Banking and Finance Law Commons^™

Money Finds A Way: Increasing Aml Regulation Garners Diminishing Returns And Increases Demand For Dark Financing, Jacquelyn B. Lewis

Vanderbilt Journal of Transnational Law

The cost of anti-money laundering regulations has grown to many billions of dollars, and countries worldwide are increasingly complying with international standards for financial regulation. Yet, the interception rate for criminal proceeds remains under 1 percent. Banks in the United States, United Kingdom, and France continue to engage in unsafe practices, undeterred by legal penalties. Recent US legislation will narrow, but not eliminate, regulatory gaps. The cost of regulation has become so great that banks accept litigation as a cost of doing business or reduce legal exposure by ending relationships in areas of perceived high risk for money laundering; this …

The Law Of Central Bank Reserve Creation, Will Bateman, J.G. Allen

Research Collection Yong Pung How School Of Law

This article explores legal and constitutional dimensions of central banks’ powers to create money, ‘central bank reserves’, through monetary policy operations. Despite the prominence of monetary authority since the Financial Crisis, the law supporting the creation of central bank reserves is very obscure, as is the role of law in structuring constitutional authority over money. We de-mystify those important matters in three steps. First, we explain, for a legal audience, the role of central bank reserves in the financial system and broader economy. Secondly, we analyse the legal basis for the creation of central bank reserves in three prominent ‘North …

Perkembangan Dan Pembatasan Penggunaan Bank Garansi Sebagai Jaminan Pelaksanaan Oleh Pemerintah Dan Perusahaan Bumn Dalam Pelaksanaan Perjanjian, Azhar Rahadiyan Anwar

Technology and Economics Law Journal

The purpose of Banking in Indonesia is to support the development and stability of Indonesia’s economy. To achieve that and according to the rules in Indonesia, Banks have 2 (two) primary function which is to collect fund from the citizen and to distribute fund to the citizen. this kind of function is known as intermediary function of Bank. One of the product of Bank regarding the distribution fund to ctizen manifest in Bank Guarantee. Bank Guarantee is a product of Bank which has the purpose to give guarantee to the benifciary that the principal who request Bank Guarantee to the …

Perkembangan Kejahatan Tindak Pidana Pencucian Uang Dan Tindak Pidana Pendanaan Terorisme (Tppu Dan Tppt) Di Masa Pandemi Covid-19, Lydia Anggun

Technology and Economics Law Journal

No abstract provided.

Federally Mandated Online Sales Tax: A Logistical Solution For The Future Of E-Commerce, Daniel O'Connor

DePaul Business & Commercial Law Journal

No abstract provided.

Economic Structural Transformation And Litigation: Evidence From Chinese Provinces, To Economic Change And Restructuring, Doug Bujakowski, Joan Schmit

DePaul Business & Commercial Law Journal

No abstract provided.

The "Business Interruption" Insurance Coverage Conundrum: Covid-19 Presents A Challenge, Paul E. Traynor

DePaul Business & Commercial Law Journal

No abstract provided.

Misalighned Incentives In Markets: Envisioning Finance That Benefits All Of Society, Dr. Ryan Clements

DePaul Business & Commercial Law Journal

No abstract provided.

Why Comparability Is A Greater Problem Than Greenwashing In Esg Etfs, Ryan Clements

William & Mary Business Law Review

This Article argues that comparability in environmental, social, and governance (ESG) exchange traded funds (ETFs) is a much greater problem than greenwashing. Rising demand for sustainable investment products in recent years has been met with an explosion in ESG ETF varieties, and numerous ESG-themed funds have captured massive capital inflows. There is little evidence, however, that deceptive “greenwashing” is widespread in ETFs. ETF issuers face significant reputational costs from such behavior, and there are effectively no consumer switching costs for hyperliquid, easily accessible ETFs. While nondeceptive practices of asset managers are observable in the zero-sum, highly competitive, asset management game …

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 …

The Partnership Mystique: Law Firm Finance And Governance For The 21st Century American Law Firm, Maya Steinitz

Faculty Scholarship

This Article identifies and analyzes the de facto and de jure end of lawyers' exclusivity over the practice of law in the United States. This development will have profound implications for the legal profession, the careers of individual lawyers, and the justice system as a whole.

First, the Article argues that various financial products that have recently flooded the legal market are functionally equivalent to investing in and owning law firms and create all the same governance challenges as allowing nonlawyers to directly own stock in law firms.

Second, the Article analyzes Arizona's groundbreaking legalization of nonlawyer participation in law …

Institutional Investors In China: Corporate Governance And Policy Channeling In The Market Within The State, Lin Lin, Dan W. Puchniak

Research Collection Yong Pung How School Of Law

The extraordinary rise of China’s economy has made understanding Chinese corporate governance an issue of global importance. A rich literature has developed analyzing the Chinese Communist Party’s (CCP’s) role as China’s largest controlling shareholder and the impact that this has on Chinese corporate governance. However, the CCP’s role as the architect – and direct and indirect controller – of institutional investors in China has been largely overlooked in the comparative corporate law literature.This Article aims to take the first step in filling this gap in the literature by drawing on Chinese sources and fresh hand-collected empirical, interview, and case study …

Monsanto: Creator Of Cancer Liability

DePaul Business & Commercial Law Journal

No abstract provided.

Impact Of Corporate Response To Controversial Presidential Statements Or Policies

DePaul Business & Commercial Law Journal

No abstract provided.

Reduce Income Inequality: Allow Retail Investors To Invest In Private Equity, Michael Slomovics

The Journal of Business, Entrepreneurship & the Law

This Article will focus on the topic of opening the private equity markets to individual retail investors. Permitting retail investors to invest in private equity would allow investors to reduce the risks of their portfolio while retaining or even increasing their returns, which can make the middle-class investor better off. Additionally, the money that will flow into private equity will allow private equity firms to continue improving American businesses, which will allow American companies to grow and better compete in the international stage. Thus, allowing retail investors to invest in private equity can both help middle class Americans while bolstering …

How The Subprime Mortgage Crisis Sparked New Legislation And Changed The Way Millennials Purchase Real Estate, Troy T. Kramer

The Journal of Business, Entrepreneurship & the Law

This article will explore the Generation Y's approach to the real estate market and analyze how the Subprime Mortgage Crisis stunted Millennials’ economic development. It also analyzes what ways legislation has changed and government has influenced the economy since 2008 to prevent another free fall of the global economy and to protect consumers from predatory lending practices and under-regulation of the financial sector. Further, this article will analyze how Millennials differ from previous generations in their method of purchasing homes and investing in real estate—with a specific eye towards advances in technology. This article also gives advice to first-time homebuyers …

Chief Loophole Officer Or Chief Legal Officer: Inside Lehman Brothers—A Film Case Study About Corporate And Legal Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the continuing legal education (CLE) visual advocacy documentary-style program, which Garrick Apollon (author of this Article) researched and developed. The case study for this CLE documentary-style program is the film Inside Lehman Brothers—a documentary film by Jennifer Deschamps which chronicles the story of the Lehman whistleblowers. The film presents Mathew Lee, former senior vice president overseeing Lehman’s global balance sheet; Oliver Budde, former in-house counsel (associate general counsel) of the Lehman Brothers; and the racialized female mid-tier manager whistleblowers, who all paid a steep price in the 2008 American subprime mortgage crisis, while many of the …

Food Insecurity, Racial Diversity, And Reservation Land: Relationships With The Credit Security Index, Theodor Gordon, Braden Orr

Initiative for Native Nation Relations

The Fair Housing Act and the Equal Credit Opportunity Act prohibit banks from discriminating based on race, gender, national origin, and other protected categories. Are these laws enough to mitigate the multigenerational impacts of discrimination experienced by these communities? To address this question, this project examined whether unequal access to credit persists in communities on or adjacent to Indian reservations, communities with high levels of racial diversity, and communities where women are a greater percentage of the population than men.

Embedding Open Banking In Banking Law: Responsibilities, Performance, Risk And Trust, Scott Farrell

Journal of Business & Technology Law

No abstract provided.

The Alchemy Of Effective Auditor Regulation, Sarah Williams

Faculty Scholarly Works

The audit profession has repeatedly failed in its obligation to accurately opine on financial statements prepared by companies that trade in U.S. markets. The list of entities that have contributed to the quest for effective regulation of these auditors is long; it includes the American Institute of Certified Public Accountants (AICPA), the U.S. Securities and Exchange Commission (SEC), Congress, outside directors of public companies, and the Public Company Accounting Oversight Board (PCAOB), a recent congressional creation. Yet, despite 50 years of effort, the formula for efficacious oversight of the audit profession remains elusive.

In 2020, then-president Donald Trump proposed to …

Lawmaking Without Law: How Over Reliance On Economics Fails Financial Regulation (And What To Do About It), Steven L. Schwarcz, Theodore L. Leonhardt

American University Law Review

This Article examines a fundamental failure of process in lawmaking: the overreliance of lawmakers on economists and economic scholarship when designing and implementing financial regulation, to the virtual exclusion of lawyers and legal scholarship. This overreliance leads to regulation that often is based on theoretical models and assumptions that are poorly informed by experience and may not withstand real-world testing. The Article examines how to improve financial regulation by better integrating legal scholarship and lawyerly insights into the lawmaking process. Among other things, that will require law professors to gain the attention, and earn the respect, of lawmakers by writing …

The Role Of Rival Litigation In Wilmarth's New Glass-Steagall, Heidi Mandanis Schooner

Scholarly Articles

The role of private enforcement of public law is an uneven one among financial regulators. Private litigation has played an important role in the enforcement of the federal securities laws since the Supreme Court recognized an implied private cause of action for violations of the anti-fraud provisions. In contrast, courts have been unwilling to establish an implied private right of action under the federal banking laws. Private litigation, however, played a significant role in the enforcement of the Glass-Steagall Act, the New-Deal-era restrictions that separated the financial industry into its three traditional roles: commercial banking, investment banking, and insurance underwriting. …

Private Equity And Venture Capital In Germany: How Europe’S Heartland Is Poised To Become The Next Bay Area, Jake Besanceney

Northwestern Journal of International Law & Business

Abstract

This note examines the current state of private equity and venture capital activity and investment in Germany, and specifically in Berlin, in relation to the state of such activity and investment that existed in the San Francisco Bay Area prior to and following its tech explosion in the late twentieth century. Numerous factors such as political and ethnic diversity, a comparatively lower cost of living, and proximity to higher education institutes are propelling Berlin’s startup and tech scenes, and are eerily reminiscent of similar factors that fueled the Bay Area’s growth and attracted private equity and venture capital activity …

Esg Ratings: A Blind Spot For U.S. Securities Regulation, Alexander Coley

Northwestern Journal of International Law & Business

Providers of “Environmental, Social, and Governance” (ESG) ratings have emerged as prominent informational intermediaries in the sustainable finance ecosystem. The key players are familiar names such as Moody’s, Morningstar, MSCI and S&P. In recent years, investors, financial markets observers and academics have raised serious doubts about the value and integrity of ESG ratings, pointing to lack of reliability and comparability and risks of conflicts of interest and abuse, including the potential for “greenwashing.”

ESG ratings are now in the crosshairs of financial regulators, particularly, in Europe. However, the regulatory discourse has failed to contend with risks arising from the use …

Equitable, Affordable And Climate-Cognizant Housing Construction, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

The almost universal sentiment by a growing body of physical and social scientists is that climate change--with its floods, drought, heat, and cold-- portend losses of life, communities, property, and the rhythms of living. Some are more vulnerable to these impacts than others: individuals and the poor, who through official government policy and self-interest in the housing markets, have been relegated to live in poorly-constructed and poorly-placed structures--in the wake of ocean surges; in the path of strong winds; near hazardous and noxious facilities; stranded in urban heat islands. Failing to heed climate change omens will lead to a world …

Non-Debt And Non-Bank Financing For Home Purchase: Promises And Risks, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article explores the phenomenon of the NDNBs in home purchase and finance that has gained a growing presence in the mortgage marketplace since the 2008 crisis. Part II offers a deeper discussion of the risk-prone practices leading to the 2008 housing crisis and the regulatory and industry responses for recovery. Parts III and IV describe the emerging new models of home purchase. Part IV explores some of the apparent and hidden risks in these transactions. Part VI concludes with suggestions for assessing and managing risks and for reforms.

Cannabis Receiverships: The Alternative For State Legal Cannabis Businesses Seeking Financial Rehabilitation Locked Out Of Bankruptcy Court By The Controlled Substances Act, Ryan C. Griffith

Seattle University Law Review

This article explores how cannabis businesses suffer by being unable to utilize federal bankruptcy and explore state law receiverships as an alternative remedy to help cannabis businesses weather financial storms.

Part I explores the limitations and differences between a receivership and a bankruptcy. Part II discusses how state legal cannabis companies cannot seek financial rehabilitation in bankruptcy court due to cannabis being listed as a schedule I drug federally. Part III explores how receivership be used to help cannabis companies that cannot seek bankruptcy protection to financially rehabilitate themselves. Part IV details how a receiver can help a cannabis company …

Obstacles To Successful Introduction Of A U.S. Central Bank Digital Currency, Nicholas P. Mack

Journal of Business & Technology Law

No abstract provided.

How El Salvador Has Changed U.S. Law By A Bit: The Consequences For The Ucc Of Bitcoin Becoming Legal Tender, Brian Mccall

Faculty Articles

On June 8, 2021, the Congress of El Salvador passed a law that changed American commercial law.How could a foreign country change U.S. law? El Salvador’s Congress voted to confer “legal tender” status upon the cryptocurrency Bitcoin.The law took effect in El Salvador on September 7, 2021;starting that day, Bitcoin could be used to pay taxes4 and buy goods and services in El Salvador. As the first country to adopt Bitcoin as legal tender, El Salvador made world history and sparked many debates and predictions about the effects its decision may have on the Central American nation and its economy.Beyond …