Law & Society: Private Law - Financial Law eJournal最新文献

{"title":"Lehman Brothers: A License to Fail with Other People’s Money","authors":"Mark P. Denbeaux, Edward Dabek, John Gregorek, Sean A. Kennedy, E. Miller","doi":"10.2139/SSRN.2003618","DOIUrl":"https://doi.org/10.2139/SSRN.2003618","url":null,"abstract":"The bankruptcy of Lehman Brothers Holdings, Inc. (“Lehman”) is the largest bankruptcy ever filed, with losses to investors, both small and large, totaling billions of dollars. In January 2008, Lehman Brothers, heavily invested in by pension plans such as the California Public Employees’ Retirement System and the New York State Teachers Retirement Plan, traded at a high of over $65 per share. At that time, Lehman reported record numbers of nearly $60 billion in revenue and more than $4 billion in earnings. However, a mere eight months later, Lehman’s stock was trading under $4 per share, and on September 12, 2008, Lehman filed for Chapter 11 bankruptcy.The Bankruptcy Court appointed an Examiner to investigate and report on Lehman’s business affairs, with particular regard to “any fact ascertained pertaining to fraud, dishonesty, incompetence, misconduct, mismanagement, or irregularity in the management of the affairs of the debtor, or to a cause of action available to the estate.” The Examiner’s findings, taken at face value, reveal that the legal system that allowed Lehman’s failure will permit similar failures in the future because, for the most part, Lehman’s actions did not violate the law.This report explores Lehman’s risk management in a declining market and the valuation of its assets. Lehman, after recognizing the magnitude of the economic crisis, doubled-down on its risk, dramatically increasing the amount it was prepared to lose, while also disguising the declining value of its assets. These acts were not inadvertent, but rather were deliberate violations of internal risk limits and conscious overvaluations of its assets.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"152 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115079683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Absolute Priority Rule and Option Theory","authors":"Bobby Huang","doi":"10.2139/ssrn.1930404","DOIUrl":"https://doi.org/10.2139/ssrn.1930404","url":null,"abstract":"Using the language of options, this paper shows how variance in judicial valuation under an unbiased judge may work to the disadvantage of the junior class in Chapter 11 reorganizations. Given liquidity constraints and information barriers, the parties to bankruptcy cases choose Chapter 11 to propose plans to distribute securities of the reorganized debtor instead of cash. In this context, we identify three effects from the valuation variance - the floor, the ceiling, and the feasibility effects - two of which favor the senior class. Our analysis puts in doubt the conventional wisdom (Baird & Bernstein 2006) of a systematic bias of valuation variance in favor of the junior class in Chapter 11 reorganizations. The framework we offer may also enable us to further examine the efficiency of absolute priority.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"83 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126042231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Human Worth as Collateral","authors":"Rashmi Dyal-Chand","doi":"10.2139/ssrn.939587","DOIUrl":"https://doi.org/10.2139/ssrn.939587","url":null,"abstract":"Human worth has taken on a surprising new role: that of market asset. Specifically, lenders in radically different contexts are using their borrowers' human worth as collateral in loan transactions. The two examples of this new collateralization that I examine are credit card lending in the United States and microlending programs in the Third World. I conclude that the use of human worth in these two contexts is too similar to be coincidental. Rather, this new collateralization is a product of globalization. For those interested in the effect of law on globalization, this convergence in the market for credit teaches important lessons. In both the contexts I examine, the laws governing secured and unsecured lending fail to recognize human worth as collateral. For this reason, the new collateralization serves as a counter-example to the claimed centrality of the rule of law in economic development.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116315812","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Evolution of U.S. Insolvency Law for Financial Market Contracts","authors":"Michael H. Krimminger","doi":"10.2139/SSRN.916345","DOIUrl":"https://doi.org/10.2139/SSRN.916345","url":null,"abstract":"The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 was the most significant change to the United States' insolvency laws for the financial markets in more than fifteen years. Unlike all prior laws defining how financial market contracts would be treated in bankruptcy or a bank insolvency, the new comprehensively updated and harmonized all of the principal laws that could come into play in insolvencies of market participants, including banks, thrifts, credit unions, broker-dealers, investment banks, and other companies. The 2005 Bankruptcy Reform Act, however, was not a new direction in American law. The special protections provided to termination and close-out netting for capital markets contracts in the new amendments simply continued an evolutionary process in American insolvency law that started with the enactment of the new Bankruptcy Code in 1978. Once the foundation for protection of the liquidity of financial market contracts had been established by 1991, American law provided the basis for effective risk management by market participants. The task of the past fifteen years has been to secure those benefits, clarify the interrelationships between different insolvency laws, and define the scope of flexibility to accommodate market developments. It must be recognized, however, that these protections are a departure from the pari pasu principle inherent in equitable insolvency laws. Nonetheless, this principle has never meant that all creditors should receive the same proportional share. Insolvency law has always recognized that creditors should be able to benefit from some characteristics of the bargain they made with the debtor before its failure. As illustrated in the article, the fundamental goal of those special protections is the prevention of the risks to the stability of the financial system that could result from a cascade of interrelated defaults if normal insolvency processes prevented termination and settlement of pending trades. As a result, there are limits to the further expansion of those protections if they are to remain consistent with the underlying public policy that supports them. This article examines the evolution of the special protections for financial market contracts under U.S. insolvency law (including the Bankruptcy Code and the Federal Deposit Insurance Act's protection for \"qualified financial contracts\") and the public policy goals underlying those protections, looks at the continuing course of that evolution in the Bankruptcy Reform Act, and provides an overview of what this evolution means for bank and non-bank insolvencies of financial market participants.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2006-06-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126340769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Institutions, Incentives, and Consumer Bankruptcy Reform","authors":"Todd J. Zywicki","doi":"10.2139/ssrn.681483","DOIUrl":"https://doi.org/10.2139/ssrn.681483","url":null,"abstract":"Consumer bankruptcy filing rates have soared during the past 25 years. From 225,000 filings in 1979, consumer bankruptcies topped 1.5 million during 2004. This relentless upward trend is striking in light of the generally high prosperity, low interest rates, and low unemployment during that period. In response to this anomaly of ever-upward bankruptcy filing rates during a period of economic prosperity, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (\"BAPCPA\"), which fundamentally rebalances the consumer bankruptcy system by creating new safeguards against fraudulent and abusive filings. Although BAPCPA drew broad bipartisan support on Capitol Hill, it is controversial within the academy. Critics have argued that these reforms are unnecessary and punitive, and that private market adjustments such as higher interest rates and more restrictive credit rationing are adequate policy responses to the problem of rising bankruptcy filings without the need for legislative reform. These criticisms are misplaced, and fail to appreciate the causes of the consumer bankruptcy crisis and the appropriate responses to it. Scholars have previously identified two models of the consumer bankruptcy process, the \"traditional\" or distress model and the economic incentives model. Neither model, however, can explain the observed bankruptcy filing patterns of recent decades. This article offers a new model of consumer bankruptcy rooted in New Institutional Economics that explains the rise in consumer bankruptcy filings as reflecting changes in the institutions, incentives, and constraints surrounding the consumer bankruptcy filing decision. It is argued that this new model of consumer bankruptcy is both theoretically and empirically superior to the traditional model. The demise of the traditional model, which has dominated bankruptcy scholarship for a century, has created a need for a new theory of consumer bankruptcy filings that can better explain the observed data. The model offered here fills that gap. This article identifies three institutional factors that can explain the observed rise in bankruptcy filings over the past several decades: (1) A change in the relative economic costs and benefits associated with filing bankruptcy; (2) A change in social norms regarding bankruptcy; and (3) Changes in the nature of consumer credit, toward more national and impersonal forms of consumer credit. All of these factors have tended to increase the incentives and opportunity for filing bankruptcy or reduce the constraints imposed on filing bankruptcy. In contrast to the traditional distress model, which purports to focus on changes in underlying household financial condition as the cause of rising bankruptcies, this model presented here examines the economic demand for bankruptcy itself, focusing on the incentives and institutions that condition consumer bankruptcy filings. The result of all of these changes has been to increase the equilibri","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-03-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122987736","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Countermanding Payment of a Cheque","authors":"C. Nagel, J. Pretorius","doi":"10.2139/SSRN.2365685","DOIUrl":"https://doi.org/10.2139/SSRN.2365685","url":null,"abstract":"A legal obligation envisages performance and is extinguished when the required performance is duly made. Monetary obligations must normally be discharged by the payment of the appropriate sum of money, that is to say, by means of legal tender. It is trite that a cheque is not legal tender and that a creditor, to whom a money debt is owing, may insist on strict compliance with the contract and demand payment by means of legal tender, that is, cash. However, the creditor may agree to accept a cheque in payment of the debt. Indeed, it is a principle of our law that a debtor is only entitled to pay by cheque if his creditor expressly or impliedly agrees to accept a cheque in payment of the debt.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115457539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fraud Management in the Credit Card Industry","authors":"Peter Burns, A. Stanley","doi":"10.2139/SSRN.927784","DOIUrl":"https://doi.org/10.2139/SSRN.927784","url":null,"abstract":"On November 16, 2001, the Payment Cards Center of the Federal Reserve Bank of Philadelphia sponsored a workshop on fraud management in the credit card industry. Daniel Buttafogo and Larry Drexler of Juniper Bank led the discussion. Daniel Buttafogo, Director-Risk Management, is Juniper's fraud expert. He provided an overview of fraud in the card industry and discussed some of the challenges he faces as a risk manager. ; Larry Drexler is General Counsel and the Chief Privacy Officer at Juniper. Following Buttafogo's remarks, he led a more general discussion on how fraud protection and security can be placed in the context of the broader public policy debate on information privacy. This paper summarizes these two executives' presentations and is supplemented by additional research.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116241698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Revised Article 9 of the Uniform Commercial Code: Implications for the Canadian Personal Property Security Acts","authors":"R. Cuming, C. Walsh","doi":"10.2139/SSRN.2732682","DOIUrl":"https://doi.org/10.2139/SSRN.2732682","url":null,"abstract":"The Personal Property, Security, Acts\" (PPSAs) in effect in the Canadian common law provinces have their intellectual roots in the 1972 version of Article 9 (Secured Trans- actions) of the Uniform Commercial Code in the United States. Article 9 has recently, undergone a complete revision. This article offers a comparative overview of the new regime. The authors begin by identifying those features of the new Article 9 for which analogous provision already is made in all or most of the PPSAs. They then analyze certain other new features, which they do not believe should be exported to a Canadian context. The most notable of these are the designation of the debtor's law as the universal choice of law rule for perfection (but not priority) of all security, interests, and the introduction of special perfection and priority rules for security interests in deposit accounts and sales of \"payment intangibles.\" The authors then review a miscellany of other provisions of the new Article 9 which they believe do merit consideration for adaptation into the PPSAs, including an explicit provision for cross-collateralization in purchase money inventory financing. In their conclusion, the authors offer some more general observations on the overall style and policy implications of the new Article 9. They conclude that the increased emphasis on more detailed and specialized rules may paradoxically lead to greater uncertainty because of the increased complexity. More fundamentally, it puts into question the basic premise of both Article 9 and the PPSAs that the functional identity of all secured transactions demands an essentially unitary regulatory framework.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"214 5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115510348","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Desafíos del Covid-19 en materia de seguros (Challenges of the COVID-19 Regarding Insurance)","authors":"Rafael Alberto Ariza Vesga","doi":"10.18601/16923960.v19n1.03","DOIUrl":"https://doi.org/10.18601/16923960.v19n1.03","url":null,"abstract":"The covid-19 virus, commonly known as Coronavirus, and the measures taken by the Colombian Government to prevent its spread, have determined impacts in multiple areas of the national and international economy. The insurance activity has been equally impacted, not only from the point of view of development as an industry, but also due to the different claim hypotheses that may occur in the different insurance lines that may generate significant controversies. This article aims to show the most outstanding challenges that we find to date from the perspective of the insurance products and their conditions. However, we must recognize that there are still unsuspected new effects that will occur, according to the duration of the pandemic and the actions taken by different economic actors.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123683182","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"금융그룹 계열사간 위험전이 방지를 위한 법제도 연구 (A Comparative Study on Legal Systems for Prevention of the Risk Contagion between Affiliates within Financial Conglomerates)","authors":"Joengwoong Baik","doi":"10.2139/ssrn.3018356","DOIUrl":"https://doi.org/10.2139/ssrn.3018356","url":null,"abstract":"Korean Abstract: 1997년말 외환위기로 기업이 구조조정되면서 은행도 퇴출되는 것을 목격한 바 있고, 여기에 소요된 비용으로서 천문학적인 공적자금이 투여되었으나 그 회수에는 많은 어려움이 있는 것이 지금의 현실이다. 여기서 한 걸음 더 나아가 만약 은행 등 금융기관을 자회사로 둔 거대금융그룹인 금융지주회사가 파산한다면 그 부작용은 우리 경제에는 치명적일 것으로 생각된다. 따라서 이와 같은 거대금융그룹이 건전하고 안전하게 운영될 수 있는 방법의 모색으로 미국의 법인격부인론과 상호보증 및 힘의 원천이론을 고찰한 결론은 다음과 같다. 첫째 미국에서는 법인격부인론과 상호보증 및 힘의 원천이론의 적용에 대하여 법원과 학자들에 의하여 일반적으로 지지를 받고 있다는 것이다. 둘째 이와 같은 미국의 법인격부인론과 상호보증 및 힘의 원천이론을 우리법제에서 재점검한 바에 의하여도 여전히 적용하는 데에는 법리상 무리가 없다는 것이다. 끝으로 법인격부인론과 상호보증 및 힘의 원천이론이 우리법제에도 유용한 수단이라고 하더라도 이들 제도를 도입 또는 보완하기 위하여 법률의 제정 또는 개정작업 등 법제적인 정비작업이 수반되어야 것이다. 이를 통하여 거대금융그룹인 금융지주회사가 안전하고 건전하게 운영되어 해당 금융그룹도 발전하고 국가경제발전에도 일조하기를 기대해 본다. \u0000 \u0000English Abstract: Recently many financial institutions are trying to convert their organizations into financial conglomerates through the financial holding company system in order to improve their competitiveness. However, there occur some side effects such as risk contagions between subsidiaries in financial conglomerates. Even though there are the economies of scale and scope in the financial conglomerates, the risk contagion must be prevented. In order to remove or decrease such a risk contagion under financial conglomerates, the article introduces three tools, such as the corporate veil piercing doctrine(hereinafter CVPD), the cross-guarantee provision(hereinafter CGP) and the source of strength doctrine (hereinafter SSD), reviews them critically and suggests some concluding observations as follows: First, the courts have successfully applied the CVPD, CGP and SSD to the United States and their applications have also been supported by many legal scholars. Second, such lessons from the United States can be also suitable for he Korea legal system by reexamining such tools in Korea. Third, even if such tools are suitable for Korea, some legislation or amendment is needed to be followed as adoption or modification of such tools.","PeriodicalId":137765,"journal":{"name":"Law & Society: Private Law - Financial Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130378126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}