Banking and Finance Law Commons^™

The Durbin Amendment's Interchange Fee And Network Non-Exclusivity Provisions: Did The Federal Reserve Board Overstep Its Boundaries, Kathleen A. Mcconnell

North Carolina Banking Institute

No abstract provided.

The Cfpb Indirectly Regulated Lending Through Auto Dealers, Kim B. Perez

North Carolina Banking Institute

No abstract provided.

Small Business Real Estate Financing: Why Small Businesses And Banks Should Utilize Sba 504 Loans, Graham S. Miller

North Carolina Banking Institute

No abstract provided.

Missed (Inter)Connections: Proposed Revisions To The Federal Reserve's Approach To Financial Stability Analysis Under The Bank Holding Company Act, Christopher S. Dwight

North Carolina Banking Institute

No abstract provided.

Friend This: Why Those Damaged During The Facebook Ipo Will Recover (Almost) Nothing From Nasdaq, Thomas L. Short

Washington and Lee Law Review

No abstract provided.

Regulatory Arbitrage, Extraterritorial Jurisdiction, And Dodd-Frank: The Implications Of Us Global Otc Derivative Regulation, Christian Johnson

Nevada Law Journal

No abstract provided.

Turning Restitution Upside-Down: The Mortgage Fraud Restitution Formula Amidst Volatile Housing Prices, Nicole Scott

Nevada Law Journal

No abstract provided.

Litigation Investment And Legal Ethics: What Are The Real Issues?, Anthony J. Sebok

Articles

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer's exercise of independent professional judgment on behalf of the client. The strongest objections to litigation investment by third parties is that it may compromise a lawyer's independence. This article examines this objection in the context of a recent report from the Ethics Committee of the Commercial and Federal Litigation Section of the New York State Bar Association and argues that it misses the real legal …

Paying For Risk: Bankers, Compensation, And Competition, Simone M. Sepe, Charles K. Whitehead

Cornell Law Faculty Working Papers

Efforts to control bank risk address the wrong problem in the wrong way. They presume that the financial crisis was caused by CEOs who failed to super­vise risk-taking employees. The responses focus on exe­cutive pay, believing that exe­cu­tives will bring non-execu­tives into line—using incen­­­­tives to manage risk-taking—once their own pay is regu­lated. What they over­look is the effect on non-executive pay of the com­pe­­ti­­tion for talent. Even if exe­­cu­tive pay is regu­lated, and exe­cu­tives act in the bank’s best interests, they will still be trapped into providing incentives that encourage risk-taking by non-executives due to the negative exter­nality that arises …

Property And Mortgage Fraud Under The Mandatory Victims Restitution Act: What Is Stolen And When Is It Returned?, Arthur Durst

William & Mary Business Law Review

The United States Circuit Courts of Appeals are split on how to calculate restitution in a criminal loan fraud situation where collateral is involved. This trend is best illustrated in cases involving mortgage fraud. The split stems from disagreement over how to account for the lender’s receipt of collateral property. The Third, Seventh, Eighth, and Tenth Circuit Courts of Appeals consider the property returned when the person defrauded receives cash from the sale of collateral property. The Second, Fifth, and Ninth Circuits deem the property returned when the lender takes ownership of the collateral property. This Note argues that the …

Broker-Dealers, Institutional Investors, And Fiduciary Duty: Much Ado About Nothing?, Lynn Bai

William & Mary Business Law Review

Under the mandate of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the SEC is soliciting public opinions on whether broker-dealers should be subject to a fiduciary duty when advising retail and institutional investors. This Article focuses on the advisability of such a proposal for institutional investors. It shows that, first, a fiduciary duty could potentially enhance broker-dealers’ standard of conduct for only a subset of institutional investors who are well capitalized, capable of assessing risks independently, and acknowledge in writing their nonreliance on broker-dealers’ advice. Thus, the benefit of fiduciary duty is much narrower than what …

The Impossible, Highly Desired Islamic Bank, Haider Ala Hamoudi

William & Mary Business Law Review

The purpose of this Article is to explore, and explain the stubborn persistence of, a central paradox that is endemic to the retail Islamic bank as it operates in the United States. The paradox is that retail Islamic banking in the United States is impossible, and yet it remains highly desired. It is impossible because central features of modern banking regulation conflict with fundamental aspects of shari’a as it is understood in modernity in the context of finance. It is unimaginable that regulators will create exceptions to, or somehow significantly amend, the modern financial regulatory system in the radical fashion …

Taking Stock: Insider And Outsider Trading By Congress, Jeanne L. Schroeder

William & Mary Business Law Review

Spring 2012 saw the enactment of the “Stop Trading on Congressional Knowledge Act of 2012” or “STOCK Act.” It supposedly repealed an exemption from the federal securities laws that made insider trading by members of Congress “totally legal.” As every securities lawyer knows, however, there never was such an exemption. Representatives and Senators have always been subject to the same rules as the rest of us. It is just that insider-trading law is so incoherent that legal scholars sharply disagreed as to when, or even if, trading by government officials on the basis of material nonpublic information gleaned from their …

The Post Office Banks On The Poor, Mehrsa Baradaran

Popular Media

Approximately 88 million people in the United States, or 28 percent of the population, have no bank account at all, or do have a bank account, but primarily rely on check-cashing storefronts, payday lenders, title lenders, or even pawnshops to meet their financial needs. And these lenders charge much more for their services than traditional banks. The average annual income for an “unbanked” family is $25,500, and about 10 percent of that income, or $2,412, goes to fees and interest for gaining access to credit or other financial services. But a possible solution has appeared, in the unlikely guise of …

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

Cardozo Law Review

No abstract provided.

Judicial Inactivitism In Protecting Financial Consumer Against Predatory Sale Of Retail Structured Products: A Reflection From Retail Structured Notes Lawsuits In Taiwan, Chao-Hung Chen

Research Collection Yong Pung How School Of Law

This article analyzes 310 structured note lawsuits in Taiwan between 2000 and 2013 to examine courts’ attitude in dealing with claims of misselling retail structured notes. We find that courts were generally not favorable to retail investors. This provides a contrast with the financial regulator’s efforts to improve financial consumer protection since 2008. By examining plaintiffs’ key arguments and courts’ rulings, we find that it was difficult for investors to fulfill their burden of proof and courts were reluctant to award remedies when investors did sign on a contractual document confirming his knowledge on a few matters. While regulators are …

Deutsche Bank V Chang: A Dramatic Reversal By The Court Of Appeal, Kee Yang Low

Research Collection Yong Pung How School Of Law

The 2012 High Court decision awarding scientist Chang Tse Wen US$49m for losses from investing in accumulators through Deutsche Bank has been overturned by the Court of Appeal. This article seeks to aid readers in understanding the CA decision and in appreciating the legal implications.

Banking And The Social Contract, Mehrsa Baradaran

Notre Dame Law Review

This Article asserts that there are three major tenets of the social contract: (1) safety and soundness, (2) consumer protection, and (3) access to credit. Regulators can and should require banks to meet standards in these areas to benefit society even if these measures reasonably reduce bank profits. Implicit in the social contract is the idea that each party must give up something in the exchange. This Article provides policymakers not only the appropriate narrative and justifications needed to frame their regulatory philosophy, but it also provides important textual support from the most prominent acts of banking legislation to give …

Precluding The Treasure Hunt: How The World Bank Group Can Help Investors Circumnavigate Sovereign Immunity Obstacles To Icsid Award Execution, Joseph M. Cardosi

Pepperdine Law Review

This Comment highlights the frustrating road that investors travel in search of assets when states do not honor arbitration awards and discusses how the World Bank Group can unify investor–state arbitrations to preclude such hollow victories for investors. Part II introduces the contemporary framework of investor–state arbitration, including an overview of the International Centre for Settlement of Investment Disputes (ICSID or the Centre), a summary of the scope of noncompliance with investor–state arbitration awards, and the unique ICSID enforcement mechanism used to address challenges to awards and noncompliance. Part III provides examples of the challenges investors face in award execution …

Libor: Everything You Ever Wanted To Know But Were Afraid To Ask, Michael R. Koblenz, Kenneth M. Labbate, Carrie C. Turner

The Journal of Business, Entrepreneurship & the Law

The goal of this article is to present the reader with a general overview of the LIBOR: its genesis and development, how and why London bankers manipulated the LIBOR, the liability of implicated parties, criminal penalties, the impact of criminal penalties on director and officer insurance carriers, and what the future holds for the LIBOR.

Drastic Times Call For Drastic Risk Measures: Why Value-At-Risk Is (Still) A Flawed Preventative Of Financial Crises And What Regulators Can Do About It, Andrew L. Mcelroy

The Journal of Business, Entrepreneurship & the Law

Bank regulators recently proposed the most fundamental reforms to U.S. banking law in decades, yet the value-at-risk statistic--replete with known deficiencies--remains the basis of the capital adequacy requirement. Consequently, there exists an unresolved tension in the law: the purpose of the banking rules is to require riskier financial institutions to hold additional capital, yet the value-at-risk statistic used to make this assessment induces a perverse incentive to hold the riskiest securities. Overlaid on this framework is the wide latitude afforded to banks in designing their value-at-risk models. This Article explores foreseeable issues with the regulatory reliance on value-at-risk. Moreover, it …

Survivorship Rights In Joint Bank Accounts: A Misbegotten Presumption Of Intent, Gregory Eddington

Marquette Elder's Advisor

The Article addresses the frequently litigated issue of the ownership of joint bank accounts that elderly people may have opened to protect against incapacity or to avoid FDIC insurance limits on single accounts. Despite the strong possibility of these non-donative motives, most states—by statute or court decision—award the accounts to the surviving co-tenants instead of the depositors’ heirs or will beneficiaries. This occurs even when the account contract did not contain language of survivorship and even when there is no evidence that the depositor was offered a contract that would have allowed him or her to choose an agency arrangement. …

Grade Incomplete: Examining The Securities And Exchange Commission's Attempt To Implement Credit Rating And Certain Corporate Governance Reforms Of Dodd-Frank, Tod Perry, Randle B. Pollard

Scholarly Articles

Following the financial crisis of 2007-2009, Congress passed the Dodd-Frank Act with stated goals, among others, of creating a sound economic foundation and protecting consumers. The Dodd-Frank Act creates several new agencies and restructures the financial regulatory system, yet controversies remain on the promulgation of new rules and the overall effectiveness in accomplishing the stated goals of the Act.

This Article briefly discusses the status of rulemaking by newly created agencies and the restructured financial regulatory system mandated by the Dodd- Frank Act three years after its passage. Next, we focus on certain aspects of the SEC and its charge …

The Systemic Risk Paradox: Banks And Clearinghouses Under Regulation, Felix B. Chang

Faculty Articles and Other Publications

Consolidation in the financial industry threatens competition and increases systemic risk. Recently, banks have seen both high-profile mergers and spectacular failures, prompting a flurry of regulatory responses. Yet consolidation has not been as closely scrutinized for clearinghouses, which facilitate trading in securities and derivatives products. These nonbank intermediaries can be thought of as middlemen who collect deposits to ensure that each buyer and seller has the wherewithal to uphold its end of the deal. Clearinghouses mitigate the credit risks that buyers and sellers would face if they dealt directly with each other.

Yet here lies the dilemma: large clearinghouses reduce …

The Legal Aspects Of Crowdfunding And U.S. Law, Joan Macleod Heminway

Book Chapters

No abstract provided.

Universal Anti-Bribery Legislation 
Can Save International Business: A Comparison Of The Fcpa And The Ukba In An Attempt To Create 
Universal Legislation To Combat
 Bribery Around The Globe, Lindsey Hills

Richmond Journal of Global Law & Business

No abstract provided.

Death To Credit As Leverage: Using The Bank Anti-Tying Provision To Curb Financial Risk, Felix B. Chang

Faculty Articles and Other Publications

Today, the need for nimble financial regulation is paramount. The Dodd-Frank financial reform bill has not prevented further scandals and will not stop banks from selling risky products. Yet one understudied law is a surprisingly versatile device that has the potential to temper financial risk: the Bank Holding Company Act’s Anti-Tying Provision. The Anti-Tying Provision prohibits banks from requiring borrowers to purchase additional products in order to obtain a loan. It applies antitrust principles to bank sales and lending practices. Under antitrust law, a seller cannot condition the availability of one item (the desired product) on the consumer’s purchase of …

Revisiting The Causes Of The Financial Crisis, Antony Page

Faculty Publications

Much has been written on the legal causes of the financial crisis and its aftermath, often referred to as the Great Recession. Presumably the debate will continue for many years to come, much as scholars continue to debate the causes of the Great Depression. Lost, however, in the descriptions of arcane laws and complex derivative financial products, is a relatively brief and straightforward account of the crisis and its most likely causes for interested lawyers, law students, or graduate students who are not specialists and do not want to become specialists. This Essay, based on a presentation at the Indiana …

I Got 99 Problems And They’Re All Fatca, Nirav (Jonathan) Dhanawade

Northwestern Journal of International Law & Business

Offshore personal income tax evasion accounts for approximately $50 billion in annual lost revenue for the United States. These large sums of money are squirrelled away in tax havens—jurisdictions, such as Aruba, the Cayman Islands, and Dubai, whose laws allow some U.S. citizens to evade paying their U.S. income taxes. Before the Foreign Account Tax Compliance Act (FATCA) was enacted, U.S. citizens could avoid taxes on passive income by not reporting this income to the Internal Revenue Service (IRS). To detect tax evasion, the IRS pursued U.S. citizens with undeclared assets in foreign banks. But the IRS’s quest was largely …

Remic Tax Enforcement As Financial-Market Regulator, Bradley T. Borden, David J. Reiss

Faculty Scholarship

No abstract provided.