Wednesday, May 17, 2023
Dear BLPB Readers:
"The American Business Law Journal invites ALSB members who are interested in serving on the Editorial Board of the ABLJ to apply for the position of Articles Editor. The ABLJ is widely regarded, nationally and internationally, as a premier peer-reviewed journal. Serving as an Articles Editor provides an opportunity to serve the Academy of Legal Studies in Business and broader academic discipline at the highest levels of service.
The incoming Articles Editor will begin to serve on the Board in August 2023. Board members commit to serve for three years: two years as Articles Editor and one year as Senior Articles Editor. After that, Articles Editors have the option of continuing to serve two more years—one as Managing Editor and another as Editor-in-Chief. Articles Editors supervise the review of articles that have been submitted to the ABLJ to determine which manuscripts to recommend for publication. If a manuscript is accepted, the Articles Editor is responsible for working with the author to oversee changes in both style and substance. If a manuscript is believed to be publishable but in need of further work, the Articles Editor outlines specific revisions and further lines of research that the author should pursue. The Articles Editor’s recommendations for works-in-progress are perhaps the most important and creative aspect of the job because they provide the guidance necessary for works to blossom into publishable manuscripts.
An applicant for the position of Articles Editor should have an established track record of publications. We prefer applicants who have previously published with the ABLJ and have familiarity with our peer review process. However, we also welcome applicants, including international applicants, who have published in high quality law journals and/or peer reviewed law journals that adhere to the Harvard Bluebook style. Experience serving as a Reviewer for the ABLJ or as a Staff Editor is helpful. The ABLJ is committed to ensuring that financial resources, including the support of a research assistant, are not an obstacle to service on the Board.
Before applying, please contact us to learn more about the position and financial assistance that may be available, either through your institution or from the ALSB.
Please send a resume and letter of interest to Susan Park, ABLJ Editor-in-Chief, at [email protected] by May 31, 2023, for full consideration."
Wednesday, April 26, 2023
My last post (here) addressed central bank digital currencies (CBDC). I wanted to address this topic again today (and will do so again in the future!). Michelle W. Bowman, a Member of the Board of Governors of the Federal Reserve System, recently gave a speech entitled, Considerations for a Central Bank Digital Currency. She states “There are two threshold questions that a policymaker needs to ask before any decision to move forward with a CBDC. First, what problem is the policymaker trying to solve, and is a CBDC a potential solution? Second, what features and considerations--including unintended consequences--may a policymaker want to consider in deciding to design and adopt a CBDC?”
Governor Bowman notes that “a CBDC is simply a new form of digital liability of a central bank…Beyond this baseline definition though, “what is a CBDC" defies a simple definition.” There is “an array of CBDC design choices” and “policy tradeoffs that this multitude of choices presents.”
One of the policy tradeoffs related to design features that Governor Bowman addresses is privacy considerations. She states that “In thinking about the implications of CBDC and privacy, we must also consider the central role that money plays in our daily lives, and the risk that a CBDC would provide not only a window into, but potentially an impediment to, the freedom Americans enjoy in choosing how money and resources are used and invested. So, a central consideration must be how a potential U.S. CBDC could incorporate privacy considerations into its design, and what technology and policy options could support a robust privacy framework.”
In a prior post (here), I linked to an excellent article by Professors Morgan Ricks, Lev Menand, and John Crawford, FedAccounts: Digital Dollars. In their article, focused on a potential FedAccount CBDC, the authors address “privacy and civil liberties,” stating that “Although these concerns are legitimate, some perspective is in order for four reasons.” (p. 164) I hope interested BLPB readers read the article for the authors’ explanation of these reasons.
I also hope interested BLPB readers read Governor Bowman’s speech. I recently stated (here) and will continue to reiterate that I think widespread education about CBDCs and extensive public debate about the potential adoption of a U.S.-dollar CBDC is tremendously important.
Wednesday, April 12, 2023
Last week, I posted (here) about an important new article on the Fed and I’m doing that again this week. Wharton Professor Christina Parajon Skinner’s Central Bank Digital Currency as New Public Money (forthcoming, University of Pennsylvania Law Review) is also a critical piece. As the Introduction explains: “nearly every central bank around the world” is considering whether to create a central bank digital currency (CBDC). Most payments are already digital. Hence, it is important to realize that the impact of a central bank digital currency would be more than just payment digitization.
Skinner states that “At least in the case of a U.S.-dollar CBDC, issued by the Federal Reserve, not only is a CBDC a fundamentally new monetary instrument, it also fundamentally alters – by weakening – the bundle of rights that State-issued money has heretofore conveyed to individuals holding public money.” (p. 9-10) And that “In many ways, as this Article will suggest, the nature of money implicates the very relationship between people and the State. In that sense, each nation’s decision about whether to pursue a CBDC will be highly dependent on its legal framework but also its political-economy values. Some States may well proceed with a CBDC while others might find it inconsistent with their political and legal mores and traditions. But in that case, the question of how to preserve a well-functioning monetary order will need to be addressed within the framework of international monetary law.” (p.11)
Even more than with the question of who has access to a master account at the Fed (see here, here and here), widespread understanding of and debate about the potential adoption of a U.S.-dollar CBDC is tremendously important. Such conversations are also incredibly timely.
In fall 2022, the Federal Reserve Bank of New York (FRBNY) released its Phase One Report on “Project Cedar.” As the FRBNY explains: “Project Cedar is the inaugural project of the New York Innovation Center (NYIC). It is a multiphase research effort to develop a technical framework for a theoretical wholesale central bank digital currency (wCBDC) in the Federal Reserve context.” The Report “aims to contribute to a broad and transparent public dialogue about CBDC from a technical perspective. The report is not intended to advance any specific policy outcome, nor to signal that the Federal Reserve will make any imminent decisions about the appropriateness of issuing a retail or wholesale CBDC, nor to offer an indication of how one would necessarily be designed.” (p.3-4)
Here’s the abstract for Skinner's article:
“Today, nearly every central bank around the world is considering whether to create a new form of digital public money, referred to as central bank digital currency, “CBDC.” Although CBDC is often discussed as a way to make payments more efficient, enhance financial inclusion, or reduce the risk of financial instability posed by stablecoins, the legal rights attached to CBDC remain poorly understood. This Article theorizes American public money as a bundle of distinct economic rights—namely, rights to popular monetary sovereignty; to property in value; and to qualified privacy. It then measures CBDC against the legal and conventional status quo to discern where CBDC adds to the monetary bundle-of-rights or takes a stick away. The Article argues that CBDC transfers significant monetary power to the State by weakening the individual right of issuance, conditioning the individual right to monetary property, and rendering monetary privacy rights scarce. It also, in so doing, empowers the central bank while weakening its independence.”
Wednesday, April 5, 2023
I've often blogged (for example, here and here) about the monumental importance of a seemingly mundane topic: access to a master account at the Federal Reserve. So, I was delighted to read Professor Julie Anderson Hill's new article, From Cannabis to Crypto: Federal Reserve Discretion in Payments (forthcoming, Iowa Law Review). It's an important piece about a critical issue. Here's the abstract:
"From its inception, the Federal Reserve has operated payment systems that let banks move money for their customers. Checks, wire transfers, and electronic consumer payments all happen thanks to the Federal Reserve. Congress by statute specified which banks get access to the Fed’s payment services. For more than a century, the Federal Reserve provided services to all legally eligible banks. But when the Federal Reserve received requests for payments access from a cannabis-focused credit union and a cryptocurrency custody bank (both of whom are legally eligible), it denied them. The Fed also issued sweeping guidelines claiming discretion to conduct risk-vetting and deny bank requests. These guidelines apply to all banks and reverberate far beyond cannabis and crypto.
This Article examines whether the Federal Reserve’s payments discretion is as great as it now claims—a question that has been raised in three recent cases, but never answered. It concludes the Fed has overstepped. The language and structure of the Federal Reserve Act require that the Federal Reserve provide payment services to all eligible banks. In support of this statutory interpretation, the Article excavates long forgotten legislative history and more than a century of sometimes hidden Federal Reserve payments practices. It shows that while the Federal Reserve has some discretion over the payments it processes and terms under which it offers it payments services, the Fed’s discretion is not so broad as to allow it to reject access requests from legally eligible banks. If the Fed wants to exclude banks, it should ask Congress to change the law."
Wednesday, March 22, 2023
Dear BLPB Readers:
My colleague Professor Joseph Thai at OU College of Law shared the following:
"Do you have an interest in securities fraud and investor protection? Want to ask national experts about the current banking crisis and its implications for regulators, investors, and the general public?
On behalf of OU College of Law, please join us for the Wilkinson Family Speaker Series (WFSS) in the Bell Courtroom at OU College of Law on Friday, March 24, 2023, from 9:15 a.m. – 1:15 p.m. The event is free, breakfast and lunch are included, and you are welcome to come and go if you cannot stay the entire duration.
Please see the flyer and attached program, and RSVP at the link below. Thank you!"
Program flyer is here: Download WSS Program
Wednesday, March 15, 2023
This week, I read Professor Ganesh Sitaraman's fascinating article, Deplatforming (forthcoming, Yale Law Journal). As he states in the introduction, "Deplatforming has also not been limited to individuals and content on social media." My research isn't focused on tech platforms or social media. However, it does encompass banking, financial market infrastructures, and other evolving financial market platforms where this issue either has arisen or might arise in the future. I'm grateful that this article will help me in thinking about such questions. Here's the abstract:
"Deplatforming in the tech sector is hotly debated, and at times, it might even seem unprecedented. In recent years, scholars, commentators, jurists, and lawmakers have focused on the possibility of treating social media platforms as common carriers or public utilities, with the implication that imposing a duty to serve the public would restrict them from deplatforming individuals and content.
But in American law, the duty to serve all comers was never absolute. In fact, the question of whether and how to deplatform—to exclude content, individuals, or businesses from critical services—has been utterly common and regularly debated throughout American history. In the common law and the major infrastructural and utility sectors—transportation, communications, energy, and banking—American law has long provided rules and procedures for when and how to deplatform.
This Article offers a history and theory of the law of deplatforming across networks, platforms, and utilities. Historically, the American tradition has not been one of either an absolute duty to serve or an absolute right to exclude. Rather, it has been one of reasonable deplatforming—of balancing the du-ties to serve and the need to, in limited and justifiable cases, exclude. Theoretically, deplatforming raises common questions across sectors: Who deplatforms? What is deplatformed? When does deplatforming occur? What are permissible reasons for deplatforming? How to deplatform? The Article uses the history of deplatforming to identify these and other questions, and to show how American law has answered them.
The history and theory of deplatforming shows that the tension between service and exclusion is an endemic issue for common carriers, utilities, and other infrastructural services—including contemporary tech platforms. The Article considers ways in which past deplatforming practices can inform current debates over the public and private governance of tech platforms."
Tuesday, March 14, 2023
Dear BLPB Readers,
Professor Nadav Orian Peer at the University of Colorado Boulder Law School shared that tomorrow, Wednesday March 15th at 2pm ET (noon MT), there will be a "virtual teach-in at Colorado Law about SVB and its significance." Interested readers can join the event at: www.cu.law/svb
Wednesday, March 8, 2023
Professor Packin on Financial Inclusion Gone Wrong: Securities and Crypto Assets Trading for Children
Today, a LexisNexis alert shared the great news that Professor Nizan Geslevich Packin's article, Financial Inclusion Gone Wrong: Securities and Crypto Assets Trading for Children, has now been published in the Hastings Law Journal. It's a fascinating work that I had the privilege of seeing presented at last year's National Business Law Scholars Conference (NBLSC) at OU Law. I'm excited to see it's now published, and I can't wait to learn about more exceptional work like this at this year's NBLSC in Knoxville, Tennessee. Hope to see many of you there!
Article citation: Nizan Geslevich Packin, Financial Inclusion Gone Wrong: Securities and Cypto Assets Trading for Children, 74 Hastings L. J. 349 (2023).
Here's the abstract posted on SSRN:
"According to studies, for most Americans, money is a major source of anxiety. Looking for ways to help Americans address this source of anxiety, some believe that increasing children’s financial orientation could help lower their money-related anxiety levels as adults. Identifying this market as a business opportunity, and reassured by research that shows that by age six, children are already veteran consumers of mobile apps, financial technology (FinTech), decentralized finance (DeFi) and even traditional financial entities have started offering services and products to children. These services and products include a broad array of financial-related products and services – from enabling children to earn money for doing their chores, to trade stocks and crypto assets, and even earn digital assets and currencies while playing video games.
The potential of this new market’s clientele is valuable for two reasons. First, having more customers is always a good thing. Second, children will eventually mature into adult customers and presumably will continue using the services and products they like and with which they are familiar. And although some legal challenges are associated with children, who are minors, not only entering into financial-based contracts but also doing so online, this business trend will continue to grow as offering financial services to children is becoming socially acceptable. Society’s newly adopted paradigms for describing, understanding, and shaping children’s rights, domestic relationships, custodial status, and even digital purchasing power are all supportive of this trend. Moreover, FinTech and DeFi financial apps and games can help teach children about the value of money, the importance of investing, and the risks involved in trading.
Yet, FinTech and DeFi apps and games could also have a developmentally and behaviorally disruptive effect on children, similarly to other consumed digital content. Moreover, they should be a source of concern to anyone focused on investor and consumer protection, including regulatory agencies such as the SEC and FINRA, which have already expressed concerns about gamification and digital engagement practices. Given “the financialization of everything,” using legal and ethical reasoning, and behavioral economics tools, this Article calls for the search for effective financial literacy education for children to be replaced by a search for policies more conducive to good consumer and investor protection outcomes, which should guide lawmakers in regulating FinTech and DeFi apps and games offered to children in light of: (i) the addictiveness of digital gaming; (ii) how gamifying finance makes it feel less serious; (iii) the connection between gamification and gambling; (iv) how children’s financial choices are more susceptible to the influence of outside parties than are those of adults; (v) the FinTech and DeFi apps and games’ failure to teach children the importance of concepts such as debt, credit, and financial commitments; and (vi) the unrealistic burden on young parents who already struggle with the need to constantly supervise their children’s online activities, in our digital era, by expecting them to monitor their children’s online financial activities."
Wednesday, February 22, 2023
Professor Emeritus Arthur E. Wilmarth recently posted a new article, We Must Protect Investors and Our Banking System from the Crypto Industry. I always learn a ton in reading his work, so I'm looking forward to the opportunity to review this paper. Here's the abstract:
"The crypto boom and crash of 2020-22 demonstrated that (i) cryptocurrencies with fluctuating values are extremely risky and highly volatile assets, and (ii) cryptocurrencies known as “stablecoins” are vulnerable to systemic runs whenever there are serious doubts about the adequacy of reserves backing those stablecoins. Crypto firms amplified the crypto boom with aggressive and deceptive marketing campaigns that targeted unsophisticated retail investors. Scandalous failures of prominent crypto firms accelerated the crypto crash by inflicting devastating losses on investors and undermining public confidence in crypto-assets.
Federal and state regulators have allowed banks to become significantly involved in crypto-related activities. Several FDIC-insured banks that provided financial services to crypto firms suffered substantial losses and incurred extensive legal, operational, and reputational risks during the crypto crash. Meanwhile, stablecoins issued by nonbanks and uninsured depository institutions threaten to become a new form of “shadow deposits” that could undermine the integrity of our banking system and require costly future bailouts.
This article presents a three-part plan for responding to the risks posed by fluctuating- value cryptocurrencies and stablecoins. First, policymakers must protect investors by recognizing the Securities and Exchange Commission (SEC) as the primary federal regulator of most fluctuating-value cryptocurrencies. Federal securities laws provide a superior regime for regulating such cryptocurrencies. In particular, the SEC has broader powers (including a more robust investor protection mandate) and a stronger enforcement record than the Commodity Futures Trading Commission (CFTC).
Second, federal bank regulators must protect the banking system by prohibiting all FDIC- insured banks and their affiliates from investing and trading in fluctuating-value cryptocurrencies, either on their own behalf or on behalf of others. In addition, federal bank regulators should bar FDIC-insured banks and their affiliates from providing financial services to crypto firms unless those firms are registered with and regulated by the SEC and/or the CFTC.
Third, Congress should mandate that all issuers and distributors of stablecoins must be FDIC-insured banks. That mandate would ensure that all providers of stablecoins must comply with the regulatory safeguards governing FDIC-insured banks and their parent companies and affiliates. Those safeguards provide crucial protections for our banking system, our economy, and our society."
Wednesday, February 15, 2023
I'm an avid reader of Matt Levine's Money Stuff newsletter. Yesterday, he discussed a recently posted article by Dhruv Aggarwal, Albert H. Choi, and Yoon-Ho Alex Lee, Meme Corporate Governance. Although I've not yet had time to review the paper, it's now on my reading list, and I thought other BLPB readers might want to add it to theirs too! Here's the abstract:
"In 2021, several publicly traded companies, such as GameStop and AMC, experienced a dramatic influx of retail investors in their shareholder base. This Article analyzes the impact of the “meme stock surge” phenomenon on the companies, particularly with respect to their governance outcomes and structures. The paper presents three principal findings. First, as a preliminary matter, we show how the “meme stock” frenzy was affected by the introduction of the commission-free trading platform, such as Robinhood, in 2019. We show empirically that the meme stock companies experienced a larger trading volume when commission-free trading was widely introduced. Second, we examine how the influx of retail shareholders has directly affected the governance outcomes at the meme stock companies. The main finding is that, notwithstanding the promise of more active shareholder base, meme stock companies have experienced a significant decrease in participation by their shareholders, including voting and making shareholder proposals. Third, we examine other popular governance metrics—such as ESG and board diversity indices—and show that while the diversity index has not improved, the ESG measure has gotten worse for the meme stock companies. While there is an issue of generalizability, our findings show that the influx of retail shareholders at meme stock companies have not translated into more “democratic” governance regimes."
Wednesday, February 1, 2023
Open Postdoc/fellowship position at Wharton Initiative on Financial Policy and Regulation in Bankruptcy/Restructuring
Dear BLPB Readers:
Here is some exciting news from the Wharton Initiative on Financial Policy and Regulation:
"The Wharton Initiative on Financial Policy and Regulation (WIFPR) is seeking a postdoctoral fellow to support its activities in the field of bankruptcy and restructuring. WIFPR sponsors research, organizes conferences and events, and supports faculty and students at the intersection of finance, law, and policy.
The postdoctoral fellow will be responsible for coordinating WIFPR’s work in bankruptcy/restructuring. More generally, responsibilities include: conducting original research on bankruptcy/restructuring, contributing to WIFPR’s academic programming, engaging with stakeholders, and assisting Faculty Directors and the Senior Fellow with WIFPR events and administration generally.
The postdoctoral fellow will receive a competitive salary and associated benefits. There is no teaching obligation.
The candidate must have a JD or PhD. The candidate should also have some experience with data analysis.
The term of appointment is two years, beginning July 1, 2023. The ideal candidate would have the intention of pursuing a research career in either law, economics, or finance."
Full details of this open position are here.
Wednesday, January 25, 2023
Dear BLPB Readers:
From Professor Wade Davis:
"Minnesota State University Mankato is hiring a tenure track Business Law professor position for fall 2023. Here is a link to the Job Posting.
The Business Law program is located in the College of Business and provides students the practical knowledge and skills needed to become impactful leaders, entrepreneurs, and professionals who make legally-informed, ethical, and strategic decisions. It offers a robust curriculum including courses in contract law, employment law, intellectual property, environmental law, negotiation, and international law.
The Business Law program has a stand-alone minor with approximately 40 declared students. It teaches core classes for the College of Business, the MBA program, and several departments across the university.
Applications will start to be reviewed on Feb. 28 and continue until the position is filled. Minnesota State University, Mankato is an Affirmative Action/Equal Opportunity University and a member of the Minnesota State System. Please contact Wade Davis at [email protected] if you have any questions."
Wednesday, January 11, 2023
For those readers interested in exchanges and clearing, I wanted to highlight that Oliver Wyman's "Independent Review of Events in the Nickel Market in March 2022" was released yesterday. As I noted in an earlier post (here), in March 2022, the price of nickel on the LME rose over 270%, and the exchange not only halted nickel trading, but also canceled trades. Additionally, the LME, who engaged Oliver Wyman to produce this Review, released "LME Group Response to Oliver Wyman Independent Review." The Executive Summary - which is all I've had time to read thus far - notes that:
"The primary objectives of the review were to identify the factors that contributed to market conditions in the
nickel market in the period leading up to, and including, March 8, 2022, and make recommendations for how the
LME Group could reduce the likelihood of similar events occurring again"
Sunday, January 8, 2023
Dear BLPB Readers:
"Fordham JCFL Volume XXVIII: Call for Submissions Update
The Fordham Journal of Corporate & Financial Law has extended its call for submissions for the Spring 2023 Issue of Volume XXVIII to February 3rd, 2023.
As one of the premier student-edited business law journals in the country, the Journal ranks among the top-five specialty journals in banking and financial law, and among the top-ten specialty journals in corporate and securities law. The Journal welcomes articles and essays addressing important issues in antitrust, banking, bankruptcy, corporate governance, capital markets, finance, mergers and acquisitions, securities, and tax law and practice in the United States.
Please send all submissions to either our Scholastica page or our email at [email protected]. For more information regarding submissions, please visit our website. If you have any questions, please contact Brendan Finnerty, Senior Articles Editor, at [email protected]."
Wednesday, December 28, 2022
Earlier this year, co-blogger Joan Heminway posted about the University of Pennsylvania Law Review's October 2022 Symposium, Debt Market Complexity: Shadowed Practices and Financial Injustice. It was a fantastic program! For interested BLPB readers who were unable to attend, I wanted to share that recordings of the program were available online.
Friday, December 16, 2022
Dear BLPB Readers:
"GEORGIA STATE UNIVERSITY invites applications for full-time tenure-track and non-tenure-track faculty positions in Legal Studies in the Department of Risk Management and Insurance at the J. Mack Robinson College of Business, effective for Fall 2023. The salary level, benefits, and course-load for these positions are competitive. Candidates must have a J.D. (or a PhD) from an accredited institution. For additional information, please access the tenure-track position posting here (https://academicjobsonline.org/ajo/jobs/23860) and the non-tenure-track position posting here (https://academicjobsonline.org/ajo/jobs/23859)."
Wednesday, December 14, 2022
Dear BLPB Readers:
The below is from the Call for Panel and Independent Paper Proposals for the upcoming conference, Money as a Democratic Medium 2.0.
"We are delighted to announce Money as a Democratic Medium 2.0. The Conference will be held at two sites in order to maximize participation while minimizing carbon impacts: Cambridge, MA (Harvard Law School, June 15-17, 2023) and Hamburg, Germany (the Hamburg Institute for Social Research and THE NEW INSTITUTE, June 15-16, 2023). The Conference is open to all students of money, credit, and finance, the monetary system, and the modern economy, including members of the public. We will offer robust online access and we encourage distant participants to join us virtually."
The full call is here. The deadline for submissions is February 1, 2023.
Wednesday, November 30, 2022
Dear BLPB Readers:
"The World Federation of Exchanges is organising its 40th Annual Clearing and Derivatives Conference, WFEClear, hosted by the Johannesburg Stock Exchange (JSE) and its CCP, JSE Clear.
We invite the submission of theoretical, empirical, and policy research papers on issues related to the conference topics. Accepted papers will be presented at the conference and posted as part of the Conference Proceedings on the Financial Economic Network (SSRN)."
Note that the submission deadline of December 13, 2022, is fast approaching! The complete call for papers is here.
Wednesday, November 16, 2022
Dear BLPB Readers:
"The University of Michigan Law School invites junior scholars to attend the 9th Annual Junior Scholars Conference, which will take place in person on April 21-22, 2023 in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the Michigan Law faculty. The Conference aims to promote fruitful collaboration between participants and to encourage their integration into a community of legal scholars. The Junior Scholars Conference is intended for academics in both law and related disciplines. Applications from graduate students, SJD/PhD candidates, postdoctoral researchers, lecturers, teaching fellows, and assistant professors (pre-tenure) who have not held an academic position for more than four years, are welcome.
Wednesday, November 9, 2022
Dear BLPB Readers:
"The Wharton School of the University of Pennsylvania will host its annual Wharton Financial
Regulation Conference on April 14, 2023.
We issue a call for papers to any scholars from any discipline—law, economics, political science,
history, business, and beyond—to submit papers on any topic related to financial regulation,
broadly construed. Special attention will be paid to junior scholars and those new to the financial
regulation community, but we welcome all submissions, including from those who have presented
To submit a paper, please include an unpublished manuscript not exceeding 25,000 words and a CV
to conference organizer David Zaring, by February 1, 2023. Selected presenters will be notified by
email by February 15, 2023."
The call for papers is also Download 2023 Wharton Fin Reg Call for Papers.