Banking and Finance Law Commons^™

Constructing A Taxonomy Of Financial Consumer Protection Policy And Assessing The New Consumer Duty In The United Kingdom's Financial Sector, Iris H-Y Chiu, Wai-Yee Wan

Cardozo International & Comparative Law Review

The article critically examines the UK's Consumer Duty, introduced by the Financial Conduct Authority (FCA), arguing that while it represents a significant step in financial consumer protection, it falls short in addressing welfare outcomes and distributive justice. The Duty focuses on consumer empowerment but neglects key aspects of consumer citizenship, such as access to essential financial services and guarantees of product quality. The article proposes a taxonomy of consumer protection levels to evaluate the Duty's effectiveness and advocates for a more robust framework that prioritizes financial inclusion and long-term consumer welfare.

Regulatory Approaches To Consumer Protection In The Financial Sector And Beyond: Towards A Smart Disclosure Regime?, Nydia Remolina, Yvonne Ai-Chi Loh, David Hardoon

International Journal on Consumer Law and Practice

Consumer and data protection policies often focus on consent and information disclosure. The purpose of these regulatory strategies is the protection of consumers by reducing some contracting failures, such as asymmetries of information and a lower bargaining power, especially in transactions involving complex issues such as financial products and sensitive personal data. In the past, regulators have responded to privacy and consumer protection by adopting what this article refers to as an “imperfectly informed regime”, in which consumers do not receive full information about the risks associated with their decisions, even if they are still protected through a variety of …

Financial Exclusion In The Uk's Cashless Society Initiative: Challenges And Policy Considerations, Ogochukwu Monye

International Journal on Consumer Law and Practice

This study explores the challenges posed by the United Kingdom's (UK) cashless society initiative, which has sparked a surge in digital financial services (DFS), including contactless payment and online banking. While the policy promises benefits such as convenience, security, and faster transactions, there is a concern that many, particularly financially underserved and excluded consumers, will face isolation from the cashless transition. Data from the Bank of England (BoE) reveals that approximately 1.2 million UK adults lack access to traditional bank accounts, compelling them to rely primarily on cash transactions. Using the doctrinal research method, this study examines the compelling issue …

Meme Corporate Governance, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Articles

Can retail investors revolutionize corporate governance and make public companies more responsive to social concerns? Beginning in 2021, there was a dramatic influx of retail investors into the shareholder base of “meme” stock companies such as GameStop, AMC, and Bed Bath & Beyond. Observing the unprecedented, coordinated trading among retail investors, scholars and practitioners predicted that the influx of retail investors would reduce the power of large institutional investors and democratize corporate governance. These predictions were driven by three factors: generational, with assumptions that millennial and Gen Z investors would challenge corporate management; societal, reflecting growing discontent with slow progress …

A Global Crypto Code Of Conduct: Crafting An Internationally Centralized Regulatory Body For A Decentralized Asset, Mary Kavaloski

Vanderbilt Journal of Transnational Law

The advent of Bitcoin in 2009 presented a previously unfathomable possibility for the future of currency and monetary transactions. Now, cryptocurrency is ubiquitous; it is increasingly seizing media headlines, novel swathes of investors, institutional bank involvement, and most importantly of all, the attention of government regulators. Yet governments around the globe have failed to adequately keep up with the pace of cryptocurrency's evolution, particularly because of their lack of expertise in this unprecedented area. This Note discusses how cryptocurrency's truly global footprint warrants a partnership between national regulators and industry actors at the international level. Specifically, by exploring the approaches …

Taxing Wealth: A Comparative Analysis Of National Wealth Taxes And How A Federal Wealth Tax Can Overcome Administrative Challenges, Jason Nadboy

Cardozo International & Comparative Law Review

The note advocates for the implementation of a progressive federal wealth tax in the United States to address wealth inequality and generate revenue for social programs. It argues that while administrative challenges exist, they can be overcome by learning from international examples and implementing robust enforcement mechanisms.

Reducing The American National Debt By Negotiating New Tax Practices On Internal Revenue Code Sec. 501(C) Organizations, Armando D. Gonzalez

Cardozo Journal of Conflict Resolution

No abstract provided.

Regulating Cryptocurrency: A Comparative Analysis Of U.S. And Eu Approaches, Xander Xueyang Peng

Cardozo International & Comparative Law Review

The note compares the regulatory approaches of the U.S. and the EU regarding cryptocurrency, focusing on sanctions and anti-money laundering (AML). It argues that while the EU has implemented a comprehensive regulatory framework, the U.S. relies on fragmented enforcement actions and lacks a unified approach. The EU's structured regulations, such as the Markets in Crypto-Assets (MiCA) framework, are more effective in addressing the challenges posed by cryptocurrency, including traceability and compliance. The note advocates for the U.S. to adopt a more robust regulatory framework, including know-your-customer (KYC) requirements and stricter AML measures, to enhance accountability and security in the crypto …

The New Frontier For Bankruptcy: Crypto, Lindy Lofton

Cardozo Arts & Entertainment Law Journal

The note examines the regulatory challenges posed by the rise of cryptocurrency platforms like Celsius and FTX, which have faced significant financial difficulties and bankruptcy. These platforms operate similarly to traditional banks and brokerages but lack the same regulatory oversight, leaving customers vulnerable without protections like FDIC insurance. The note argues that adopting legislation akin to the Banking Act of 1933 or the Securities Investor Protection Act (SIPA) could provide necessary safeguards, such as insurance mechanisms similar to FDIC or SIPC. However, the decentralized nature of cryptocurrency and opposition from the crypto community pose challenges to implementing such regulations. The …

Paying For Performance? Attorneys' Fees In Securities Fraud Class Actions, Jessica M. Erickson

Law Faculty Publications

This Article studies whether plaintiffs’ lawyers matter in securities class actions. We use inverse propensity score weighting (IPW) to compare the results in cases led by top-tier firms against those brought by lower-tier firms. This technique addresses case selection effects by using all of the cases led by a top-tier firm and then weighting the cases led by lower-tier firms based on how similar these cases are to the cases led by top-tier firms. We do find that top-tier lawyers obtain better outcomes for shareholders in a subset of securities class actions, specifically the cases against the larger (although not …

Digital Bank Holidays, Hilary J. Allen

Scholarly Articles in Law Reviews & Journals

The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be responsive to. We may be expecting too much of deposit insurance, and so it is worth considering other tools that might be useful in responding to future bank runs and broader banking panics. One such tool is the “bank holiday,” last deployed in the United …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

English Company Law: Legal Architecture For A Global Law Market, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

English-architecture company law describes the distinct and diverse group of company or corporate law used in more than 60 jurisdictions worldwide. English-architecture company law provides a robust platform for innovation and development due to its permissive structure, opportunity for choice of law in an entity’s internal governance, and scalability permitting variation for small and large entities. It is the dominant form among International Financial Centers (IFCs), many of which have legal systems with a British connection. This body of law responds to competition and maintains dynamism by engaging its practice community through “learning by doing” and “frictioneering.” An architecture approach …

"Don't Go Chasing Waterfalls": Fiduciary Duties In Venture Capital Backed Startups, Sarath Sanga, Eric L. Talley

Faculty Scholarship

We develop a model of venture capital contracting and use it to evaluate an emergent set of judicial precedents in corporate law, which we label the Trados doctrine. In our model, founders hold common stock, while venture capital investors hold convertible preferred stock. We show that preferred shareholders have inefficient incentives to liquidate low-valued firms and to continue high-valued firms, while common shareholders inefficiently favor the opposite. The extent of incentive misalignment depends on the firm’s intrinsic and outside valuations, and it is most severe around preferred shareholders’ liquidation preference and conversion point. Although legal liability rules can rectify these …

Expanding Mfw: Delaware Law Should Offer A Business Judgment Rule Safe Harbor For All Conflicted Controller Transactions, Alex Lindsey

Fordham Journal of Corporate & Financial Law

While courts usually defer to a board’s business decisions under the business judgment rule, courts will apply a much less deferential standard of review due to loyalty concerns if a conflicted controller is involved in a business decision such as a merger. However, in Kahn v. M & F Worldwide (“MFW”) when a squeeze out merger was challenged by a minority stockholder, the Delaware Supreme Court reviewed the transaction under the deferential business judgment rule standard because the Court found that the structure of the transaction neutralized the controller loyalty concerns. Building on this reasoning, the Court developed a checklist …

Loophole Entrepreneurship, Brian M. Sirman

Fordham Journal of Corporate & Financial Law

All entrepreneurs seek favorable legal or regulatory treatment for their businesses. Sometimes this leads an entrepreneur to build a business within a gap in the law—a loophole. In so doing, these “loophole entrepreneurs” may avoid steep regulatory compliance costs that otherwise would beset (or perhaps prohibit) their businesses, thereby gaining advantages over competitors. Despite these benefits, loophole entrepreneurship is fraught with risks. Loopholes, by nature, are fragile, and their contours are often uncertain. Moreover, the stigma of “exploiting a loophole” (which connotes unfairness or deception) can provoke ill will among competitors, policymakers, and the public.

The ranks of loophole entrepreneurs …

Pricing Corporate Governance, Albert Choi

Articles

Scholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings (IPOs). This theory, however, does not seem to match with practice. Not only do many IPO firms offer putatively suboptimal governance arrangements, such as staggered boards and dual-class structures, but these arrangements have been gaining popularity among IPO firms. This Article argues that the IPO market is unlikely to provide the necessary discipline to incentivize companies to adopt the optimal governance package. In particular, when the optimal governance package differs …

Smart Money For The People: Using Financial Innovation And Technology To Promote Esg, Frank Emmert

Duke Law & Technology Review

Traditional fiat currencies managed by governments and central banks have had negative impacts on environmental, social, and governance (ESG) goals. Central banks in mature democracies pursue policies that prioritize economic growth and high employment. However, these policies often lead to inflation, eroding the savings and pension funds of average citizens and encouraging risky behavior by banks and entrepreneurs. The pursuit of endless growth is socially and environmentally unsustainable. Leaders in developing countries and dictatorships use expansive monetary policy to maintain their positions, further exacerbating the situation. Convertible fiat currencies moving across borders in untraceable transactions evade regulation and taxation, with …

The Structure Of Secondary Copyright Liability, Felix T. Wu

Articles

Secondary copyright liability and secondary patent liability largely parallel each other. And yet, secondary copyright cases are often quite different from secondary patent cases. Whereas most secondary patent infringers act in a way that targets a particular patent or group of related patents, secondary copyright infringement mostly arises in the context of technologies or services that work across all copyrighted works. Secondary copyright liability raises issues of platform liability in ways that secondary patent liability usually does not.

The current structure and framing of secondary copyright liability inadequately account for this distinction. The result is that secondary copyright liability tends …

Debt-For-Climate Swaps And Illicit Financial Flows: A Call For Caution In Designing Climate Finance Infrastructures, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

Ahead of COP28, there have been widespread calls for the adoption of 'debt-for nature' and 'debt-for-climate' swaps as an alternative climate finance system to address funding gaps in developing countries. Typically, these swaps involve a debtor country repurchasing its debt securities at substantial discounts or converting official bilateral debt into environmental assets, which enables more fiscal savings to be redirected toward conservation objectives. Unlike most climate finance instruments, these debt swaps avoid burdening countries in the Global South with additional unsustainable debt, thus allowing for a more effective response to the climate crisis without sacrificing spending on other development projects. …