Rethinking Kirschner v. J.P. Morgan: How Securities and Banking Laws Should Apply to Syndicated Loans

Introduction Shortly after the financial crash that spiraled into the Great Depression, Congress passed extensive laws governing securities and securities markets.[1] These securities laws protect investors by imposing disclosure requirements and liability upon issuers for fraudulent practices.[2] Absent an exception, the laws require disclosing material information or an exemption from the disclosure process[3] and provide a private right of action for material misstatements and omissions.[4] These protections are more extensive than common law fraud claims.[5] More importantly, these protections are integral to the efficiency and Continue reading →

Afterword: Why “Taming the Megabanks” Should Remain a Top Priority for Financial Regulators and Policymakers

Introduction I would like to express my profound gratitude to Professor Erik Gerding and the editors of the University of Colorado Law Review for organizing and hosting the May 2021 conference that evaluated my scholarship on regulating megabanks,[1] and for publishing this symposium issue. I would also like to thank the conference participants and the authors of the Foreword and the Articles included in this Issue for their very kind comments about my academic career. I am especially grateful to Professor Patricia McCoy for her Continue reading →

The Tailors of Wall Street

The narrative that emerged in the aftermath of the COVID-19 financial crisis has focused on nonbank financial intermediation as the primary vulnerability that plagued financial markets starting in March of 2020 and the exogenous nature of a public health crisis as a unique precipitating event. As a result, the crisis has largely been viewed as vindication for financial regulation as it applies to banks, with the Federal Reserve playing the role of heroic rescuer of the financial system. This Article offers an alternative—and critical—analysis of the Continue reading →

The Role of Rival Litigation in Wilmarth’s New Glass-Steagall

Introduction Art Wilmarth quips that he’s like “your crazy uncle.”[1] Rather than an uncle (crazy or otherwise), most scholars of financial regulation think of him as the “father” of banking law. No one knows more about banking law, its history and policy, than Art Wilmarth. I was fortunate enough to spend two years in an office directly below Art’s at the George Washington University Law School. Despite the heft of Art’s knowledge, his presence above my office felt less like a weight and more like Continue reading →

Who’s Looking Out for the Banks?

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 Continue reading →

Foreword: Arthur E. Wilmarth, Jr., A Scholar of Uncommon Conviction, Integrity, and Boldness

PDF: Patricia A. McCoy,* Foreword: Arthur E. Wilmarth, Jr., A Scholar of Uncommon Conviction, Integrity, and Boldness The year 1992, when I entered academe, was a paradoxical time to become a banking law scholar. Even though the nation was emerging from a recession and the years-long savings-and-loan crisis of the 1980s, the mainstream banking-law field was in the thrall of neoclassical law and economics. The Chicago School reigned, and leading bank regulatory scholars regularly opposed government intervention based on theoretical assertions of market discipline with Continue reading →

The Failings of the United States Justice System: Lobato v. Taylor and Mexican Community Land Grants

Introduction Life in the San Luis Valley of Colorado’s Sangre de Cristo Mountains is often hard. The Valley is located in Costilla County, one of the poorest counties in the state.[1] The county is populated primarily by farmers and ranchers who, for over a century, relied on the resources provided by a historic plot of land accessible to all members of the community to keep their agriculture-based economy stable.[2] But in the early 1960s, a new private landowner in the area closed off that land Continue reading →

Can Nature Tourists Police Themselves? Comparing Eco-Pledges in the United States and Palau

Introduction Anyone who has visited the Pacific island nation of Palau[1] in the last few years has likely seen the in-flight video titled The Giant; it opens with a child singing a traditional Palauan song while vivid images of the island materialize.[2] Children run and play in their tropical home, but they are repeatedly interrupted by a cartoon giant who visits the island. The giant is tall, clumsy, and destructive of the surroundings—he represents irresponsible tourists.[3] Throughout the remainder of the video, the children teach Continue reading →

Fig Leaves, Pipe Dreams, and Myopia: Too-Easy Solutions in Environmental Law

Much of environmental law and policy rests on an unspoken premise that accomplishing environmental goals may not require addressing the root causes of environmental problems. For example, rather than regulating risks directly, society may adopt warnings that merely avoid risk, and rather than limiting plastic use and reducing plastic waste, society may adopt recycling programs. Such approaches may be well-intended and come at a relatively low economic or political cost. However, they often prove ineffective, or even harmful, and they may mislead society into believing Continue reading →

The Promise and Peril of Paternalistic Approaches to Flood Risk

Our country’s ever-growing exposure to flood risk has been the target of policy reform for decades. To many experts, it is clear that we must stop subsidizing flood-prone development and begin the process of moving people away from flood-prone areas. And yet, despite the seemingly obvious benefits of abandoning areas that will be permanently underwater in a generation, flood-prone living has been a difficult habit to kick. Examining the problem against the background of the philosophical literature on paternalism helps show why. Paternalism—government intervention in Continue reading →