Banking and Finance Law Commons^™

Foreclosure Of A Deed Of Trust In Virginia, Doug Rendleman

Scholarly Articles

This article deals with foreclosure of a deed of trust in Virginia. The Introduction discusses the deed of trust or mortgage as a social and political institution and the foreclosure crisis that seems to be ending. Part I is a brief history of mortgage law. It provides a short history of the modern mortgage system in the United States. Part II follows with a description of the approach that Virginia takes to mortgages. It localizes the mortgage institution to Virginia and introduces Virginia's vocabulary and technical details, the deed of trust, and the parties' rights and obligations. Part III provides …

The Case For A Uniform Definition Of A Leveraged Loan, Zachary L. Pechter

Florida State University Law Review

Over the past twenty years, leveraged loans and high yield bonds have converged into similar instruments, sparking a debate as to whether leveraged loans should be regulated as securities like high yield bonds. This Note recognizes problems with the current regulatory framework for leveraged loans and shows that leveraged loans are not securities and should not be regulated as such. Instead of regulating leveraged loans as securities, which would likely be more costly than beneficial and contrary to the SEC’s mission statement, the SEC should promulgate a uniform definition of a leveraged loan. This solution would alleviate problems such as …

A Place Of Their Own Crowds In The New Market For Equit Crowdfunding, Seth C. Oranburg

Law Faculty Scholarship

[Excerpt] "Is small better than large? When it comes to normative business law policy, many seem to think so. Many scholars attribute the 2007–08 financial crisis to mis-regulation of large banks. Many others attribute the subsequent economic recovery to jobs created by small businesses. While the “99%” protested big banks on Wall Street, the “Startup America” grassroots campaign for small business garnered political support for corporate-finance legislation. Within a two-year period, Congress passed the JOBS Act—which tripled private company shareholder limits, authorized federal equity crowdfunding, and created the “mini-IPO” Regulation A+— and the Dodd-Frank Act—which seeks to end “too big …

Second-Generation Monopolization: Parallel Exclusion In Derivatives Markets, Felix B. Chang

Faculty Articles and Other Publications

The reluctance of antitrust to condemn parallel exclusion permits oligopolies to be entrenched. This is because parallel exclusion—multiple-firm conduct that inhibits market entrants—cannot satisfy the current strictures of monopolization, which is understood to prohibit single-firm conduct. Yet this is an outdated way of conceptualizing monopolization. An expansion of monopolization—to cover parallel, non-collusive acts by an oligopoly—is due.

To push the law toward recognizing parallel exclusion, this Article examines concentration in the markets for financial derivatives, which are perennially dominated by the same big banks. Even after losses under first-generation antitrust claims, the dominant derivatives dealers have found ways to retain …

Regulating The Moneychangers, Jerry W. Markham

Faculty Publications

No abstract provided.

Comment: Maryland State Bank: The Responsible Solution For Fostering The Growth Of Maryland's Medical Cannabis Program, David Bronfein

University of Baltimore Law Forum

In 2013, Maryland passed its initial medical cannabis law.1 Although seemingly a success in the medical cannabis reform movement, the law only allowed for “academic medical centers” to participate in the program.2 In essence, an academic medical center could dispense medical cannabis to patients who met the criteria for participation in their research program.3 The success of this type of program structure was a concern for medical cannabis advocates,4 and the concerns were validated when no academic medical centers decided to participate.5 As a result of this lackluster program, the General Assembly responded by passing a bill6 during the 2014 …

Insiders Anonymous: The Third Circuit Rehabilitates Sec Rule 10b5-2(B)(2) And Extends Liability For Insider Trading To Non-Fiduciaries In United States V. Mcgee, 4 J. Marshall Global Mkt. L.J. 15 (2016), Scott Henry

John Marshall Global Markets Law Journal

This Article examines the development of insider trading law under SEC Rule 10b-5, and the Third Circuit Court’s decision in United States v. McGee to extend liability for securities fraud under Rule 10b5-(2)(b)(2) to corporate outsiders without a fiduciary relationship to the corporation in whose securities they trade.

The Extraterritorial Effects Of The Volcker Rule, 4 J. Marshall Global Mkt. L.J. 1 (2016), Liliya Bozhanova

John Marshall Global Markets Law Journal

Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly referred to as the “Volcker Rule”, essentially prohibits “banking entities” from engaging in “proprietary trading” and from acquiring or retaining an ownership interest in, sponsoring, or having certain relationships with a hedge fund or a private equity fund. The rule has been controversial not only because of its substantive content but also due to its extraterritorial reach, which has a significant impact on foreign banking entities that have U.S. affiliates. The Volcker Rule’s extraterritoriality lies within the broad definition of the term “banking entity”, which includes not …

Regulation Automated Trading: Cftc Source Code Turnover Provision Is Unnecessary And Dangerous To U.S. Markets, 4 J. Marshall Global Mkt. L.J. 37 (2016), Thomas Laser

John Marshall Global Markets Law Journal

Over the past several decades, the financial markets have experienced a technological revolution in how securities and other financial instruments are traded. Where these contracts and assets were once traded on the floors of various registered brick and mortar exchanges across the globe, they are now primarily traded via online platforms. While allowing greater efficiency and transparency in the markets, this shift has also spawned the practice of high-frequency algorithmic trading. This process uses highly sophisticated computers and complex algorithms to trade securities and derivative products faster than the human eye can blink. Although many argue that high-frequency algorithmic trading …

A Trending Use Of Insulation And A Temporary Way Out, 4 J. Marshall Global Mkt. L.J. 51 (2016), Jennifer Leung

John Marshall Global Markets Law Journal

In order to understand the constitutionality of the SEC’s administrative process, Part II of this Article begins with a history of Article II’s Appointments Clause. Part III describes the competing theories resulting from a circuit split, specifically Hill v. Securities & Exchange Commission and Bebo v. Securities Exchange Commission. Part IV of this Article then evaluates the impact of the Appointments Clause on the Dodd-Frank Act and discusses the consequences of raising meritless constitutional questions that jeopardize the intent of the Dodd-Frank Act. Subsection IV.A. explains the exhaustion doctrine and subsection IV.B. explores Congress’s intent of implementing the Dodd-Frank Act, …

Protecting Trade Secrets Under International Investment Law: What Secrets Investors Should Not Tell States, 15 J. Marshall Rev. Intell. Prop. L. 228 (2016), Daria Kim

UIC Review of Intellectual Property Law

The article addresses specifics of trade secret protection under international investment law. As a particular example, it analyzes protection of pharmaceutical regulatory data against the background of the growing public policy campaign for broader access to clinical trial data and the recent unprecedented practice of the European Medicines Agency of disclosing clinical dossiers submitted for drug marketing approval. Given the significant role of foreign direct investment in the global pharmaceutical industry and substantial, exponentially increasing costs incurred by drug originator companies in conducting clinical trials, the prospect of investor-state dispute over data disclosure does not appear purely hypothetical. The question …

Corruption And Development: The Need Of International Investigations With A Multijurisdictional Approach And The Involvement Of Multilateral Development Banks With National Authorities, Juan Ronderos, Michelle Ratpan, Andrea Osorio Rincon

Osgoode Legal Studies Research Paper Series

The authors argue that while both Multilateral Development Banks (MDBs) and national governments have mechanisms to fight corruption, the outcomes of these enforcement mechanisms diverge. MDBs are interested in the causes and effects of corruption from a development perspective and, as such, tend to sanction Small and Medium Enterprises and individuals, while national governments are focused on a more punitive outcome, targeting larger multinational corporations. The article examines the enforcement objectives articulated in national legislation, namely the American Foreign and Corrupt Practices Act and its Canadian counterpart (the CFPOA) as well as several Canadian cases, on the one hand, and …

Treating The New European Disease Of Consumer Debt In A Post-Communist State: The Groundbreaking New Russian Personal Insolvency Law, 41 Brook. J. Int'l L. 655 (2016), Jason J. Kilborn

UIC Law Open Access Faculty Scholarship

This article examines the tumultuous transition from restrictive Communism to the debt-fueled consumer economy of modern Russia. In particular, it surveys Russia’s legal response to severe debt distress, situating it in the context of nearly one thousand years of historical development. Effective 1 October 2015, Russia finally joined most of its European neighbors in adopting a personal bankruptcy law, with characteristics that reflect both evolving international best practices and a series of lessons not learned. This article offers the first detailed exposition in English of the two steps forward represented by this new law, as well as an evaluation of …

Undermining Bitcoin, Sam Hampton

Washington Journal of Law, Technology & Arts

In March 2014, the IRS issued a notice detailing the tax treatment the agency would apply to virtual currencies such as Bitcoin. Although applauded by some as a step towards legal legitimacy for this new technology, the IRS’s position severely undermines the transactional utility of virtual currencies. Using tax rules established for traditional property transactions frustrates one of virtual currencies’ principal purposes: its use as a medium of exchange. Tax compliance requires calculation and payment of capital gains tax, which necessitates documentation of all acquisitions and dispositions of virtual currencies. This tax treatment will likely discourage the use of these …

Friends With Benefits: Analyzing The Implications Of United States V. Newman For The Future Of Insider Trading, Tebsy Paul

American University Business Law Review

No abstract provided.

The Political Economy Of Corporate Financial Regulatory Legislation, 49 J. Marshall L. Rev. 679 (2016), Michael Patrick Wilt

UIC Law Review

This article will discuss corporate financial regulatory legislation and its enforcement at the federal level in light of interest group politics and will seek to develop a better understanding of how federal corporate financial regulatory legislation is enacted by examining legislative history. The goal of this article is to provide an overview of the legislative history of two important laws (the Foreign Corrupt Practices Act and the Sarbanes Oxley Act) and how interest group politics affected their passage. “Business” interests (in general) are different from the interests of the accounting industry, and both interest groups will be considered. Unlike most …

Top-Down Bank Capital Regulation, Heidi Mandanis Schooner

Scholarly Articles

In proposing a top-down system of capital regulation, this Article shares a precautionary attitude toward bank regulation found increasingly in post-Financial Crisis scholarship. The viewpoint is one that favors ex ante financial regulation in which regulators are charged with avoiding public harm. More broadly, this Article rejects the notion that regulation is the enemy of markets and therefore must be minimized. Regulation is viewed neutrally—neither inherently good nor inherently bad—as a co-existing partner in highly complex and ever evolving financial markets.

To develop the case for a top-down system of capital regulation, this Article continues as follows, Part II describes …

Contingent Constitutionality, Legislative Facts, And Campaign Finance, Michael T. Morley

Faculty Scholarship

No abstract provided.

Lack Of Marketability And Minority Discounts In Valuing Close Corporation Stock: Elusiveness And Judicial Synchrony In Pursuit Of Equitable Consensus, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Can Parallel Lines Ever Meet? The Strange Case Of The International Standards On Sovereign Debt And Business And Human Rights, Daniel D. Bradlow

Scholarly Articles in Law Reviews & Journals

This special issue is a cooperation of the Yale Journal of International Law and the United Nations Conference on Trade and Development (UNCTAD). It emerged from UNCTAD’s work on sovereign debt workouts, specifically from its Working Group on a Sovereign Debt Workout Mechanism (2013 to 2015). The working group developed a Roadmap and Guide for Sovereign Debt Workouts, published in 2015. It proposes an incremental approach to sovereign debt workouts that relies on the continuous, progressive development of sovereign debt restructuring practice. This work has inspired the adoption of Basic Principles for Sovereign Debt Restructuring by the United Nations General …

Regulating The U.S. Treasury Market, Jerry W. Markham

Marquette Law Review

None

Financial Stability, Financial Services, And The Single Market, Caroline Bradley

Articles

No abstract provided.

Corporate Darwinism: Disciplining Managers In A World With Weak Shareholder Litigation, James D. Cox, Randall S. Thomas

Faculty Scholarship

Because representative shareholder litigation has been constrained by numerous legal developments, the corporate governance system has developed new mechanisms as alternative means to address managerial agency costs. We posit that recent significant governance developments in the corporate world are the natural consequence of the ineffectiveness and inefficiency of shareholder suits to address certain genre of managerial agency costs. We thus argue that corporate governance responses evolve to fill voids caused by the inability of shareholder suits to monitor and discipline corporate managers.

We further claim that these new governance responses are themselves becoming stronger due in part to the rising …

Economic Ideology And The Rise Of The Firm As Criminal Enterprise, June Carbone, William K. Black

Faculty Works

No abstract provided.

Key Flaws In The European Commission’S Proposals For Foreign Investor Protection In Ttip, Gus Van Harten

Osgoode Legal Studies Research Paper Series

In November 2015, the European Commission released a proposed text on foreign investor protection in the EU-US Transatlantic Trade and Investment Partnership (TTIP). In this paper, I outline key flaws in this proposal, including language buried in the text that significantly undermines the EC's proposed provisions on the investment court system (ICS) and on the right to regulate.

Electronic Verification Of Wire Payment Orders, Benjamin Geva

Osgoode Legal Studies Research Paper Series

Over the years, albeit less so in connection with consumer accounts, the bank's absolute liability became subject to exceptions. Particularly, bypassing a classical text explicitly to the contrary, it had been recognized that a customer's fault can lead to the forgery of the customer's own signature and hence to forgery losses.

From Paper To Electronic Order: The Digitalization Of The Check In The Usa, Benjamin Geva

Osgoode Legal Studies Research Paper Series

This article explores the various stages in the check payment in which electronic transmission has replaced physical delivery. Part I discusses converting the check into an electronic entry at a point of sale of goods and services. Part II addresses the electronic presentment of a check. Part III deals with the possible conversion of the check from paper to electronic, and vice versa, within the interbank check collection system. Interbank exchange of check images is the subject of Part IV. Part V addresses the electronic order that operates like a check but that has never been in a paper format. …

Best Practice For The Uniform Treatment Of Wire Payments, Benjamin Geva

Osgoode Legal Studies Research Paper Series

Like any method of payment, the wire transfer may be either an "on-us" or interbank payment. In Canada, as long as they are between large banks, interbank wire payments are processed through the Canadian Payments Association's ("CPA") Large Value Transfer System ("LVTS").

Banking, Payments And Negotiable Instruments: 2015-16, Benjamin Geva

Osgoode Course Casebooks

Course Number 2420

Don't End Or Audit The Fed: Central Bank Independence In An Age Of Austerity, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

The Federal Reserve (the Fed) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed's independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to the Fed's exemplary performance during and after the 2008 crisis, and we offer the example of a potential future crisis in which Congress falls to increase the debt ceiling to show how …