Banking and Finance Law Commons^™

Restructuring A Sovereign Debtor’S Contingent Liabilities, Mitu Gulati, Lee C. Buchheit

Faculty Scholarship

How should the contingent liabilities of a sovereign be treated in a general restructuring of the debts of that sovereign? This question has played only a minor role in past sovereign debt restructurings because the size of such contingent liabilities has in most cases been small. In recent years, however, slathering government guarantees on third party debt has become the tool of choice for many countries in their efforts to quell an incipient panic in their financial markets. Some of those sovereigns are now, or may soon be, in the position of needing to restructure their debts. Ignoring large contingent …

Collective Action Clauses For The Eurozone, Michael Bradley, Mitu Gulati

Faculty Scholarship

One of the primary policy initiatives instituted in response to the Eurozone sovereign debt crisis is a requirement that all Eurozone sovereign bonds issued after January 1 2013 include provisions referred to as Collective Action Clauses or CACs. These CACs allow for a super-majority of creditors to impose restructuring terms on minority holdouts. This article assesses the likely effect of this proposal on the borrowing costs of sovereign debtors. Contrary to much of the literature, we find that the presence of CACs leads to a lower cost of capital, especially for below-investment grade bonds

Should The "Undue Hardship" Standard For Discharging Student Or Educational Loans Be Expanded?, Kevin J. Smith

Barry Law Review

No abstract provided.

Bretton Woods 1.0: A Constructive Retrieval For Sustainable Finance, Robert C. Hockett

Cornell Law Faculty Publications

Global trade imbalance and domestic financial fragility are intimately related. When a nation runs persistently massive current account deficits to maintain global liquidity as has the United States now for decades, its central bank effectively relinquishes exchange rate flexibility to become a de facto central bank to the world. That in turn prevents the bank from playing its essential credit-modulatory role at home, at least absent strict capital controls that are difficult to administer and have long been taboo. And this can in turn render credit-fueled asset price bubbles and busts all but impossible to prevent, irrespective of the nation's …

Paying Paul And Robbing No One: An Eminent Domain Solution For Underwater Mortgage Debt, Robert C. Hockett

Cornell Law Faculty Publications

In the view of many analysts, the best way to assist “underwater” homeowners — those who owe more on their mortgages than their houses are worth — is to reduce the principal on their home loans. Yet in the case of privately securitized mortgages, such write-downs are almost impossible to carry out, since loan modifications on the scale necessitated by the housing market crash would require collective action by a multitude of geographically dispersed security holders. The solution, this study suggests, is for state and municipal governments to use their eminent domain powers to buy up and restructure underwater mortgages, …

Improving Retirement Savings Options For Employees, James Kwak

Faculty Articles and Papers

Americans do not save enough for retirement. One reason is that our retirement savings accounts — whether employer-sponsored defined-contribution plans such as 401(k) plans or individual retirement accounts — are heavily invested in actively managed mutual funds that siphon off tens of billions of dollars in fees every year yet deliver returns that trail the overall market. Under existing law, as interpreted by the courts, mutual funds may charge high fees to investors, and companies may offer expensive, active funds to their employees. This paper argues that the Employee Retirement Income Security Act should be reinterpreted, in light of basic …

The Big Banks: Background, Deregulation, Financial Innovation, And ‘Too Big To Fail,’, Charles W. Murdock

Faculty Publications & Other Works

The U.S. economy is still reeling from the financial crisis that exploded in the fall of 2008. This Article asserts that the big banks were major culprits in causing the crisis by funding the non-bank lenders that created the toxic mortgages, which the big banks securitized and sold to unwary investors. Ironically, banks that were then too big to fail are even larger today.

The Article briefly reviews the history of banking from the Founding Fathers to the deregulatory mindset that has been present since 1980. It then traces the impact of deregulation, which led to the savings and loan …

Inequality, Individualized Risk & Insecurity, Michael J. Zimmer

Faculty Publications & Other Works

No abstract provided.

Credit Default Swaps: Dubious Instruments, Charles W. Murdock

Faculty Publications & Other Works

No abstract provided.

The Attorney-Client Privilege – Selective Compulsion, Selective Waiver And Selective Disclosure: Is Bank Regulation Exceptional?, Bruce A. Green

Faculty Scholarship

This essay examines three ways in which bank regulation has spawned significant exceptions to the ordinary judicial and administrative understanding of the attorney-client privilege. First, federal banking agencies assert that they have the legal authority selectively to compel banks and other financial institutions they supervise to disclose attorney-client privileged information. Second, when banks disclose privileged material to bank regulators, even if voluntarily, banks retain the privilege with respect to third parties pursuant to specific federal statutory authority. Third, under agency policy, once bank regulators obtain privileged information from a bank, whether through compulsion or voluntarily, the regulators reserve the right …

Corporate Actors, Corporate Crimes And Time-Inconsistent Preference, Manuel A. Utset

Scholarly Publications

No abstract provided.

The Credit Industry And Identity Theft: How To End An Enabling Relationship, Eric T. Glynn

Buffalo Law Review

No abstract provided.

Is Hedge Fund Adviser Registration Necessary To Accomplish The Goals Of The Dodd–Frank Act’S Title Iv?, Luther R. Ashworth Ii

Washington and Lee Law Review

No abstract provided.

Risk-Based Student Loans , Michael Simkovic

Washington and Lee Law Review

No abstract provided.

The Role Of Uncitral Texts In Promoting A Harmonized Legal Framework For Cross-Border Mobile Payments, Luca G. Castellani

Washington Journal of Law, Technology & Arts

The establishment of a regulatory environment is a condition necessary, but not sufficient, for setting up a legal environment supportive of mobile payment and banking services. Equally important is the creation of an enabling legislative environment on the legal status of electronic communications and on other relevant rules such as those on payments. In fact, existing legal frameworks, be they of statutory or contractual origin, are often insufficient to address all legal issues, especially in developing countries. Therefore, guidance in the form of international standards, such as those prepared by the United Nations Commission on International Trade Law (UNCITRAL), is …

Mobile Payments In The United States: How Disintermediation May Affect Delivery Of Payment Functions, Financial Inclusion And Anti-Money Laundering Issues, Erin F. Fonté

Washington Journal of Law, Technology & Arts

Mobile banking and mobile payments in the United States have evolved differently than in other developed and developing countries. The current fervor for mobile payments in the United States is more about chasing affluence and advertising than creating access for the unbanked and underbanked. However, those individuals may eventually gain access to a broader range of financial services at lower costs depending on how the mobile payments ecosystem evolves in the United States. U.S. regulators have made it clear that existing financial services regulations apply to mobile banking and mobile payments, and the Consumer Financial Protection Bureau (CFPB) is poised …

Hedge Fund Governance, Houman B. Shadab

Articles & Chapters

This Article provides the first comprehensive scholarly analysis of the internal governance of hedge funds. Hedge fund governance consists of the funds' underlying legal regime and the practices they adopt in response to lacking permanent capital and to reduce agency costs. Hedge fund governance is important because better governance can improve investor returns and help managers raise and retain capital. I argue that hedge fund governance is best understood as a type of responsive managerialism. It is a type of managerialism because applicable law and contracting structures give managers uniquely wide-ranging control over the fund and its operations. Hedge fund …

The 2012 Revised Fatf Recommendations: Assessing And Mitigating Mobile Money Integrity Risks Within The New Standards Framework, Louis De Koker

Washington Journal of Law, Technology & Arts

Mobile money holds great financial inclusion promise, but also poses financial integrity challenges. The Financial Action Task Force (FATF)—the intergovernmental global anti-money laundering (AML) and counter-terrorist financing (CTF) standard-setting body—expressed support for financial inclusion and mobile money as a means to decrease the use of non-transparent cash in many developing countries. In February 2012, FATF adopted a new revised set of standards. This Article considers the impact of these new standards on mobile money models in developing countries. It highlights aspects of the new standards that would facilitate innovative mobile money models, but also points to questions and challenges. The …

Governance Of Global Mobile Money Networks: The Role Of Technical Standards, Jane K. Winn

Washington Journal of Law, Technology & Arts

Mobile money has the potential to be an effective policy instrument for financial inclusion in developing countries, but it also has the potential to fuel money laundering and terrorist financing. The 2012 revised Financial Action Task Force standards attempt to strike a workable balance between the goals of financial inclusion and financial integrity in developing countries. Mobile money schemes are mostly based in national markets, however, and are not normally designed to address the need of poor migrants for cheap, effective cross-border remittance services. Demand for such cross-border remittance services may drive the development of technical standards to build global …

Privacy And Security Concerns Associated With Mobile Money Applications In Africa, Andrew Harris, Seymour Goodman, Patrick Traynor

Washington Journal of Law, Technology & Arts

The rapid adoption of mobile money use in Africa raises concerns regarding the privacy and security of users, particularly in light of Financial Action Task Force recommendations requiring user transparency and the collection of transaction data. The transparency required of the now-financially-included—particularly in nations with weak adherence to the rule of law and limited privacy protections—leaves users vulnerable to abuse. Further, the increasing complexity of mobile phone use that is indicative of mobile money applications raises concerns regarding Africa’s preparedness for heightened security threats that come hand in hand with increased use. To address these problems, the authors of this …

Mobile Money As An Engine Of Financial Inclusion And Lynchpin Of Financial Integrity, Claire Alexandre, Lynn Chang Eisenhart

Washington Journal of Law, Technology & Arts

Few people would dispute that mobile money can be an engine of financial inclusion and has the potential to reach millions of customers, including those at the bottom of the socio-economic pyramid. Fewer though would characterize mobile money as the lynchpin of financial integrity. But financial inclusion and financial integrity have at least three tangential points to mobile money: (1) mobile money will help reduce dependency on cash, which is the common enemy of both financial inclusion and financial integrity, (2) mobile money generates data which is instrumental to the health and growth of both financial inclusion and financial integrity, …

The Role Of Anti-Money Laundering Law In Mobile Money Systems In Developing Countries, Emery S. Kobor

Washington Journal of Law, Technology & Arts

This Article explains that the application of anti-money laundering (AML) regulation, supervision, and enforcement is relevant to financial inclusion, but is not, in itself, necessarily determinative of the success or failure of financial inclusion initiatives or their impact on economic growth. Successful payments system innovation, particularly payment tools targeting underserved markets, requires effective entrepreneurship operating in an environment of good governance and rational economic policies. AML safeguards help to deter corruption and other forms of financial crime, which helps to establish and maintain economic stability and preserve the rule of law, creating a supportive environment for innovation and financial inclusion. …

M-Payments In Brazil: Notes On How A Country's Background May Determine Timing And Design Of A Regulatory Model, Gilberto Martins De Almeida

Washington Journal of Law, Technology & Arts

Extended periods of high-inflation in Brazil have resulted in a sophisticated platform for payment methods and a vast network of banking correspondents all over the country. Social policies have encouraged increased access to telecommunications, with the number of mobile phones exceeding the nearly 200 million inhabitants. Governmental programs intend to combine such strengths to achieve massive financial inclusion and integrity, an effort that is expected to reach dozens of millions of new beneficiaries. In that endeavor, authorities wish to foster rapid popularization of mobile payments (m-payments) while keeping sound financial controls. Availability of current technological and legal platforms has allowed …

Safaricom And M-Pesa In Kenya: Financial Inclusion And Financial Integrity, Mercy W. Buku, Michael W. Meredith

Washington Journal of Law, Technology & Arts

The recent and widespread availability of affordable mobile phone technology in developing countries has paved the way for the development of a number of mobile money and electronic remittance services. One of the most successful of these services is Safaricom’s M-PESA program, launched in the East African nation of Kenya in March 2007. Since then, the program has successfully enrolled 15.2 million users, transferred more than US$1.4 trillion in electronic funds, and contributed significantly to poverty alleviation and financial inclusion efforts in rural Kenya. This Article seeks to trace the development of M-PESA in Kenya, provide a snapshot of the …

The Reporting Of Suspicious Activity By Mobile Money Service Providers In Accordance With International Standards: How Does It Impact On Financial Inclusion?, Miriam Goldby

Washington Journal of Law, Technology & Arts

Among the obligations which countries are required to impose upon their financial institutions under the Financial Action Task Force’s (FATF) 40 Recommendations is the obligation to report suspicions of money laundering. This Article discusses the impact that a reporting regime such as that set up in the United Kingdom in response to FATF requirements is likely to have should it be set up in developing countries seeking to regulate mobile money services. This Article argues that certain features of the U.K. suspicious activity reporting regime make it unsuitable for wholesale adoption into such a context. A one-size-fits-all approach by the …

Why Register Hedge Fund Advisers—A Comment, Lyman P.Q. Johnson

Washington and Lee Law Review

No abstract provided.

Bank Recapitalizations: A Comparative Perspective, Da Lin

Law Faculty Publications

We have been here before. No matter how different the latest financial frenzy or crisis always appears, there are usually remarkable similarities with past experience from other countries and from history.

International Financial Reforms: Capital Standards, Resolution Regimes And Supervisory Colleges, And Their Effect On Emerging Markets, Duncan E. Alford

Faculty Publications

This paper focuses on the relevance to emerging economies of three major financial reforms following the global financial crisis of 2007–2009: (1) the improved capital requirements intended to reduce the risk of bank failure (“Basel III”), (2) the improved recovery and resolution regimes for global banks, and (3) the development of supervisory colleges of cross-border financial institutions to improve supervisory cooperation and convergence. The paper also addresses the implications of these regulatory reforms for Asian emerging markets.

The Church And The Usurers: Unprofitable Lending For The Modern Economy, Brian Mccall

Faculty Books and Book Chapters

Professor McCall explains in a scholarly yet accessible manner the core principles of the usury doctrine. Tracing its history from Biblical texts, through Aristotelian philosophy and Roman law, to the great scholastic synthesis, Professor McCall separates the unchanging principles from the changes in their applications to new economic realities. With debt, personal, business and government spiraling out of control and massive insolvencies of ancient nations like Greece, contemporary economic theory has offered little in response. Professor McCall contributes the wisdom of the centuries in a concise and readable study.

Endorsements

"Professor McCall places the issues confronting our debt based economy …

Bitcoins: Hacker Cash Or The Next Global Currency? , Conor Desmond

Public Interest Law Reporter

No abstract provided.