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It Takes a Thief…. and a Bank: Protecting Consumers from Fraud and Scams on P2P Payment Platforms
Get PDFThis Article proposes statutory and regulatory changes to the Electronic Fund Transfer Act; Regulation E; and the Bank Secrecy Act/Anti-Money Laundering regulations to protect consumers who use instant payment platforms in the United States (such as Zelle and Venmo) from scam artists and fraudsters. After discussing current fraud scams on these payment platforms, the Article discusses the history and context of the 1978 Electronic Fund Transfer Act and Regulation E, and the definition of unauthorized payments and payments made in error therein. The second part of this Article explores changes to the Bank Secrecy Act/Anti-Money Laundering regulations that might make it hard for fraudsters to use the financial system to commit fraud, and might make it easier for financial institutions to identify fraudsters seeking to do so. Finally, this Article provides an update on regulatory, legislative, and judicial activity that took place while this Article was in the process of being published
Contractual Remedies in Mergers: Lessons from Crispo v. Musk
Get PDFThe Delaware Chancery Court recently restricted a merger target\u27s ability to recover damages on behalf of its shareholders from a breaching buyer. This paper investigates the impact of the decision. First, we present a theoretical analysis to generate empirical predictions. Second, we show that the decision led to a decrease in the firm value of targets in mergers governed by Delaware law. Third, we hand-collect relevant provisions from merger agreements and find that the agreements governed by Delaware law increasingly include target-friendly non-price terms after the decision. We also present evidence suggesting deal price responds to the inclusion of novel non-price terms. Overall, the paper demonstrates how remedy provisions play an important role in merger transactions and how contracting parties respond to an exogenous change in deals jurisprudence
Improving the Affirmative Disclosure of Agency Legal Materials
Get PDFIt is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of these agency legal materials. It is premised on the principle that all legal material that agencies are obligated to disclose upon request by a member of the public should be affirmatively made accessible to the public on agency websites.
In Part I, we lay out our broad objective, which is to ensure the public has ready access to legal materials that are important for the public to know, while recognizing that a limited set of legal materials will be subject to exemption from disclosure for countervailing reasons requiring secrecy. In Part II, we delve into an analysis of the current state of disclosure requirements and how they apply to each type of agency legal material that we address in this Article. We identify opportunities to clarify, improve, or strengthen the law, and argue that all nonexempt records that constitute agency legal materials should be affirmatively disclosed, rather than subject only to reactive disclosure—that is, disclosure in response to a request. Part III goes beyond the question of which agency materials constitute legal materials and should be made affirmatively available. It tackles the question of how agencies should make those materials available and what mechanisms will be available to enforce these disclosure requirements. Part IV summarizes our recommendations for legislative actions to ensure effective and comprehensive public access to agency legal materials.
Public availability of agency legal materials must be comprehensive and real. In the digital era, it is no longer acceptable for the full suite of agency legal materials not to be accessible to the public online. And mere online accessibility is also insufficient. Members of the public must be realistically able to locate agency legal materials and effectively use them
The Clean Water Act’s Nurdle-Shaped Gap: Using the CWA to Address Primary Microplastic Pollution
Get PDFThe term “nurdles” may sound like a silly made-up word lifted from the pages of a children’s book, but unfortunately nurdles are all-too real, with trillions of these microplastics ending up in our oceans each year. Nurdles spill into the environment at every step along their supply chain, allowing them to end up in fish and on our plates. Despite the known danger nurdles pose to both wildlife and humans, they are virtually unregulated. In the absence of regulation by the Environmental Protection Agency (EPA), some states and their citizens have begun trying to wrangle rogue nurdles, and hold nurdle dischargers accountable, on their own. Unfortunately, due to the sheer volume of nurdles escaping into the environment and their mobility once out there, even the most successful local efforts are unable to make a dent in the nurdle problem.
However, the Clean Water Act (CWA) already provides the tools needed to address nurdle pollution at the federal level — it just needs to be used in the right way. This Note offers two such ways the CWA can be utilized in the fight against nurdle pollution. To curb everyday spills caused by improper handling at plastics facilities, the EPA should promulgate a zero nurdle discharge standard for relevant industries. To ensure proper nurdle cleanup in the wake of major shipping accidents, in which millions of nurdles spill directly into a waterway all at once, the EPA should consider classifying nurdles as a hazardous substance under CWA Section 311. As the plastics industry prepares to ramp up North American production, and research increasingly shows the hazards of nurdle ingestion, it is imperative that we address the gaps in our regulatory system that thus far have allowed nurdle pollution to go unchecked
Restorative Justice for International Traditional Cultural Expression Ownership Disputes
Get PDFTraditional cultural expressions (“TCE”), which include dances, songs, and pottery, and traditional knowledge (“TK”), which includes plant properties, agricultural practices, and artistic techniques, are inarguably valuable both to the groups that create them and to outsiders who wish to use or sell them. International law broadly, and intellectual property (“IP”) law more specifically, are not well-suited to protect the interests of creators of TCE and TK. A persistent pattern of exploitation of traditional expressions and knowledge has been well-documented. But responses have been dissatisfying, and sometimes begin from a place of disregarding the value of these contributions. At present, when a dispute occurs, there is often no clear path forward for an Indigenous or Global South community to demand accountability, particularly in cases where the expressions or knowledge fit poorly with pre-existing IP law. There is also no established model for groups wishing to partner to use these resources in a non-exploitative fashion. This note recommends transferring restorative justice principles—which emphasize accountability and forming longer-term, sustainable relationships— to this context. Under the restorative justice model, communities with these valuable expressions and knowledge take the lead in determining what agreements or restitution best suit their cultural and economic values, and outsiders work to adhere to those wishes and requirements. While there are limitations to a restorative justice approach, the benefits are meaningful and worthy of ongoing development
Decentralized Autonomous Organizations and Regulatory Competition: A Race Without a Cause
Get PDFSeveral states have enacted specialized limited liability company legislation in an attempt to attract decentralized autonomous organizations. In this way, the regulatory competition debate surrounding states such as Wyoming, Tennessee, and Vermont, attempting to dethrone Delaware, has found a new battleground. According to Professor Lynn LoPucki, this will entail a regulatory race to the bottom, that is, a race to “laxity.” I disagree. In fact, deregulation has already been achieved in the traditional limited liability company form. The decentralized autonomous organization limited liability company is no laxer or more attractive to investors, who will likely prefer the traditional limited liability company or even other entity forms, given the diversity of investors’ needs and aims. Moreover, some decentralized autonomous organization organizers may wish not to incorporate at all, hoping to avoid the law altogether. While increasingly risky, this strategy rests on the belief in the alegality liability shield, further diminishing the impact of the lex specialis approach. After analyzing the statutory developments and the scholarly and industrial commentary, I conclude that in decentralized autonomous organizations, as elsewhere, the regulatory race to the bottom is a fad
