Banking and Finance Law Commons^™

Public, Private, Acquired, Alexander I. Platt, Matthew T. Wansley

Articles

For the last quarter-century, IPOs have been declining. SEC officials usually attribute the decline to startups’ choices to stay private. But that explanation is incomplete. As startups grow, they face a three-way choice between going public, staying private, and being acquired, and they have increasingly chosen the third option. In this Essay, we show how securities regulation pushes startups towards acquisitions by increasing the cost of raising capital and accessing liquidity in both public and private markets. We consider how the trend towards acquisitions could reduce competition, innovation, opportunities for diversification, and transparency. And we offer suggestions for how the …

Joint Bank Accounts: Who Needs Them?, Reid K. Weisbord, Stewart E. Sterk

Articles

Joint bank accounts, once known as a “poor man’s will,” emerged more than a century ago as a probate avoidance device. This Article contends that joint accounts no longer serve a useful estate planning function, and they pose an unacceptably high risk to banking consumers because the legal framework governing lifetime ownership rights is deeply flawed and underdeveloped. Courts typically apply one of two prevailing models for allocating lifetime rights: (1) the traditional joint tenancy approach, which presumes equal ownership of account funds by each party; and (2) the Uniform Probate Code’s approach, which presumes ownership in proportion to each …

Selective Flexibility: The Hidden Evolution Of Startup Corporate Law, Alvaro Pereira

Cardozo Law Review

This Article challenges the longstanding assumption that corporate law is largely irrelevant to non-listed companies and venture capital ( “VC”). Through a novel cross-country legal index covering twenty years and twelve jurisdictions, this Article shows that corporate laws have evolved through a process of “selective flexibility,” where certain legal barriers to VC deals are lifted, while others are stealthily preserved. For example, numerous reforms have enabled multiple-vote shares, but few have authorized the customization of board powers, limiting the universe of founder-investor agreements—and, ultimately, the development of startup ecosystems and VC markets.

Drawing on a comprehensive dataset of billion -dollar …

Hyperbole In The Capital Stack: Are We Misreading Lender Intent? Liability Management Transactions And The Implied Covenant Of Good Faith And Fair Dealing, Daniel R. Janel

Cardozo Law Review

The hasty characterization and overall sentiment surrounding Liability Management Transactions (“LMTs”) as “hostile” strategies that promote “lender-on-lender violence” attempt to misapply the implied covenant of good faith and fair dealing under New York law, which serves as a gap-filler rather than a “contract buster.” Although the covenant’s proper function is to protect parties’ reasonable expectations that they will receive the fruits of their bargain, it does not purport to rewrite or impose on carefully negotiated credit agreements. Sophisticated parties enter into meticulously crafted credit agreements with full awareness of the breadth and scope of their provisions. Only after finding themselves …

Race Conscious Programs After Students For Fair Admissions, Seonwoo Kim

Cardozo Journal of Equal Rights & Social Justice

The note argues that the federal government can legally mitigate geographical segregation and economic oppression by implementing race-conscious infrastructure and procurement policies. It contends that such efforts remain a compelling state interest under the strict scrutiny standards established in Students for Fair Admissions (SFFA), provided they are designed to remedy specific, identifiable past government discrimination.

No Exit, Brian J. Broughman, Matthew Wansley, Samuel N. Weinstein

Articles

Fast-growing startups in search of capital and liquidity have traditionally sought to exit the private capital market through M&A or IPO. Until recently, antitrust enforcers rarely challenged startup acquisitions. But under the Biden administration, enforcers worried about the growing dominance of Big Tech sued to block more startup deals. Since antitrust restricts M&A but not IPOs, one might expect that greater antitrust enforcement would cause startups to substitute one kind of exit for another, leading to more IPOs. That did not happen. While M&A and IPOs both provide liquidity, they are not perfect substitutes. We model heterogeneity in M&A and …

Blazing A New Path: How Regulatory Negotiation Can Resolve Cannabis Legalization’S Shortcomings, Natalie Pearson

Cardozo Journal of Conflict Resolution

New York’s ambitious cannabis legalization effort has fallen short of its promises, burdened by regulatory confusion, industry roadblocks, and an unchecked illicit market. Despite state-level approval, legalization remains riddled with contradictions and obstacles, leaving businesses and policymakers struggling to navigate an unstable framework. This Note explores how regulatory negotiation, an alternative dispute resolution (“ADR”) mechanism, can address key industry challenges, particularly those arising from conflicting federal and state laws.

Dispute Resolution Tailored For Digital Assets, Michele Kallo

Cardozo Journal of Conflict Resolution

As digital asset markets continue to expand, the need for efficient and reliable dispute resolution mechanisms has grown increasingly pressing. In May 2022, alone, over 200 individual and class action lawsuits related to digital assets were filed, with cases only deepening in nuance. Traditional litigation, with its high costs, slow timelines, and jurisdictional complexities, often falls short in resolving such disputes. In reaction to these limitations, decentralized arbitration platforms have emerged as spaces for dispute resolution. While innovative, these platforms’ susceptibility to issues such as market volatility, barriers to juror diversity, and impartiality limitations raise questions about their effectiveness as …

We The People... Deserve Fair Taxes, Doron Narotzki, Tamir Shanan

Cardozo Journal of Equal Rights & Social Justice

In a world where economic inequality is deepening, tax law has emerged as one of the most powerful tools for shaping social justice. This Article explores how progressive taxation serves not only as a fiscal mechanism but as a reflection of societal values and the moral obligations of wealth. With legal methodologies such as Purposivism, Originalism, and Living Constitutionalism providing different interpretative lenses, this Article delves into the crucial discourse surrounding income, tax avoidance, deductions, and wealth taxation.

Through an analysis of real-world tax policies and legal precedents, the Article examines how these methodologies either perpetuate or challenge the current …

Pay Transparency Laws Clear As Mud: A Discussion Of And Proposal For The Pay Transparency Legislation In Colorado And New York, Emily Hall

Cardozo Journal of Equal Rights & Social Justice

The note argues that while pay transparency laws in Colorado and New York represent progress, they fall short of achieving true pay equity because they do not require employers to disclose the factors influencing salary ranges. The author advocates for amendments to these laws, including mandatory annual pay audits and the disclosure of factors and their weights used in determining salary ranges, to enhance transparency and fairness in negotiations.

Corporate Evolution, Omari Scott Simmons

Cardozo Law Review

Political entrepreneurs have declared war on environmental, social, and governance policies ("ESG"), going so far as to attempt to criminalize ESG-influenced investing. They seek a return to some real or imagined past. They amplify and elevate their efforts into mainstream public discourse. They pursue extraordinary goals and tactics to disrupt and even dismantle institutional structures, norms, and established processes. The contemporary anti-ESG backlash is not simply a battle over corporate purpose and the dueling perspectives of shareholder primacy versus stakeholderism or disputes concerning sustainable investment and operational strategies. It reflects aggressive political entrepreneurship and the tension between competing narratives: stasis, …

Equity And Clarity: The Impact Of Tyler V. Hennepin County On Property Taxation And Homeowners’ Rights, Analy Feigel

Cardozo Law Review

This Note explores the implications ofthe U.S. Supreme Court's ruling in Tyler v. Hennepin County, which significantly impacts property taxation and foreclosure laws. The Court ruled that property owners are entitled to surplus proceeds following a tax foreclosure, setting a new precedent by deeming it unconstitutional for governments to retain surplus proceeds without just compensation. Tyler clarified property rights under the Fifth Amendment, affirming that owners have a constitutional right to the surplus value of their foreclosed properties, even if local statutes do not explicitly allow it.

Further, this Note also addresses unresolved issues following Tyler's ruling, including how the …

Locating Consumer Financial Regulation, Nikita Aggarwal

Cardozo Law Review

Recent advances in data-driven technology in consumer financial markets, commonly referred to as “fintech,” have resurfaced the question of whether and to what extent data, particularly consumers’ personal data, should be a locus for regulatory intervention in these markets. While innovation in fintech and the accompanying increase in the processing of personal data offer to improve the functioning of consumer financial markets, like all advances in technology, they also come with costs and risks. In 2024, in a move that favored the regulation of personal financial data per se and many of the traditional features of personal data protection regulation, …

Executive Order 14330: A Solution In Search Of A Problem, Edward A. Zelinsky

Cardozo Law Review de•novo

President Trump’s Executive Order 14330 proclaims its determination to “democratiz[e] access to alternative investments for 401(k) investors.” Among its other provisions, Executive Order 14330 requires the Department of Labor (DOL) to “clarify the duties that a fiduciary owes to plan participants.” Such clarification shall “relieve the regulatory burdens and litigation risk that” allegedly deny 401(k) participants access to alternative investments. However, the order states, DOL’s administrative guidance on alternative investments must be “consistent with applicable law.”

Having Fun Is Not As Hard When You Have An Arbitration Clause: The Current Benefits And Possible Changes To The Arbitration Agreements Of Amusement Parks And Recreational Resorts For Consumers, Cynthia Spitzer

Cardozo Journal of Conflict Resolution

This Note will evaluate options that are more favorable for consumers to bring their injury claims against amusement parks and recreational resorts when the route for resolution is limited by an agreement. For instance, the option of an arbitration agreement would be more preferable when faced with only the option of a liability waiver. However, with possible future changes of consumer contracts from the FAIR Act, opt-in provision, or mandatory arbitration imposed on the corporations, the route for resolution can drastically change and improve the realm of possibility for consumers of amusement parks and recreational resorts.

Scaling 'Reverse Cfius': A Comparative Review Of Outbound Foreign Investment, Hannah Pérez

Cardozo International & Comparative Law Review

The note examines the evolution of U.S. regulations on outbound foreign investments, particularly under Executive Order 14105, known as "Reverse CFIUS," aimed at mitigating national security risks by restricting investments in critical industries in countries like China. It explores the legal, economic, and geopolitical implications of these regulations and compares them with similar measures in the EU, Japan, and Australia, emphasizing the need for international cooperation to effectively address these security concerns.

Duped: The Implications Of The Proliferaiton Of Superfake Luxury Goods And What Consumers May Not Have Considered, Riann Colbert

Cardozo Arts & Entertainment Law Journal

The proliferation of "Superfake" luxury goods, which are high-quality counterfeit items nearly indistinguishable from authentic products, poses significant challenges to trademark law, consumer protection, and the broader economy. These items, often sold through e-commerce platforms, not only undermine legitimate businesses but also expose consumers to health risks, support organized crime, and perpetuate environmental harm. The note advocates for enhanced legal frameworks and consumer education to mitigate these issues.

A Comparative Approach To Documentation Methods And Avoiding Transfer Pricing Penalties: Is The United States Justified In Its Approach Of Enforcing Penalties Under Section 6662?, Atalya Santos

Cardozo International & Comparative Law Review

No abstract provided.

Preserving The Future: Recognizing Intergenerational Equity In United States Constitutional Jurisprudence In Light Of Evolving Climate Rights Litigation, Molly Morgan

Cardozo Journal of Equal Rights & Social Justice

Climate rights litigation is an essential part of holding states accountable for their climate change obligations. This type of litigation has increased across the globe, and domestic and international courts have issued landmark rulings that serve as precedent for reinforcing state obligations and protecting constitutional and human rights in the process. One focus of these cases is intergenerational equity, which implicates the theory that inadequate state action on climate change violates the rights of future generations. This Article explores the evolution of this theory in domestic and international law, illustrating its increasing importance in climate rights litigation and the necessity …

Sino-American Sanctions Convergence?, Ryan Martinez Mitchell

Cardozo International & Comparative Law Review

The People's Republic of China is rapidly constructing a new regime for economic and diplomatic sanctions. With its Anti-Foreign Sanctions Law (AFSL) and related legislation, Beijing has taken a step towards legally formalizing the means of pressure it uses against states, organizations, or individuals seen as threatening its core interests. Meanwhile, various informal coercive measures also continue to be employed. While questions remain about their scope and future uses, Beijing has especially extolled AFSL sanctions as countermeasures to U.S. interference.

This Article undertakes a detailed examination of the new Chinese sanctions framework, its historical origins, and its role in Beijing's …

Toward A Biometric Privacy Act To Protect Individual Rights: What The United States Can Learn From The European Union And China, Sophia Hilsman

Cardozo International & Comparative Law Review

The note examines the regulatory frameworks governing biometric AI technologies, particularly facial recognition, in the United States, China, and the European Union. It argues that the U.S. currently lacks comprehensive federal legislation to protect individuals' privacy and civil liberties in the face of advancing biometric technologies. The analysis advocates for a balanced regulatory approach that mitigates the risks of mass surveillance and erosion of privacy while allowing for beneficial uses of biometric AI. The author proposes that Congress should adopt federal legislation modeled after the EU's GDPR to establish a baseline for biometric data protection, ensuring consistency and stronger safeguards …

Unblocking The Chain: Leveraging Mediation And Negotiation In Crypto Exchange User Disputes, Jane Perov

Cardozo Journal of Conflict Resolution

No abstract provided.

Constructing A Taxonomy Of Financial Consumer Protection Policy And Assessing The New Consumer Duty In The United Kingdom's Financial Sector, Iris H-Y Chiu, Wai-Yee Wan

Cardozo International & Comparative Law Review

The article critically examines the UK's Consumer Duty, introduced by the Financial Conduct Authority (FCA), arguing that while it represents a significant step in financial consumer protection, it falls short in addressing welfare outcomes and distributive justice. The Duty focuses on consumer empowerment but neglects key aspects of consumer citizenship, such as access to essential financial services and guarantees of product quality. The article proposes a taxonomy of consumer protection levels to evaluate the Duty's effectiveness and advocates for a more robust framework that prioritizes financial inclusion and long-term consumer welfare.

Taxing Wealth: A Comparative Analysis Of National Wealth Taxes And How A Federal Wealth Tax Can Overcome Administrative Challenges, Jason Nadboy

Cardozo International & Comparative Law Review

The note advocates for the implementation of a progressive federal wealth tax in the United States to address wealth inequality and generate revenue for social programs. It argues that while administrative challenges exist, they can be overcome by learning from international examples and implementing robust enforcement mechanisms.

Reducing The American National Debt By Negotiating New Tax Practices On Internal Revenue Code Sec. 501(C) Organizations, Armando D. Gonzalez

Cardozo Journal of Conflict Resolution

No abstract provided.

Regulating Cryptocurrency: A Comparative Analysis Of U.S. And Eu Approaches, Xander Xueyang Peng

Cardozo International & Comparative Law Review

The note compares the regulatory approaches of the U.S. and the EU regarding cryptocurrency, focusing on sanctions and anti-money laundering (AML). It argues that while the EU has implemented a comprehensive regulatory framework, the U.S. relies on fragmented enforcement actions and lacks a unified approach. The EU's structured regulations, such as the Markets in Crypto-Assets (MiCA) framework, are more effective in addressing the challenges posed by cryptocurrency, including traceability and compliance. The note advocates for the U.S. to adopt a more robust regulatory framework, including know-your-customer (KYC) requirements and stricter AML measures, to enhance accountability and security in the crypto …

The New Frontier For Bankruptcy: Crypto, Lindy Lofton

Cardozo Arts & Entertainment Law Journal

The note examines the regulatory challenges posed by the rise of cryptocurrency platforms like Celsius and FTX, which have faced significant financial difficulties and bankruptcy. These platforms operate similarly to traditional banks and brokerages but lack the same regulatory oversight, leaving customers vulnerable without protections like FDIC insurance. The note argues that adopting legislation akin to the Banking Act of 1933 or the Securities Investor Protection Act (SIPA) could provide necessary safeguards, such as insurance mechanisms similar to FDIC or SIPC. However, the decentralized nature of cryptocurrency and opposition from the crypto community pose challenges to implementing such regulations. The …

The Structure Of Secondary Copyright Liability, Felix T. Wu

Articles

Secondary copyright liability and secondary patent liability largely parallel each other. And yet, secondary copyright cases are often quite different from secondary patent cases. Whereas most secondary patent infringers act in a way that targets a particular patent or group of related patents, secondary copyright infringement mostly arises in the context of technologies or services that work across all copyrighted works. Secondary copyright liability raises issues of platform liability in ways that secondary patent liability usually does not.

The current structure and framing of secondary copyright liability inadequately account for this distinction. The result is that secondary copyright liability tends …

Stopping Runs In The Digital Era, Luís C. Calderón Gómez

Articles

Bank runs, and the financial crises they catalyze and amplify, are incredibly costly-to individuals, families, society, and the economy writ large. Banking regulation has, for the most part, protected us from traditional bank runs for the last ninety years. However, as we saw in the devastating 2008 financial crisis, bank runs can still occur in lightly regulated or opaque segments of the financial sector.

The recent crypto market downturn dramatically forewarned regulators of the potential and significant risks that novel assets could pose to our financial system's stability. In particular, a novel, systemically important asset (stablecoins) revealed its vulnerability to …

The Art World Of Digital Assets: How Non-Fungible Tokens Create A Loophole In Anti-Money Laundering Regulations, Sofia Aizenman

Cardozo Law Review

No abstract provided.