Wednesday, October 13, 2021
For BLPB readers interested in financial market infrastructures (FMIs), there’s something new and exciting to put on your fall reading list! Don’t wait too long. Comments on the new CPMI-IOSCO Consultative report: Application of the Principles for Financial Market Infrastructures to stablecoin arrangements are due by December 1, 2021.
At the request of the G7, G20, and FSB, the standard setting bodies have produced a “report [that] provides guidance on the application of the Principles for financial market infrastructures (PFMI) to systematically important stablecoin arrangements (SAs), including the entities integral to such arrangements.”
The Executive Summary notes that: “Notwithstanding the fact that the transfer function of SAs is considered an FMI function for the purpose of applying the PFMI, SAs may present some notable and novel features as compared with existing FMIs. These notable features relate to: (i) the potential use of settlement assets that are neither central bank money nor commercial bank money and carry additional financial risk; (ii) the interdependencies between multiple SA functions; (iii) the degree of decentralisation of operations and/or governance; and (iv) a potentially large-scale deployment of emerging technologies such as distributed ledger technology (DLT).”
The report’s guidance is summarized in Table 1 (p. 5-6) and there are nine questions for consultation (p.7).
Once I’ve thought more about the report, I might return to it in a future post. Policymakers are increasingly focused on the regulation of stablecoins and other cryptocurrencies. The topic’s importance is sure only to increase.
Sunday, October 10, 2021
Open Assistant Professor Position in the Department of Business Law at California State University, Northridge
Dear BLPB Readers:
The Department of Business Law at California State University, Northridge, has an open faculty position:
"The Department of Business Law invites applications for a tenure-track position at the Assistant Professor level. J.D. or J.S.D. from an ABA-accredited law school and admission to the bar at time of appointment required. In addition, previous experience and proven excellence in teaching law, business ethics, or related courses at the university level, a history of scholarly research and publications, experience practicing law, and business experience are preferred. An LL.M., M.B.A. or other graduate degree in business or economics from an accredited college or university, law review membership, and experience as a law clerk at the appellate level are desirable. At time of appointment, the candidate must meet and must continue to maintain current AACSB International “Scholarly Academic” standards of qualification throughout their tenure."
The complete job posting is here.
Wednesday, September 29, 2021
I had a chance to read Chapter 7 on Clearinghouses [CCPs] in a recent report by the Task Force on Financial Stability and look forward to reading more of the report soon. It’s a short chapter with a lot of excellent information. I particularly appreciated its focus on the issue of clearinghouse ownership (too often left out of clearinghouse discussions), incentive misalignments, and tensions between shareholders and clearing members when CCPs are for-profit, public companies. There is an especially helpful discussion on externalities in the current clearing ecosystem and a summary table of them accompanied by related recommendations (p.99). I agreed with several of the chapter's recommendations (starting on p.96) and with the statement that “Pervasive reforms of derivatives markets following 2008 are, in effect, unfinished business; the systemic risk of CCPs has been exacerbated and left unaddressed” (p.96).
On p.94, the report mentions that clearing members “complained when, in December 2017, the CBOE and CME listed bitcoin contracts (which have extremely high volatility and which many members were not authorized to transact) and then commingled the contracts with the default fund for other instruments.” I think the complaints are understandable and pointed out this issue in a previous post (here).
I did have feedback about a few items in the chapter and will share two points:
First, on p.93, the report states “Were a CCP to fail, something that has not yet occurred, the disruption to the financial system could be enormous.” It’s certainly true that a failed, significant CCP would likely cause enormous disruptions in financial markets. However, as I note in my 2016 report for the Volcker Alliance (p.52), CCPs have failed in other countries and some have argued that certain CCPs in the U.S. risked failure in the October 1987 crash.
Second, I’d like to see a lot more discussion of recommendation #3 (p.97):
“Make sure that systemically important CCPs outside the United States have access to a lender of last resort who can provide dollar funding. This might be provided through a foreign central bank that is willing and able to lend and has access to a Fed swap line. If such funding is not available, and conditioned on a Fed finding that a non-U.S. CCP is adequately supervised, the Fed should consider extending access to the discount window to systemic non-U.S. CCPs. (Currently access is restricted to FSOC-designated systemically important financial market utilities.) It is in the United States’ interest to prevent the failure of systemic CCPs around the world. If a properly supervised entity needs access to dollar funding, and satisfactory information sharing is in place to limit risk, discount window access would strengthen the system.”
In The Federal Reserve's Use of International Swap Lines, I noted that from my perspective, certain provisions in Dodd-Frank appeared to anticipate the possibility of Fed swap lines with CCPs outside the U.S. (p.648). The risk of potentially having to provide emergency euro funding to clearinghouses outside the Eurozone has been an important aspect of the longstanding tensions between the U.K. and the E.U. surrounding clearing (a few stories on this are here, here, and here). The E.U. has argued that because of this financial stability risk, such clearing should be relocated to the Eurozone. Hence, the issue of a major central bank having to provide emergency funding to a foreign clearinghouse is a highly significant concern and merits extensive discussion.
Friday, September 24, 2021
I'm so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here's the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren't the only ethical traps, of course, but there's only so many things you can talk about in a 45-minute slot.
All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.
Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing with an unrepresented person), 7.1 (communications about a lawyer’s services), 8.3 (reporting professional misconduct); and 8.4 (dishonesty, fraud, deceit).
Discussion topics will include:
- Do lawyers have an ethical duty to take care of their wellbeing? Can a person with a substance use disorder or major mental health issue ethically represent their client? When can and should an impaired lawyer withdraw? When should a lawyer report a colleague?
- What ethical obligations arise when serving on a nonprofit board of directors? Can a board member draft organizational documents or advise the organization? What potential conflicts of interest can occur?
- What level of technology competence does an attorney need? What level of competence do attorneys need to advise on technology or emerging legal issues such as SPACs and cryptocurrencies? Is attending a CLE or law school course enough?
- What duties do lawyers have to educate themselves and advise clients on controversial issues such as business and human rights or ESG? Is every business lawyer now an ESG lawyer?
- What ethical rules apply when an in-house lawyer plays both a legal role and a business role in the same matter or organization? When can a lawyer representing a company provide legal advice to an employee?
- With remote investigations, due diligence, hearings, and mediations here to stay, how have professional duties changed in the virtual world? What guidance can we get from ABA Formal Opinion 498 issued in March 2021? How do you protect confidential information and also supervise others remotely?
- What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
- What can and should a lawyer do when dealing with a businessperson on the other side of the deal who is not represented by counsel or who is represented by unsophisticated counsel?
- When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
- What are potential gaps in attorney-client privilege protection when dealing with cross-border issues?
If you need some ethics CLE, please join in me and my co-bloggers, who will be discussing their scholarship. In case Joan Heminway's post from yesterday wasn't enough to entice you...
Professor Anderson’s topic is “Insider Trading in Response to Expressive Trading”, based upon his upcoming article for Transactions. He will also address the need for business lawyers to understand the rise in social-media-driven trading (SMD trading) and options available to issuers and their insiders when their stock is targeted by expressive traders.
Professor Baker’s topic is “Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis.” Professor Baker will provide an overview of the regulation of Texas’ electric power system and the severe outages in February 2021, explaining why Texas is on the forefront of challenges that will grow more prominent as the world transitions to cleaner energy. Next, it explains competing electric power business models and their regulation, including why many had long viewed Texas’ approach as commendable, and why the revealed problems will only grow more pressing. It concludes by suggesting benefits and challenges of these competing approaches and their accompanying regulation.
Professor Heminway’s topic is “Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.” Professor Heminway will discuss how for many small business projects that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended, the time and expense of organizing, qualifying, and maintaining a tax-exempt nonprofit corporation may be daunting (or even prohibitive). Yet there would be advantages to entity formation and federal tax qualification that are not available (or not easily available) to unincorporated business projects. Professor Heminway addresses this conundrum by positing a third option—fiscal sponsorship—and articulating its contextual advantages.
Professor Moll’s topic is “An Empirical Analysis of Shareholder Oppression Disputes.” This panel will discuss how the doctrine of shareholder oppression protects minority shareholders in closely held corporations from the improper exercise of majority control, what factors motivate a court to find oppression liability, and what factors motivate a court to reject an oppression claim. Professor Moll will also examine how “oppression” has evolved from a statutory ground for involuntary dissolution to a statutory ground for a wide variety of relief.
Professor Murray’s topic is “Enforcing Benefit Corporation Reporting.” Professor Murray will begin his discussion by focusing on the increasing number of states that have included express punishments in their benefit corporation statutes for reporting failures. Part I summarizes and compares the statutory provisions adopted by various states regarding benefit reporting enforcement. Part II shares original compliance data for states with enforcement provisions and compares their rates to the states in the previous benefit reporting studies. Finally, Part III discusses the substance of the benefit reports and provides law and governance suggestions for improving social benefit.
All of this and more from the comfort of your own home. Hope to see you on Zoom today and next year in person at the beautiful UT campus.
September 24, 2021 in Colleen Baker, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Ethics, Financial Markets, Haskell Murray, Human Rights, International Business, Joan Heminway, John Anderson, Law Reviews, Law School, Lawyering, Legislation, Litigation, M&A, Management, Marcia Narine Weldon, Nonprofits, Research/Scholarhip, Securities Regulation, Shareholders, Social Enterprise, Teaching, Unincorporated Entities, White Collar Crime | Permalink | Comments (0)
Wednesday, September 22, 2021
Dear BLPB Readers:
The Law and Taxation Department at Bentley University invites applicants for a tenure track position to begin fall 2022. The chosen candidate will teach both undergraduate and graduate law courses with a business focus. The standard teaching load for the tenure-track years is 2-2 (two courses per semester), with an expectation of an increased teaching load of 3-3 upon successful achievement of tenure. The chosen candidate will be expected to publish high quality and impactful scholarship in respected academic and/or practitioner journals.
The complete job posting is here.
Wednesday, September 8, 2021
Dear BLPB Readers:
Duties include teaching undergraduate and graduate business law courses; conducting research leading to scholarly publications as recognized by the college in the area of business law; and providing service to the students of Texas State University, the department, the college, and the profession. All positions are subject to availability of funds.
The complete job posting announcement is here.
Wednesday, September 1, 2021
Last spring, I blogged about a University of Colorado Law School Symposium honoring Professor Art Wilmarth (here). Professor Jeremy C. Kress recently posted his symposium-related piece, Who's Looking Out For The Banks? It addresses an important bank governance issue that thus far has received too little attention. Here's its abstract:
When the Gramm-Leach-Bliley Act authorized financial conglomeration in 1999, Professor Arthur Wilmarth, Jr. presciently predicted that diversified financial holding companies would try to exploit their bank subsidiaries by transferring government subsidies to their nonbank affiliates. To prevent financial conglomerates from taking advantage of their insured depository subsidiaries in this way, policymakers instructed a bank’s board of directors to act in the best interests of the bank, rather than the bank’s holding company. This symposium Article, written in honor of Professor Wilmarth’s retirement, contends that this legal safeguard ignores a critical conflict of interest: the vast majority of large-bank directors also serve as board members of their parent holding companies. These dual directors are therefore poorly situated to exercise the independent judgment necessary to protect a bank from exploitation by its nonbank affiliates. This Article proposes to strengthen bank governance — and better insulate banks from their nonbank affiliates — by mandating that some of a bank’s directors must be unaffiliated with its holding company. As long as banks are permitted to affiliate with nonbanks, this reform is essential to ensure that someone is looking out for the well-being of insured depository institutions.
Sunday, August 22, 2021
VIRTUAL SYMPOSIUM and SPECIAL ISSUE
CALL FOR PAPERS
The Changing Faces of Business Law and Sustainability
The Business and Human Rights Initiative at the University of Connecticut, the Center for the Business of Sustainability at Penn State University’s Smeal College of Business, the College of Business at Oregon State University, and the American Business Law Journal (ABLJ) are pleased to invite submissions related to the role of business law to support and enhance firm and societal engagement on sustainability. This theme is consistent with 2020 AACSB Standard 9.
The COVID-19 pandemic, climate change, and public protests for social justice—as well as whole host of other emerging risks and threats to the environment and society—have generated newfound questions about the appropriate roles of legal rules, principles, and institutions towards promoting sustainable and broad-based value through business. Legal scholarship provides fertile ground for identifying the definitions, conflicts, contradictions, barriers, and limitations of business sustainability. It also provides promise for generating solutions to these challenges that accord with the rule of law, fairness, and equity while furthering the interests of firms and impacted communities. Effective scholarship in this regard requires a perspective that transcends any single area of law, regulatory domain, industry, or jurisdiction.
We seek manuscripts related to any areas of law applicable to the ways in which sustainability is, or should be, addressed by business. Appropriate topics include, but are not limited to:
· Legal structures, opportunities, or regulatory mechanisms to incentivize or increase sustainability in business
· Private and hybrid public-private governance mechanisms related to sustainability and business
· Incentive systems for technological and commercial innovation in sustainability
· Regulation of ESG investing, reporting, and risk management practices
· Critiques of legal and economic structures that fuel unsustainable business practices
· The implications of diversity, equity, and inclusion practices by business for sustainability
· The intersections of business sustainability with human rights and/or globalization
· Issues related to the intersection of business, sustainability, and environmental justice, social justice, and/or structural racism
Complete information about the Symposium on Sustainability and Call for Papers is here: Download ABLJ 2022 Symposium Call for Papers
Wednesday, August 18, 2021
In previous blogs (here and here), I've highlighted the wonderful negotiation materials that George Siedel, Professor Emeritus of Business Law at the University of Michigan, has created and generously made available free of charge (here). I'll be using his House on Elm Street negotiation once again this fall in my MBA course!
Today, I wanted to call BLPB readers' attention to his new book: Seven Essentials for Business Success: Lessons from Legendary Professors. I'm really excited to read it, especially because my dissertation advisor, G. Richard Shell, the Thomas Gerrity Professor, Professor of Legal Studies & Business Ethics and Management at Wharton, is one of the seven award-winning professors profiled! Without doubt, Richard is a truly legendary professor from whom I've already learned so much. I look forward to learning more from him and from the additional six professors highlighted in the book. Once I finish reading it, I'll be sure to share some of my favorite takeaways.
Here's Amazon's description:
Successful leaders are great teachers, and successful teachers serve as models of leadership. This book enables both leaders and teachers to understand and use the best practices developed by award-winning professors, each of whom teaches one of the seven areas that are essential for business success.
These professors candidly discuss their successes and failures in the classroom, the mentors who inspired them, how they developed their teaching methods, and their rigorous preparation for class. Through descriptions of the professors in action, readers will gain an insider’s perspective on their teaching skills, and witness how they teach the seven essentials for success in a variety of settings—MBA, Executive MBA, and executive education courses. The chapters also describe the daily lives (professional and personal) of the professors, and the impact they have beyond the classroom in improving organizations and society.
If you are a leader or teacher—or if you are interested in the content of a business school education—this book provides an insider’s perspective on the best practices used by legendary professors when teaching the seven essentials that represent the core body of knowledge for business success.
Wednesday, August 11, 2021
Dear BLPB Readers:
Christian Brothers University School of Business seeks to fill a tenure-track or long-term contract faculty appointment in Business Law beginning in Fall 2021. Ph.D, D.B.A, J.D., L.L.M. or substantial professional experience with relevant Master's degree is required.
The faculty member will also advise students, participate in curriculum development and service activities. Candidates should demonstrate a commitment to excellence in teaching and an appreciation of the mission of a Lasallian institution of higher education.
The School seeks a dynamic colleague with the ability to effectively teach undergraduate and graduate level subjects related to Business Law. A candidate who is qualified to teach in a second business discipline, especially accounting, data analytics or entrepreneurship, is highly preferred. The School of Business promotes a student-centric teaching-learning model and the successful candidate's teaching philosophy should reflect an emphasis on student engagement and cognitive development.
This position presents the successful candidate with an exciting opportunity to help develop students into ethical leaders who embrace social responsibility in addition to keen business acumen. Faculty and students in the business school have multiple opportunities to engage with the Memphis community through internships, projects, our Center for Community Engagement and our Center for Entrepreneurship and Innovation. The candidate will play an active role in the continuous improvement and design of an innovative curriculum that meets the needs of future business leaders. The ideal candidate is willing to take risks, is creative, and is adaptive to the ever-changing market.
The faculty of the School of Business prides itself on walking alongside each student during his or her educational journey to eventually earning a degree and beginning a career. The School presently offers the B.S. in Accounting, B.S. in Finance, B.S in Management, B.S. in Marketing, and the B.S. in Business Administration with concentrations in banking, international business, management information systems, and sport management. At the graduate level, the School offers the Master of Accounting (MAcc), the Master of Business Administration (MBA), and an MBA in Healthcare Management.
- Ph.D, D.B.A, J.D or L.L.M. strongly preferred
- Teaching experience strongly preferred
- Prefer qualified to teach in a second business discipline, preferably accounting, data analytics, or entrepreneurship.
The full posting for this position is here.
Wednesday, August 4, 2021
Dear BLPB Readers:
The Department of Business Law at California State University Northridge (CSUN) is hiring!
The Department of Business Law invites applications for a tenure-track position at the Assistant Professor level. J.D. or J.S.D. from an ABA-accredited law school and admission to the bar at time of appointment required. In addition, previous experience and proven excellence in teaching law, business ethics, or related courses at the university level, a history of scholarly research and publications, experience practicing law, and business experience are preferred. An LL.M., M.B.A. or other graduate degree in business or economics from an accredited college or university, law review membership, and experience as a law clerk at the appellate level are desirable. At time of appointment, the candidate must meet and must continue to maintain current AACSB International “Scholarly Academic” standards of qualification throughout their tenure.
Complete job posting information is here: Download 22-02 Business Law (CSUN)
Wednesday, July 28, 2021
Dear BLPB Readers:
Surrey Law School is recruiting a tenure-track or tenure-equivalent position in Financial Law (Lecturer or Senior Lecturer). They have an energetic and highly international faculty, and the University of Surrey campus is ideally situated in the leafy English countryside a mere 25 miles from central London (30 min by train). The School comprises three main research clusters: The Surrey Centre for Law and Philosophy, the Surrey Centre for International and Environmental Law and the Law and Technology Hub. This new position in Financial Law is part of an investment in strengthening our Law & Technology Pathway LLB degree, and our FinTech & Policy MSc programme run with Surrey Business School, among other strategic initiatives. The School is in a period of growth and the hiring committee is interested in considering applications also from US-trained lawyers and legal academics. For more information about the position and to apply, please see link below. (Note the application deadline of September 6th.)
Wednesday, July 21, 2021
Fourth Conference on Law and Macroeconomics, 2021
The role of law as an instrument of macroeconomic policy through the Covid-19 pandemic, including as a means to provide social protection, has opened up new and exciting research opportunities. As we edge towards recovery, what is the role of law in creating a macroeconomy appropriate for a post-pandemic world?
We welcome submissions for an online virtual conference on October 27 and 28, 2021 that will continue to explore connections between law and macroeconomics. Papers may address the role of law, regulation, and institutions in:
- Monetary policy, both conventional and unconventional, including how it is impacted by payments systems, e.g., new platforms and technologies, as well as the effects and risks of the unwinding of QE;
- Financial regulatory policy, both domestic and international, including its effect on the economy, its role in crisis containment and resolution, access to capital, and other aspects of financial inclusion;
- Fiscal policy, especially its role in mitigating the effects and frequency of economic downturns, including the respective roles of federal, state, and local governments. We are particularly interested in papers that explore the combination of expansionary fiscal policy and loose monetary policy;
- Moderating recessions with other policy levers, including bankruptcy, contract, and property law; environmental, utility, and labor regulation; and investment and capital controls;
- ESG – which coalitions decide how to implement it, and what will it mean for investment?
- Law and data – whose data is it anyway?
- Sovereign debt, debt relief and forgiveness, and the possible consequences;
- Is the legal profession able to deliver for people in the twenty-first century economy?
- Legal strategies for reducing inequality, including policies affecting labor, competition, access to housing, healthcare, and other public services, as well as personal, corporate and public debt relief.
The submission deadline is September 15, 2021. Conference website is here and complete call for papers here: Download Fourth Conference on Law & Macroeconomics
Wednesday, July 14, 2021
I'm excited to share with BLPB readers that my article, Entrepreneurial Regulatory Legal Strategy: The Case of Cannabis, published in the American Business Law Journal, is now available. It is one of a series of articles related to a 2020 Symposium on Legal, Ethical, and Compliance Issues in Emerging Markets: Cannabis in the States, sponsored by the Spears School of Business Center for Legal Studies & Business Ethics at Oklahoma State University and the American Business Law Journal.
Here's its abstract:
This article develops the concepts of regulatory legal strategy, a resource-based view of government agencies, and regulatory entrepreneurship. These ideas are explored through a case study of the limited (if any) access that legal cannabis-related businesses have to the banking system due to the clash between federal law and laws in those states that have legalized some uses of cannabis. This article argues that regulators’ entrepreneurial regulatory legal strategies can have a material impact on regulated entities and give them a competitive advantage. To demonstrate, this article claims that regulators’ adoption of permissive regulatory legal strategies has facilitated access of some cannabis-related businesses to the banking system. Conversely, if regulators adopted obstructive regulatory strategies, this would act as a constraint on such access in the future, even if Congress resolves the federalism issue largely responsible for the current limitations these businesses face.
I encourage readers to also check out the additional articles in this special volume, which include:
Kimberly A Houser & Janine Hiller's Medical Marijuana Registries: A Painful Choice?
Stephanie Geiger-Oneto & Robert Sprague's Cannabis Regulatory Confusion and Its Impact on Consumer Adoption
Aubree L. Walton, Kaimee Kellis, William E. Tankersley & Rikinkumar S. Patel's Cultivating Evidence-Based Pathways for Cannabis Product Development: Implications for Consumer Protection
Mark J. Cowan, Taxing Cannabis on the Reservation
Wednesday, June 30, 2021
CALL FOR PAPERS
AALS SECTION ON TRANSACTIONAL LAW AND SKILLS
Transactional Lawyering at the Intersection of Business and Societal Well-Being
2022 AALS Annual Meeting
The AALS Section on Transactional Law and Skills is pleased to announce a call for papers for its program, “Transactional Lawyering at the Intersection of Business and Societal Well-Being,” at the 2022 annual meeting of the AALS. This program will explore how ESG and broader societal considerations are increasingly influencing the flow of capital in the global marketplace, corporate governance planning, merger and acquisition activity and structures, as well as other transactional topics. The events of 2020, for example, have shifted the focus of business entity governance, equality and access in securities markets, and transactional planning and deal structures in significant and lasting ways – questioning whether current structures and systems are working well for all stakeholders and society more broadly. COVID-19 and social movements have broadened ESG efforts to include previously overlooked issues such as human resource policies (e.g., sick leave, parental leave), workplace health and safety, supply chain management, continuity and emergency planning, and diversity and inclusion hiring practices and training. In addition, proposals are being considered (and some adopted) to require gender diversity on boards of directors as well as additional disclosures related to human capital. This program will look at how transactional lawyering in a variety of contexts can address/respond to recent calls for increased consideration and balancing of ESG issues and impact topics.
The annual meeting will be held virtually from January 5-9, 2022, with the Section on Transactional Law and Skills panel scheduled for Friday, January 7, from 11 a.m.-12:15 p.m. (EST). In addition to the paper presentation, the program will feature a panel focusing on how to incorporate these topics and issues across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses.
Complete call is here: Download AALS Section on Transactional Law & Skills CFP
Saturday, June 26, 2021
The AALS Section on Financial Institutions and Consumer Financial Services invites submissions of no more than five pages for its session at the 2022 annual meeting of the AALS. Next year’s annual meeting will be held virtually from January 5-9, 2022, with the date and time of the Section’s session yet to be announced. The submission can be the abstract and/or introduction from a longer paper, and it should relate to the following session description:
Climate Finance and Banking Regulation: Beyond Disclosure?
In the United States, banking regulation has been slower than other forms of financial regulation (and slower than its European counterparts) to address climate-related financial risks. This panel explores the proper role of banking regulation in addressing the physical and transition risks from climate change. Possible measures include: standardized, mandatory climate risk disclosures by banks; supervisory assessments of climate-related financial risk; capital and liquidity regulation; climate risk scenario tests; determination of the appropriate role of banks in mitigating climate risk; financial stability oversight of climate risk; and action (through the Community Reinvestment Act and otherwise) to deter harms to disadvantaged communities and communities of color from climate change.
Please email your anonymized materials by Friday, July 16, 2021, to Joe Graham, firstname.lastname@example.org. Please also indicate, in addition to the proposal submission of up to five pages: (a) whether you are tenured, pre-tenure, or other; (b) whether you are in your first five years as a law professor (including any years spent as a fellow or visiting assistant professor); (c) how far along the full article is and when you expect to complete the discussion draft; and (d) optionally, how you would contribute to diverse perspectives in our field or on the panel.
The Section will announce the author(s) selected to present by no later than early September, 2021.
On behalf of the Section on Financial Institutions and Consumer Financial Protection
Chair: Patricia A. McCoy (Boston College)
Chair-Elect: Paolo Saguato (George Mason University)
Executive Committee Members:
Hilary Allen (American University)
Abbye Atkinson (University of California, Berkeley)
Felix Chang (University of Cincinnati)
Gina-Gail S. Fletcher (Duke University)
Pamela Foohey (Indiana University)
Kathryn Judge (Columbia University)
Michael Malloy (University of the Pacific)
Christopher Odinet (University of Iowa)
Jennifer Taub (Western New England University)
Rory Van Loo (Boston University)
David Zaring (The Wharton School)
Friend of the BLPB, Professor Sagi Peari, recently shared the great news about the publication of his second book with Oxford University Press, International Negotiable Instruments (w/Professor Benjamin Geva). A huge congratulations to the profs on this impressive accomplishment on such an important topic! Here's the book abstract:
For centuries, negotiable instruments have played a vital role in the smooth operation of domestic and international commerce. The payment mechanisms have been subject to rapid technological progress and law has needed to adapt and respond to ensure that the legal framework remains relevant and effective. This book provides a comprehensive and thorough analysis of the question of applicable law to negotiable instruments. Specifically, the authors challenge the conventional view according to which the fundamentals of negotiable instruments law are excluded from the scope and insights of general contract and property law doctrines and as such not subject to the general conflict of laws rules governing them. The authors make concrete suggestions for reform and contemplate on the nature of the conflict of laws rules that can also be applied in the digital age of communication.
Wednesday, June 16, 2021
Lev Menand, Academic Fellow and Lecturer in Law at Columbia Law School, has recently published Why Supervise Banks? The Foundations of the American Monetary Settlement, 74 Vanderbilt Law Review 951 (2021). Menand has actually worked in the Federal Reserve Bank of New York's Bank Supervision Group. I'm excited to read this article as banking law scholars are increasingly focused on the area of bank supervision and I've no doubt it makes a significant contribution to the literature. Here's the article's abstract:
Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.
Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual and political foundations of supervision. They also obscure its distinguished past and deny its continued necessity.
This Article rescues supervision and recovers its historical pedigree. It argues that our current understanding of supervision is both historically and conceptually blinkered. Understanding supervision requires understanding the theory of banking motivating it and revealing the broader institutional order that depends on it. This Article terms that order the “American Monetary Settlement” (“AMS”). The AMS is designed to solve an extremely difficult governance problem—creating an elastic money supply. It uses specially chartered banks to create money and supervisors to act as outsourcers, overseeing the managers who operate banks.
Supervision is now under increasing pressure due to fundamental changes in the political economy of finance. Beginning in the 1950s, the government started to allow nonbanks to expand the money supply, devaluing the banking franchise. Then, the government weakened the link between supervision and money creation by permitting banks to engage in unrelated business activities. This transformation undermined the normative foundations of supervisory governance, fueling today’s desupervisory movement. Desupervision, in turn, cedes public power to private actors and risks endemic economic instability.
Wednesday, June 9, 2021
On June 3rd, the United States Court of Appeals for the Second Circuit (Court) decided Lacewell v. Office of the Comptroller of the Currency (here). I’d previously blogged about the “Dueling Law Professor Amicus Curiae Briefs” (here and here, see Appendix A of the Opinion for a listing of these briefs) in this heavily watched federal fintech charter case about whether the Office of the Comptroller of the Currency (OCC) has the authority to issue special-purpose national bank (SPNB) charters for fintech firms “engaged in the ‘business of banking,’ including those that do not accept deposits.” I promised to update BLPB readers when the Court rendered its decision.
In a nutshell, the Court reversed the district court's amended judgement and remanded “with instructions to enter a judgement of dismissal without prejudice.” The Court explained that DFS [the New York State Department of Financial Services, of which plaintiff Lacewell is Superintendent] lacked “standing because it failed to allege that the OCC’s decision caused it to suffer an actual or imminent injury in fact and...that DFS’s claims are constitutionally unripe for substantially the same reason.” Given these considerations, the Court stated that it did not have the jurisdiction to “address the district court’s holding, on the merits, that the ‘business of banking’ under the NBA [National Bank Act] unambiguously requires the receipt of deposits, nor whether that holding warrants setting aside Section 5.20(e)(1)(i) [OCC regulation permitting issuance of SPNB charters] nationwide with respect to non-depository fintechs applying for SPNB charters.” It added that “we express no view on the district court’s determinations regarding these issues.”
Of course, what constitutes the business of banking – whether deposit taking is required by the NBA to be a chartered bank – is the critical issue. Stay tuned! In the meantime, law firm analyses are available (for example, here and here) for readers interested in a more extensive discussion of this decision!
Wednesday, June 2, 2021
Open Faculty Position: Fields Chair in Ethics and Corporate Responsibility at Texas State University
Dear BLPB Readers:
Texas State University invites applications for a full-time, endowed tenured faculty position at the rank of professor. We seek outstanding candidates from all areas of business with a distinctive expertise and focus on business ethics and corporate responsibility. The appointee is expected to have a nationally recognized research record, pursue continuing research and scholarship, and provide disciplinary expertise, innovation, and leadership. The McCoy College is interested in recruiting an individual who can embrace and enhance the vision of a diverse, collegial, and productive academic environment.
• Develop a nationally and internationally recognized research program, including extramural grant funded research, that addresses business challenges through the prism of ethics and corporate responsibility.
• Conduct and collaborate on high quality research leading to publications in top-tier journals.
• Develop and teach courses at the undergraduate and graduate levels, including online offerings, that highlight the ethical and social dimensions of business management.
• Enhance the integration of business ethics, sustainability, and corporate social responsibility into the College’s curricular and co-curricular learning experiences.
• Provide thought leadership and share insights through scholarly engagement with diverse groups including faculty, students, and external communities.
• Serve as an excellent faculty role model who inspires, encourages, and mentors colleagues and students.
• Contribute to college and university initiatives by sharing disciplinary expertise.
The complete job posting is here.