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Full-Text Articles in Banking and Finance Law

Regulation Goes Medieval, Andrew A. Schwartz Jan 2012

Regulation Goes Medieval, Andrew A. Schwartz

Publications

Section 301 of the 2009 federal Credit Card Accountability, Responsibility, and Disclosure Act prohibits the issuance of consumer credit cards to young adults ages 18–20 unless the credit contract is cosigned by an older adult who accepts joint liability for the card, or else the young adult proves she has “independent means of repaying” her credit card obligations. This prohibition is at odds with a 50-year trend of extending the rights of adulthood to people ages 18–20. It also blocks an important source of credit for young entrepreneurs, who often use consumer credit to launch their enterprises.


Unclaimed Financial Assets And The Promotion Of Microfinance, Andrew W. Hartlage Apr 2011

Unclaimed Financial Assets And The Promotion Of Microfinance, Andrew W. Hartlage

Michigan Law Review First Impressions

State governments can effectively promote domestic entrepreneurship in low-income communities and simultaneously fulfill their duties as conservator s of unclaimed property, by lending unclai med financial assets-in-trust at preferential interest rates to in-state microfinance providers. This plan presents an alternative to charitable contributions, though it does not resolve the tension between for-profit and not-for-profit microfinance providers. Such a scheme could be a significant funding source for many microfinance operations in the United States today. Even a small portion of the yearly intake of unclaimed assets would be substantial enough to support fully most microfinance loan portfolios. Also, reinvestment of unclaimed …


Bubbles, Busts, And Blame, Robert C. Hockett Apr 2011

Bubbles, Busts, And Blame, Robert C. Hockett

Cornell Law Faculty Publications

I argue that financial asset price bubbles and busts, such as those we have recently experienced in the mortgage and securities markets, are compatible with market efficiency, individual rationality, and even ethically unobjectionable behavior. The reason is that they constitute classic recursively self-amplifying collective action problems, the hallmark of which is the efficient aggregation of individually rational behaviors into collectively calamitous outcomes. In the present case, individuals rationally "legged the spread" between cheap borrowing costs and credit-fueled capital gains rates, neither of which market actors could affect in their individual capacities even when knowing that credit would have eventually to …


Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz Jan 2011

Old Enough To Fight, Old Enough To Swipe: A Critique Of The Infancy Rule In The Federal Credit Card Act, Andrew A. Schwartz

Publications

In the 1960s and 1970s, American society came to the considered conclusion that if eighteen-year-olds can be drafted to fight and possibly die for their country, they should be treated as adults under the law. Thus, in 1971, the Twenty-Sixth Amendment to the United States Constitution, which lowered the voting age to eighteen from twenty one, was proposed and ratified in just three months, making it the fastest amendment in American history. The minimum age for federal and state jury service was also lowered to eighteen from twenty one. And, with regard to contract law, every state passed legislation reducing …


Deterring "Double-Play" Manipulation In Financial Crisis: Increasing Transaction Cost As A Regulatory Tool, Lin (Lynn) Bai, Rujing Meng Jan 2009

Deterring "Double-Play" Manipulation In Financial Crisis: Increasing Transaction Cost As A Regulatory Tool, Lin (Lynn) Bai, Rujing Meng

Faculty Articles and Other Publications

The sub-prime mortgage crisis that originated in the United States has triggered a global credit crunch, threatening the solvency of emerging markets that have relied heavily on foreign debt, and resulting in the devaluation of their currencies. Currency market interventions by the central banks in countries with a currency board system lead to higher short-term interest rates and further declinations in the local stock market. This economic setting invites the double-play manipulation strategy that simultaneously attacks both the local currency and the stock market. History has shown that a central bank’s stock market intervention is costly and that sustaining the …


Credit Rating Agencies, Structured Securities, And The Way Out Of The Abyss, Lois R. Lupica Jan 2009

Credit Rating Agencies, Structured Securities, And The Way Out Of The Abyss, Lois R. Lupica

Faculty Publications

The article examines the role of credit rating agencies (CRAs) in the evolving financial markets, and particularly in connection with the structured finance markets. The movement away from relationship-based lending based on trust, to the less personal capital markets, makes an objective assessment of creditworthiness essential to the structure of legitimate transactions, as well as to the credibility of investor decision-making. Yet, the financial crisis of 2008-2009 revealed that the CRAs seriously underestimated the risk of many complex securities that they rated. As CRAs have devoted a greater share of their resources to develop methods of rating these progressively more …


Deleveraging Microfinance: Principles For Managing Voluntary Debt Workouts Of Microfinance Institutions, Deborah Burand Jan 2009

Deleveraging Microfinance: Principles For Managing Voluntary Debt Workouts Of Microfinance Institutions, Deborah Burand

Articles

This paper focuses on the challenges of responding to a deleveraging of the microfinance sector and offers guidelines for stakeholders in microfinance-regulators, policymakers, investors (debt and equity), donors, and microfinance providers-for how to address these challenges in the context of a microfinance institution debt workout so as to minimize undue disruption and damage to the microfinance sector as a whole.


Keynote Address: The Case For A Market Liquidity Provider Of Last Resort, Steven L. Schwarcz Jan 2009

Keynote Address: The Case For A Market Liquidity Provider Of Last Resort, Steven L. Schwarcz

Faculty Scholarship

This short paper, prepared as a keynote address, explains why the credit crunch is fundamentally a story about financial markets, not banks. Its cause was a collapse of securitization and other debt markets, which have become major sources of financing for consumers and companies. Deprived of this financing, consumers have had difficulty purchasing homes and automobiles, and companies have had difficulty purchasing inventory and making capital investments, causing the real economy to shrink. This paper examines how these financial markets should be protected. Although already subject to many prescriptive regulatory protections, these markets evolve faster than regulation can adapt. The …


Private Equity's Three Lessons For Agency Theory, William Wilson Bratton Oct 2008

Private Equity's Three Lessons For Agency Theory, William Wilson Bratton

Articles

No abstract provided.


Pick A Card, Any Card, Ronald J. Mann Jan 2008

Pick A Card, Any Card, Ronald J. Mann

Faculty Scholarship

At the heart of all serious thought about consumer financial products is the difficulty of understanding the mental processes by which consumers evaluate, compare, and use those products. Usury proposals from scholars and policy makers depend on explicit or implicit assumptions about how interest-rate caps will affect the mix of products available in the marketplace and the choices that consumers make among them. Legislators and lobbyists that decry a torrent of consumer bankruptcy filings rely explicitly on the claim that consumers abuse credit products. Proposals to outlaw products like payday loans assume that those who use the products are so …


Policies To Expand Minority Entrepreneurship: Closing Comments, Michael S. Barr Jan 2008

Policies To Expand Minority Entrepreneurship: Closing Comments, Michael S. Barr

Book Chapters

This essay is based on comments delivered at the Conference on on Entrepreneurship in Low- and Moderate-Income Communities, November 3-4, 2005. This has been a productive conversation. In my closing comments, I want to shift our focus somewhat, from entrepreneurship in low-income communities to minority entrepreneurship generally. I want to do so because many minority entrepreneurs are connected to or hire from low-income communities, and because minority entrepreneurs face critical barriers even when they attempt to create and grow firms outside of distressed communities. In this comment, I want to highlight key barriers and suggest five steps for Congress, the …


Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova Jan 2008

Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova

Fordham Journal of Corporate & Financial Law

No abstract provided.


Perceptions Of The Future Of Bank Merger Antitrust: Local Areas Will Remain Relevant Markets, Gregory J. Werden Jan 2008

Perceptions Of The Future Of Bank Merger Antitrust: Local Areas Will Remain Relevant Markets, Gregory J. Werden

Fordham Journal of Corporate & Financial Law

No abstract provided.


Urban Development And Unequal Access To Housing Finance Services, Gregory D. Squires Jan 2008

Urban Development And Unequal Access To Housing Finance Services, Gregory D. Squires

NYLS Law Review

No abstract provided.


An Analysis Of The Implementation And Impact Of The 2004–2005 Amendments To The Community Reinvestment Act Regulations: Th E Continuing Importance Of The Cra Examination Process, Josh Silver, Richard Marsico Jan 2008

An Analysis Of The Implementation And Impact Of The 2004–2005 Amendments To The Community Reinvestment Act Regulations: Th E Continuing Importance Of The Cra Examination Process, Josh Silver, Richard Marsico

NYLS Law Review

No abstract provided.


Preemption, Agency Cost Theory, And Predatory Lending By Banking Agents: Are Federal Regulators Biting Off More Than They Can Chew , Christopher L. Peterson Jan 2007

Preemption, Agency Cost Theory, And Predatory Lending By Banking Agents: Are Federal Regulators Biting Off More Than They Can Chew , Christopher L. Peterson

American University Law Review

A pitched battle is currently being waged for control of the American banking industry. For over a hundred years, the federal and state governments have maintained a complex, but relatively stable truce in their contest for power. At the beginning of our republic, state governments were the primary charterers and regulators of banks. In the wake of the Civil War, the National Bank Act created parity between federal and state banks, cementing the notion of a dual banking system that endured through the twentieth century. But in the past five years, the federal government has increasingly used its powers under …


Industry Value At Risk In Australia, Robert Powell Jan 2007

Industry Value At Risk In Australia, Robert Powell

Theses: Doctorates and Masters

Value at Risk (VaR) models have gained increasing momentum in recent years. Market VaR is an important issue for banks since its adoption as a primary risk metric in the Basel Accords and the requirement that it is calculated on a daily basis. Credit risk modelling has become increasingly important to banks since the advent of Basel 11 which allows banks with sophisticated modelling techniques to use internal models for the purpose of calculating capital requirements. A high level of credit risk is often the key reason behind banks failing or experiencing severe difficulty. Conditional Value at Risk (CVaR) measures …


Predatory Structured Finance, Christopher L. Peterson Sep 2006

Predatory Structured Finance, Christopher L. Peterson

ExpressO

Predatory lending is a real, pervasive, and destructive problem as demonstrated by record settlements, jury awards, media exposes, and a large body of empirical scholarship. Currently the national debate over predatory mortgage lending is shifting to the controversial question of who should bear liability for predatory lending practices. In today’s subprime mortgage market, originators and brokers quickly assign home loans through a complex and opaque series of transactions involving as many as a dozen different strategically organized companies. Loans are typically transferred into large pools, and then income from those loans is “structured” to appeal to different types of investors. …


Advancing The Cra—Using The Cra's Strategic Plan Option To Promote Community Inclusion: The Cra And Community Inclusion, Cassandra Jones Havard Jan 2006

Advancing The Cra—Using The Cra's Strategic Plan Option To Promote Community Inclusion: The Cra And Community Inclusion, Cassandra Jones Havard

All Faculty Scholarship

Banks, banking regulators, and community organizations have spent nearly thirty years interpreting and re-interpreting the simple but ambiguous mandate of the Community Reinvestment Act (CRA). The statute imposes an affirmative duty requiring "regulated financial institutions to have continuing... obligations to help meet the credit needs of the local communities in which they are chartered." The CRA was met with much resistance and lax enforcement for almost a decade. Active protest from community groups, a more defined CRA exam, and innovative, profitable lending strategies, have resulted in a dramatic increase in community reinvestment dollar commitments and in loans to low- and …


To Lend Or Not To Lend: What The Cra Ought To Say About Sub-Prime And Predatory Lending, Cassandra Jones Havard Jul 2005

To Lend Or Not To Lend: What The Cra Ought To Say About Sub-Prime And Predatory Lending, Cassandra Jones Havard

All Faculty Scholarship

Policies that support the expansion of affordable housing for low- and moderate-income persons must be reconciled with those policies that undercut the sustainability of home ownership. The sub-prime market represents a much needed expansion of credit markets to those who have been denied access to credit though they are creditworthy. The high failure rate of the sub-prime market indicates that market forces are ineffective in halting this economic abuse. This article argues that the public policy choices and justifications for certain practices have marginalized the concerns of particular consumer classes. It challenges the premise that the free market can and …


Racial Dimensions Of Credit And Bankruptcy, David A. Skeel, Jr. Sep 2004

Racial Dimensions Of Credit And Bankruptcy, David A. Skeel, Jr.

Washington and Lee Law Review

No abstract provided.


The Litigation Financing Industry: The Wild West Of Finance Should Be Tamed Not Outlawed, Susan Lorde Martin Jan 2004

The Litigation Financing Industry: The Wild West Of Finance Should Be Tamed Not Outlawed, Susan Lorde Martin

Fordham Journal of Corporate & Financial Law

No abstract provided.


Of Predatory Lending And The Democratization Of Credit: Preserving The Social Safety Net Of Informality In Small-Loan Transactions, Regina Austin Jan 2004

Of Predatory Lending And The Democratization Of Credit: Preserving The Social Safety Net Of Informality In Small-Loan Transactions, Regina Austin

American University Law Review

No abstract provided.


Microfinance And Financial Development, Michael S. Barr Jan 2004

Microfinance And Financial Development, Michael S. Barr

Articles

Close to three billion people-half of the world's population-live on less than two dollars a day.' Within these poor communities, one child in five will not live to see his or her fifth birthday. To boost international development, the United Nations (UN) announced the Millennium Development Goals, aimed at eradicating poverty by 2015.? A number of countries responded at the International Conference for Financing International Development in Monterrey, Mexico, by creating action plans to begin to implement the Millennium Development Goals.4 Yet the Millennium Development Goals will prove difficult to achieve.1


The Impact Of Opt-In Privacy Rules On Retail Credit Markets: A Case Study Of Mbna, Fred H. Cate, Michael Staten Jan 2003

The Impact Of Opt-In Privacy Rules On Retail Credit Markets: A Case Study Of Mbna, Fred H. Cate, Michael Staten

Articles by Maurer Faculty

U.S. privacy laws are increasingly moving from a presumption that consumers must object to ("opt out" of) uses of personal data they wish to prohibit to a requirement that they must explicitly consent ("opt in") to uses they wish to permit. Despite the growing reliance on opt-in rules, there has been little empirical research on their costs. This Article examines the impact of opt-in on MBNA Corporation, a diversified, multinational financial institution. The authors demonstrate that opt-in would raise account acquisition costs and lower profits, reduce the supply of credit and raise credit card prices, generate more offers to uninterested …


Banking For The Unbanked, Michael S. Barr Jan 2002

Banking For The Unbanked, Michael S. Barr

Articles

The consequences of not having access to mainstream financial services can be severe. Fim, the "unbanked" face high costs for basic financial servies. For example, a 2000 Treasury [U.S. Treasury Department] study found that a worker eaming $12,000 a year would pay approximately $250 annually just to cash payroll checks at a check cashing outlet, in addition to fees for money orders, wire transfers, bill payments, and other common transactions. Regular payments with low credit risk that could be directly deposited into bank accounts, with significantly lower payment systems costs, form the bulk of checks cashed at these check cashing …


Invisible Markets Netting Visible Results: When Sub-Prime Lending Becomes Predatory, Cassandra Jones Havard Oct 2001

Invisible Markets Netting Visible Results: When Sub-Prime Lending Becomes Predatory, Cassandra Jones Havard

All Faculty Scholarship

In this article, I argue that Ellison's metaphor of social invisibility—the societal undervaluing of minorities—is analogous to economic invisibility—the denial of fair access to credit to minorities. I then use the metaphor of invisibility as a basis for understanding the contemporary legal problem of predatory lending, or making credit available to borrowers at unreasonably high interest rates. Disguised as credit access to high-risk, underserved borrowers, predatory lending helps to create risk by offering borrowers products that do not adequately measure risk and that are not fairly priced.


African-American Farmers And Fair Lending: Racializing Rural Economic Space, Cassandra Jones Havard Apr 2001

African-American Farmers And Fair Lending: Racializing Rural Economic Space, Cassandra Jones Havard

All Faculty Scholarship

This article critiques the federal policy and legislation that makes USDA a financial intermediary designed to give farmers access to credit in light of the federal class action settlement of claims between African-American farmers and USDA. The challenged statutory scheme allows locally elected farmers to make decisions regarding these low-cost loan funds. USDA's approach has both federalist and economic underpinnings. The article identifies the arguments supporting devolution of power from the federal government to local jurisdictions and examines the competing theories of information costs, transaction costs, and agency costs as they relate to USDA as a financial intermediary. Finally, it …


Mandatory Bankruptcy Counseling: The Canadian Experience, Lain Ramsay Jan 2001

Mandatory Bankruptcy Counseling: The Canadian Experience, Lain Ramsay

Fordham Journal of Corporate & Financial Law

No abstract provided.


But Can She Keep The Car? Some Thoughts On Collateral Retention In Consumer Chapter 7 Cases, Marianne B. Culhane, Michaela M. White Jan 2001

But Can She Keep The Car? Some Thoughts On Collateral Retention In Consumer Chapter 7 Cases, Marianne B. Culhane, Michaela M. White

Fordham Journal of Corporate & Financial Law

No abstract provided.