Banking and Finance Law Commons^™

Don't Foreclose On Me: Adr's Role In Regulating The Foreclosure Power Of Homeowners Association In The Aftermath Of Covid-19, Jessica Lalehzar

Cardozo Journal of Conflict Resolution

No abstract provided.

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Taming Unicorns, Matthew Wansley

Articles

Until recently, most startups that grew to become valuable businesses chose to become public companies. In the last decade, the number of unicorns—private, venture-backed startups valued over one billion dollars—has increased more than tenfold. Some of these unicorns committed misconduct that they successfully concealed for years. The difficulty of trading private company securities facilitates the concealment of misconduct. The opportunity to profit from trading a company’s securities gives short sellers, analysts, and financial journalists incentives to uncover and reveal information about misconduct the company commits. Securities regulation and standard contract provisions restrict the trading of private company securities, which undermines …

Sanctions, Financial Regulation, And Crypto In Latin America, Camilla Oliva

Cardozo International & Comparative Law Review

The note examines the intersection of corruption, financial regulation, and cryptocurrency in Latin America, arguing that U.S. sanctions and the lack of effective financial regulation have inadvertently enabled corruption in the region. It explores how cryptocurrencies, while offering potential solutions to financial instability, are also exploited by corrupt actors and governments to circumvent sanctions and regulatory frameworks. The analysis highlights the dual role of cryptocurrencies as both a tool for financial inclusion and a means of evading accountability, particularly in countries like Venezuela and El Salvador.

Patent Law’S Externality Asymmetry, Peter Lee

Cardozo Law Review

Technologies such as social media, autonomous vehicles, and “big data” analytics generate enormous benefits for society, but they also create substantial harms. Many of these effects take the form of externalities—external benefits and harms that a decisionmaker (such as an inventor) imposes on third parties without charge or compensation. Considering negative externalities, for example, social media networks spread misinformation throughout the electorate, autonomous vehicles threaten the jobs of millions of professional drivers, and predictive policing based on big data can lead to unreasonable searches and seizures. Externalities can cause inefficient resource allocation, and the classic remedy is to “internalize” externalities …

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky

Articles

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), …

Separating Governance Tokens From Securities: How The Utility Token May Fall Short Of The Investment Contract, Kyle Bersani

Cardozo Law Review

No abstract provided.

Section 546(E) Redux—The Proper Framework For The Construction Of The Terms Financial Institution And Financial Participant Contained In The Bankruptcy Code After The U.S. Supreme Court’S Holding In Merit, Peter V. Marchetti

Cardozo Law Review

This Article discusses and analyzes the proper framework for the construction of the terms “financial institution” and “financial participant” as defined in Sections 101(22)(A) and 101(22A) of the Bankruptcy Code (the Code), as they work in tandem with Section 546(e) of the Code. In 2018, the U.S. Supreme Court issued its long awaited decision in Merit, which held that the language regarding transfers “made by or to (or for the benefit of) . . . a financial institution” contained in Section 546(e) does not insulate the ultimate transferee of a constructive fraudulent action (a CFTA) simply because the company being …

Twenty Yards From The End Zone: Adr, And The Potential For Greater Levels Of Gender Equality In Professional Sports Employment, Elan Kirshenbaum

Cardozo Journal of Conflict Resolution

This Note will highlight the specific instances of gender-based employment discrimination in professional sports and then consider how alternative dispute resolution (“ADR”) provides the best avenue to address and correct these imbalances. In particular, this Note will analyze the benefits and drawbacks of ADR and litigation, while simultaneously applying this analysis to the discussion of the gender gap in professional sports employment. Part II will outline several examples of this discrimination, while also briefly detailing the general hiring and wage gaps that exist between men and women. In doing so, this section will examine the hiring practices of three of …

From Conflict To Co-Creation Three Powerful Stories Of Transformational Change, Payton Silket, Cheryl L. Epps

Cardozo Journal of Conflict Resolution

In our communities today, too often, the end goal of dialogue is to develop methods that allow people to coexist, but this is not enough. If left at that, our society will increasingly become more segmented and stratified, where groups of people are able to reside in the same vicinity but only interact when absolutely necessary or safe. This is no way to live, and, in fact, it is a recipe for polarization and the eventual death of dialogue.

The Rules Of Professional Responsibility And Legal Finance: A Status Update, Anthony J. Sebok

Articles

Legal finance occurs when strangers fund litigation for profit. Traditionally looked upon with suspicion in the common law, and limited by the doctrines of champerty and maintenance, legal finance is now a thriving part of the American legal landscape. Legal finance has been promoted as a solution to the access-to-justice problems facing working and middle class Americans, as well as a new asset class for Wall Street. At the center of legal finance, however, are lawyers – not the lawyers who write the contracts for the financing – but the lawyers for the cases being financed.
/="/">
/="/">Over the …

Steering Loan Modifications Post-Pandemic, Pamela Foohey, Dalie Jimenez, Christopher K. Odinet

Articles

As part of federal and state relief programs created during the COVID-19 pandemic, many American households received pauses on their largest debts, particularly on mortgages and student loans. Others may have come to agreements with their lenders, likewise pausing or altering payment on other debts, such as auto loans and credit cards. This relief allowed households to allocate their savings and income to necessary expenses, like groceries, utilities, and medicine. But forbearance does not equal forgiveness. At the end of the various relief periods and moratoria, people will have to resume paying all their debts, the amounts of which may …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Two Steps Forward, One Step Back: How New York’S Bail Reform Saga Tiptoes Around Addressing Economic Inequality, Daniel Chasin

Cardozo Law Review

No abstract provided.

Changing The Student Loan Dischargeability Framework: How The Department Of Education Can Ease The Path For Borrowers In Bankruptcy, Pamela Foohey, Aaron S. Ament, Daniel A. Zibel

Articles

The United States' consumer bankruptcy system supposedly gives "honest but unfortunate" individuals "a new opportunity in life with a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Access to bankruptcy's discharge of debt is especially important in the wake of the COVID-19 pandemic, which has resulted in a once-in-a-century economic crisis that is projected to increase bankruptcy filings by people struggling to recover. Those who file bankruptcy will find a system that is already difficult to navigate and has long-recognized racial and gender disparities in access and outcomes.

Student loan borrowers will find a …

Reallocating Redevelopment Risk, Michael C. Pollack

Articles

Scores of cities across the country face devastating financial crises, and the COVID-19 pandemic has brought even more to the brink. But economically distressed municipalities have few places to turn for help. Saddled by rising unemployment, weak tax bases, and state law limitations on deficit spending and debt assumption, they generally cannot spend their way out. And as conditions deteriorate, mobile capital and labor move to greener pastures, further hollowing out the cities they leave behind. With state and federal lifelines tenuous at best, offers by large developers to redevelop an area of the city can thus appear to be …

Winning, Defined? Text-Mining Arbitration Decisions, Charlotte S. Alexander, Nicole G. Iannarone

Cardozo Law Review

Who wins in consumer arbitration? Historically, this question has been nearly impossible to answer, as most arbitration proceedings are a private black box, and arbitral forums release only limited summary statistics. One exception is the Financial Industry Regulatory Authority (FINRA), which arbitrates virtually all disputes between investors and stockbroker-dealers, and makes all of its nearly 60,000 written arbitration decisions publicly available in an online database. This Article is the first to use computational text analysis tools to study these decisions, and to construct a measure of the claimants’ win, loss, and settlement rates. It is the first installment in an …

The Mysterious Market For Post-Settlement Litigant Finance, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

Articles

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that …

The Growth & Regulatory Challenges Of Decentralized Finance, Aaron J. Wright

Articles

The article explores the rapid growth and regulatory challenges of decentralized finance (DeFi), a blockchain-based sector that replaces traditional financial intermediaries with automated smart contracts. DeFi platforms, such as decentralized exchanges (DEXes) and lending protocols, offer financial services like trading, lending, and asset management without centralized control. While DeFi promises lower costs, greater accessibility, and financial inclusion, it also raises significant regulatory questions, particularly around compliance, liability, and oversight. The article highlights the tension between DeFi's decentralized nature and the need for legal frameworks to address risks such as fraud, market manipulation, and systemic instability.

Bursting The Auto Loan Bubble In The Wake Of Covid-19, Pamela Foohey

Articles

Before the COVID-19 pandemic, auto loans outstanding in the United States had soared to record highs. The boom in lending spanned new and used cars and traditional and subprime loans. With loan delinquencies also hitting new highs almost every quarter, predictions that the auto lending market could burst soon abounded. When the economy came to a grinding halt and unemployment skyrocketed in the wake of the pandemic, auto lenders knew they were facing a crisis. Throughout 2020, auto lenders granted more payment forbearances to consumers, while slashing interest rates on new loans. Auto manufacturers similarly made promises to buyers, such …

The Mdl Revolution And Consumer Legal Funding, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

Articles

Third-party consumer legal funding, where financial companies advance money on a nonrecourse basis to assist individual plaintiffs with living expenses, is an increasingly popular and controversial part of American litigation. And consumers with mass tort claims pending in Multi-District Litigations (MDLs) constitute the fastest growing sector of those seeking assistance from this billion-dollar funding industry. Policy makers, mass tort plaintiffs' lawyers, and scholars have increasingly raised concerns about exorbitant interest rates and have called for regulations to protect vulnerable consumers from “predatory lending.” To date, however, the policy debate has largely relied on anecdotes and speculation because flinders have not …

Interior Landmark Designation And Regulation: Should Government Regulate Publicity Inaccessible Interior Landmarks, Victoria Tesone

Cardozo International & Comparative Law Review

The note argues that government regulation of interior landmarks should be contingent upon public access, as such regulation otherwise fails to serve its intended public benefit and unjustly burdens property owners. It proposes that without public access, landmark designation should not impose regulatory obligations on property owners, and suggests that the financial burden of preservation should shift to taxpayers rather than private owners.

Who Killed The Mockingbird?-An Analysis Of Community Theatres' Legal Standing Amid Copyright Disputes Over To Kill A Mockingbird And How To Protect Community Theatres, Yifan Li

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Post-Etherdelta: Clarifying Liabilities For Cryptocurrency Exchanges And Market Participants, Robert Sistoso

Cardozo Arts & Entertainment Law Journal

The rise of cryptocurrencies has led to the development of both centralized and decentralized exchanges, which face significant regulatory challenges under U.S. securities laws. The SEC has applied the Howey test to determine whether tokens qualify as securities, and its enforcement actions, such as against EtherDelta, highlight the need for clarity on the liabilities of developers, operators, and users in decentralized systems. The article advocates for the SEC to refine its regulatory approach to balance investor protection with the promotion of innovation in blockchain technology.

New Means Of Financing Tort Lawsuits And Law Firms: Presentation Of Professor Anthony Sebok, Anthony J. Sebok

Articles

The article explores the role of third-party financing in litigation, focusing on its historical development, ethical implications, and modern applications in addressing the challenges of negative value claims in mass torts and consumer litigation. It examines various forms of third-party support, including assignment, maintenance, champerty, and factoring, and evaluates their potential to facilitate access to justice while raising important legal and ethical considerations.

Fraudulent Transfers: Void And Voidable, David G. Carlson

Articles

This Article explores the civil procedure attendant to private fraudulent transfer litigation (primarily outside the context of bankruptcy). In such litigation, courts ponder whether fraudulent transfers are void or voidable. In fact, they are both simultaneously! According to the theory "at law," a fraudulent transfer is "void." That is, a creditor with a judgment could simply levy the property from a fraudulent grantee as if the grantee had no property rights. This Article questions the constitutional viability of this ancient attitude. Meanwhile, "equity" viewed the transfer as voidable. The grantee gets title, but the title might be set aside. The …

Fintech: New Battle Lines In The Patent Wars?, Megan M. La Belle, Heidi Mandanis Schooner

Cardozo Law Review

Historically, financial institutions have relied on trade secrets and first-mover advantages, rather than patents, to protect their inventions. For the few financial patents that were issued, conventional wisdom was that they weren’t terribly interesting or important. In our 2014 study on financial patents, we showed that banks were breaking from past patterns and increasingly seeking patent protection. We explained that financial institutions were primarily building their patent portfolios as a defensive measure—i.e., to protect themselves from infringement suits. Indeed, the finance industry successfully lobbied Congress to include provisions in the America Invents Act of 2011 that made it easier to …

Symposium: The California Consumer Privacy Act, Margot Kaminski, Jacob Snow, Felix T. Wu, Justin Hughes

Articles

This symposium discussion of the Loyola of Los Angeles Law Review focuses on the newly enacted California Consumer Privacy Act (CPPA), a statute signed into state law by then-Governor Jerry Brown on June 28, 2018 and effective as of January 1, 2020. The panel was held on February 20, 2020.

The panelists discuss how businesses are responding to the new law and obstacles for consumers to make effective use of the law’s protections and rights. Most importantly, the panelists grapple with questions courts are likely to have to address, including the definition of personal information under the CCPA, the application …

Buyer Beware: Variation And Opacity In Esg And Esg Index Funds, Dana Brakman Reiser, Anne Tucker

Cardozo Law Review

Evidence of the tremendous rise in the significance of environmental, social, and governance (ESG) investing is coming from all quarters. Fund flows into ESG investment vehicles are growing at a sustained and sometimes exponential pace. Fund complexes are rushing to design products, creating and rebranding scores of mutual funds and exchange traded funds (ETFs), including lower-cost indexed options. Industry leaders, critics, and commentators are all heralding the sea change as a shift in investing-and corporate governance-to more broadly consider environmental and social factors.

This Article provides vital context for this conversation. Its descriptive account of the ESG investment landscape drawn …

Patent Eligibility And Investment, David O. Taylor

Cardozo Law Review

Have the Supreme Court's recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors' answers to those important questions. Analyzing responses to a survey of475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court's recent cases have influenced these firms' decisions to invest in companies developing technology. The survey results reveal investors' overwhelming belief that patent eligibility is an important consideration in investment decision making, and that reduced patent eligibility makes it less likely …