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I’ve often blogged (for example, here and here) about the monumental importance of a seemingly mundane topic: access to a master account at the Federal Reserve.  So, I was delighted to read Professor Julie Anderson Hill’s new article, From Cannabis to Crypto: Federal Reserve Discretion in Payments (forthcoming, Iowa Law Review).  It’s an important piece about a critical issue.  Here’s the abstract:

“From its inception, the Federal Reserve has operated payment systems that let banks move money for their customers. Checks, wire transfers, and electronic consumer payments all happen thanks to the Federal Reserve. Congress by statute specified which banks get access to the Fed’s payment services. For more than a century, the Federal Reserve provided services to all legally eligible banks. But when the Federal Reserve received requests for payments access from a cannabis-focused credit union and a cryptocurrency custody bank (both of whom are legally eligible), it denied them. The Fed also issued sweeping guidelines claiming discretion to conduct risk-vetting and deny bank requests. These guidelines apply to all banks and reverberate far beyond cannabis and crypto.

This Article examines whether the Federal Reserve’s payments discretion is as great as it now claims—a question that has been…

Professor Emeritus Arthur E. Wilmarth recently posted a new article, We Must Protect Investors and Our Banking System from the Crypto Industry.  I always learn a ton in reading his work, so I’m looking forward to the opportunity to review this paper.  Here’s the abstract:

“The crypto boom and crash of 2020-22 demonstrated that (i) cryptocurrencies with fluctuating values are extremely risky and highly volatile assets, and (ii) cryptocurrencies known as “stablecoins” are vulnerable to systemic runs whenever there are serious doubts about the adequacy of reserves backing those stablecoins. Crypto firms amplified the crypto boom with aggressive and deceptive marketing campaigns that targeted unsophisticated retail investors. Scandalous failures of prominent crypto firms accelerated the crypto crash by inflicting devastating losses on investors and undermining public confidence in crypto-assets.

Federal and state regulators have allowed banks to become significantly involved in crypto-related activities. Several FDIC-insured banks that provided financial services to crypto firms suffered substantial losses and incurred extensive legal, operational, and reputational risks during the crypto crash. Meanwhile, stablecoins issued by nonbanks and uninsured depository institutions threaten to become a new form of “shadow deposits” that could undermine the integrity of our banking system and require costly…

An ambitious question, yes, but it was the title of the presentation I gave at the Society for Socio-Economists Annual Meeting, which closed yesterday. Thanks to Stefan Padfield for inviting me.

In addition to teaching Business Associations to 1Ls this semester and running our Transactional Skills program, I’m also teaching Business and Human Rights. I had originally planned the class for 25 students, but now have 60 students enrolled, which is a testament to the interest in the topic. My pre-course surveys show that the students fall into two distinct camps. Most are interested in corporate law but didn’t know even know there was a connection to human rights. The minority are human rights die hards who haven’t even taken business associations (and may only learn about it for bar prep), but are curious about the combination of the two topics. I fell in love with this relatively new legal  field twelve years ago and it’s my mission to ensure that future transactional lawyers have some exposure to it.

It’s not just a feel-good way of looking at the world. Whether you love or hate ESG, business and human rights shows up in every factor and many firms have built…

For those readers interested in exchanges and clearing, I wanted to highlight that Oliver Wyman’s “Independent Review of Events in the Nickel Market in March 2022” was released yesterday.  As I noted in an earlier post (here), in March 2022, the price of nickel on the LME rose over 270%, and the exchange not only halted nickel trading, but also canceled trades.  Additionally, the LME, who engaged Oliver Wyman to produce this Review, released “LME Group Response to Oliver Wyman Independent Review.”  The Executive Summary – which is all I’ve had time to read thus far – notes that:

“The primary objectives of the review were to identify the factors that contributed to market conditions in the
nickel market in the period leading up to, and including, March 8, 2022, and make recommendations for how the
LME Group could reduce the likelihood of similar events occurring again”   

Dear BLPB Readers:

The ABA’s Derivatives and Futures Law Committee’s virtual mid-year event on October 6, 2022, included fireside chats with CFTC Commissioners Johnson, Goldsmith-Romero, Mersinger, and Pham.  I wasn’t able to watch these interesting and highly-informative discussions in real-time, so I’m happy that recordings are now available and wanted to share a link to each with BLPB readers!

Fireside chat with Commissioner Johnson

Fireside chat with Commissioner Goldsmith-Romero

Fireside chat with Commissioner Mersinger

Fireside chat with Commissioner Pham

    

Today, I finally had a chance to watch a recording of the September 20, 2022, meeting of the CFTC’s Energy & Environmental Markets Advisory Committee (EEMAC). In past posts, I’ve mentioned having coauthored my first energy paper and my involvement with the University of Oklahoma’s Robert M. Zinke Energy Management Program, the first of its kind in the U.S.! The roles of derivatives in energy and commodity markets is increasingly in the spotlight. For example, last spring, European energy traders reached out to the European Central Bank (ECB) for emergency liquidity support because of clearinghouse collateral calls, but the ECB declined to assist. And there was the LME nickel incident of March 2022 (a post here). Undoubtedly, the interconnections between energy and financial markets, particularly derivatives, are set to become increasingly critical, especially in the global transition to a clean energy future.

The EEMAC meeting focused on two topics: 1) “Investment in physical energy infrastructure and the effect on price volatility in the commodities markets” and 2) “The role of the metals market as components in transitional energy sources and the potential impact on financial markets regulated by the CFTC.” The agenda can be found is…

Professor Caleb Griffin (University of Arkansas School of Law) offered testimony before the Senate Committee on Banking, Housing, and Urban Affairs in June of 2022 on problems associated with the fact that the “Big Three” index fund managers (Vanguard, BlackRock, and State Street) cast almost a quarter of the votes at S&P 500 companies. As a result, enormous power is concentrated in the hands of just a few index fund managers, whose interests and values may not align with those whose shares they are voting. Professor Griffin proposed two solutions to this problem: (1) “categorical” pass-through voting, and (2) vote outsourcing. Professor Griffin’s remarks were recently posted here, and here’s the abstract:

In recent years, index funds have assumed a new and unprecedented role as the most influential players in corporate governance. In particular, the “Big Three” index fund managers—Vanguard, BlackRock, and State Street—occupy a pivotal role. The Big Three currently cast nearly a quarter of the votes at S&P 500 companies, and that figure is expected to grow to 34% by 2028 and over 40% in the following decade.

The best solution to the current problem—where we have virtually powerless index investors and enormous, concentrated power in the…

Dear BLPB Readers:

This Friday, October 28th, at 10am ET, the Wharton Initiative on Financial Policy and Regulation is hosting an hour-long online seminar with Professor Joshua C. Macey on Market Power and Financial Risk in U.S. Payment Systems.  It should be a great event!  Registration information and a link to the whitepaper is here: Download Market Power_Financial Risk

Dear BLPB Readers,

Today, I had an opportunity to review a recording of the September 28th meeting of the CFTC’s Market Risk Advisory Committee (MRAC).  For those of you who might have also missed the opportunity to view it in real time and are interested in learning more about the Committee’s work, a recording is here and I list the various sections of the meeting, with approximate start times, below.

Section 1: The Future of Finance (32:25)

Section 2: Climate Related Market Risk (1:09)

Section 3: Interest Rate Benchmark Reform – Transition Away From LIBOR (1:43:50)

Section 4: CCP Risk and Governance and the Transition of CCP Services to the Cloud (1:55)

Section 5: Market Structure (2:12:50)   

Today, I enjoyed reading Professor Christina Parajon Skinner’s timely and important new article, The Monetary Executive, forthcoming in the George Washington Law Review.  It’s definitely a worthwhile read!  Here’s the abstract:

“As inflation in 2022 surges to a forty-year high, economists, lawmakers, and the public continue to question why. As part of that inquiry, experts and onlookers seek explanations grounded in errors recently made by the central bank, the U.S. Federal Reserve. This Article argues that, while there is no doubt a host of contributing factors to the current bout of inflation, the President’s role remains comparatively understudied. In particular, the Article adds a new dimension to the growing literature on the fiscal foundations of inflation by studying its longstanding statutory roots, which can be traced back to the New Deal Era. Although the Framers of the Constitution were deliberate in vesting power over money and spending with Congress, and separating it from the President, in time, Congress eroded this separation with successive ad hoc delegations directly to the Executive. As a consequence, today, the President has far more influence over money in the economy—and levers for “fiscal dominance”—than the Constitution arguably allows, casting a long