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This course provides an overview of the regulation and supervision of the banking and financial services industry under both US federal and state law focusing on the regulatory structure, regulatory bodies and the principal types of regulation. The course will focus on the legal structure as well as evolving public policy behind the laws and regulations. Recent initiatives to reform bank regulatory systems including the Dodd-Frank Act in the US and Basel III standards globally receive close scrutiny. Attention is also paid to the regulation of entry, geographic expansion, capital, reserves, investments, lending and interest. Traditional and non-traditional activities of financial institutions and affiliates as provided in US federal law, such as securities and insurance activities, mergers and acquisitions, and antitrust will be examined. Emphasis will also be placed on deposit insurance, consumer protection laws, bank examination/enforcement, bank failures and the duties of bank officers and directors. Students are asked to compose a comment letter to a bank regulatory agency as a means of exposure to the intricacies of administrative law and to participate in classroom presentations regarding course subject matter and current events impacting the financial services industry.
This is a required course for all students studying for the Master of Laws degree in Banking and Financial Law.
Bankruptcy and Creditors' Rights (A, C, F, I, L) (Fall)
This course examines bankruptcy and related state law from the point of view of secured and unsecured creditors. The course begins with survey of individual state law collection remedies and non-bankruptcy composition and liquidation schemes. The balance (and bulk) of the course focuses on the rights, obligations and procedures created by federal bankruptcy law. Topics addressed include: the automatic stay, the use and protection of collateral during the pendency of a bankruptcy case, the avoidance of pre-bankruptcy transfers as preferences and fraudulent transfers, the treatment of executory contracts and unexpired leases, debtor-in-possession financing, asset sales and the negotiation and confirmation of a plan of reorganization that is binding on all creditors. Finally, the course will discuss recent “bankruptcy reform” legislation, which affects both corporate and consumer bankruptcies.
This course introduces lawyers to the economics of financial markets and institutions. Emphasis is placed on the interaction of commercial banks, the Federal Reserve System, and monetary policy. Other topics include the characteristics of financial instruments (such as Treasury securities, corporate stocks and bonds, and secondary market mortgage-backed securities), how they are priced in the market, the factors determining the level and shape of the Treasury yield curve, and the relationship between commercial banking and the growth of the over-the-counter derivatives market. Course grades will be based on midterm and final examinations, and on written assignments.
Commercial Lending (A, L) (Fall)
This course studies the legal problems involved in documenting various types of financing transactions ranging from short-term unsecured loans which are based on the borrower's general credit to long-term, asset-based financings in which the lender does not have recourse to the borrower's general assets. The documentation process is followed from the preparation of the initial term sheet through the rendering of legal opinions at closing. The major aspects of a loan agreement, specifically representations and warranties, lending provisions, closing conditions, pricing, covenants, and defaults, are studied in detail in an effort to insure that each student understands the mechanics of a financing transaction. The special legal problems involved in inventory and receivables financing, project financing, construction credits, and leasing transactions are highlighted. Subordination agreements, participation agreements, and other inter-creditor arrangements are discussed. The provisions of the Bank Holding Company Act that relate to financing transactions, bank legal lending limits, margin requirements, and usury are considered. A discussion format is employed to the extent feasible, and problems and illustrations are used to focus and encourage class participation. The grade is based on a final examination, class participation and a brief analytical paper.
Compliance Programs (A, C) (Fall)
The course is a survey of the key areas of compliance. The course will examine implementing and maintaining a compliance program. Topic areas to be covered include: U.S. Foreign Corrupt Practices Act; the Office of Foreign Assets Control; Bank Secrecy Act; Privacy; Investigations; Whistleblower Rates; Information Reporting/Disclosure; Insider Trading Policies; Code of Ethics; Audit; Conflict of Interest; Management Reporting; Internal Reporting/E-Discovery/Record Retention.
Consumer Financial Services (A, L, C) (Spring)
This class presents an overview of the laws relating to traditional and innovative consumer financial products and services, including the impact of the new consumer protection provisions of the Dodd-Frank banking law on creditors and consumers. The course focuses on federal consumer financial laws governing installment, revolving, and real estate lending, credit and debit cards; and ATM networks, point of sale payment systems, home banking, stored value and prepaid cards; and other deposit and loan products and services. The course examines the design of retail financial products and considers operational issues, the regulatory framework, and consumer protection laws including The Consumer Financial Protection Act, Truth in Lending, Equal Credit Opportunity, Community Reinvestment Acts, and federal and state laws governing fair credit reporting, trade practices, usury, electronic funds transfers, and funds availability.
This course focuses on the legal structure and attributes of business corporations. Topics include pre-incorporation transactions, formation of corporations, capital structure and financing of corporations, mergers and sales of assets. The course will place particular emphasis upon the powers, rights and duties allocated among boards of directors, officers and shareholders, as well as the respective roles played by state corporate law (in particular, Delaware law), federal law, and the courts.
Financial Services Law Internship (F)
This course seeks to give students real world experience in the practice of financial services law by immersing them in the day-to-day operations of a law firm, financial services organization or regulatory agency. Students are expected to work under the supervision of a lawyer and a faculty advisor who will ensure that the students have a meaningful, relevant and rigorous experience. It is expected that the Internship will involve a minimum of ten hours workplace experience per week. The Graduate Program will exercise its best efforts to arrange internships at local law firms, financial services firms, or governmental bodies. Participation is subject to availability of positions and a matching of student interests with the organizations’ needs.
Awarding of credits will be on a pass-fail basis and will not be included in the student’s cumulative GPA. Credit will be based on reports submitted by the student. The internship is open only to full-time students who are enrolled in at least 6 other credit subjects during the semester in which the internship occurs. Unless waived by the Director, this course is open only to students who are studying for the concentration in Financial Services Transactions, for which it is a requirement.
Raymond A. Guenter, Elisabeth Ditomassi
The Patient Protection and Affordable Care Act (“PPACA”), better known as health care reform, is the most important and controversial piece of federal social legislation of this generation. It is also basically an insurance regulatory statute. PPACA establishes a new and complex set of rules governing the operation of the health insurance industry, provides consumers with important rights with respect to access to medical care and imposes obligations with respect to health insurance on both businesses and individuals. The course will look at PPACA and the issues that surrounded its enactment--issues which continue to fuel debate over whether it should modified or repealed. This will be done as part of an examination of the regulatory rules that govern all of insurance industry’s products (annuities, auto, home owners’ product liability, life insurance, etc). The course also takes a look at the insurance industry’s structure and financial performance and at the competitive interactions between the insurance, banking and securities industries. The impact on the industry of the financial crisis of 2008 and the resulting Dodd-Frank reform legislation will be reviewed.
The co-instructors represent the two sides of the regulatory equation—one has served as general counsel of an insurance regulatory agency and the other is a former general counsel of a regulated financial services institution. Their aim is to present both the public policy and theoretical underpinnings behind insurance regulation and the reality of how it operates.
The course materials, lectures and class discussion will cover: the interaction between federal law and state insurance laws and how the courts have resolved conflicts between them; how federal legislation has altered the relationship among financial service companies and the ability of the banking industry to sell insurance; the structure and function of individual insurance products ranging from mass marketed consumer policies such as life, auto and home insurance, to commercial policies that protect business assets, to annuities and sophisticated financial instruments; the alternative markets (captive insurers, risk retention groups, surplus lines etc.) which businesses use instead of traditional insurance products to manage their risks more cost effectively; the role that agents, brokers and other intermediaries play in the business of insurance. The course will also cover the operation of the America’s largely state-based insurance regulatory system, including the objectives of insurance regulatory policy and the forces that shape it; the requirements for the formation and licensing of insurance companies; how insurance regulators go about approving / disapproving, and, in some cases, setting, the rates for property/casualty products; the mechanics of residual market mechanisms—state laws that require insurers to sell their products at below market rates or to offer specific insurance products; the regulatory scheme designed to assure the solvency of insurers including capital requirements, restrictions on investments, and financial reporting; how state insurance regulators handle the rehabilitation and liquidation of insurance companies; and the manner and extent to which the state guaranty association systems protect insurance consumers when their insurer fails. The course concludes with a look at the ongoing debate over the merits of retaining the current state-centered regulatory system versus the passage of legislation which would allow insurers to opt into a federal scheme of regulation.
Assets being managed by hedge funds have grown significantly during the past 10 years. As a result, managers of hedge funds have been the focus of increased scrutiny by investors, the press and regulatory authorities. This course will cover the regulations (and exemptions) applicable to hedge funds and their managers, including under the Securities Act of 1933, the Investment Company Act and the Investment Advisers Act. We will focus on the formation and operation of U.S. and offshore hedge funds, including structure, disclosure, risks and economic and liquidity terms. This will include a detailed review of hedge fund offering documents. We will discuss the many issues being considered by hedge fund managers and regulators, including valuation, conflicts of interest, insider trading and compliance.
This course focuses on the structure, documentation and negotiation of a typical project finance transaction. The class will explore legal, financial, and policy problems involved in investing in domestic and cross-border power and infrastructure projects. We will focus on strategies and techniques of structuring and financing such investments, and will touch upon the legal and regulatory environment for investment, and in the context of foreign investment, the role of political risk management and the implications of treaties, conventions, and other relevant law. Selected domestic and cross-border investment transactions, both actual and hypothetical, will be used to illustrate recurring issues. This course may contain a graded group drafting component where students draft and negotiate a loan agreement.
|Douglas Elliott, a fellow in Economic Studies at the Brookings Institution, speaking at "The State of Financial Reform" conference in February 2011.|
Introduction to the American Legal System (Fall)
This course focuses principally on three areas: (1) the use of case law as a primary source of American law, including analysis of cases, reasoning from prior cases, the evolution of case law, and the case method of teaching; (2) the structure of the American legal system and selected elements of Constitutional law, such as allocation of powers among the three branches of government, the relationship between federal and state courts, due process of law, equal protection, and other key concepts; and (3) a brief introduction to particular private law subjects such as contracts, intellectual property, criminal procedure and torts. The goal is to provide insight into the methods used by American lawyers in dealing with legal questions and an introduction to the structural and substantive legal framework within which American lawyers operate.
This course is no longer a required course for students who did not obtain their first law degree at a law school in the United States. However, foreign-educated students planning to sit for a bar examination in the United States, especially the New York State Bar Examination, must take this course, which is only offered in the fall semester.
This seminar seeks to give students a mastery of critical research and writing skills through intensive, hands-on instruction. Because writing program seminars are small, with no more than 15 students in a class, students work with instructors to learn first-hand how to analyze complex legal questions at a professional level. Seminars are taught by practicing attorneys who bring their vast research and writing experience to the classroom. Each seminar also has an assigned teaching assistant. Though not a required class, students who have not taken a research and writing class at an American law school and who intend to write a thesis or take a course which requires the submission of a paper are strongly advised to take this seminar.
Students who have not taken a legal research and writing class at a U.S. law school and who plan to enroll in the Thesis Seminar, in any other seminar or in any course which requires the submission of a paper are highly encouraged to enroll in this seminar. This course is open to a limited number of students and early registration is encouraged.
Lessons from the Financial Crisis (Spring)
This course provides the student with a perspective on the origins of the financial crisis of 2007-2009, the response to that crisis, and the financial reform responses to the crisis be they legislative, regulatory of market-driven. The course has three parts: the Buildup, the Eye-of-the Storm, and the Response. In the first part, the causes of this and other financial crises are explored including the housing bubble, the development of the “shadow” financial system, new financial instruments, regulatory gaps and deregulation, monetary policies, compensation practices, accounting deficiencies, governance breakdowns, and more. In the second part, policy responses to the crisis are detailed such as: central bank liquidity facilities, government investment programs such as TARP, fiscal stimulus, stress-testing, enforcement actions and the lack thereof, and global coordination of responses. Finally, the course will take a high-level analytical view of the reforms prompted by the crisis. These include various systemic risk measures, guidance from the G-20 and Bank Stability Board, Basel III, the treatment of home/host country issues, and the current state-of-play of the regulation of the derivatives marketplace. A discussion format is employed to the extent feasible, and problems and illustrations are used to focus and encourage class participation. The grade is based on a final examination, class participation, and on-line inputs to weekly issues posed by the instructor after each class.
This course deals with key issues that arise in bank mergers and acquisitions. Business and transactional topics include: merger and acquisition strategies, deal structure and pricing, hostile takeovers and defenses, duties of directors, disclosure obligations, due diligence, mergers of equals, social issues, tax considerations, and accounting issues. Regulatory topics include: federal and state approval processes, regulatory considerations in the structuring of transactions, antitrust considerations, interstate banking issues, the Community Reinvestment Act, thrift and other nonbank acquisitions, Glass-Steagall and Bank Holding Company Act issues, and cross-industry transactions.
Microfinance and Development (I, F, L) (Spring)
This course provides an introduction to the field of microfinance, particularly its rapid evolution and role in economic development. Students will learn key concepts including the study of lending methodologies, products available to micro-entrepreneurs and the legal challenges, public policy considerations, and risks faced by investors, technical experts and financial providers. This course will also examine financial practices in the developing world such as payment and remittance systems, which allow foreign nationals to transfer funds internationally within and outside traditional banking systems.
Pooled investment funds, such as pension plans and mutual funds, are an important part of the global financial services industry. This course is designed as a survey of pooled funds and seeks to introduce students to the common regulatory themes that are found across pooled fund types, and to identify the unique approaches to regulation applicable to the various pooled fund types studied. The course undertakes an analysis of the legal, regulatory and fiduciary standards that apply to trustees, managers, advisers, and sponsors of collective investment vehicles. The course focuses on the concept of fiduciary duty as the basis of all trusted relationships, and examines selected problems of investor and beneficiary protection in the fields of private and public pension plans and mutual funds. It studies in detail two U.S. federal statutes as examples of legal techniques used to mitigate those risks--ERISA and the Investment Company Act of 1940 (including fiduciary duties, the role of the fund board and management fees). The class then studies pooled investment funds and investment trusts in the E.U., the U.K. and other countries, focusing on the perceived risks and protective measures reflected in their legal and regulatory systems.
Professional Responsibility (A, C, F) (Fall)
This course will provide an overview of a lawyer's professional and ethical obligations under United States law. It will examine the American Bar Association’s Model Rules of Professional Conduct, the ABA Model Code of Professional Responsibility and the Restatement (Third) of the Law Governing Lawyers as they apply to the practicing lawyer. The course explores ethical issues, and tensions and dilemmas that arise in the practice of law, particularly in the representation of financial institutions. Students will have the chance to examine these issues through discussions of current events affecting the financial services industry.
Securities Regulation (A, S, C) (Fall)
A survey and analysis of key problems arising under the Securities Act of 1933, the Securities Exchange Act of 1934, and the rules promulgated thereunder. These problems include the form and content of registration statements under the 1933 Act, liabilities of persons designated in Section 11 and 12 of the 1933 Act, the form and content of a typical Balance Sheet and Profit and Loss Statement, processing a registration statement, exemptions under the 1933 Act, the underwriter's liability, the control person's "distribution;" regulation of securities exchanges and broker-dealers, manipulation, stabilization, and "Hot Issues;" tender offers; and civil liabilities under rule 10b-5, section 14(a), and Section 16(b) of the 1934 Act.
Securitization (A, I, L, S) (Spring)
Securitization and structured finance together constitute one of the most dynamic segments of the financial markets. Securitization involves the creation and issuance of securities backed by one or more assets which generate cash flows sufficient to fund the repayment of the securities. Structured finance includes securitization as well as transactions in which securities are not issued, but which involve the often complex structuring of cash flows to achieve a desired tax, accounting or financial objective. These transactions often cut across many areas of legal specialization, including bank and thrift regulation, securities regulation, taxation, bankruptcy and insolvency, fiduciary law, real estate law and environmental law. In addition to providing the fundamentals of tax, securities, and bankruptcy law necessary to understand the inner workings of securitization transactions, this course examines a series of simulated and actual transactions to explore the sometimes contradictory ways in which these various legal constructs impinge upon the structuring of securitization transactions. Examples include single-family mortgage pools, trade receivable securitizations, and commercial mortgage securitizations. This course also explores some of the more cutting-edge securitizations of exotic asset classes such as legal fees, intellectual property and renewable energy assets. In addition, the course will provide some background on the accounting standards affecting how public companies report securitization transactions under generally accepted accounting principles. Also, because of the role which securitization technology played in the financial collapse of 2008, the course will also provide an analysis of how securitization was abused to produce unexpected financial consequences and will study some of the principal legislative and regulatory initiatives to curtail these abuses.
Not offered Spring 2015.
This course takes a transactional approach that covers both inbound and outbound aspects of cross-border financial operations. Topics include fiscal jurisdiction, withholding tax, foreign tax credit, reporting requirements, tax havens, antiavoidance legislation, transfer pricing, mutual judicial assistance, tax treaties, source rules, characterization of entities and income, tax treatment of foreign exchange fluctuations, and finance leasing.
Thesis Seminar (A, I, L, S, C) (Spring)
This course provides an opportunity for students to conduct in-depth research on topics covered in the program and to improve their writing skills. Each student prepares a paper on a topic chosen in consultation with the instructor and presents his or her findings to the class. Students edit one another's drafts and participate in critiques during class sessions. A text and other materials are used in discussions of effective legal writing. The seminar may satisfy a concentration requirement depending on the subject of the paper. It is open to a limited number of second-semester students with permission of the instructor.
Transnational Lending and Trade Financing (A, I, L) (Spring)
This course examines legal issues arising in debt financing provided by financial institutions in international markets. The structure of transnational loan agreements, guarantees, letters of credit, participation and loan sales transactions, and basic instruments and documents common to trade financing are examined. The nature of the documentation and techniques used in such transactions, as well as regulatory patterns, legal problems and international law reform efforts, are studied. The course also covers issues related to the syndication of debt financing transactions, governing law, and creditor remedies.
Secured Transactions explores the “how-to’s” of asset-based lending and, particularly, the way in which a lender or seller of commercial goods on credit protects its rights in the debtor’s collateral under Article 9 of the Uniform Commercial Code and the U.S. Bankruptcy Code. The subject matter is approached from the perspective of practice skills in representing a lender and a commercial debtor. Students are responsible for case and problem recitation, as well as problem solving in a team environment.