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Joshua Fershee

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Joshua Fershée, JD, became the 11th dean of the Creighton University School of Law on July 1, 2019. Fershée previously served as associate dean for faculty research and development, professor of law, and director of LLM programs at West Virginia University College of Law.

Earning a bachelor’s degree in social science from Michigan State University in 1995, Fershée began his career in public relations and media outreach before attending the Tulane University School of Law, graduating magna cum laude in 2003 and serving as editor in chief of the Tulane Law Review. He worked in private practice at the firms of Davis Polk & Wardell in New York and Hogan & Hartson, LLP, in Washington, D.C., before joining the legal academy. Read More

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Dear BLPB Readers:

“The Legal Studies and Business Ethics Department of the Wharton School, University of Pennsylvania, is seeking applicants for a full-time, tenure-track faculty position at any level: Assistant, Associate, or Full Professor. The appointment is expected to begin July 1, 2023. Information about the Legal Studies and Business Ethics Department and the research expertise of its current faculty may be found at: https://lgst.wharton.upenn.edu

JOB QUALIFICATIONS: Applicants must have either a JD (or equivalent) or a PhD from an accredited institution or both (expected completion by June 30, 2024 is acceptable). We seek outstanding researchers and teachers with a commitment to business-relevant scholarship. The Department’s faculty hold graduate degrees in a variety of areas, including law, philosophy, sociology, history, psychology, and political science. They teach courses in business ethics and law to undergraduates, MBAs, Executive MBAs, and PhD students.“

The complete job posting is here.

Last year, several BLPB posts focused on the GameStop market event (for example, here, here, here, here, and here). For BLPB readers with continuing interest in this topic, I wanted to flag that yesterday, a report prepared by the Majority Staff of the Committee on Financial Services of the U.S. House of Representatives was released: Game Stopped: How the Meme Stock Market Event Exposed Troubling Business Practices, Inadequate Risk Management, and the Need for Legislative and Regulatory Reform.  I look forward to reviewing the report in more detail!

[revised]

In December 2018, in one of my earliest posts on the BLPB, I shared “although esoteric, such issues as who has access to an account at the Fed are critical social policy choices with real world implications that merit broad-based public debate.”  And I’ve continued to highlight this issue with posts such as “Master Accounts at the Fed: An Arcane But Highly Important Issue” and “Professor Hill on Bank Access to Federal Reserve Accounts and Payment Systems.”  And I’m going to continue to do so today and in the future.  It’s just that important. 

So today, I want to highlight that Custodia Bank, Inc. recently filed a lawsuit against the Federal Reserve Board of Governors and the Federal Reserve Bank of Kansas City.  Custodia alleges that the defendants have unlawfully delayed – for more than 19 months now – processing its application for a Fed master account.  A few related news stories are: here, here, and here.  Recall that TNB USA Inc. sued the Federal Reserve Bank of New York for related reasons (here), but this lawsuit was dismissed.  I’ll be sure to keep BLPB readers posted regarding what

I wanted to make two quick follow-ups to last week’s post on FTX’s proposed new clearing model for retail customers.  First, I highly recommend reading the recent FT Alphaville piece Did a major financial institution kinda maybe slightly default in March 2020? (FT subscription required) Among other things, it highlights remarks made by some participants during last week’s CFTC Staff Roundtable on Disintermediation relating to the potential cost of largely removing human discretion from the clearing risk management process (thanks to today’s Money Stuff by Matt Levine for bringing this piece to my attention!).  Second, a recent article by Rebecca Lewis and David Murphy, What Kind of Thing Is a Central Counterparty? The Role of Clearinghouses As a Source of Policy Controversy, does an excellent job of discussing clearing for BLPB readers who want to learn more about this area.  Murphy was among the participants in the CFTC Staff Roundtable!  I highly recommend this piece!  Here’s the abstract:

“Public policy surrounding central counterparties (‘CCPs’) is beset by conflicts between stakeholders. These turn on who bears which risks, who profits from clearing, and who has what say in CCP governance. They involve CCP equity holders, clearing members, clients, regulators…

I spent much of today watching the CFTC Staff Roundtable on Disintermediation.  The focus of this event was the “disintermediation” or direct clearing that FTX – “an international cryptocurrency exchange valued at $32bn” – proposes to offer to U.S. retail customers (though the option for customers to use an intermediary should still exist).  The House Committee on Agriculture also recently held a hearing on this topic.  Sam Bankman-Fried, the 30-year-old FTX CEO, cofounder and billionaire, is the son of two Stanford University law professors! 

In a nutshell, FTX proposes to offer U.S. retail customers direct clearing, meaning they would no longer need intermediation by a futures commission merchant (FCM) as under the existing market structure, for cryptocurrencies (at least as the initial asset class).  FTX would calculate margin requirements every 30 seconds and computer algorithms would automatically start liquidating a customer’s positions in specified increments were a customer’s account to be under-margined.  Customers could post a wide variety of collateral, including cryptocurrencies, to meet margin requirements.  FTX plans to also contract with backup liquidity providers who would put up their own collateral as a backup and, potentially, be allocated a portion of a defaulter’s…

I was excited to see that Professor Jeremy Kress‘ excellent new article, Banking’s Climate Conundrum, is forthcoming in the American Business Law Journal!  Kress presented this article during The Changing Faces of Business Law and Sustainability Symposium at the end of February (post here).  As with all his pieces, it’s highly-readable, understandable, and enjoyable.  I’m a bit less sanguine than he is regarding relying on external credit rating agencies in calculations of bank capital requirements.  I encourage BLPB to read and decide what they think!  Here’s the abstract:

“Over the past decade, a consensus has emerged among academics and policymakers that climate change could threaten the stability of banks, insurers, and the broader financial system. In response, regulators from around the world have begun implementing policies to mitigate emerging climate risks in the financial sector. The United States, however, lags significantly behind other countries in addressing such risks. This Article argues that the United States’ sluggishness in responding to climate-related financial risk is problematic because the U.S. banking system is uniquely susceptible to climate change. The United States’ vulnerability stems, in part, from a little-known statutory provision that prohibits U.S. regulators from relying on…

Dear BLPB Readers:

“The American Business Law Journal invites article submissions on a year-round basis. We encourage submissions outside of the traditional July/August and February submission cycles.

The ABLJ is ranked in the top 6% by Impact Factor of all publications listed in the 2016 Washington & Lee Submissions and Rankings.

The ABLJ is a highly selective faculty-edited, internationally peer-reviewed journal that welcomes manuscripts that comprehensively explore and analyze legal and ethical issues that affect businesses, not only within the United States but also across the globe. We seek to publish only top-quality law review articles that make a significant scholarly contribution to the field of business law.

Manuscripts that enter our review process are sent to at least two faculty reviewers who are experts in the subject matter of the manuscript. The review is triple-blind. The reviewers are not told the identity of the author, the assigned Articles Editor is not told the identity of the author until a review decision has been reached, and the author is not told the identity of the reviewers. This is a time-intensive but worthwhile process. Reviewers read the manuscript, review the relevant literature, and provide commentary and critique to our Articles Editors…

The IMF recently released its Global Financial Stability Report April 2022.  The Executive Summary provides an informative overview of the financial risks facing markets in these turbulent times.  I was particularly interested in Box 1.1 of the Report: Extreme Volatility in Commodities: The Nickel Trading Suspension.  For those readers who might be unaware, the London Metal Exchange (LME) halted nickel trading “on March 8 after prices doubled over the course of a day to a record $100,000 (£76,200) a tonne”  and cancelled all nickel transactions that day.  Nickel is a key metal for electric car batteries.  Not surprisingly, the LME’s actions proved controversial and are now the subject of several regulatory investigations.  As the end of the Executive Summary highlights: “Recent measures taken in markets and exchanges in response to elevated volatility in commodity prices highlight the need for regulators to examine the broader implications, including exchange governance mechanisms, resiliency of trading systems, concentration of risk, margin setting, and trading transparency in exchange and over-the-counter markets” (p. xiv).    

Professor Julie Hill recently posted Bank Access to Federal Reserve Accounts and Payment Systems.  It’s an excellent and important article.  As I’ve blogged about (here) and written about (here), access to a master account at the Fed is an arcane, but highly important issue.      

Here’s the abstract for Professor Hill’s article:

“Should the Federal Reserve process payments for a Colorado credit union established to serve the cannabis industry? Should the Federal Reserve provide an account for a Connecticut uninsured bank that plans to keep all its depositors’ money in that Federal Reserve account? Should the Federal Reserve provide payment services for an uninsured, government-owned bank in American Samoa? What about Wyoming cryptocurrency custody banks? Should they have access to Federal Reserve accounts and payment systems? Although the Federal Reserve has recently considered account and payment services applications from these novel banks, its process for evaluating the applications is not transparent.

This Article examines how the Federal Reserve decides which banks get access to its accounts and payment systems. It explores the sometimes-ambiguous statutory authority governing the Federal Reserve’s provision of accounts and payments and chronicles the Federal Reserve’s longtime policies limiting access…

Recently, I had the pleasure of attending “Avoiding Fraud in the ERA of NIL and Student Athletes,” the inaugural event of the Wilkinson Family Speaker Series at the University of Oklahoma College of Law.  I learned so much and had a chance to meet several of the incredible speakers!  I wanted to share with BLPB readers a summary from Laura Palk, the Assistant Dean of External Affairs, so that those interested in these topics will be on the lookout for future events in this series. 

“OU Law Dean Katheleen Guzman in collaboration with VP for Intercollegiate Athletics, Joe Castiglione, hosted a two-day discussion regarding investor fraud and the student athlete in light of the new name image likeness rules, starting with a fireside chat with former NFL player, Leonard Davis, and his attorney, Graig Alvarez. They were joined by moderator, Lou Straney, to share their story of how athletes are frequently targeted by trusted friends and advisors and how to avoid becoming a target. The next day, Professor Megan Shaner, along with national experts Jeff Abrams, Lisa Braganca, Robert Cockburn, Richard Frankowski, Professor Nicole Iannarone, Jason Leonard, Robin Ringo and Professor Andrew Tuch, presented a symposium educating the OU community and alumni about various types of investment fraud, how to identify…