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Colleen Baker

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PhD (Wharton) Professor Baker is an expert in banking and financial institutions law and regulation, with extensive knowledge of over-the-counter derivatives, clearing, the Dodd-Frank Act, and bankruptcy, in addition to being a mediator and arbitrator.

Previously, she spent time at the U. of Illinois Urbana-Champaign College of Business, the U. of Notre Dame Law School, and Villanova University Law School. She has consulted for the Federal Reserve Bank of Chicago, and for The Volcker Alliance.  Prior to academia, Professor Baker worked as a legal professional and as an information technology associate. She is a member of the State Bars of NY and TX. Read More

The AALS Section on Financial Institutions and Consumer Financial Services invites submissions of no more than five pages for its session at the 2022 annual meeting of the AALS.  Next year’s annual meeting will be held virtually from January 5-9, 2022, with the date and time of the Section’s session yet to be announced.  The submission can be the abstract and/or introduction from a longer paper, and it should relate to the following session description:

Climate Finance and Banking Regulation: Beyond Disclosure? 

 In the United States, banking regulation has been slower than other forms of financial regulation (and slower than its European counterparts) to address climate-related financial risks.  This panel explores the proper role of banking regulation in addressing the physical and transition risks from climate change.  Possible measures include:  standardized, mandatory climate risk disclosures by banks; supervisory assessments of climate-related financial risk; capital and liquidity regulation; climate risk scenario tests; determination of the appropriate role of banks in mitigating climate risk; financial stability oversight of climate risk; and action (through the Community Reinvestment Act and otherwise) to deter harms to disadvantaged communities and communities of color from climate change.

Please email your anonymized materials by Friday, July 16, 2021, to Joe Graham, jgraham@bu.edu.  Please also indicate, in…

Friend of the BLPB, Professor Sagi Peari, recently shared the great news about the publication of his second book with Oxford University Press, International Negotiable Instruments (w/Professor Benjamin Geva).  A huge congratulations to the profs on this impressive accomplishment on such an important topic!  Here’s the book abstract:

For centuries, negotiable instruments have played a vital role in the smooth operation of domestic and international commerce. The payment mechanisms have been subject to rapid technological progress and law has needed to adapt and respond to ensure that the legal framework remains relevant and effective. This book provides a comprehensive and thorough analysis of the question of applicable law to negotiable instruments. Specifically, the authors challenge the conventional view according to which the fundamentals of negotiable instruments law are excluded from the scope and insights of general contract and property law doctrines and as such not subject to the general conflict of laws rules governing them. The authors make concrete suggestions for reform and contemplate on the nature of the conflict of laws rules that can also be applied in the digital age of communication.

Lev Menand, Academic Fellow and Lecturer in Law at Columbia Law School, has recently published Why Supervise Banks? The Foundations of the American Monetary Settlement, 74 Vanderbilt Law Review 951 (2021).  Menand has actually worked in the Federal Reserve Bank of New York’s Bank Supervision Group.  I’m excited to read this article as banking law scholars are increasingly focused on the area of bank supervision and I’ve no doubt it makes a significant contribution to the literature.     Here’s the article’s abstract:

Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.

Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual and political foundations of supervision. They also obscure its distinguished past and deny its continued necessity.

On June 3rd, the United States Court of Appeals for the Second Circuit (Court) decided Lacewell v. Office of the Comptroller of the Currency (here).  I’d previously blogged about the “Dueling Law Professor Amicus Curiae Briefs” (here and here, see Appendix A of the Opinion for a listing of these briefs) in this heavily watched federal fintech charter case about whether the Office of the Comptroller of the Currency (OCC) has the authority to issue special-purpose national bank (SPNB) charters for fintech firms “engaged in the ‘business of banking,’ including those that do not accept deposits.”  I promised to update BLPB readers when the Court rendered its decision.

In a nutshell, the Court reversed the district court’s amended judgement and remanded “with instructions to enter a judgement of dismissal without prejudice.”  The Court explained that DFS [the New York State Department of Financial Services, of which plaintiff Lacewell is Superintendent] lacked “standing because it failed to allege that the OCC’s decision caused it to suffer an actual or imminent injury in fact and…that DFS’s claims are constitutionally unripe for substantially the same reason.”  Given these considerations, the Court stated that it did not have…

Dear BLPB Readers:

Texas State University invites applications for a full-time, endowed tenured faculty position at the rank of professor. We seek outstanding candidates from all areas of business with a distinctive expertise and focus on business ethics and corporate responsibility. The appointee is expected to have a nationally recognized research record, pursue continuing research and scholarship, and provide disciplinary expertise, innovation, and leadership. The McCoy College is interested in recruiting an individual who can embrace and enhance the vision of a diverse, collegial, and productive academic environment.

Responsibilities:
• Develop a nationally and internationally recognized research program, including extramural grant funded research, that addresses business challenges through the prism of ethics and corporate responsibility.
• Conduct and collaborate on high quality research leading to publications in top-tier journals.
• Develop and teach courses at the undergraduate and graduate levels, including online offerings, that highlight the ethical and social dimensions of business management.
• Enhance the integration of business ethics, sustainability, and corporate social responsibility into the College’s curricular and co-curricular learning experiences.
• Provide thought leadership and share insights through scholarly engagement with diverse groups including faculty, students, and external communities.
• Serve as an excellent faculty role model…

I thought I’d essentially copy the idea behind co-blogger Joshua Fershee’s post from yesterday (thanks, Josh!) and share with readers that my new short article, Clearinghouse Shareholders and “No Creditor Worse Off Than in Liquidation” Claims is now available!  Similarly, my article is a combination of a prior post and my presentation at the fourth annual Business Law Prof Blog Symposium.  Here’s its abstract:

Clearinghouses are the centerpiece of global policymakers’ 2009
framework of reforms in the over-the-counter derivative markets in
response to the 2007–08 financial crisis. Dodd-Frank’s Title VII
implemented these reforms in the U.S. More than ten years have now
passed since the establishment of this framework. Yet much work
continues on outstanding issues surrounding the recovery and
resolution of a distressed or insolvent clearinghouse. This Article
examines one of these issues: the possibility of clearinghouse
shareholders raising no creditor worse off than in liquidation claims
in resolution. It argues that such claims are nonsensical and should
be unavailable to clearinghouse shareholders. This would decrease
moral hazard in and promote the rationalization of the global
clearing ecosystem for derivatives.

I also want to encourage BLPB readers to review the perceptive commentary by Professor Thomas E. Plank on my…

If you missed this past Monday’s Regulating Megabanks: A Conference in Honor of Art Wilmarth, don’t worry, it was recorded! I’ll keep BLPB readers posted about when the recorded webinar is available online [now available -see link at bottom of post!].  In the meantime, Professor Wilmarth has just posted a new working paper, Wirecard and Greensill Scandals Confirm Dangers of Mixing Banking and Commerce, to keep you busy until then!  Here’s the abstract:

The pandemic crisis has accelerated the entry of financial technology (“fintech”) firms into the banking industry. Some of the new fintech banks are owned or controlled by commercial enterprises. Affiliations between commercial firms and fintech banks raise fresh concerns about the dangers of mixing banking and commerce. Recent scandals surrounding the failures of Wirecard and Greensill Capital (Greensill) reveal the potential magnitude of those perils.

The Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) have encouraged commercial enterprises to acquire fintech banks. The FDIC has authorized commercial firms to acquire FDIC-insured industrial banks in reliance on a controversial loophole in the Bank Holding Company Act (BHC Act). The OCC is seeking to charter nondepository fintech national banks, which…

Dear BLPB readers:

Here’s an event you won’t want to miss!  Check out the phenomenal speaker lineup! 

Regulating Megabanks: A Conference in Honor of Arthur Wilmarth

May 24 @ 8:50 am – 5:30 pm

Join the University of Colorado Law School and the University of Colorado Law Review for a daylong online symposium regarding the regulation of large financial conglomerates.  This symposium honors Professor Arthur Wilmarth of the George Washington University Law School, who has devoted his entire scholarly career to this topic and whose book Taming the Megabanks was just published by Oxford University Press.

The public may access the webinar at the following link: https://cu.law/lawreview

Last week, I blogged about my new article, The Federal Reserve As Collateral’s Last Resort, in the Notre Dame Law Review.  I mentioned that this shorter work is a first step in a larger normative project on central bank collateral frameworks.  As I progress with this research, I’m adding new articles to my reading list for this new article.  Peter Conti-Brown, Yair Listokin, & Nicholas R. Parrillo recently posted their new work, Towards An Administrative Law of Central Banking, published in the Yale Journal on Regulation.  It immediately made the list!  Here’s the Abstract:

A world in turmoil caused by COVID-19 has revealed again what has long been true: the Federal Reserve is arguably the most powerful administrative agency in government, but neither administrative–law scholars nor the Fed itself treat it that way. In this Article, we present the first effort to map the contours of what administrative law should mean for the Fed, with particular attention to the processes the Fed should follow in determining and announcing legal interpretations and major policy changes. First, we synthesize literature from administrative law and social science to show the advantages that an agency like the…

I’m delighted to share with BLPB readers that my new Essay, The Federal Reserve As Collateral’s Last Resort, 96 Notre Dame L. Rev. 1381 (2021) is now available (here).  Its focus is central bank collateral frameworks, a critical and timely topic that has thus far received scant attention from legal scholars.  I recently blogged about Professor Skinner’s Central Bank Activism.  Regardless of one’s perspective on this issue, it’s crucial to realize that a central bank’s collateral framework is the mechanism that promotes or limits such activism.  The institutional features of these frameworks are a combination of legislation and central bank policy, with the latter arguably being the most important influence on the Fed’s framework.   

As the first paragraph of my Essay explains “Central bank money or liquidity is at the heart of modern economies.  It is issued against collateral designated as eligible by, and on terms defined by, central bank collateral frameworks…what is often underappreciated is that the ultimate practical difference between an illiquid and insolvent firm is whether a firm has assets a central bank, such as the Federal Reserve, will accept as collateral for lending or for purchase, and at what valuation. …