Banking and Finance Law Commons^™

Chinese Companies And U.S. Class Actions: Securities Litigation And Product Liability, Geoffrey Sant, Charles M. Yablon, Stephen A. Radin, Kayvan Sadeghi, Christopher A. Seeger, Richard H. Silberberg

Cardozo Journal of International and Comparative Law

The symposium examines the challenges Chinese companies face when navigating U.S. class actions and corporate governance rules, emphasizing the importance of understanding jurisdictional complexities, cultural differences, and legal strategies to mitigate risks. It highlights how Chinese companies must adapt to U.S. legal standards to compete globally while addressing enforcement difficulties and settlement dynamics. The analysis underscores the need for transparency, internal controls, and strategic legal counsel to manage these challenges effectively.

Harmonizing Third-Party Litigation Funding Regulation, Victoria A. Shannon

Cardozo Law Review

Third-party litigation funding is no longer a new phenomenon, but rather is a mainstay in global commerce and dispute resolution. Yet many observers still consider the third-party litigation funding industry as a "wild west" due to a lack of regulation in many countries. Some of the countries that have regulations suffer from a lack of uniformity and an array of conflicting laws at the sub-national level (i.e., the laws of states, provinces, territories, etc.). For example, the United States has a confusing patchwork of state laws on third-party litigation funding. This Article proposes harmonizing the regulatory framework for third-party litigation …

Trusting Strangers: Dispute Resolution In The Crowd, Anjanette H. Raymond, Abbey Stemler

Cardozo Journal of Conflict Resolution

Hoping to be the next Pebble, entrepreneurs and businesses have flocked to various crowdfunding platforms to contribute dollars to fund initial launches of products and other investments. As readers are undoubtedly aware, Kickstarter was the first and bestknown crowdfunding website, having helped to launch more than 95,000 projects to date. On March 3, 2014, Kickstarter reported that it passed $1 billion in pledges with over 5.7 million people donating to creative projects. There are currently over 800 crowdfunding platforms, with the bulk of dollars contributed going to social campaigns. Of course, as donations grew and the number of backers surged, …

Equity In Substantial Evidence, Or Using Article 78 Judicial Review To Achieve Justice For Public Housing Occupants, Janelle Greene

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Breaking The Impasse: A Two-Pronged Approach For Resolving Sovereign Debt Holdout Disputes, Alexander Shapos

Cardozo Journal of Conflict Resolution

Sovereign debt holdout disputes implicate billions of dollars. For nearly a decade, one such dispute has led to a de facto embargo on Argentina as well as an inability for investment funds to enforce multibillion-dollar judgments. Thus, it is significantly in the interests of both future sovereign bond issuers and future creditors to preemptively avoid unproductive impasses. But with no existing formal bankruptcy regime, sovereigns are left to litigate, arbitrate, or negotiate their debt disputes. This Note proposes that litigation is an inappropriate remedy to resolve such disputes-and instead, it proposes a two-pronged approach for preventing and resolving disputes. The …

Data Breach (Regulatory) Effects, David Thaw

Cardozo Law Review de•novo

Breach notification laws have been a major driver of data protection efforts in U.S. organizations for more than a decade. This form of disclosure-based regulation exists in 47 of 50 U.S. states, as well as four other U.S. jurisdictions, but has yet to be adopted as a law of general applicability at the federal level.

This Essay considers the effects the structure of existing disclosure-based cybersecurity regulation has on the efficacy of U.S. firms’ cybersecurity measures. Drawing on previous empirical work and analysis of firm incentives, it suggests two modest conclusions about the most efficacious legal structures: (1) that any …

Sustainability Reporting And New Governance: South Africa Marks The Path To Improved Corporate Disclosure, Ruth Jebe

Cardozo Journal of International and Comparative Law

The past decade has seen a dramatic increase in corporate disclosure of environmental and social information in the form of sustainability reporting. This growth trajectory, coupled with dissatisfaction with current reporting schemes, has fueled debate over the future of sustainability reporting. The discussion consists primarily of criticism of existing reporting systems and is often polarized between proponents of continued voluntary reporting and proponents of increased mandatory reporting. Missing from the debate is a critical recognition: the shortcomings of existing reporting mechanisms reflect the public policy drawbacks of the processes that created them.

This Article addresses the question of how to …

Coming Up Short: The United States' Second-Best Strategies For Corralling Purely Speculative Derivatives, Timothy E. Lynch

Cardozo Law Review

Purely speculative derivatives (PSDs) are derivatives in which neither counterparty is engaged in hedging. Unless they are used for entertainment purposes, PSDs are irrational, less-than-zero-sum transactions. Entities that engage in PSDs jeopardize their stakeholders and increase systemic risk. PSDs can also increase moral hazard, can be used for regulatory arbitrage, and can redirect resources away from the efficient allocation of market capital. PSDs should be unenforceable contracts, void for public policy reasons, except where they are expressly permitted to provide gambling entertainment, enhance price discovery, or increase liquidity for hedgers.

In the United States, however, PSDs are often legal and …

The Truth About Truth Commissions: Why They Do Not Function Optimally In Post-Conflict Societies, Matiangai V.S. Sirleaf

Cardozo Law Review

Almost forty years after the first truth commission convened and more than sixty-seven others have been employed, there is little clarity on how they contribute to their stated objectives and in which transitional contexts they succeed or fail. This Article uses data gathered from my field research in Ghana, Sierra Leone, and Liberia to develop a theoretical framework for understanding in which contexts truth commissions may be the most effective. Using insights from the legal transplant literature and applying it to the diffusion of truth commissions, this Article finds that truth commissions face greater challenges carrying out their mandates in …

Big Macs: Not-So-Happy Deals And The Eurozone Crisis, Lindsay Edelstein

Cardozo Journal of International and Comparative Law

The note examines the challenges of invoking Material Adverse Change (MAC) clauses in mergers and acquisitions, particularly during economic crises like the Eurozone Crisis. It argues that the strict standard applied by U.S. courts makes it difficult for buyers to prove a MAC, rendering such clauses ineffective. The analysis suggests that MAC disputes are better resolved through arbitration by financial experts rather than courts.

Everybody Wins! Elimination Of The Absolute Priority Rule For Individuals Under Bapcpa: A Middle Ground, Liliya Gritsenko

Cardozo Law Review

No abstract provided.

Taking The Bloody Linen Out Of The Closet: Menstrual Hygiene As A Priority For Achieving Gender Equality, Inga T. Winkler, Virginia Roaf

Cardozo Journal of Equal Rights & Social Justice

Regular menstruation signals a woman's health and fertility. menstruation is surrounded by shame, secrecy, embarrassment, fear, humiliation, silence, taboo, and stigma. Linked to this taboo, many cultural and religious norms-often grounded in patriarchal assumptions-seek to prevent contact with menstruating women and girls in order to avoid 'contamination' or 'becoming impure'. To some extent, this perception of menstruation is a paradox, given that motherhood is glorified. However, menstruation is not perceived as feminine', and it does not conform to the stereotypical role and behavior of women. Such stereotypes require women to be beautiful and beautified, deodorized and fresh, not bloody and …

Panel I: Disclosure And Notice Practices In Private Data Collection, Lorrie Cranor, Brett Frischmann, Ryan Harkins, Helen Nissenbaum

Cardozo Arts & Entertainment Law Journal

No abstract provided.

International Commercial Arbitration, Anticipatory Repudiation, And The Lex Mercatoria, Kyle Winnick

Cardozo Journal of Conflict Resolution

The scope of this Note is thus two-fold: (1) to delineate the doctrine of anticipatory breach as it is currently under the lex mercatoria; and, (2) to evaluate and argue for its consistency in application by international arbitral tribunals. Section I-A discusses when arbitrators will choose to apply the lex mercatoria as the substantive law of the dispute. Section I-B explains the doctrine of anticipatory repudiation and discusses its inherent ambiguity. Section IC assesses the role of the CISG and the UNIDROIT Principles as a manifestation of the lex mercatoria. Section II-A explores the severability issue and an …

A Proposal To Withhold Divorce Decrees On Grounds Of Equity, J. David Bleich

Articles

Throughout the medieval period, marriage was acknowledged by temporal rulers to be a religious matter governed by the ecclesiastic law of the Church which, to be sure, incorporated many principles of Roman law. Subsequent to the Reformation, the rulers of many European countries became disposed to regard marriage as a civil act, to withdraw marriage from the control of the church and to entrust it entirely to the state. The Napoleonic Code was the first example of a legal system that treated marriage as a purely civil act. The Napoleonic Code did not deny the religious element present in marriage …

Moment Of Clarity: A Centrist Approach To Mortgage Lending, Yusuf Yusuf

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

California Dreaming: The California Secure Choice Retirement Savings Trust Act, Edward A. Zelinsky

Articles

Half of American workers are not covered by employer-sponsored retirement arrangements. The recently passed California Secure Choice Retirement Savings Trust Act seeks to solve this problem by mandating retirement savings arrangements for California employers, coupled with a public investment vehicle for investing these private retirement savings. The Act is important because of California’s size and status as a trendsetter for other states.

This Article is the first to examine the important legal questions the Act raises under the Internal Revenue Code and ERISA. Contrary to the drafters’ intent, the savings accounts authorized under the Act do not qualify as individual …

Critique Of Money Judgment Part Three: Restraining Notices, David G. Carlson

Articles

New York is virtually unique in permitting lawyers to issue court orders restraining debtors and third parties from conveying away any assets that could be used to satisfy a money judgment. In effect, these orders command the recipient to do nothing, whereas a turnover or garnishment orders the recipient to do something — pay the creditor or sheriff or surrender illiquid property to the sheriff. The weakness and strength of this debt collection tool is assessed at length. The Article also analyzes in detail New York’s Exempt Income Protection Act, enacted in 2008 to force banks to protect the exempt …

The Twilight Of Equity Liquidity, Jeff Schwartz

Cardozo Law Review

This Article argues that U.S. equity markets fail to offer a satisfactory listing venue for emerging firms. I contend that this lacuna is a manifestation of a flawed structure of equity-market regulation and that this void undermines entrepreneurship, jeopardizes the future of U.S. equity markets, and weakens the broader U.S. economy. To close this gap and respond to these concerns, I recommend a new theoretical structure for regulating equity markets. Under the "lifecycle model" I propose, regulations would adapt to firms as they age. The key change would be to establish a market specifically for newly-public young firms, where they …

Alternative Litigation Finance And The Usury Challenge: A Multi-Factor Approach, Sheri P. Adler

Cardozo Law Review

No abstract provided.

Mad Money: Wall Street's Bonus Obsession, Jeanne L. Schroeder

Cardozo Law Review

No abstract provided.

Laughing Out Loud: Art, Culture, And Fantasy, Henrietta L. Moore

Cardozo Law Review

What makes art valuable? Why in times of crisis do people buy contemporary art? This Paper discusses whether or not investment in art can ever be seen as rational, and explores how the contemporary art market is expanding to include not just works of art, but art as a form of cultural practice. Audiences are no longer content simply to visit museums, galleries, and other cultural institutions. They want to participate, but why are art fairs, biennials, and museum events so popular? The contemporary art market has always been segmented, and reputation and display have been important motivators for rich …

Taking Interdependence Seriously: The Need For A Reassessment Of The Precautionary Principle In International Trade Law, Markus Wagner

Cardozo Journal of International and Comparative Law

The article advocates for a more prominent role of the precautionary principle in international trade law, particularly within the World Trade Organization (WTO) framework. It argues that this principle, which allows for preventive measures to avoid potential harm even in the absence of scientific certainty, is essential for addressing complex, high-risk issues such as climate change and endocrine-disrupting chemicals (EDCs). The article contends that the WTO's current reliance on robust scientific evidence for trade-restrictive measures may not be feasible or sufficient for such challenges, and it explores how the precautionary principle can be integrated into WTO law to balance trade …

Read Between The Lines: Why Recent Ilsa Litigation Is Bad For Business And Contravenes Congressional Intent, Joseph Einav

Cardozo Law Review

No abstract provided.

Administrative Justice: Using Agency Declaratory Orders In The Fight To Staunch The Financing Of Terrorism, J. David Pollock

Cardozo Law Review

No abstract provided.

Exile Without Process: The New York City Housing Authority's Unconstitutional Trespass Notice Program, Lauren J. Zimmerman

Cardozo Law Review

No abstract provided.

Cars In Chapter 13: Does Negative Equity Destroy The Jurisdiction Of The Hanging Paragraph, David G. Carlson

Articles

Roughly speaking, the “hanging paragraph” to Bankruptcy Code 1325(a), enacted in 2005, requires that a debtor pay the full debt on any automobile acquired within 910 days before bankruptcy – a boon for car financiers. Prior to 2005 the debtor had to pay only the appraised value of the car – usually a lesser amount. But the privilege bestowed on car financiers by the hanging paragraph depends on the financier providing “purchase money” credit. About one-third of the time, however, the financier advances funds to repay a prior car loan as part of the “trade-in” of an old vehicle for …

Taming The Hydra Of Derivatives Regulation: Examining New Regulatory Approaches To Otc Derivatives In The United States And Europe, Daria S. Latysheva

Cardozo Journal of International and Comparative Law

The note examines the regulatory responses to the 2008 financial crisis, focusing on derivatives markets in the US and EU. It argues that while both the Dodd-Frank Act and the EU Proposal aim to enhance oversight and transparency, the EU's structured and centralized approach is more effective in achieving comprehensive regulation. The US framework, relying heavily on agency rulemaking and fragmented jurisdiction between the CFTC and SEC, risks inefficiencies and regulatory gaps, whereas the EU Proposal’s detailed provisions and centralized decision-making provide a more cohesive framework for reducing systemic risk.

State Attorneys General's Use Of Concurrent Public Enforcement Authority In Federal Consumer Protection Laws, Amy Widman, Prentiss Cox

Cardozo Law Review

Recent scholarly and legislative interest in state enforcement of federal law has led to the need for an empirical understanding of how and when these enforcement powers are used. This Article reports on an examination of the use by state attorneys general of sixteen federal consumer protection laws that expressly allow for state enforcement. The data are sorted and analyzed by both single state actions and multistate actions over time, and by the involvement of federal agencies in the state cases. The data reveal a measured use of such powers by state attorneys general and robust state and federal cooperation …

Lien Priorities: The Defects Of Limiting The "Super Priority" For Common Interest Communities, Daniel Goldmintz

Cardozo Law Review

No abstract provided.