Banking and Finance Law Commons^™

Evaluating Legal Frameworks For The Protection Of Consumers Of Digital Financial Services: Global Trends And Their Significance For Vietnam, Ha Son Nguyen, Lanh Dinh Cao, Nguyen Dinh Phan

International Journal on Consumer Law and Practice

The development of digital financial services (DFS) in the context of global digital transformation poses fundamental challenges for the legal framework for consumer protection, particularly in developing countries such as Vietnam. This article argues that the sectoral approach currently adopted in Vietnam, with rules dispersed across various specialized statutes, has created a structurally significant legal gap, a lack of consistency in protection standards, and limitations on effective coordination among regulatory authorities. It thereby undermines the law’s capacity to protect consumers in the highly cross-sectoral environment of digital finance.

Through an analytical and comparative approach that draws on the experiences of …

Mutual Fund Fees, Stewart L. Brown

William & Mary Business Law Review

Investors pay billions annually in fees for actively managed mutual funds, despite the availability of far superior, cost-effective alternatives like index funds. Mutual funds, with their unique legal structure, insulate management fees from competitive pressures, thereby enabling fund sponsors to maintain high fees. Contrary to the assumption that legal, regulatory, and governance mechanisms adequately protect investors, this Article demonstrates that such safeguards are largely ineffective. The competitive forces that would ordinarily drive fee reductions are rendered impotent by structural conflicts of interest, ineffective regulatory oversight, and the passive role of independent directors. Fund sponsors capitalize on economies of scale, reaping …

Durbin’S Ripple: How Fee Caps Reshaped Banking And Boosted Fintechs: Exploring The Unintended Consumer Impacts And Regulatory Gaps In The Wake Of The Durbin Amendment, Rebecca M. Reeve

Touro Law Review

This Article explores the implications of the Durbin Amendment on consumer protection, financial innovation, and market competition. Initially intended to cap interchange fees and foster cost savings for merchants and consumers, the Amendment’s effects have diverged from its legislative intent. Financial institutions offset lost revenue by increasing other consumer fees, unintentionally spurring a financial technology (fintech) boom as consumers sought low-cost alternatives. This Article examines the administrative rulemaking challenges the Federal Reserve faced in implementing the Amendment, the rise of fintech solutions as a response to shifting bank priorities, and the potential regulatory gaps affecting consumer protection in a rapidly …

“Spinning Wheel Got To Go Round”: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Tom Kierner, Stephen T. Middlebrook

Articles by Maurer Faculty

The past year reminds us of the rock lyrics from “Spinning Wheel” on Blood, Sweat & Tears’s 1968 self-titled record—“What goes up, must come down/Spinning Wheel got to go round”—because there have been many changes in strategy and reversal of policy since President Trump’s inauguration in January 2025. Our Survey documents these changes and reversals as they affect electronic payments and financial services. This year’s Survey also reports on warnings from state and federal regulators aimed at bank and non-bank providers of consumer financial services. Part II examines an FTC enforcement action related to the unfair and deceptive marketing of …

The Gamification Of Banking, Colleen Baker, Christopher K. Odinet

Faculty Scholarship

Gamification is coming to banking. This phenomenon is already gain-ing ground in advertising, healthcare, manufacturing, and, more recently, with the GameStop and AMC meme stock saga in securities trading. The idea behind gamification is to make transactions seem fun, playful, and even casino-like in order to elicit habit-forming, addictive-like effects with consumers. This Article argues that the rise of financial technology (“fintech”) firms and their ever-growing business relationships with incumbent financial institutions has created the necessary conditions for gamification to take hold in the banking sector. In order to explore this observation, we undertake a study of current examples of …

The Financial Sector And Global Dollar System, Gary Gensler, Lev Menand, Joshua Younger

Faculty Scholarship

The second Trump administration’s approach to financial markets and institutions mixes familiar deregulatory policies with a range of other policies (financial and non-financial) that are largely without precedent and may lead to significant structural change in the long term. Combined, these policies have the potential to affect the financial sector in at least four ways. First, they could threaten the foundations of the global dollar system – mutual cooperation, trust, and interdependency, both between the producers and consumers of financial instruments and among the nations that constitute the dollar bloc. Second, they may undermine financial stability by loosening prudential standards, …

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Toward A Smart Disclosure Regime?, Nydia Remolina Leon, Yvonne Ai-Chi Loh, David R. Hardoon

Research Collection Yong Pung How School Of Law

Traditionally, consumer and data protection policies evolved from issues of consent and information disclosure. The purpose of these regulatory approaches is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this paper refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a …

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Towards A Smart Disclosure Regime?, Nydia Remolina, Yvonne Ai-Chi Loh, David Hardoon

International Journal on Consumer Law and Practice

Consumer and data protection policies often focus on consent and information disclosure. The purpose of these regulatory strategies is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this article refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a variety of …

After Ftx: Can The Original Bitcoin Use Case Be Saved?, Mark Burge

Faculty Scholarship

Bitcoin and the other cryptocurrencies spawned by the innovation of blockchain programming have exploded in prominence, both in gains of massive market value and in dramatic market losses, the latter most notably seen in connection with the failure of the FTX cryptocurrency exchange in November 2022. After years of investment and speculation, however, something crucial has faded: the original use case for Bitcoin as a system of payment. Can cryptocurrency-as-a-payment-system be saved, or are day traders and speculators the actual cryptocurrency future? This article suggests that cryptocurrency has been hobbled by a lack of foundational commercial and consumer-protection law that …

Regulatory Innovation And Permission To Fail: The Case Of Suptech, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The recent U.S. Supreme Court decision West Virginia v. EPA has cast a pall over the discretion of administrative agencies at a very inopportune time. The private sector is currently adopting new technologies at a rapid pace, and as regulated industries become more technologically complex, administrative agencies must innovate technological tools of their own in order to keep up. Agencies will increasingly struggle to do their jobs without that innovation, but the private sector is afforded something that is both critical to the innovation process, and often denied to administrative agencies: “permission to fail.” Without some grace for the inevitable …

Benign Language On Letters From Debt Collectors And Avoiding Violations Of The Fair Debt Collection Practices Act, Sebastian West

University of Cincinnati Law Review

No abstract provided.

Fedaccounts: Digital Dollars, John Crawford, Lev Menand, Morgan Ricks

Faculty Scholarship

We are entering a new monetary era. Central banks around the world – spurred by the development of privately controlled digital currencies as well as competition from other central banks – have been studying, building, and, in some cases, issuing central bank digital currency (“CBDC”).

Although digital fiat currency is one of the hottest topics in macroeconomics and central banking today, the discussion has largely overlooked the most straightforward and appealing strategy for implementing a U.S. dollar-based CBDC: expanding access to bank accounts that the Federal Reserve already offers to a small, favored set of clients. These accounts consist of …

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Toward A Smart Disclosure Regime?, Nydia Remolina, Aurelio Gurrea-Martinez, Yvonne Ai-Chi Loh, David R. Hardoon

Centre for AI & Data Governance (2019-2025)

Traditionally, consumer and data protection policies evolved from issues of consent and information disclosure. The purpose of these regulatory approaches is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this paper refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a …

No Money, Mo’ Problems: The Attitudes And Experiences Of Homeowners In Default, Tracy Douglas

Pepperdine Dispute Resolution Law Journal

This article discusses differences in foreclosure law, consumer protection, and mediation programs. Then, it will summarize relevant research on the topic of homeowners’ attitudes, financial knowledge, economic hardships, causes of default, and effectiveness of representation. Next, this article will outline the study’s design and methodology followed by the results from the data produced by the study. Then, the results will be analyzed. Finally, policy recommendations and reforms supported by the study’s evidence will be discussed.

Sandbox Boundaries, Hilary J. Allen

Vanderbilt Journal of Entertainment & Technology Law

Around the world, subnational and national regulatory sandboxes are being adopted in an effort to promote fintech innovation. These regulatory sandboxes seek to do so by rolling back some of the consumer protection and prudential regulations that would otherwise apply to firms trialing their financial products and services in the sandbox. While sacrificing such protections in order to promote innovation is problematic, such sacrifice may nonetheless be justifiable if, by working with innovators in the sandbox, regulators are educated about new technologies in a way that enhances their ability to effectively promote consumer protection and financial stability in other contexts. …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Shadowing Lenders And Consumers: The Rise, Regulation, And Risks Of Non-Banks, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Since the financial crisis of 2008, “shadow banking” or financial transactions by “non-banks,” has skyrocketed. Non-banks are not depositary institutions and as such, they roam free, largely outside the purview of the bank regulators. They occupy all parts of the credit markets, from mortgage loan origination to payday lenders. Untethered, they operate without government guarantees, such as deposit insurance and have no access to emergency government lending facilities, such as the Federal Reserve's discount window.

There are both positives and negatives in the rise of non-banks. On the positive side is market liquidity and greater diversity of funding sources for …

Consumer Bitcredit And Fintech Lending, Christopher K. Odinet

Faculty Scholarship

The digital economy is changing everything, including how we borrow money. In the wake of the 2008 crisis, banks pulled back in their lending and, as a result, many consumers and small businesses found themselves unable to access credit. A wave of online firms called fintech lenders have filled the space left vacant by traditional financial institutions. These platforms are fast making antiques out of many mainstream lending practices, such as long paper applications and face-to-face meetings. Instead, through underwriting by automation — utilizing big data (including social media data) and machine learning — loan processing that once took days …

Madden V. Midland Funding Llc: Uprooting The National Bank Act’S Power Of Preemption, Andrew Silvia

Chicago-Kent Law Review

No abstract provided.

Regulating Debt Collection, Christopher K. Odinet, Roederick C. White

Faculty Scholarship

Debt collection. It often starts as a late night call carrying threats of being thrown in prison, ruin at the workplace, and trouble for the family unless you pay up. While the law actually prohibits some of these tactics, most consumers do not know their legal rights, which leave much to be desired, or fail to exercise them when faced with the harassing practices of some debt collectors. Moreover, the debt collection industry as a whole — both massive and sophisticated — lacks the incentives to self-police or internally punish bad actors. In July 2016 the Consumer Financial Protection Bureau …

The Potential Effect Of The Department Of Labor’S New Fiduciary Rule On Broker-Dealers And The Middle Income Retirement Investors Who Rely On Them, Nadia Yoon

Catholic University Law Review

On April 6, 2016, the U.S. Department of Labor issued a final rule aimed at increasing the reach of the definition of fiduciary status under the Employee Retirement Income Security Act of 1974 (ERISA). This rule closed a loophole that had allowed broker-dealers to avoid becoming investment advisers under ERISA, allowing them to provide bad advice to their retirement clients without disclosing material conflicts of interest. This note begins by laying out the fiduciary rules and standards under ERISA and the U.S. Securities and Exchange Commission’s oversight regime before the final rule. It then lays out the relevant details of …

Calling On The Cfpb For Help: Telling Stories And Consumer Protection, Pamela Foohey

Articles by Maurer Faculty

Since it began operating in 2011, the Consumer Financial Protection Bureau (CFPB) has handled more than a million complaints regarding consumer financial product and services. Beginning in June 2015, the CFPB began publishing consumers’ narratives submitted with their complaints. This Article analyses a random sample of 5,000 of these narratives to assess how people engage with the complaint mechanism in light of the CFPB’s role in processing complaints. I find that people predominately use the complaint function for two distinct purposes: to express their anger and frustration about companies’ practices, or to express sadness and fear about how companies’ practices …

Underwriting Sustainable Homeownership: The Federal Housing Administration And The Low Down Payment Loan, David Reiss

Cornell Law Faculty Publications

The United States Federal Housing Administration (“FHA”) has been a versatile tool of government since it was created during the Great Depression. The FHA was created in large part to inject liquidity into a moribund mortgage market. It succeeded wonderfully, with rapid growth during the late 1930s. The federal government repositioned it a number of times over the following decades to achieve a variety of additional social goals. These goals included supporting civilian mobilization during World War II; helping veterans returning from the War; stabilizing urban housing markets during the 1960s; and expanding minority homeownership rates during the 1990s. It …

The Unfinished Business Of Dodd-Frank: Reforming The Mortgage Contract, Christopher K. Odinet

Faculty Scholarship

The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners …

Franchisees In A Fringe Banking World: Striking The Balance Between Entrepreneurial Autonomy And Consumer Protection, Robert W. Emerson

Akron Law Review

This Article considers fringe banking issues—the gaps or problems in service for both individuals and businesses when the usual banking channels are impractical or even unavailable. Some people may only have recourse to the robust, but often very expensive and less protected, financial products sold for what is, or is supposed to be, a very shortterm basis. The Article first examines the fringe banking world, but ultimately considers whether and how consumer protections are needed for franchisees. Small businesses, including franchisees, are often the forgotten players in the fringe economy. If a franchise actually engages in selling fringe banking products, …

Payday Lenders, Vehicle Title Loans, And Small-Value Financing: The Cfpb's Proposal To Regulate The Fringe Economy, Christopher K. Odinet

Faculty Scholarship

The market for payday lenders, businesses that provide vehicle title loans, and other small-value financing players is rife with controversy. Some see them as predatory lenders that weave a web of never-ending debt designed to capture the weakest and most economically vulnerable of society. However, advocates of these financial institutions argue that for many Americans who are otherwise shut out of the conventional lending market, these players provide the only viable source of credit in times of economic hardship. Whatever the view, these businesses, their borrowers, and the credit markets that they together comprise are often referred to in legal …

Regulating For The First Time The Decision To Grant Consumer Credit: A Look At The First Steps Taken By The United States And Australia, Jeffrey Davis

UF Law Faculty Publications

In this Article, I discuss the changes in three consumer-credit realms. First, I compare the Australian regime applicable to all forms of consumer credit granting, including mortgage lending, to the American regulation of the consumer mortgage-granting decision. Second, I compare the Australian and American approaches to the decision to authorize use of, or increase the credit limit on, individual credit cards. Third, I compare the two approaches to regulating small short-term loans, usually called payday loans. Finally, I compare the enforcement regimes of both countries — perhaps the key to it all.

Abstention Doctrine And The Fair Debt Collection Practices Act, Michael J. Wood

Chicago-Kent Law Review

A survey of cases where federal courts abstain from hearing cases related to existing state court cases under the Fair Debt Collection Practices Act (FDCPA) reveals varying approaches and theories underlying those courts’ abstentions. This article attempts to distinguish FDCPA claims related to the validity of the underlying debt from claims arising out of debt collectors’ conduct in collecting a debt, and recommends that federal courts avoid abstaining from the latter. When Congress passed the FDCPA, it intended to provide access to a forum of the consumer’s choice to enforce their rights under the Act by serving as “private attorneys …

Does State National Bank Of Big Spring V. Geithner Stand A Fighting Chance?, Devon J. Steinmeyer

Chicago-Kent Law Review

Two years after the start of the 2008 financial crisis and during one of the worst economic recessions since the Great Depression, Congress passed a law designed to insure a financial crisis of the same magnitude would not occur again, and if it did, it would not have the same wide-reaching effects the 2008 crisis had. The Dodd-Frank Wall Street Reform and Consumer Protection Act sought to, among other things, end “too big to fail,” consolidate the consumer protection agencies, and provide for the orderly liquidation of defaulting systematically important companies. State National Bank of Big Spring v. Geithner, a …

Females On The Fringe: Considering Gender In Payday Lending Policy, Amy J. Schmitz

Chicago-Kent Law Review

Payday lending may provide a much-needed safety net for some consumers in need of quick cash for emergencies. However, data suggest that most payday loan borrowers become repeat users caught in a cycle of high-cost debt. Furthermore, empirical evidence indicates consistent overrepresentation of women, including many single mothers, among payday loan borrowers. This takes a toll not only on these women and their families, but also on society as a whole. Indeed, context matters in payday lending debates. It is thus time to think creatively and consider contextualized programs that aim to increase women’s and all consumers’ safe borrowing options, …