Banking and Finance Law Commons^™

Infrastructure Finance For The Public Good: How Asset Recycling Can Untangle The New York Mta's $50 Billion Debt Load, Lev E. Breydo

Faculty Publications

Systematic infrastructure underinvestment - a $2.6 trillion 'gap' - and accelerating climate change have become facts of life in the United States. Though typically attributed to politics, this Article posits the circumstances as a market disequilibrium rooted in an interplay between unique dimensions of infrastructure and distinctive features of the U.S. approach. Recently-passed legislation, including the Infrastructure Investment and Jobs Act, is insufficient to overcome these longstanding challenges.

Based on a broad, global study of effective approaches to infrastructure finance, as well as a multi-disciplinary analysis of the economics, engineering and finance literature, this Article proposes addressing the U.S. infrastructure …

Achieving Financial Inclusion Through Digital Currencies, Heng Wang

Research Collection Yong Pung How School Of Law

Welcome to our new blog series on “Central Bank Digital Currencies for Financial Inclusion” co-authored by Professor Heng Wang of the Yong Pung How School of Law, Singapore Management University.In this series, we delve into the world of central bank digital currencies (CBDCs) and their potentially profound implications for financial inclusion. What are CBDCs? CBDCs are digital versions of countries’ official currencies issued by the central bank or the like. They could be the digital representation of physical cash. To date, over 110 central banks around the world are engaged in some form of CBDC-related work, and the Eastern Caribbean …

Getting Merger Guidelines Right, Keith N. Hylton

Faculty Scholarship

This paper is on the new Merger Guidelines. It makes several arguments. First, that the Guidelines should be understood as existing in a political equilibrium. Second, that the new structural presumption of the Merger Guidelines (HHI = 1,800) is too strict, and that an economically reasonable revision in the structural presumption would have increased rather than decreased the threshold. Whereas the new Guidelines lowers the threshold to HHI 1,800 from HHI 2,500, an economically reasonable revision would have increased the threshold to HHI 3,200. I justify this argument using a bare-bones model of Cournot competition. Third, it seems unlikely, …

Compliance Design Options For Offline Cbdcs: Balancing Privacy And Aml/Cft, Panagiotis Michalopoulos, Odunayo Emmanuel Olowookere, Nadia Pocher, Johannes Sedlmeir, Andreas Veneris, Poonam Puri

Conference Papers

Many central banks are researching and piloting digital versions of fiat money, specifically retail Central Bank Digital Currencies (CBDCs). Core to these systems’ design is the ability to perform transactions even without network connectivity. Due to the lack of direct involvement of third parties in these offline transfers, various regulatory requirements that are key in the financial space need to be accommodated. This paper deploys a compliance-by-design approach to evaluate technologies that can balance privacy with anti-money laundering and counterterrorism financing (AML/CFT) measures. It classifies privacy design options and corresponding technical building blocks for offline CBDCs, along with their impact …

Ordinary Meaning As Last Resort: The Meaning Of "Undue Hardship" In Title Vii, James Phillips

BYU Law Review

Ordinary meaning reigns supreme in modern statutory interpretation. Yet that supremacy can cause an interpreter to miss specialized meaning. And the Supreme Court has never fully clarified when ordinary meaning must give way to specialized or technical meaning.

This Article attempts to provide doctrinal clarification as to when one should use ordinary as opposed to other meanings through putting the doctrinal pieces together in a full and coherent way. That doctrinal clarity leads to a methodological refinement: rather than the starting point, ordinary meaning is the ending point of statutory interpretation.

This Article applies this doctrine and methodology, as well …

Inequity In Equities: Spacs And The Expansion Of The Retail Market, Usha Rodrigues, Michael Stegemoller

BYU Law Review

Federal securities law creates a divide between the haves and the have-nots: On one side are the wealthy, who can invest in private companies; on the other side stand the rest of us, noses pressed up against the glass. Ordinary (or retail) investors are on the outside looking in because generally they can only invest in companies after they have gone public. Even the traditional process of going public typically keeps coveted initial public offering (IPO) shares in the hands of the rich. Put differently, even as a private firm debuts on the public markets, the wealthy take their cut …

The Fiduciary Duty Of Dissent, Joseph W. Yockey

Villanova Law Review (1956 - )

No abstract provided.

Educating Deal Lawyers For The Digital Age, Heather Hughes

Fordham Law Review

Courses and programs that address law and emerging technologies are proliferating in U.S. law schools. Technology-related issues pervade the curriculum. This Essay presents two instances in which new technologies present challenges for deal lawyers. It explores how exposing students to closing opinions practice can prepare them to engage these challenges. Both examples involve common commercial contexts and lessons relevant to students of business associations and of the Uniform Commercial Code. The first, which deals with enforceability opinion letters, presents technical legal difficulties arising from recent developments in law and technology. The second, involving complex doctrines at the heart of financial …

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Edward Janger, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

A Look Back In Time: Analyzing The Success And Value Of The 2014 Amendments To Rule 2a-7 And Reporting On Form N-Cr In Light Of The March 2020 Market Events, Jocelyn Near

Catholic University Law Review

Money market funds have frequently been a target of regulation by the Securities and Exchange Commission (“SEC”). Perhaps the most expansive regulation came as a response to the 2008 financial crisis, in which the Reserve Primary Fund “broke the buck.” The SEC’s misguided 2014 reforms exacerbated the inherent risks of money market funds, including the risk of runs and first mover advantage, particularly with the implementation of Form N-CR. Form N-CR requires a money market fund to publicly report when various events occur, including when a retail or government money market fund’s current net asset value per share deviates downward …

Achieving Gender Equality In Venture Capital: The Case For Federal Regulatory Intervention, Janhvi Patel

William & Mary Business Law Review

Gender inequality is a pervasive issue in venture capital financing, with studies consistently revealing the severe disadvantage female entrepreneurs face when raising private funds for their companies. Research has shown that female founders receive only a fraction of the total venture capital dollars invested each year, despite launching companies that outperform those founded by men. Gender bias among investors, a lack of diversity in decision-making teams, and regulatory inaction are major contributors to this inequality. The consequences of gender inequality in venture capital financing extend beyond the financial impact; such inequalities perpetuate systemic gender stereotypes and impede the full realization …

An Emergency Brake For The Age Of Instantaneous Bank Runs, Nicholas L. Georgakopoulos

William & Mary Business Law Review

Businesses missing payroll because some bank executives made wrong bets about interest rates is the seed of contagion that financial regulation aims to prevent. Yet, exactly that happened when Silicon Valley Bank failed in March of 2023. Future bank runs will be faster and larger. This Article proposes a regime that would prevent bank runs from hurting the nonfinancial economy. A bank experiencing a run should be allowed to delay withdrawal requests until next Monday (after its run will have been addressed by management or regulators). Exceptions should include payroll, deal closings, and individuals’ payments under the insured limit. By …

Crypto-Counterfeiting, Joshua Fairfield

William & Mary Business Law Review

The current crypto winter has given rise to a range of legal challenges. One of the most important sets of legal challenges goes to the heart of cryptocurrency. Cryptocurrency was intended to be non-duplicatable at will, that is, not to be counterfeitable. Blockchain technology is supposed to prevent token counterfeiting through a combination of game theory and cryptography that prevents normal users from simply ordering the system to generate more tokens for their benefit.

The difficulty is that blockchain software is still software. People in charge can order and program the software to generate many more tokens for those individuals’ …

The Truth About Fibs (Financial Institution Bonds) In Mississippi: When Express Terms Conflict With Statutory Requirements, Ronald J. Rychlak

MC Law Review

In Mississippi, Financial Institution Bonds (FIBs) are statutorily-required financial instruments that cover officers or employees of a bank (or other financial institution) to protect financial institutions against losses caused by matters such as dishonesty; forgery; fraud; kidnapping, ransom, or extortion; and counterfeiting. State statutes set forth the terms that are to be included in the FIB, but standard forms are promulgated by the Surety Association of America (SAA) or on special forms drafted by the surety.

A problem can arise if the terms on the executed bond form do not coincide with the requirements of the state statute.

Financial Regulation Beyond Stability, Kathryn Judge

Faculty Scholarship

This essay briefly reviews the ways stability has dominated regulatory and academic discourse about financial regulation. It then uses anti-money laundering (AML) and the Federal Home Loan Banks (FHL Banks) — the oldest government foray into housing policy — as case studies to show that banks and the financial system are already deeply engaged in efforts to further other important government policies. These case studies affirm just how hard it can be to promote healthy public-private coordination, while also revealing why such arrangements have become so pervasive. More than anything, the aim here is to force acknowledgment of the myriad …

Brandeisian Banking, Kathryn Judge

Faculty Scholarship

Banking law shapes the structure of the banking system, which in turn shapes the structure of the economy. One of the most significant ways that banking law in the United States traditionally sought to promote Brandeisian values of stability and decentralization was through a combination of carrots and sticks that enabled small banks across the country to thrive. To see this requires a richer understanding of Brandeis as someone who valued not just atomistic competition but also small business and broad flourishing. It also requires a deeper understanding of the ways different parts of banking law worked together during the …

Rebuilding Banking Law: Banks As Public Utilities, Lev Menand, Morgan Ricks

Faculty Scholarship

Under the New Deal framework for money and payments — which had its roots in the National Bank Act of 1864 — banks in the United States were governed in many respects as public utilities. Charters were available only where they were consistent with public convenience and need, the usual standard for utilities. Banks enjoyed an exclusive privilege to augment the money supply, maintaining deposit account balances that house-holds and businesses could use as a means of payment and store of value. Banks were largely limited to conducting activities consistent with their monetary purpose. Geographic expansion was constrained to promote …

Future Foresight And Its Impact On The Application Of Iso 22301 Business Continuity Management System In The Commercial Banking Sector In Jordan, ثروت الحوامدة, حنان بو طه

Jerash for Research and Studies Journal مجلة جرش للبحوث والدراسات

The study aimed to identifying the effect of future foresight in the application of the ISO 22301 standard for business continuity management system in the commercial banking sector in Jordan. Whose number is (400) employees, the study sample consisted of (196) employees, were randomly selected. The study followed the descriptive and analytical approach. The questionnaire was used as a tool for data collection. The results of the study showed that the relative importance of the future foresight was high, and the relative importance of applying the ISO 22301 standard for business continuity management system was high, as it came after …

Emerging Technologies And Perfection Of Security Interests: A Financial University Of Uncertainty, Elizabeth M. Wagenbach

Brooklyn Law Review

Since the founding of Bitcoin in 2009, digital assets, such as cryptocurrency, have exploded in popularity. Cryptocurrency has been associated with stories of immense profit and immense loss. The lucky transactors have been able to capitalize on the price fluctuations of cryptocurrency, while the unlucky transactors became victims of the same volatility, losing tremendous amounts of money. The novelty and ingenuity of cryptocurrency has been coupled with mass confusion to transactors and regulators alike. These early days of cryptocurrency have been characterized by a sort of regulatory tug of war that is a direct result of confusion of what cryptocurrency …

In The Midst Of Bankruptcy: How Cryptocurrency's Classification Affects Creditors Who Were Once Customers, Mia Qu

Washington Law Review

In 2022, Congress proposed the Digital Commodities Consumer Protection Act to amend the Commodity Exchange Act and define a new type of commodity: digital commodity. The definition of digital commodity encompasses cryptocurrency and provides the Commodity Futures Trading Commission with jurisdiction over digital asset transactions. This definition of digital commodity has two important implications. First, it signals the lawmakers’ tendency to generalize cryptocurrency as a commodity. Second, it brings complications into how creditors—especially individual crypto account holders—can recover in the recent bankruptcy cases involving prominent crypto companies. This Comment contains four components. First, it provides a brief explanation of cryptocurrency …