Financial Services & Corporate Governance

Topics

Perhaps no industry interacts with government policy and regulation more than banking and financial services. As our nation works to build and maintain a sustainable, resilient financial system, we must learn the lessons of the past while encouraging necessary innovation. How can we best navigate these complex issues and identify opportunities for regulatory policy improvement?

Creating Pro-Innovation Fintech Regulation

January 30, 2018

In this paper, Brian Knight discusses how fintech “can improve our lives and how poor regulation risks harming the very people it seeks to help.”

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Deep Dive Episode 200 – Corporate Social Responsibility, Investment Strategy, and Liability Risks

October 13, 2021

A distinguished panel joins us to discuss a new paper that examines the legal implications of the rise of “ESG” investing.

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Deep Dive Episode 185 – SEC v. Ripple Labs: Cryptocurrency and “Regulation by Enforcement”

June 29, 2021

An expert panel discusses SEC v. Ripple Labs, the broader cryptocurrency regulatory landscape, and potential legislative and regulatory reforms.

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Deep Dive Episode 170 – Engine of Inequality: The Fed and the Future of Wealth in America

April 6, 2021

Wayne Abernathy and Karen Shaw Petrou discuss Petrou’s new book, the problems she identifies in Fed policies, and how she sees her proposals rising above partisanship to achieve the goals she sets out.

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Deep Dive Episode 166 – The CFPB Taskforce Report on Federal Consumer Financial Law

March 4, 2021

CFPB Taskforce on Federal Consumer Financial Law Chair Todd Zywicki joins us to discuss his taskforce’s report.

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Deep Dive Episode 159 – Countering the Politicization of Financial Services: Is the Cure Worse than the Disease?

January 28, 2021

This live podcast explores the issues surrounding the politicization of financial services, including the OCC rulemaking and other recent initiatives.

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Deep Dive Episode 158 – Courthouse Steps Oral Arguments: AMG Capital Management v. FTC

January 27, 2021

A distinguished panel analyzes oral arguments in AMG Capital Management v. FTC, a case that could define the scope of the FTC’s remedial authority.

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Deep Dive Episode 127 – Should the Fed Create Fedcoin, Digital Dollars, and Fed Accounts?

August 25, 2020

Some say the U.S. Federal Reserve should issue a  “Fedcoin” or “digital dollar.” This live podcast discusses the pros and cons of such a move.

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Deep Dive Episode 122 – New Labor Department Rule: Taking on ESG Investment Risk to American Retirement Security

July 28, 2020

In this live podcast, J.W. Verret discusses the Labor Department’s proposed rules regarding ESG investing and their implications for retirement security.

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Deep Dive Episode 110 – Community Reinvestment Act: Remedy or Relic?

May 14, 2020

Mehrsa Baradaran and Diego Zuluaga discuss proposed reforms by the Office of the Comptroller of the Currency and the FDIC and how those changes will affect the banking system and low- and moderate-income communities.

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Deep Dive Episode 84 – What’s Next for Fannie, Freddie, and Housing Finance Reform?

December 19, 2019

The Federal Housing Finance Agency (FHFA) oversees the administration of both Freddie Mac and Fannie Mae. What’s next for the agency? What are the priorities that the agency should be pursuing? This episode features remarks from FHFA Director Mark Calabria and a discussion of the issues with reform by our panelists.

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Explainer Episode 8 – The Community Reinvestment Act

December 5, 2019

Passed in 1977, the Community Reinvestment Act (CRA) was intended to encourage banks and other financial institutions to lend to lower-income individuals in their communities. Has the CRA succeeded in this goal or is there room for improvement? Aaron Klein and Diego Zuluaga weigh in on this important question.

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Deep Dive Episode 69 – SOX Auditor Attestation Requirements

September 30, 2019

Do proposed rule changes from the SEC properly balance the concerns of investor protection and capital formation for smaller businesses? John Berlau, Wes Bricker, and J.W. Verrett discuss, and C. Wallace DeWitt moderates.

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Deep Dive Episode 64 – The Federal Reserve and Real-Time Payment Systems

July 19, 2019

The Federal Reserve is currently exploring ways to support faster payments in the U.S., a move which would facilitate real-time interbank settlement of faster payments. Experts discuss the implications and challenges of this change.

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Deep Dive Episode 58 – LIBOR – Will a $200 Trillion Global Benchmark Disappear – or Not?

June 13, 2019

LIBOR is a hugely important interest rate benchmark, used globally and embedded in over $200 trillion of financial contracts. Experts discuss the challenges and future of this index.

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Deep Dive Episode 56 – Loan Shark Prevention Act

May 31, 2019

This podcast examines the economics of interest-rate ceilings on consumer credit and the historical experience with such proposals, and discusses a proposal to create a Post Office bank.

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Deep Dive Episode 49 – How Should the IRS Handle Cryptocurrencies?

May 1, 2019

James Foust discusses the ambiguity that exists around the treatment of cryptocurrency at the IRS and explores actions that Congress and the IRS could take to fill the gaps.

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Deep Dive Episode 38 – The Debate Over the SEC’s Accredited Investor Standard

February 6, 2019

In the 38th Deep Dive episode of Fourth Branch, Urska Velikonja (Georgetown University Law Center) and J.W. Verret (Antonin Scalia Law School) consider and debate potential reforms to the SEC’s accredited investor standard rule.

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Deep Dive Episode 37 – Fintech Licensing and the OCC Charter

January 10, 2019

Brian Knight (Mercatus Center) and Margaret Liu (Conference of State Bank Supervisors) discuss the Office of the Comptroller of the Currency’s move to offer some non-depository fintech firms the opportunity to obtain a federal bank charter, and the possible challenges and tensions the move may pose for federalism.

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Deep Dive Episode 36 – What Should the FHFA’s 2019 Agenda Be?

January 8, 2019

Ed DeMarco (Housing Policy Council) and Alex J. Pollock (R Street Institute) discuss the key issues and projects for the Federal Housing Finance Agency going forward and what it can do to lead reform of Fannie and Freddie — and reform of American housing finance in general.

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Deep Dive Episode 22 – Fintech and Federal Alternatives to State Money Transmission Licensing

January 31, 2018

Peter Van Valkenburgh (Coin Center) discuss the potential need for a federal regulatory structure to harmonize and facilitate the innovative landscape surrounding digital money transmitters.

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Deep Dive Episode 13 – Discussion on U.S. Treasury Reports

October 13, 2017

J. W. Verret (Antonin Scalia Law School) and Wayne Abernathy (American Bankers Association) discuss the Treasury Department’s recent report to President Trump on Core Principles for Financial Supervision.

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Corporate Social Responsibility, Investment Strategy, and Liability Risks

October 13, 2021

A distinguished panel joins us to discuss a new paper that examines the legal implications of the rise of “ESG” investing.

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What’s Next for Fannie, Freddie, and Housing Finance Reform?

December 20, 2019

On December 10, 2019, the Regulatory Transparency Project hosted an event at the National Press Club in Washington, DC. The title of the event was “What’s Next for Fannie, Freddie, and Housing Finance Reform?”

The Federal Housing Finance Agency (FHFA) oversees the administration of both Freddie Mac and Fannie Mae. What’s next for the agency? What are the priorities that the agency should be pursuing?

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Regulatory Sandboxes & Consumer Protection

September 26, 2019

What are regulatory sandboxes? How might they promote and stimulate innovation? What risks might they pose to consumers? Regulatory experts explore and debate the implications of these unique regulatory environments.

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The Financial Frontier: Financial Freedom, Payday Lending, & “Operation Choke Point”

February 4, 2019

In 2013, the U.S. Department of Justice decided to investigate banks across the country, looking into the business they did with payday lenders. While payday loans are controversial, they are legal in most circumstances. Proponents of this campaign celebrate the push as crucial for consumer protection. Critics claim it sets a dangerous precedent by unfairly targeting lawful businesses. Jamie Fulmer (Advance America), Chris Peterson (The University of Utah), and Brian Knight (Mercatus Center) explore the questions behind “Operation Choke Point”.

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2018 JLEP Symposium: Financial Innovation and Innovative Financial Regulators

March 7, 2018

Government regulation is intended to improve the efficiency of markets and protect people from harms they cannot identify or prevent on their own. But, for decades, advocates have debated whether the regulatory process and rules developed through it are too strict or too lax; whether they properly account for all the things society values; and even whether they make society better or worse off on balance. The Journal of Law, Economics & Policy’s Symposium on Regulatory Reform, Transparency, and the Economy explored these and related questions as leading scholars and practitioners examined a number of recent regulatory proposals impacting a broad swath of the American economy – from banking and finance to energy and the environment, and from employment law to the internet economy. Speakers considered and debated how well these proposals would perform their intended functions and how they might be improved.

The symposium featured discussions of research papers prepared by experts working on the Federalist Society’s Regulatory Transparency Project. The proceedings of the Conference were published in a special symposium issue of George Mason’s Journal of Law, Economics & Policy.

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Don’t Fear Volatility in Cryptocurrency Prices; Fear Regulations that Will Harm America’s Crypto Lead

John Berlau

May 14, 2021

John Berlau discusses the future of cryptocurrencies and how regulators might approach the nascent industry.

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Stressing Banks and the Economy

Wayne A. Abernathy

April 27, 2021

This blog post discusses to what extent the Federal Reserve’s models test for the real world problems of the Fed’s monetary policy.

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Collins v. Mnuchin and GSE Privatization

J.W. Verret

December 23, 2020

J.W. Verret argues that Treasury Secretary Mnuchin should act now to support efforts to privatize Fannie Mae and Freddie Mac.

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Replacing Too Big to Fail with Safe to Fail

Wayne A. Abernathy

July 16, 2020

Rejection of the idea that any bank is too big to fail (TBTF) is currently universal among U.S. policymakers. Yet some apprehension persists that this policy consensus may be fragile. That apprehension may continue until worries of too big to fail are replaced with confidence that U.S. banks are safe to fail.

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Relax, a Capital Idea

Wayne A. Abernathy

April 2, 2020

The Federal Reserve Board began the second quarter of the year by relaxing part of its capital rules for bank holding companies. In particular, its interim final rule would exclude from some capital calculations the investments that banks have in funds placed with the Fed and holdings of U.S. Treasury securities.

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Quarles’ Conundrum of Bank Supervision

Wayne A. Abernathy

January 27, 2020

Without subpoenas, bank examiners routinely poke through the books, records, premises, and operations of chartered banking firms.  In fact, examiners are resident—as in, have permanent offices—in the headquarters of the larger banks.  They essentially live there.  Intrusive examination is the core of bank supervision.

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When Banks Act as Regulators within a Regime of Privilege

Brian Knight

November 8, 2019

Banks receive benefits because they are believed to be essential for a functioning economy, but it is also likely that these benefits supplement the market power banks enjoy. Does that make banks trying to de facto regulate other industries by withholding services, in effect trying to impede lawful commerce, problematic?

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Feds: Gambling Fine, But Investing Too Risky

John Berlau

September 25, 2019

“In the risk reform debate, as in so many political debates, logic is often for losers.” So lamented Competitive Enterprise Institute founder and president emeritus Fred L. Smith, Jr. in 1995, and he has expressed similar sentiments many times since.

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The FDIC Refinery

Wayne A. Abernathy

September 19, 2019

The FDIC took several actions to refine proposed and existing banking regulations, each with a focus on better achieving their purpose by making them easier to administer and less of a weight on economic activity.

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Key Points in the Treasury’s Fannie/Freddie Paper

Alex J. Pollock

September 11, 2019

The important parts of the Treasury’s new paper on Fannie and Freddie reform are not the legislative recommendations, since legislation is not going to happen. They are the administrative steps which can actually be taken now, with political will.

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We Three Kings: Lacking Representation in Index Fund Corporate Governance

Brian Knight

September 4, 2019

In his new article, Prof. Caleb N. Griffin discusses the challenge of how to make index funds reflect the preferences of actual investors when it comes to corporate governance issues.

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Of Class Actions and Usury – Shrinking Credit in the Second Circuit

Jerry Loeser

August 14, 2019

If successful, two class actions could discourage investors from purchasing securitized debt owed by borrowers residing in the Second Circuit, thus reducing markets for the securitization of loans by banks to borrowers residing in the Circuit.

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Fed ‘Independence’ is a Slippery Slope

Alex J. Pollock

April 5, 2019

In the light of the political reality of Federal Reserve history, a completely independent Fed looks impossible. In the light of the unknowable future, it looks undesirable.

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Herring Does Capital

Wayne A. Abernathy

January 31, 2019

Richard J. Herring, professor at the Wharton School, is well known for his insightful commentary on the financial system. His paper on “The Evolving Complexity of Capital Regulation” is a good example of why. Professor Herring presents a readily accessible and remarkably concise history of the development of global standards for bank capital, starting with the first Basel Capital Accord (Basel I—regulators are now looking at the implementation of Basel IV). Then he walks through additions and amplifications under the Dodd-Frank Act and various regulatory innovations, each regulatory round designed to address perceived problems of previous standards.

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May I Offer You Some Guidance?

Wayne A. Abernathy

October 1, 2018

Guidance from regulators to the regulated can be valuable when kept within the bounds of genuine guidance. When it moves toward compulsion, it moves onto ground obnoxious to the rule of law. The joint statement of five financial regulators reinforces that understanding.

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When Is a Bureaucracy So Independent That It’s Unconstitutional?

Alex J. Pollock

July 24, 2018

In a conceptually important opinion, the Fifth Circuit Court of Appeals has just ruled that the governance structure of the Federal Housing Finance Agency (FHFA) is unconstitutional.

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The Dangers of Independence for Executive Branch Agencies

Peter Wallison

July 19, 2018

There may be cases where executive branch officials need to be independent of the president, but they are likely to be exceedingly few. The Supreme Court, if it takes an appeal from the 5th Circuit’s decision, should approach the issue from this perspective.

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Anyone Know a Good Tailor?

Wayne A. Abernathy

June 28, 2018

It is difficult to find a public statement by a financial services policymaker these days where the policymaker does not invoke the importance of tailoring bank regulation and supervision.  This is major progress from the days of one-size-fits-all programs.  A fundamental characteristics of the U.S. banking system is its diversity of business models, developed over the years to match the diversity of financial services customers.  Can bank supervision be tailored to accommodate that diversity?

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The Ongoing Battle Over the CFPB’s Constitutionality

Julius Loeser

May 18, 2018

Under former CFPB Director Cordray, the CFPB defended its constitutionality, but, now, under Acting Director Mulvaney, the CFPB is arguing that the issue is now moot because Acting Director Mulvaney has ratified the enforcement actions against All American and the President has the right to remove the Acting Director at will.

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The Consumer Bureau Asks Congress to Fix It

Wayne A. Abernathy

April 4, 2018

Mulvaney’s basic argument is cogent and refreshing.  In short, he says “the Bureau is far too powerful, and with precious little oversight of its activities.”

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Finding the Value in Financial Failure

Wayne A. Abernathy

March 1, 2018

Title II of Dodd-Frank—written in law as secondary, a recourse to the bankruptcy process—has been criticized by some for being punitive, prone to destroy value, and by others as too vulnerable to use in propping up failed firms that should be removed from the financial playing field.

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DC Circuit Decision on CFPB Leadership

Julius “Jerry” Loeser

January 31, 2018

Today, the U.S. Court of Appeals for the District of Columbia, sitting en banc, issued its decision in PHH Corporation, et al. v. Consumer Financial Protection Bureau, on whether the provision in the Dodd-Frank Act  that the director of the CFPB cannot be removed by the President for any reason other than “inefficiency, neglect of duty, or malfeasance” is consistent with Article II of the Constitution vesting executive power in the President who is to “take care that the Laws be faithfully executed.”

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The Bureau Shrinks the Supply of Smaller Dollar Loans. What About the Demand?

Wayne A. Abernathy

October 13, 2017

These days the financial regulators are engaging in a careful but high priority regulatory reform process, looking at regulations of recent years to see how they may be revised and refined to promote economic growth. Except for the Bureau of Consumer Financial Protection. The Bureau is still in the business of adding new regulations.

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What Can a Sandbox in Arizona Do for Financial Innovation?

Wayne A. Abernathy

September 6, 2017

History demonstrates that innovation is one of the things that a free society does best. Fostering innovation was one of the goals of the Founders who created a federal system of government, since centralization of power tends to discourage new thinking, creativity, and new ways of doing things. This is particularly true for new ways of doing things that can challenge “old ways.” Some “old ways,” such as freedom and individual rights, are timeless. Others are more temporal and in need of adjustment to remain relevant to evolving societies and conditions.

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