Banking and Finance Law Commons^™

Redefining Disposable Income In Chapter 13 Plans: Moving Forward Into A "New Era In The History Of Bankruptcy Law", 42 J. Marshall L. Rev. 1107 (2009), Lauren Sylvester

UIC Law Review

No abstract provided.

Changing The Paradigm Of Stock Ownership From Concentrated Towards Dispersed Ownership: Evidence From Brazil And Consequences For Emerging Countries, Erica Gorga

Northwestern Journal of International Law & Business

This paper analyzes micro-level dynamics of changes in ownership structures. It investigates a unique event: changes in ownership patterns currently taking place in Brazil. It builds upon empiricalevidence to advance the theoretical understanding of how and why concentrated ownership structurescanchangetowardsdispersedownership. Commentators argue that the Brazilian capital markets are finally taking off.

The Crescent And The Corporation: Analysis And Resolution Of Conflicting Positions Between The Western Corporation And The Islamic Legal System, Craig C. Briess

Richmond Journal of Global Law & Business

No abstract provided.

The Great Bailout Of 2008-09, Frederick Tung

Faculty Scholarship

My task today is to talk about the financial crisis. I only have a short time to talk, so rather than try to give you a comprehensive analysis of events, I'm going to offer some of my own idiosyncratic takes on what has been happening. In addition, I will introduce my own small reform proposal for regulating bank risk taking. So, I'll give you a little bit of news, a little bit of weather, a little bit of everything.

Where are we now? Let us begin with a statement Henry Paulson made six months ago while Bear Steams was getting …

In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse

Michigan Law Review First Impressions

If the aims of tort law are deterrence, compensation, and provision of equitable distribution of risks, U.S. anti-terrorism laws have been margin-ally effective at best. Though Congress has passed legislation providing causes of action to U.S. victims of terrorism, compensation of victims is often difficult and terrorists are rarely deterred. Attempts to provide such recourse include the Antiterrorism Act of 1991 ("ATA"), the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and the Flatow Amendment to the Foreign Sovereign Immunities Act ("FSIA"). These attempts, however, are not enough.

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 …

Regulating Complexity In Financial Markets, Steven L. Schwarcz

Faculty Scholarship

As the financial crisis has tragically illustrated, the complexities of modern financial markets and investment securities can trigger systemic market failures. Addressing these complexities, this Article maintains, is perhaps the greatest financial-market challenge of the future. The Article first examines and explains the nature of these complexities. It then analyzes the regulatory and other steps that should be considered to reduce the potential for failure. Because complex financial markets resemble complex engineering systems, and failures in those markets have characteristics of failures in those systems, the Article‟s analysis draws on chaos theory and other approaches used to analyze complex engineering …

The Return Of The Rogue, Kimberly D. Krawiec

Faculty Scholarship

The “rogue trader”—a famed figure of the 1990s—recently has returned to prominence due largely to two phenomena. First, recent U.S. mortgage market volatility spilled over into stock, commodity, and derivative markets worldwide, causing large financial institution losses and revealing previously hidden unauthorized positions. Second, the rogue trader has gained importance as banks around the world have focused more attention on operational risk in response to regulatory changes prompted by the Basel II Capital Accord. This Article contends that of the many regulatory options available to the Basel Committee for addressing operational risk it arguably chose the worst: an enforced selfregulatory …

Deeply Persistently Conflicted: Credit Rating Agencies In The Current Regulatory Environment, Timothy E. Lynch

Faculty Works

Credit rating agencies have a pervasive and potentially devastating influence on the financial well-being of the public. Yet, despite the recent passage of the Credit Rating Agency Reform Act, credit rating agencies enjoy a relative lack of regulatory oversight. One explanation for this lack of oversight has been the appeal of a self-regulating approach to credit rating agencies that claim to rely deeply on their reputational standing within the financial world. There are strong arguments for doubting this approach, including the conflicting self-interest of credit rating agencies whose profits are gained or lost depending on their ability to lure the …

A Middle Ground On Insider Trading, Thomas A. Lambert

Faculty Publications

For more than four decades, corporate law scholars have debated whether government should prohibit insider trading, commonly defined as stock trading on the basis of material, nonpublic information. Participants in this long-running debate have generally assumed that trading that decreases a stock's price should be treated the same as trading that causes the price to rise: either both forms of trading should be regulated or neither should. I argue for a middle-ground position in which "price-decreasing insider trading" (sales, short sales, and purchases of put options on the basis of negative information) is deregulated, while "price-increasing insider trading" (purchases of …

The Law And Economics Of Subprime Lending, Todd J. Zywicki, Joseph D. Adamson

University of Colorado Law Review

The collapse of the subprime mortgage market has led to calls for greater regulation to protect homeowners from unwittingly trapping themselves in high-cost loans that lead to foreclosure, bankruptcy, or other financial problems. Weighed against the losses of the widespread foreclosure crisis are the benefits of financial modernization that have accrued to many American families who have been able to become homeowners who otherwise would not have access to mortgage credit. The bust of the subprime mortgage market has resulted in high levels of foreclosures and unparalleled problems on Wall Street. However, the boom generated unprecedented levels of homeownership, especially …

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

Scholarly Works

This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Ratings Failure: The Need For A Consumer Protection Agenda In Rating Agency Regulation, David J. Reiss

Cornell Law Faculty Working Papers

As the credit crisis unfolds, rating agencies have been properly identified as playing a central role in causing the crisis and misleading investors. What has been forgotten in this acrimonious environment is that in their quest to increase the market for their services, rating agencies also took positions that were particularly bad for many homeowners.

This article first reviews the explosive growth of the subprime mortgage market. It then discusses the ways in which the leading rating agencies, Standard & Poor’s, Moody’s and Fitch, acted as government-approved gatekeepers to the financial markets and contributed to the rapid expansion of the …

The Role Of The Fannie Mae/Freddie Mac Duopoly In The American Housing Market, David J. Reiss

Cornell Law Faculty Working Papers

The purpose of this paper is to provide a brief introduction to the role of the Fannie Mae/ Freddie Mac duopoly in the American housing market. First, the paper defines the "government sponsored enterprise," which is the type of hybrid public/private entity that Fannie and Freddie are and provides an introduction to the other significant government sponsored enterprises. It then explains what Fannie and Freddie do in the American mortgage market and provides a brief history of how the two companies developed. Finally, it evaluates the two companies as duopolists in the conforming mortgage market. The paper concludes by suggesting …

Rethinking The "Law And Finance" Paradigm, Katharina Pistor

Faculty Scholarship

The label "Law and Finance" stands for a body of literature that has dominated policy-making and academic debates for the past decade. The literature has its origin in a series of papers co-authored by Andrei Shleifer, Rafael La Porta, Florencio Lopez-de-Silanes and a cohort of other researchers, including Robert Vishny, Simeon Djankov et al. (hereinafter referred to as LLS et al.). More than ten years after "Law and Finance" was first published, it seems appropriate to step back and consider the contribution this literature has made, but also to point out where it has gone astray and deviated attention from …

Microfinance Managers Consider Online Funding: Is It Finance, Marketing, Or Something Else?, Deborah Burand

Articles

Online platforms are changing the way we engage with the world. Facebook links, eBay auctions, ePal chats, even Second Life avatars—these are all online platforms that connect people, ideas, products, and markets. These platforms shape who we connect with as well as how we connect. This concept extends to philanthropy: Online philanthropy is changing the nature of how and where people give.1 An outgrowth of online philanthropy is online social investing. Kiva.org is one of the best known online lending and investment platforms. Since its launch in 2005, Kiva has grabbed the attention (and wallets) of over 350,000 online lenders, …

Free Enterprise Fund V. Public Company Accounting Oversight Board, Peter L. Strauss

Faculty Scholarship

In the wake of the Enron and WorldCom accounting scandals, Congress created the Public Company Accounting Oversight Board (“PCAOB”) under the aegis of the Securities and Exchange Commission (“SEC”), with President Bush’s support. Its purpose was to replace deficient accounting industry self-regulation with effective external regulation. The choices it made in doing so engendered passionate arguments about constitutionally necessary presidential authority and separation of powers. These divided the D.C. Circuit 2-1 and will be rehearsed before the Supreme Court in the coming weeks. President Bush’s administration defended those choices; Judge Rogers, writing for the majority, found no valid constitutional objection …

Enhancing Investor Protection And The Regulation Of Securities Markets, John C. Coffee Jr.

Faculty Scholarship

This is the congressional testimony of Professor John C. Coffee, Jr., before the United States Senate Committee on Banking, Housing and Urban Affairs, March 10, 2009.

Into The Void: Governing Finance In Central & Eastern Europe, Katharina Pistor

Faculty Scholarship

Twenty years after the fall of the iron curtain, which for decades had separated East from West, many countries of Central and Eastern Europe (CEE) are now members of the European Union and some have even adopted the Euro. Their readiness to open their borders to foreign capital and their faith in the viability of market self-governance as well as supra-national governance of finance is both remarkable and almost unprecedented. The eagerness of the countries in CEE to join the West and to become part of a regional and global regime as a way of escaping their closeted socialist past …

Banking Reform In The Chinese Mirror, Katharina Pistor

Faculty Scholarship

This paper analyzes the transactions that led to the partial privatization of China’s three largest banks in 2005-06. It suggests that these transactions were structured to allow for inter-organizational learning under conditions of uncertainty. For the involved foreign investors, participation in large financial intermediaries of central importance to the Chinese economy gave them the opportunity to learn about financial governance in China. For the Chinese banks partnering with more than one foreign investor, their participation allowed them to benefit from the input by different players in the global financial market place and to learn from the range of technical and …

Chrysler, Gm And The Future Of Chapter 11, Edward R. Morrison

Faculty Scholarship

Although they caused great controversy, the Chrysler and GM bankruptcies broke no new ground. They invoked procedures that are commonly observed in modern Chapter 11 reorganization cases. Government involvement did not distort the bankruptcy process; it instead exposed the reality that Chapter 11 offers secured creditors – especially those that supply financing during the bankruptcy case – control over the fate of distressed firms. Because the federal government supplied financing in the Chrysler and GM cases, it possessed the creditor control normally exercised by private lenders. The Treasury Department found itself with virtually the same, unchecked power that the FDIC …

Merging The Sec And Cftc - A Clash Of Cultures, Jerry W. Markham

Faculty Publications

The massive subprime losses at Citigroup, UBS, Bank of America, Wachovia, Washington Mutual, and other banks astounded the financial world. Equally shocking were the failures of Lehman Brothers, Merrill Lynch, and Bear Stearns. The conversion of Goldman Sachs and Morgan Stanley into bank holding companies left no large independent investment banks standing. If all that was not enough, Bernard Madoff's incredible $50 billion Ponzi scheme was a new milestone in the nation's financial history. Those failures and Madoff's fraud were unforeseen and undetected by the regulator, the Securities and Exchange Commission (SEC), which was responsible for overseeing the broker-dealers that …

Anticipating The Unthinkable: The Adequacy Of Risk Management In Finance And Environmental Studies, James A. Fanto

Faculty Scholarship

No abstract provided.

Funding Public Pension Plans, 42 J. Marshall L. Rev. 837 (2009), Jonathan Barry Forman

UIC Law Review

No abstract provided.

Faith-Based Financial Regulation: A Primer On Oversight Of Credit Rating Organizations, Christopher L. Sagers, Thomas J. Fitzpatrick

Law Faculty Articles and Essays

In light of the present economic crisis and their role in it, the world seems suddenly keen to know more about the handful of private corporations--variously known as bond rating agencies, credit rating agencies, credit rating organizations (CROs), or the like--that rate the creditworthiness of corporate and government debt securities. By most accounts, these companies hold extensive sway in public capital markets, and for about thirty years, a few of them have enjoyed literally de jure delegation of federal regulatory oversight over much of the U.S. financial sector. With that power their ratings have value regardless of their accuracy, and …

Credit Cards, Attorney's Fees, And The Putative Debtor: A Pyrrhic Victory? Putative Debtors May Win The Battle But Nevertheless Lose The War, Jennifer M. Smith

Journal Publications

This Article addresses the current credit card industry and its detrimental impact on society, and it discusses the history and purpose of attorney's fees, as well as the pitfalls in attorney's fee legislation. It analyzes the case study under various state laws, with heavy emphasis on Florida and California law, then recommends a legislative change or judicial intervention to ensure that creditors incur financial responsibility when they erroneously sue consumers. With these changes, consumers are made whole when they must defend themselves against small claims lawsuits erroneously filed against them, so as not to become victims of needless debt.

Peter Mieszkowski And The General Equilibrium Revolution In Public Finance, James R. Hines Jr.

Articles

The importance of understanding the implications of general equilibrium is by now abundantly clear to researchers analyzing public fi nance issues. What is perhaps less apparent is that this was not always so. The study of public fi nance was radically transformed during the 15 years between 1959 and 1974 by the pioneering efforts of a small number of leading scholars, notably including Peter Mieszkowski. Thanks to their efforts, the analysis of applied problems in public finance moved from partial equilibrium to general equilibrium, providing the methods and insights that characterize modern public economics. The transformation began with the publication …

Keeping Ethical Investment Ethical: Regulatory Issues For Investing For Sustainability, Benjamin J. Richardson

Articles & Book Chapters

Regulation must target the financial sector, which often funds and profits from environmentally unsustainable development. In an era of global financial markets, the financial sector has a crucial impact on the state of the environment. The long-standing movement for ethically and socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While this movement is gaining more adherents, it has increasingly justified responsible financing as a path to be prosperous, rather than virtuous. This trend partly owes to how financial institutions view their legal responsibilities. The business case motivations that now predominantly drive SRI are not sufficient …

Overview Article, Stephanie Ben-Ishai, Tony Duggan

Articles & Book Chapters

No abstract provided.

Bank Bankruptcy In Canada: A Comparative Perspective, Stephanie Ben-Ishai

Articles & Book Chapters

During the Great Depression (1930-1933), over 9,000 banks failed in the United States, while not a single bank failed in Canada. In fact, there have been relatively few instances of bank bankruptcy proceedings in Canada from 1867 to present. Approximately eleven bank bankruptcies have been referenced in the case law to date. The first bank bankruptcy appears to be the Bank of Prince Edward Island (1882). Next came the Exchange Bank of Canada (1883), [FN3] followed by the Maritime Bank (1887), the Central Bank of Canada (1887), La Banque Ville Marie (1899), the Farmers Bank of Canada (1910), the Monarch …