REVIEW of BANKING & FINANCIAL LAW
Volume 33
BOSTON UNIVERSITY SCHOOL OF LAW
GRADUATE PROGRAM IN BANKING AND FINANCIAL LAW
2013-2014
Review of Banking & Financial Law
Review of Banking & Financial Law Boston University School of Law 765 Commonwealth Avenue Boston, MA 02215
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Publication Numbers ISBN 0-8205-7484-8 ISSN 1544-4627
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Disclaimer: The REVIEW reserves editorial privilege with regard to all matters of form, including, but not limited to, diction, grammar, spelling, syntax, and matters of convention, as well as the substantive accuracy of citations. The REVIEW strives to keep the author’s work in its purest form, however, and thus does not engage in substantive editing.
Table of Contents
ISSUE I – FALL 2013
DEVELOPMENTS IN BANKING AND FINANCIAL LAW: 2013 ...... 1
ARTICLES
PRIVATE EQUITY FIRMS AS GATEKEEPERS ...... 115 Elisabeth de Fontenay
HEY, BUT IT’S MY MONEY! OWNERSHIP AND THE ENFORCEMENT OF CONVERSION LIABILITY UNDER U.C.C. § 3-420 ...... 191 Wayne K. Lewis & Michael Gentithes
PAYDAY LENDING, BANK OVERDRAFT PROTECTION, AND FAIR COMPETITION AT THE CONSUMER FINANCIAL PROTECTION BUREAU ...... 235 Robert L. Clarke & Todd J. Zywicki
EU IMPLEMENTATION OF BASEL III IN THE SHADOW OF EURO CRISIS ...... 283 Jeffery Atik
NOTES
THE FED’S DUAL MANDATE: ONE TOO MANY? ...... 343 Michelle A. L. Goldberg
CRACKING DOWN ON BRIBERY WITHOUT CRACKING DOWN ON COMPETITION: IMPLEMENTING A FOREIGN CORRUPT PRACTICES ACT THREE-STRIKE RULE ...... 381 Jeremy Clemens
ISSUE II – SPRING 2014
DEVELOPMENTS IN BANKING AND FINANCIAL LAW: 2014 ...... 417
DISTRESSED MUNICIPAL FINANCING SYMPOSIUM
INTRODUCTION ...... 567
CAN MUNICIPAL POLITICAL STRUCTURE IMPROVE FISCAL PERFORMANCE? ...... 571 Clayton P. Gillette
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WHO DOES BANKRUPTCY? MAPPING PENSION IMPAIRMENT IN CHAPTER 9 ...... 585 Vincent S. J. Buccola
PENSIONS AND PROPERTY RIGHTS IN MUNICIPAL BANKRUPTCY ...... 609 Richard M. Hynes & Steven D. Walt
GOVERNMENT BUDGETS AS THE HUNGER GAMES: THE BRUTAL COMPETITION FOR STATE AND LOCAL GOVERNMENT RESOURCES GIVEN MUNICIPAL SECURITIES DEBT, PENSION AND OBEP OBLIGATIONS, AND TAXPAYER NEEDS ...... 663 Christine Sgarlata Chung
MUNICIPALITIES IN DISTRESS: A PREVENTATIVE VIEW ...... 779 Tamar Frankel
ARTICLES
THE FEDS ARE ALREADY HERE: THE FEDERAL ROLE IN MUNICIPAL DEBT FINANCE ...... 795 Darien Shanske
HAZARDOUS HEDGING: THE (UNACKNOWLEDGED) RISKS OF HEDGING WITH CREDIT DERIVATIVES ...... 813 Gina-Gail S. Fletcher
NOTES
SHEATHING RESTITUTION’S DAGGER UNDER THE SECURITIES ACTS: WHY FEDERAL COURTS ARE POWERLESS TO ORDER DISGORGEMENT IN SEC ENFORCEMENT PROCEEDINGS ...... 899 Francesco A. DeLuca
ALAN R. STERN MEMORIAL FELLOWSHIP ...... 935
OUR HOUSE: CROWDFUNDING AFFORDABLE HOMES WITH TAX CREDIT INVESTMENT PARTNERSHIPS ...... 937 Sarah Pickering
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Contributors
JEFFERY ATIK Professor of Law and Sayre Macneil Fellow, Loyola Law School—Los Angeles
VINCENT S. J. BUCCOLA Bigelow Teaching Fellow and Lecturer in Law, University of Chicago Law School
CHRISTINE SGARLATA CHUNG Associate Professor of Law, Albany Law School
ROBERT L. CLARKE Senior Partner, Bracewell & Guiliani LLP; Former Comptroller of the Currency
GINA-GAIL S. FLETCHER Visiting Assistant Professor of Law, Cornell Law School
ELISABETH DE FONTENAY Associate Professor, Duke University School of Law
TAMAR FRANKEL Professor of Law, Boston University School of Law
MICHAEL GENTITHES LL.M., New York University School of Law; J.D., DePaul University College of Law
CLAYTON P. GILLETTE Max E. Greenberg Professor of Contract Law, New York University School of Law
RICHARD M. HYNES Nicholas E. Chimicles Research Professor in Business Law and Regulation, University of Virginia School of Law
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WAYNE K. LEWIS Professor of Law, DePaul University College of Law
DARIEN SHANSKE Professor of Law, University of California Davis School of Law
STEVEN D. WALT Percy Brown, Jr. Professor of Law and John V. Ray Research Professor of Law, University of Virginia School of Law
TODD J. ZYWICKI Senior Scholar, Mercatus Center at George Mason University; George Mason University Foundation Professor of Law, George Mason University School of Law; Former Director, Office of Policy Planning, Federal Trade Commission
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Review of Banking & Financial Law
Editor-in-Chief Laura E. Goldsmith
Executive Editor for Management David Ginensky
Executive Editor for Professional Articles Jillian Zvolensky
Executive Editor for Notes & Comments Daniel Jeng
Executive Editors for Developments Francesco DeLuca Sarah Pickering
Executive Editor for Symposium Sesi Garimella
Executive Editor for Marketing Jack Jrada
Executive Editor for Communications Michelle A. L. Goldberg
Article Editors Jeremy Clemens Kristen Dooley Andrea Jennings Peter Sumners Jessica Ziehler
Faculty Advisors Frederick Tung James E. Scott Professor of Law Director Howard Zhang Faculty Graduate Program in Research Scholar Banking and Financial Law
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Staff
D. Deniz Aktas Joanna Lee Timothy Bolte Lillian Li Lisa Bothwell Thomas Markey Chloe Brighton Eva Maryskova Joseph Burleson Christopher Mercurio Alyce Hui-Chun Chen Jacqueline Nutile William Constantine Bridgette Pighin Emily Finestone Marisa Roman Sean Foley Sean Rosenthal Jennifer Gardner Jake Saifman Chris Hamilton Adam Santeusanio Adriana Henquen Enrique Santiago Kyle Howard Blake Schell Michael Kaplan Michael Vandenberg Lisa Ann Landry Jacob Wimberly
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