Banking and Finance Law Commons^™

Debt And Taxes, David Hasen

UF Law Faculty Publications

The federal income tax conceptualizes the standard loan transaction as an exchange of cash for promises to pay interest and to repay the amount borrowed by the term. This formulation is subtly wrong in ways that have led to a weaker foundation for existing tax rules than they merit. Conceptualizing loans instead as closely akin to leases places most of the tax rules for debt on sounder footing because it clarifies that the consideration paid for the use of the loan proceeds is interest. If interest is the cost of the use of money, then simple borrowing is a fully-paid-for …

The Inchoate Meaning Of “Covered Security” Under The Securities Act Of 1933 – A Look At A Bank “In Organization”, Michael D. Waters

American University Business Law Review

No abstract provided.

Fintech's Role In Exacerbating Or Reducing The Wealth Gap, Pamela Foohey, Nathalie Martin

Articles by Maurer Faculty

Research shows that Black, Latinx, and other minorities pay more for credit and banking services, and that wealth accumulation differs starkly between their households and white households. The link between debt in-equality and the wealth gap, however, remains less thoroughly explored, particularly in light of new credit products and debt-like banking services, such as early wage access and other fintech innovations. These innovations both hold the promise of reducing racial and ethnic disparities in lending and bring concerns that they may be exploited in ways that perpetuate inequality. They also come at a time when policy makers are considering how …

Ai, Consumer Credit, And Discrimination: A Comparative Look At Canada And The United States, Stephanie Ben-Ishai, Mandy Bedford

Articles & Book Chapters

No abstract provided.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Steve Middlebrook, Tom Kierner

Articles by Maurer Faculty

This survey year offered developments too numerous to cover, as often is the case. We debated which developments to include and decided to showcase different types of products and services, different providers, and different regulators. Part II views issues related to stimulus payments arising from the COVID-19 pandemic. Part III reports on litigation over whether retailers must offer gift cards printed in Braille. Part IV looks at recent actions of the Federal Trade Commission ("FTC") related to payment processors and others. Part V describes amendments to the "remittance" regulation promulgated by the Consumer Financial Protection Bureau ("CFPB"). Part VI focuses …

Approaching The Tipping Point For "Public-Private Offerings" : The Current Trajectory Of Rule 506(C), Allen C. Page

Journal of Business & Technology Law

No abstract provided.

Law, Growth, And The Identity Hurdle: A Theory Of Legal Reform, Martin W. Sybblis

Faculty Articles

This Article offers a new theoretical approach to understanding resistance to legal change in the corporate and commercial context by introducing the sociological concept of "community economic identity" (CEI) into legal scholarship. I argue that community leaders (typically, but not exclusively, from the political, legal, and business spheres) generate public and recognizable identities-e.g., "Coal Country" or "Motor City"-with respect to some commercial activities. These identities influence how law reform is conceived and deployed within jurisdictional boundaries (i.e., country, state, town, region, etc.). CEI complicates the prevailing public choice narrative regarding the influence of special interests in the law reform process. …

Regulatory Competition And State Capacity, Martin W. Sybblis

Faculty Articles

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to …

Current Regulatory Challenges In Consumer Credit Scoring Using Alternative Data-Driven Methodologies, Sahiba Chopra

Vanderbilt Journal of Entertainment & Technology Law

Credit is a crucial determinant of financial success for most US consumers, but not all consumers can access it. This financial exclusion is partially due to traditional credit-risk scoring and approval processes that cannot assess the creditworthiness of “credit invisible” or “thin file” consumers––that is, consumers who do not have enough traditional data depicting their financial payment history. Consequently, some consumer-reporting agencies and lenders turn to alternative data credit-scoring systems as a way to increase financial inclusion. The enormous complexity of these alternative consumer credit-scoring systems, however, raises significant accuracy and transparency issues—most of which stem from their secret, legally …

Privacy Beyond Possession: Solving The Access Conundrum In Digital Dollars, Nerenda N. Atako

Vanderbilt Journal of Entertainment & Technology Law

The advent of a retail central bank digital currency (CBDC) could reshape the US payments system. A retail CBDC would be a digital representation of the US dollar in the form of an account or token that is widely accessible to the general public. It would be a third form of US fiat money that is created and issued by the Federal Reserve and complementary to physical cash. CBDC proposals have suggested a myriad of retail CBDC design models with an overwhelming interest in a retail CBDC that either implements a centralized ledger system or some form of a distributed …

The Time Has Come For Disaggregated Sovereign Bankruptcy, Odette Lienau

Cornell Law Faculty Publications

The ongoing economic crisis caused by the COVID-19 pandemic has generated important proposals for addressing countries’ financial distress in the short to medium term. However, it has also made even more apparent the existing gaps in the global financial architecture writ large and highlighted the extent to which key actors pay closest attention to this infrastructure in situations of crisis. By then, of course, it is already too late.

This essay argues that the international community should use the energy generated in the current context to move toward ‘disaggregated sovereign bankruptcy’—which can be understood as a framework by which multiple …

Corporate Finance, 2d (Hornbook Series) (2021), Jeffrey J. Haas

Books

This Hornbook is an indispensable resource for both legal practitioners focusing on business and finance as well as students taking classes in business associations, corporate finance, securities regulation and mergers and acquisitions. The book expertly lays out the fundamentals of corporate finance from a legal and business perspective in a manageable, user-friendly manner. The author highlights how accounting, finance and corporate law intersect and operate synergistically. The book provides an in-depth analysis of how the law affects both equity securities (common stock and preferred stock) and debt securities (bonds, debentures and notes), as well as a company’s capital structure generally. …

Shareholder Primacy And The Moral Obligations Of Directors, Mark J. Loewenstein, Jay Geyer

Fordham Journal of Corporate & Financial Law

One of the most written-about and important topics in corporate law is the fiduciary obligations of corporate directors. Increasingly, critics of American capitalism have urged that corporations, and implicitly, corporate directors, act in a more socially responsible fashion and thus eschew the notion that shareholder primacy is the exclusive guide to a director’s fiduciary duty. Under this view, directors must consider the effect of their actions on “stakeholders” other than shareholders and be guided by morality—doing the right thing—when making business judgments.

When directors move away from shareholder primacy, however, decision-making becomes more difficult and problematic. This article analyzes the …

Bending The Investment Advisers Act's Regulatory Arc, Joseph A. Franco

Fordham Journal of Corporate & Financial Law

The Investment Advisers Act of 1940 (“IAA”) and its regulatory purview have changed dramatically over the life of the statute. The statute began as a simple registration scheme with barebones conduct integrity prohibitions for wealth managers and purveyors of investment newsletters. Although the statute’s original minimalist cast was deficient, the IAA’s regulatory scope has undergone a fundamental transformation, both in terms of the expanding class of advisers covered by the statute’s substantive provisions and the statute’s expansive structural integrity requirements. Over a span of decades, the IAA’s focus has been reoriented so that it is directed at least as much, …

The Insider Trading Prohibition Act: A Small Step Towards A Codified Insider Trading Law, Kayla Quigley

Fordham Journal of Corporate & Financial Law

Many have called for reform to insider trading law, as the current judge-made doctrine is ambiguous, complicated, and ultimately permissive of many instances of trading on nonpublic information. Indeed, Congress has attempted several times to pass a uniform insider trading statute. Most recently, in December 2019, the House of Representatives passed the Insider Trading Prohibition Act (“ITPA”). The legislation codifies many current principles of insider trading jurisprudence while also expanding potential insider trading liability. Moreover, it attempts to fix gaps in the law that various cases, such as United States v. Newman, have declined to address.

Among other flaws, …

Emerging Circuit Split Over Modification Of Mortgages On Multi-Use Real Properties, Michal Zabadal

Fordham Journal of Corporate & Financial Law

For many decades, healthy levels of residential mortgage loans (“RMLs”) and their regulation have been among the major drivers of the economy. Because of the importance of RMLs for the condition of the national financial system and the general well-being of the society, it is essential that lenders are reasonably incentivized to originate these loans. A well-designed promise of higher recovery on RMLs in times of distress can be a compelling motivator. The Bankruptcy Code seeks to deliver on that promise by treating RMLs more favorably. It does that by barring the debtor-in-bankruptcy from modifying a claim secured by a …

Esg And Climate Change Blind Spots: Turning The Corner On Sec Disclosure, Cynthia A. Williams, Donna M. Nagy

Articles by Maurer Faculty

This article examines four areas in which the SEC, for more than a decade, resisted reform or impeded shareholders’ access to sought-after environmental, social, and governance (ESG) information. These areas are: (1) the SEC’s refusal to act on several rulemaking petitions submitted during the years 2009 to 2018, which called for expanded ESG disclosure; (2) the SEC’s grudging promulgation of rules concerning social disclosures as required by Congress in the Dodd-Frank Act of 2010; (3) the SEC’s 2020 revisions to SEC Rule 14a-8, which make the submission of shareholder proposals more difficult, thereby thwarting investor efforts to raise ESG concerns; …

The Virus, Risk, And Commercial Mortgage-Backed Securities: Examining Dodd-Frank’S Impact In The Midst Of A Pandemic, Owen Haney

Fordham Journal of Corporate & Financial Law

When lawmakers sought to reshape the financial industry through the passage of the Dodd-Frank Act in 2010, they specifically attacked the “moral hazard” in the asset-backed securities market that they believed was partly responsible for the collapse of global financial markets. Congress identified several practices in asset-backed securitizations that posed a risk to the world economy. In particular, regulators believed that the “originate-to-distribute” model, whereby loan originators—those parties armed with the best knowledge regarding the quality of the loans in the transaction and who consequently set underwriting standards—could sell off the loans without bearing any risk should those borrowers (homeowners …

Title Iv: Rights And Obligations In Relation To The Provision And Use Of Payment Services (Chapter 3, Arts 78-93): Execution Of Payment Transactions, Benjamin Geva

Articles & Book Chapters

PSD2 Title IV Chapter 3, consisting of arts 78 – 93, addresses rights and obligations between the payment service user and the payment service provider in connection with the execution of payment transactions. It innovates in providing for the liability of a payment initiation service, a newly defined payment service provider.

Section 1 deals with receipt, refusal and irrevocability payment orders as well as with amounts transferred. By references to all currencies, Section 2 covers execution time and value date. Addressing liability, Section 3, contains rules allocating responsibility in cases of non-execution or defective execution.

Discussion in this book chapter …