Banking and Finance Law Commons^™

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Securitizing Notes Of Small Businesses And Needy Workers, Tamar Frankel

Faculty Scholarship

Businesses, whether large ones or small ones, such as restaurants and small shops, are presently closed and some of their employees have been laid off.¹ Currently, the government is lending money to these small businesses² and the now unemployed workers for their sustenance. It then collects the payments from some of the borrowers and the source of the rest of the money is taxes.³ Since not all, or perhaps only a few, small businesses own real estate, they might sign notes promising to repay the loans but can offer no asset backing. Presumably, the nation’s financial deficit …

China's Approach To Central Bank Digital Currency: Selectively Reshaping International Financial Order?, Heng Wang

Research Collection Yong Pung How School Of Law

China is likely to be the first major economy to issue central bank digital currency (CBDC), the digital version of sovereign currency. China’s CBDC is also known as e-CNY, DC/EP, or digital yuan. ECNY has the potential to profoundly affect the international financial system and order. This article explores the following crucial issues from an international perspective: what are the core features of e-CNY? What is China’s approach to CBDC? What is the long-term sustainability of China’s CBDC approach? This article argues that the role of the state, the potential cross-border use of e-CNY, and China’s proactiveness in international governance …

Restructuring Support Agreements: An Empirical Analysis, Anthony J. Casey, Frederick Tung, Katherine Waldock

Faculty Scholarship

Restructuring support agreements (RSAs), or contracts that commit bankruptcy parties to supporting a plan of reorganization that will conform to certain requirements, are now a common feature of Chapter 11. Parties utilize these agreements in nearly half of all large cases. While prior literature has debated the normative value of RSAs, we take an empirical approach to look at what provisions the parties include in these agreements and how those provisions have changed over time.

Our analysis looks at all RSAs associated with large bankruptcies through the end of 2020. We characterize the types of firms with RSAs, the parties …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

Corruption In University Admissions And The Administrative Allocation Of Scarce Goods, L. Burke Files, Roger E. Meiners, Andrew P. Morriss

BYU Law Review

The Varsity Blues investigation uncovered a seamy side of university admissions. Multiple wealthy parents were indicted for securing their children s admission to selective institutions through bribery. Despite the publicity the indictments and guilty pleas received, and the public schadenfreude over the sight of celebrities being arrested, the investigation is most notable for what it did not do: it did not deploy the federal government's arsenal of anti-money laundering and anti-corruption tools against the universities involved. This represents a significant missed opportunity to address the serious problems that arise from rationing access to selective institutions via opaque, easily manipulated admissions …

Tindak Pidana Pencucian Uang Yang Dilakukan Oleh Korporasi: Studi Kasus Putusan Pengadilan Negeri Nomor: 64/Pid.Sus/Tpk/2016/Pn.Bgl, Jeanny Jessica

Jurnal Hukum & Pembangunan

The typologies of money laundering are very closely related to corporate activities, which the activities of corporation are involved indirectly or are associated with financial institutions that made corporations very high risk as criminal offender of money laundering crimes. The handling of money laundering cases that corporation as subjects have only been carried out in Bengkulu with the corruption as primary criminal act, whereas will be expected that the application of corporations as subjects of money laundering crimes will also trigger other law enforcement agencies to uncover money laundering cases that made by corporations

Rekonstruksi Undang-Undang Perbankan Untuk Mewujudkan Perlindungan Nasabah Penyimpan Yang Integratif Dan Berkepastian Hukum, Danu Febrianto, Joni Emirzon, Febrian Febrian

Jurnal Hukum & Pembangunan

Banks have an important role in economic development through their function by collecting funds from the public in the form of deposits and channeling them to the public in the form of credit in order to improve the standard of living of the people at large. Currently the banking business is regulated in Act Number 7 of 1992 concerning Banking as amended by Act Number 10 of 1998 (abbreviated as "Banking Act”). In a period of 20 years from 1998 to 2018, there have been developments in regulations relating to the depositors protection which are scattered in various laws and …

Mind The Gap: A Comparative Approach For Fixing Volcker, Learning From Liikanen, And Using Vickers To Repair The U.S. Banking System, Rachel Sereix

Duke Journal of Constitutional Law & Public Policy Sidebar

After the 2008 financial crisis, Congress, courts, and international banking agencies alike determined that their current banking infrastructures were inadequate to prevent such crises in the future. The Dodd-Frank Wall Street Reform Acttried to solve the problem by reducing derivatives-related risk through legislative provisions that increased capital and liquidity requirements for all banks. Yet, banks continued to find means to subvert the system and Congress remained relatively silent on the issue after the passage of Dodd-Frank—failing to amend Dodd-Frank in any meaningful way. Looking towards European peers for guidance about how to reform the United States’ banking regime has often …

Lessons Learned: William Nelson, Sandra Ward

Journal of Financial Crises

William Nelson was deputy director, Division of Monetary Affairs, at the Federal Reserve Board during the Global Financial Crisis of 2007–09 (GFC). As the nation’s central bank, chief financial regulator, and lender of last resort, the Federal Reserve Board took the lead in setting monetary policy and stabilizing the financial system during the crisis.

Nelson’s responsibilities at the Fed during the crisis included analysis of monetary policy and discount window policy as well as financial institution supervision, and he regularly briefed the board and the Federal Open Market Committee. He developed special expertise in designing liquidity facilities and was a …

The Power Of Being Present: Lessons From Diplomacy In Latin America And The Caribbean For The Private Sector, Kimberly Breier, Daniel Korn

University of Miami Inter-American Law Review

Successful modern diplomacy and private sector engagements require being physically present. Based on the experience of the authors in diplomacy and corporate government affairs, this article argues that the trust that forms the basis of effective diplomacy and corporate engagement with the communities in which they operate is established best through direct physical interaction. With examples from Latin America and the Caribbean, the article explores how both diplomacy and corporate government affairs have evolved into a model of being present that emphasizes seeking to empower local populations. The article delves into how and why the United States carries out its …

Regulation Best Interest: Is The Sec Finally Choosing Main Street Over Wall Street?, Ana Marcos

University of Miami Business Law Review

No abstract provided.

Ftc Enforcement Authority In The Modern Era: A Commission In Crisis?, Brandon Mantilla

University of Miami Business Law Review

This note provides a brief history of the Federal Trade Commission (FTC)’s enforcement authority before analyzing the U.S. Court of Appeals for the seventh Circuit’s circuit-splitting decision in FTC v. Credit Bureau Center, LLC. As the Supreme Court prepares to tackle questions surrounding authority to seek monetary relief, I contextualize how enforcement authority has historically been derived before analyzing how the issue may be resolved. Doing so involves engaging several cases that may prove consequential in determining the outcome and outlines potential legislative solutions to the battle over restitution. Before arriving at the most likely scenarios, a view of the …

Proving Economic Loss For In-And-Out Traders In Light Of First Solar, Daniel Roy Settana Iii

University of Miami Business Law Review

Federal courts have grappled with the issue of whether or not to include in-and-out traders in federal securities class action lawsuits. One set of courts has excluded in-and-out traders on the grounds that they could not prove loss causation, while another set of courts has included in-and-out traders because of the possibility that they could prove that they had suffered a loss. In Mineworker’s Pension Scheme versus First Solar, Inc., the Ninth Circuit recently addressed what should be the correct standard for loss causation. While the Ninth Circuit’s decision resolved its own intra-circuit split, the Court’s decision widened an already …

The Occ Fintech Charter And The Bank Holding Company Act, Lauren Bomberger

University of Miami Business Law Review

The definition of a bank under the Bank Holding Company Act of 1956 (“BHCA”) has changed several times since the statute was first enacted. Congress has identified a number of underlying rationales for applying the BHCA to certain entities thus necessitating a change in the definition. Recent innovations in technology, however, have made it challenging to adapt the U.S. financial regulatory regime to these advances, particularly for the financial technology (“FinTech”) industry. The Office of the Comptroller of the Currency’s (“OCC”) FinTech charter is one example of an attempt by a U.S. financial regulator to grapple with emerging technologies in …

Good Corporate Governance Policies And Disclosure Mechanisms In Startup Companies, Yahel Kaplan

University of Miami Business Law Review

In the past decades, particularly following the collapse of huge corporation such as WorldCom and Enron due to dubious or illegal financial management, countries began gradually increasing the oversight of publicly traded companies with few jurisdictions conjuring recommended corporate governance codes (RCGC) to ensure sufficient oversight, reduce manager’s ability to loot their companies, and ensure that shareholders’ and stakeholders’ interests are monitored effectively by companies. While RCGC was intended namely for public company, several organizations called for the adoption of RCGC in startup companies. Startup companies suffer from various failures which the classic corporate laws are not equipped to address …

Cost Structures In American Commercial Banks Under $10 Billion: Trend Analysis With Policy Considerations, Thomas Stucker

University Honors Program

Cost structures in the banking have historically been a point of study for economists, but many existing economies of scale studies use highly restricted samples. I compiled quarterly data from 2002-2020 from the Federal Financial Institutions Examination Council’s Uniform Bank Performance Report to estimate the relationship between bank size (measured by total assets) and bank overhead (noninterest) expense for US banks under $10 billion in total assets. I included a continuous time trend as well as binary time variables for the 2008 recession period and the post-Dodd-Frank era in a multiple linear regression model. My estimation found statistically significant evidence …

Avoiding Wasteful Competition: Why Trading On Inside Information Should Be Illegal, Michael D. Guttentag

Brooklyn Law Review

This article offers a new and compelling reason to make all trading based on inside information illegal. The value realized by trading on inside information is unusual in two respects. First, inside information is produced at little or no incremental cost and is nevertheless quite valuable. Second, profits made from trading on inside information come largely at the expense of others. When the value of something exceeds the cost to produce it, a wasteful race to be the first to capture the resulting surplus is likely to ensue. Similarly, resources expended solely to take something of value from others are …

Hostile Restructurings, Diane L. Dick

Washington Law Review

The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing.

These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, …

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

Qui Tam And The Bank Secrecy Act: A Public-Private Enforcement Model To Improve Anti-Money Laundering Efforts, Giovanni Scarcella

Fordham Law Review

Cartels, terrorists, fraudsters, and other criminals face a problem: when they receive the proceeds from their illicit activities, how can they get this money into their bank accounts without raising regulatory eyebrows? The Bank Secrecy Act (BSA) has established a complex regulatory regime, imposing on banks the duty to assess the risks presented by their clients, to monitor the transactions they process, and to report transactions that contain indicia of money laundering and other criminal activity to the Financial Crimes Enforcement Network (FinCEN). In response, criminals utilize increasingly sophisticated means to obfuscate the origins of these transactions and disguise their …

Personal Insolvency In China: Necessities, Difficulties, And Possibilities, Rebecca Parry, Haizheng Zhang, Jiahui Fu

Brooklyn Journal of International Law

There has long been demand for personal insolvency laws in China, yet such laws have hitherto been unavailable, in part due to ideological resistance. In more recent years there has been an increase in borrowing by individuals, which has led to increased calls for honest but unfortunate debtors to be able to obtain a fresh start. Yet there is significant public mistrust of defaulting debtors and in particular there is a shadow cast by those termed the Lao Lai that has led many to question the desirability of such a reform. There has also been a need for change in …

Karmel’S Dissent: The Sec’S Use And Occasional Misuse Of Section 21(A) Reports Of Investigation, James J. Park

Brooklyn Journal of Corporate, Financial & Commercial Law

Section 21(a) of the Securities Exchange Act gives the SEC the option of publishing a report of its findings after conducting an investigation. Typically, the SEC issues such reports about once a year to highlight major compliance and enforcement issues. This Article examines the SEC’s use of Section 21(a) investigative reports with special attention to its 1979 report in Spartek, where Commissioner Roberta Karmel filed a famous dissent. In that opinion, she argued that the report effectively sanctioned conduct over which the SEC did not have jurisdiction and that Spartek did not have sufficient notice of its regulatory obligations. While …

Modernizing Mortgage Law, Christopher K. Odinet

Faculty Scholarship

Modern mortgage law is designed for a world that no longer exists. The residential mortgage transaction of today looks nothing like it did during the formative period when the property laws governing mortgages were developed. What was once a local dealing between two individuals and largely for commercial or quasi-commercial purposes has now become a housing- centric financial transaction-turned-asset between multiple distant and often invisible parties that operate as part ofa national market. Yet, although the mortgage transaction has changed, mortgage law has not. Property law rules that once balanced the rights of mortgagors and mortgagees now completely fail to …

Die Finanzierung Der Nachhaltigkeitsziele: Welche Rolle Spielen Handels- Und Investitionsabkommen?, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The relationship between foreign direct investment (FDI) and sustainable development is controversial. Studies on the concrete benefits of FDI for sustainable development have not yielded clear results. Nevertheless, sustainable development is central to the ongoing reform process of international investment law. Ideally, international investment agreements (IIAs) should promote the Sustainable Development Goals (SDGs). In any case, IIAs should not undermine national implementation of the SDGs. The following analysis and conceptualization of current developments and legal standards for international investment law will be presented.

Making Money From Cryptocurrency? The Taxman May Call On You, Hern Kuan Liu, Vincent Ooi

Research Collection Yong Pung How School Of Law

Miners, forgers, hobbyists, traders – different rules apply. Just don’t assume crypto investment is somehow immune to taxation.

China Meets Digital Currency: E-Cny And Its Implications For Businesses, Heng Wang

Research Collection Yong Pung How School Of Law

China is likely to be the first major economy to issue central bank digital currency (CBDC). China’s CBDC, e-CNY, may lead to a new ecosystem that would profoundly affect business, product offerings and business practice. E-CNY is likely to affect both local and international businesses, particularly those with a presence in China or those who commonly transact with Chinese actors. There is also the possibility of e-CNY use outside of China. If China’s CBDC practice and standards affect international practice (such as through standard making), e-CNY has the potential to affect the broader businesses community. This article discusses the following …

The Multimodal Electronic Transferable Transport Record (Ettr) : A Survey Of Laws And Basic Concepts, Benjamin Geva

Articles & Book Chapters

A transport document is a receipt issued by the carrier of goods upon taking possession of them under a contract for their carriage. It is a document of title when its transfer may facilitate not only the transfer of the right to claim the goods from the carrier but also the transfer of title to the goods. Particularly in relation to the carriage of goods other than by sea, and by reference to banking and commercial practices, this study surveys the current legal position of both digitization and negotiability of transport documents. This is done with a view to preparing …

Linguistic Branching Of Semantics In Arabic: A Social Approach, Hanan Ismael Amayreh, Mohammad Ismael Amayreh

Al-Balqa Journal for Research and Studies البلقاء للبحوث والدراسات

Linguist Branching is appropriate for Arabic Language as words branch out mostly from roots, and every root becomes a tree, which is different from others, not because of the tree itself, but because of what society uses. Language branching expresses the controversial relationship between the language and the rules that govern it from one side, and society’s preference of certain terms over others from the other side. This study tries to answer the following questions: does the language impose the used words, or does it offer options for society to choose what suits it? The study reaches a conclusion that …

The Reality Of Applying Governance Within The Criteria Of Quality Assurance At Schools Of Sport Science At Jordanian Universities, Sari Ahmad Hamdan, Fatima Marof Al-Khrisat

Al-Balqa Journal for Research and Studies البلقاء للبحوث والدراسات

This study examines the reality of applying governance within The Criteria of Quality Assurance at schools of Sport Science at Jordanian Universities from their members perspective. It also aims at finding out the differences in the schools' members perspective. The sample of the study consisted of (86) school members who work in (University of Jordan, Yarmouk University, Mu'tah University, Hashemite University, and Al-Ahliyya Amman University). To achieve the objectives of the study, the Descriptive approach was used. The results showed that the reality of applying governance came to a high degree, and they were statistically significant in the perspective of …