearer, Michael Wellman

Articles

Financial benchmarks estimate market values or reference rates used in a wide variety of contexts, but are often calculated from data generated by parties who have incentives to manipulate these benchmarks. Since the the London Interbank Offered Rate (LIBOR) scandal in 2011, market participants, scholars, and regulators have scrutinized financial benchmarks and the ability of traders to manipulate them. We study the impact on market quality and microstructure of manipulating transaction-based benchmarks in a simulated market environment. Our market consists of a single benchmark manipulator with external holdings dependent on the benchmark, and numerous background traders unaffected by the benchmark. …

Cwa In-Lieu Fee Mitigation: Project And Programmatic Risks, Erin Okuno, Rebecca Kihslinger, Royal C. Gardner, Christina Libre

Articles

No abstract provided.

Grants, Nicholson Price Ii

Articles

Innovation is a primary source of economic growth and is accordingly the target of substantial academic and government attention. Grants are a key tool in the government’s arsenal to promote innovation, but legal academic studies of that arsenal have given them short shrift. Although patents, prizes, and regulator-enforced exclusivity are each the subject of substantial literature, grants are typically addressed briefly, if at all. According to the conventional story, grants may be the only feasible tool to drive basic research, as opposed to applied research, but they are a blunt tool for that task. Three critiques of grants underlie this …

Corporate Governance By Index Exclusion, Scott Hirst, Kobi Kastiel

Faculty Scholarship

Investors have long been unhappy with certain governance arrangements adopted by companies undertaking initial public offerings, such as dual-class voting structures. Traditional sources of corporate governance rules—the Securities and Exchange Commission, state law, and exchange listing rules—do not constrain these arrangements. As a result, investors have turned to a new source of governance rules: index providers.

This Article provides a comprehensive analysis of index exclusion rules and their likely effects on insiders’ decision-making. We show that efforts to portray index providers as the new sheriffs of the U.S. capital markets are overstated. Index providers face complex and conflicting interests, which …

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 2), Richard Thompson Ainsworth

Faculty Scholarship

This is the second in a four-part series addressing VAT/GST avoidance schemes involving remote sales of services. These schemes have been growing in importance. The IMF reports that the services component of cross-border trade has been on the rise for fifty-years or more, making the Internet a serious threat to revenue. Technology has accelerated tax avoidance.

Statutory draftsmen in New Zealand have looked at this problem directly with what has been called the Netflix Tax. Technologist in Fiji have been struggling with similar problems and have developed technology-based security systems that would seem to address remote sales of services more …

The Specter Of The Giant Three, Scott Hirst, Lucian Bebchuk

Faculty Scholarship

This Article examines the large, steady, and continuing growth of the Big Three index fund managers — BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.”

We begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status of the …

A Multi-Jurisdictional Review Of Legislative And Regulatory Changes In Relation To The Banking/Commercial Separation Doctrine, And The Business Of Banking, Cristie Ford

All Faculty Publications

Banks have long provided essential services to the economy and to Canadians. In return, they have had access to special privileges, and been subject to special prohibitions. Across the world, there are boundaries around what we in Canada would call the “business of banking”. Such boundaries are important, because they set the conditions under which institutions may be recognized as “banks,” and may have access to those privileges and prohibitions. This report summarizes research undertaken across five jurisdictions – Australia, Japan, Singapore, the United Kingdom (UK), and the United States (US, federal level only) – with respect to a particular …

The Banking/Commercial Separation Doctrine In Comparative Perspective, Cristie Ford

All Faculty Publications

This report, prepared for the Department of Finance, Government of Canada, summarizes research undertaken across five jurisdictions – Australia, Japan, Singapore, the United Kingdom (UK), and the United States (US, federal level only) – with respect to a particular kind of boundary on the business of banking: the separation of banking business from commercial business. “Commercial” here means the provision of non-financial goods and services. This separation exists under what in the United States has long been referred to as the “banking/commercial separation doctrine”. The report considers the historical justifications for the doctrine in the context of the modern “business …

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 1), Richard Thompson Ainsworth

Faculty Scholarship

Over the past decade the VAT in the South Pacific has been changing. More change is coming. Change is needed in both the larger economies (Australia and New Zealand) and the smaller ones (the Pacific Island Countries or PICs). The changes we see currently are propelled by cross-border remote sales of services and low-value goods.

The government response in the South Pacific is not uniform. The larger economies have relied on statutory remedies; the smaller economies are turning to technology. The larger economies are crafting complex, extra-territorial compliance provisions targeting remote sellers. The smaller economies are mandating secure digital invoices, …