Howell E. Jackson

James S. Reid, Jr. Professor of Law

Biography

Howell Jackson is the James S. Reid, Jr., Professor of Law at Harvard Law School. His research interests include financial regulation, consumer protection, international finance, and federal budget policy.  Professor Jackson is currently a Visiting Scholar at the Consumer Financial Protection Bureau.  He has previously served as a consultant to the United States Treasury Department, the United Nations Development Program, and the World Bank/International Monetary Fund, and frequently consults with government agencies and congressional committees on issues related to financial regulation.  Professor Jackson is the chairman of the board of College Retirement Equities Fund (CREF) and affiliated TIAA-CREF investment companies, the editor of the SSRN Regulation of Financial Institutions eJournal, and a senior editor for Cambridge University Press Series on International Corporate Law and Financial Regulation. Professor Jackson is also a director of the D2D Fund, a non-profit dedicated to strengthening financial opportunities of low and moderate income consumers.  He is co-author of Financial Regulation: Law and Policy (forthcoming Foundation Press 2015); Analytical Methods for Lawyers (Foundation Press 2003; Second Edition 2011), Regulation of Financial Institutions (West 1999); co-editor of Fiscal Challenges: An Inter-Disciplinary Approach to Budget Policy (Cambridge University Press 2008); and author of numerous scholarly articles. At Harvard University, Professor Jackson has served as Senior Advisor to the President and Acting Dean of Harvard Law School.  Before joining the Harvard Law School faculty in 1989, Professor Jackson was a law clerk for Associate Justice Thurgood Marshall and practiced law in Washington, D.C. Professor Jackson received J.D. and M.B.A. degrees from Harvard University in 1982 and a B.A. from Brown University in 1976.

Areas of Interest

Michael S. Barr, Howell E. Jackson & Margaret E. Tahyar, Financial Regulation: Law and Policy (Found. Press 2016).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Consumer Finance
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Investment Products
,
Fiduciary Law
,
Commercial Law
,
Consumer Protection Law
,
Business Organizations
,
Corporate Governance
,
Congress & Legislation
,
Administrative Law & Agencies
Type: Book
Howell E. Jackson & Jeffery Y. Zhang, Private and Public Enforcement in Securities Regulation, in The Oxford Handbook of Corporate Law and Governance (Jeffrey Gordon & Wolf-Georg Ringe eds., 2015).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Book
Abstract
This chapter examines the impact of private and public enforcement of securities regulation on the development of capital markets. After a review of the literature, it considers empirical findings related to private and public enforcement as measured by formal indices and resources, with particular emphasis on the link between enforcement intensity and technical measures of financial market performance. It then analyses the impact of cross-border flows of capital, valuation effects, and cross-listing decisions by corporate issuers before turning to a discussion of whether countries that dedicate more resources to regulatory reform behave differently in some areas of market activities. It also explores the enforcement of banking regulation and its relationship to financial stability and concludes by focusing on direct and indirect, resource-based evidence on the efficacy of the US Securities and Exchange Commission’s enforcement actions.
Howell E. Jackson, Substituted Compliance: The Emergence, Challenges, and Evolutions of a New Regulatory Paradigm, 1 J. Fin. Reg. 169 (2015).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Comparative Law
,
Foreign Law
,
European Law
,
International Monetary Systems
Type: Article
Abstract
Over the past few decades, the US Securities and Exchange Commission experimented with a number of different approaches to relaxing Securities and Exchange Commission (SEC) rules to facilitate entry of foreign firms into US capital markets. Initially, the SEC favoured an approach I denominate as modified national treatment, under which foreign firms were allowed exemption from a limited number of specific US requirements that were likely to conflict with, or be redundant with respect to, regulatory requirements in their home jurisdictions. In general, these exemptions were available regardless of the quality of home country oversight. Sometimes those exemptions were available only for transactions with large institutional investors located in the USA. Starting in 2007, the Commission began to comtemplate more far-reaching acceptance of foreign regulatory oversight, most prominently in an approach that came to be known as substituted compliance. A hallmark of substituted compliance was that it was to be selective, and thus available only to those jurisdictions that the Commission determined to be substantially comparable to US regulatory oversight. In the face of the Global Financial Crisis in 2008, the Commission backed away from its initial experiment with substituted compliance, but the exercise still offers an interesting content in which to consider the manner in which the Commission might have determined the comparability of foreign regulatory systems. This essay explores the various analytical options available for making such supervisory assessments. It then concludes with some preliminary thoughts on what might be called ‘second-generation’ substituted compliance, which the SEC and the Commodity Futures Trading Commission have begun to employ in the past few years to limit the extraterritorial application of certain provisions of the Dodd–Frank Act.
Howell Jackson & Stephanie Massman, The Resolution of Distressed Financial Conglomerates, 3 RSF: Russell Sage Found. J. Soc. Sci. 48 (2017).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Financial Markets & Institutions
,
Corporate Bankruptcy & Reorganization
Type: Article
Abstract
One of the most elegant legal innovations to emerge from the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 is the FDIC’s single-point-of-entry (SPOE) initiative, whereby regulatory authorities will be in a position to resolve the failure of large financial conglomerates (corporate groups with regulated financial entities as subsidiaries) by seizing a top-tier holding company, downstreaming holding-company resources to distressed subsidiaries, wiping out holding-company shareholders while simultaneously imposing additional losses on holding-company creditors, and allowing the government to resolve the entire group without disrupting the business operations of operating subsidiaries (even those operating overseas) or risking systemic consequences for the broader economy. Although there is much to admire in the creativity underlying SPOE, the approach’s design also raises a host of novel and challenging questions of implementation. This chapter explores a number of these questions and elaborates upon the following points. First, in contrast to traditional approaches to resolving financial conglomerates, SPOE is premised on the continued support of all material operating subsidiaries, thereby potentially extending the scope of government support and thus posing the possibility of mission creep and expanded moral hazard. Second, SPOE contemplates the automatic downstreaming of resources to operating subsidiaries in distress, but effecting that support is likely to be more difficult than commonly understood. If too much support is positioned in advance, there may be inadequate reserves at the top level to support a single subsidiary that gets into an unexpectedly large amount of trouble. Alternatively, if too many reserves are retained at the holding-company level, commitments of subsidiary support may not be credible (especially to foreign authorities) and it may become difficult legally and practically to deploy those resources in times of distress. SPOE is most easy to envision operating in conjunction with the FDIC’s expanded authority under its Orderly Liquidation Authority (OLA) established under Title II of the Dodd-Frank Act. However, the act’s preferred regime for resolving failed financial conglomerates is the U.S. Bankruptcy Code (where Lehman was resolved) and not OLA. Several complexities could arise were a bankruptcy court today called upon to implement an SPOE resolution plan. While many legal experts are working on legislative proposals to amend the Bankruptcy Code to facilitate SPOE resolutions, there are a number of legal levers that federal authorities could deploy under current law to increase the likelihood that the SPOE strategy could be effected through traditional bankruptcy procedures. The task would be challenging and would require considerable advanced planning. But there are substantial benefits to be had from taking steps now to increase the likelihood that the bankruptcy option represents a viable and credible alternative for effecting SPOE transactions without resort to OLA and Title II of the Dodd-Frank Act.
Michael S. Barr, Howell E. Jackson & Margaret E. Tahyar, Finance Today, in Financial Regulation: Law and Policy ch. 1.1 (Found. Press, May 2016).
Categories:
Banking & Finance
Sub-Categories:
Finance
Type: Article
Abstract
Financial Regulation: Law and Policy is a new textbook that aims to teach students about today's financial sector with a modular, accessible, balanced, practical, and ready-to-use approach. Our goal is to give students the tools to understand how American history and political economy have shaped the regulatory perimeter, how different policy choices have been made at different times across different parts of the financial sector, and how these choices matter a great deal in shaping not only financial stability, but also how the financial sector supports the economy and society. The textbook includes chapters on Insured Depository Institutions, Insurance, Securities Firms and Capital Markets, Consumer Protection and the CFPB, Financial Conglomerates, Payment Systems, Corporate Governance, Lender of Last Resort and Resolution, Mutual Funds and Other Investment Vehicles, Derivatives and Rate Markets, and Shadow Banking. The textbook comes with a teacher's manual that explores key themes, suggests a range of teaching approaches, answers questions posed in the textbook, and includes class slides for each chapter. This download contains the summary table of contents and Chapter 1.1: Finance Today.
Howell E. Jackson & Jeffrey Y. Zhang, Private and Public Enforcement of Securities Regulation, in Oxford Handbook of Corporate Law and Governance (Jeffrey N. Gordon & Wolf-Georg Ringe eds., 2015).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Book
Abstract
This chapter examines the impact of private and public enforcement of securities regulation on the development of capital markets. After a review of the literature, it considers empirical findings related to private and public enforcement as measured by formal indices and resources, with particular emphasis on the link between enforcement intensity and technical measures of financial market performance. It then analyses the impact of cross-border flows of capital, valuation effects, and cross-listing decisions by corporate issuers before turning to a discussion of whether countries that dedicate more resources to regulatory reform behave differently in some areas of market activities. It also explores the enforcement of banking regulation and its relationship to financial stability and concludes by focusing on direct and indirect, resource-based evidence on the efficacy of the US Securities and Exchange Commission’s enforcement actions.
Allison K. Hoffman & Howell E. Jackson, Retiree Out-of-Pocket Healthcare Spending: A Study of Consumer Expectations and Policy Implications, 39 Am. J.L. & Med. 62 (2013).
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Labor & Employment
Sub-Categories:
Empirical Legal Studies
,
Health Law & Policy
,
Elder Law
,
Retirement Benefits & Social Security
Type: Article
Abstract
Even though most American retirees benefit from Medicare coverage, a mounting body of research predicts that many will face large and increasing out-of-pocket expenditures for healthcare costs in retirement and that many already struggle to finance these costs. It is unclear, however, whether the general population understands the likely magnitude of these out-of-pocket expenditures well enough to plan for them effectively. This study is the first comprehensive examination of Americans’ expectations regarding their out-of-pocket spending on healthcare in retirement. We surveyed over 1700 near retirees and retirees to assess their expectations regarding their own spending and then compared their responses to experts’ estimates. Our main findings are twofold. First, overall expectations of out-of-pocket spending are mixed. While a significant proportion of respondents estimated out-of-pocket costs in retirement at or above expert estimates of what the typical retiree will spend, a disproportionate number estimated their future spending substantially below what experts view as likely. Estimates by members of some demographic subgroups, including women and younger respondents, deviated relatively further from the experts’ estimates. Second, respondents consistently misjudged spending uncertainty. In particular, respondents significantly underestimated how much individual health experience and changes in government policy can affect individual out-of-pocket spending. We discuss possible policy responses, including efforts to improve financial planning and ways to reduce unanticipated financial risk through reform of health insurance regulation.
John C. Campbell, Howell E. Jackson, Brigitte Madrian & Peter Tufano, Consumer Financial Protection, 25 J. Econ. Persp. 91 (2011).
Categories:
Consumer Finance
,
Banking & Finance
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Investment Products
,
Fiduciary Law
,
Consumer Protection Law
Type: Article
Abstract
The recent financial crisis has led many to question how well businesses deliver services and how well regulatory institutions address problems in consumer financial markets. This paper discusses consumer financial regulation, emphasizing the full range of arguments for regulation that derive from market failure and from limited consumer rationality in financial decision making. We present three case studies—of mortgage markets, payday lending, and financing retirement consumption—to illustrate the need for, and limits of, regulation. We argue that if regulation is to be beneficial, it must be tailored to specific problems and must be accompanied by research to measure the effectiveness of regulatory interventions.
John Y. Campbell, Howell E. Jackson, Brigitte C. Madrian & Peter Tufano, Making Financial Markets Work For Consumers, 89 Harv. Bus. Rev. 47 (2011).
Categories:
Consumer Finance
,
Banking & Finance
Sub-Categories:
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Consumer Protection Law
Type: Article
Abstract
The authors offer advice to the head of the new Consumer Financial Protection Bureau. They review the principles that provide justification for regulation and offer guidance on how to approach regulation and how to manage the new bureau. They advocate for a principles-based, data-driven approach to regulation.
Howell E. Jackson, Loan-Level Disclosure in Securitization Transactions: A Problem with Three Dimensions, in Moving Forward: The Future of Consumer Credit and Mortgage Finance 189 (Nicolas P. Retsinas & Eric S. Belsky eds., Brookings Inst. Press 2011).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Consumer Finance
Sub-Categories:
Banking
,
Commercial Law
,
Contracts
,
Finance
,
Financial Markets & Institutions
,
Secured Transactions
,
Consumer Protection Law
,
Securities Law & Regulation
Type: Book
John Campbell, Howell E. Jackson, Brigitte C. Madrian & Peter Tufano, The Regulation of Consumer Financial Products: An Introductory Essay with a Case Study on Payday Lending, in Moving Forward: The Future of Consumer Credit and Mortgage Finance 206 (Nicolas P. Retsinas & Eric S. Belsky eds., Brookings Inst. Press 2011).
Categories:
Banking & Finance
,
Consumer Finance
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Consumer Protection Law
,
Consumer Contracts
Type: Book
Howell E. Jackson, Louis Kaplow, Steven M. Shavell, W. Kip Viscusi & David Cope, Analytical Methods for Lawyers (Found. Press 2nd ed. 2010).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Legal Education
Type: Book
Abstract
This law school casebook was developed by a team of professors at Harvard Law School to introduce students with little or no quantitative background to the basic analytical techniques that attorneys need to master to represent their clients effectively. This casebook presents clear explanations of decision analysis, games and information, contracting, accounting, finance, microeconomics, economic analysis of the law, fundamentals of statistics, and multiple regression analysis. References and examples have been thoroughly updated for this 2d edition, and exposition of a number of key topics has been reworked to reflect insights gained from teaching these topics using the 1st edition to many hundreds of Harvard Law students over the past decade.
Matthew C. Stephenson & Howell E. Jackson, Lobbyists as Imperfect Agents: Implications for Public Policy in a Pluralist System, 47 Harv. J. on Legis. 1 (2010).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Government Transparency
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Article
Abstract
Interest group pluralism presumes that public policy outcomes are determined principally through a contest for influence among organized pressure groups. Most interest groups, however, do not represent themselves in this process. Rather, they rely on professional lobbyists for representation, information, and advice. These lobbyists, however, may have their own interests, which may not align perfectly with those of their clients. This Essay outlines this principal agent problem and suggests its possible implications for policy outcomes. In particular, this piece hypothesizes that the lobbyist-client agency problem may create four notable consequences: (1) it may bias policy in favor of small homogenous groups; (2) it may exacerbate status quo bias; (3) it may promote expansive delegations of power and rulemaking to administrative agencies; and (4) it may impede systematic reforms to the policymaking process.
John Y. Campbell, Howell E. Jackson, Brigitte C. Madrian & Peter Tufano, The Regulation of Consumer Financial Products: An Introductory Essay with Four Case Studies (HKS Faculty Research Working Paper Series RWP10-040, John F. Kennedy Sch. Gov't, Harv. Univ., Sept. 2010).
Categories:
Consumer Finance
,
Banking & Finance
Sub-Categories:
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Consumer Protection Law
Type: Article
Abstract
The recent financial crisis has led many to question how well businesses deliver consumer financial services and how well regulatory institutions address problems in consumer financial markets. In response, the Obama administration proposed a new agency to oversee consumer financial services, and the recently enacted Dodd-Frank Wall Street Reform and Consumer Protection Act embraced the Administration’s proposal by creating the Bureau of Consumer Financial Protection. Other regulatory reforms have been advanced, and in some cases adopted, in recent years, at both the federal and state level. In this paper, we provide an overview of consumer financial markets, detailing the purposes they serve, the extent to which they suffer from market failures or other deficiencies, and the structure of our current system of regulation. To illustrate our analytical framework, we present case studies on retirement savings, residential mortgages, payday lending, and mutual funds. We conclude with a series of observations on the limits of government intervention, suggestions about how to measure whether government intervention is successful, and potentially fruitful lines of future research and data collection.
Howell E. Jackson & Mark J. Roe., Public and Private Enforcement of Securities Laws: Resource-Based Evidence, 93 J. Fin. Econ. 207 (2009).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Financial Markets & Institutions
,
Securities Law & Regulation
,
Corporate Law
,
Corporate Governance
,
Remedies
,
Private Law
,
Practice & Procedure
,
Courts
Type: Article
Abstract
Ascertaining which enforcement mechanisms work to protect investors has been both a focus of recent work in academic finance and an issue for policy-making at international development agencies. According to recent academic work, private enforcement of investor protection via both disclosure and private liability rules goes hand in hand with financial market development, but public enforcement fails to correlate with financial development and, hence, is unlikely to facilitate it. Our results confirm the disclosure result but reverse the results on both liability standards and public enforcement. We use securities regulators’ resources to proxy for regulatory intensity of the securities regulator. When we do, financial depth regularly, significantly, and robustly correlates with stronger public enforcement. In horse races between these resource-based measures of public enforcement intensity and the most common measures of private enforcement, public enforcement is overall as important as disclosure in explaining financial market outcomes around the world and more important than private liability rules. Hence, policymakers who reject public enforcement as useful for financial market development are ignoring the best currently available evidence.
Howell E. Jackson, Learning From Eddy: A Meditation Upon Organizational Reform of Financial Supervision in Europe, in Perspectives in Company Law and Financial Regulation: Essays in Honour of Eddy Wymeersch (Michael Tison, Hans De Wulf, Christoph Van der Elst & Reinhard Steennot eds., 2009).
Categories:
International, Foreign & Comparative Law
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
European Law
Type: Book
Abstract
In this essay written in honor of the retirement of Eddy Wymeersch, Professor Howell Jackson explores the manner in which European nations have moved towards more consolidated systems of financial regulation and discusses the implications of the European experience for the United States. While U.S. policy debates over regulatory reform often reduce to theoretical claims regarding the benefits and pitfalls of consolidation, the consolidation of oversight within the members states of the European Union offers many concrete examples of how consolidated supervision actually works. European experience demonstrates that there are many different ways in which to implement consolidated regulation, and often times the process of consolidation occurs gradually over a number of years. In addition to the expected advantages of increased efficiency and the elimination of regulatory gaps, European experience suggests that consolidated regulatory agencies often attract higher quality personnel and do a better job maintaining consistency across different sectors of the financial services industry. In addition, European reforms have devised a number of mechanisms to ensure that consolidated agencies remain politically accountable and resolve policy conflicts in an efficient and timely manner.
Howell E. Jackson, Toward a New Regulatory Paradigm for the Trans-Atlantic Financial Market and Beyond: Legal and Economic Perspectives, in Global Capital Markets and the U.S. Securities Laws 2009: Strategies for the Changing Regulatory Environment 1205 (Nicolas Grabar & Ethiopis Tafara eds., Practising Law Inst. 2009).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
Securities Law & Regulation
,
European Law
,
International Monetary Systems
Type: Book
Abstract
.
Howell E. Jackson, The Trilateral Dilemma in Financial Regulation, in Overcoming the Saving Slump: How to Increase the Effectiveness of Financial Education and Saving Programs 82 (Anna Maria Lusardi ed., 2009).
Categories:
Banking & Finance
,
Consumer Finance
,
Property Law
,
Corporate Law & Securities
Sub-Categories:
Financial Markets & Institutions
,
Fiduciary Law
,
Consumer Protection Law
,
Fiduciaries
,
Securities Law & Regulation
,
Insurance Law
,
Real Estate
,
Retirement Security
Type: Book
Abstract
In choosing financial products and services, consumers often rely on financial advisers to recommend products or services. With surprising frequency, these advisers receive side payments or other forms of compensation from the firms that provide the products or services the advisers recommend. Many times these payments are not clearly disclosed to consumers; often they are entirely secret. These practices, which I label the trilateral dilemma of financial regulation, raise concerns that advisers may be giving their customers biased advice. Side payments of this sort also have the potential to increase the cost of financial products and services. In this article, I describe how trilateral dilemmas have arisen in many different sectors of the financial services industry, including mortgage lending, retirement savings, investment management, insurance brokering, student loans, and banking services. I then review the many different regulatory strategies that Congress and regulatory agencies have employed to police trilateral dilemmas and assess the efficacy of these techniques in solving the problems that side payments of this sort pose. I also evaluate the possibility that side payments and other forms of indirect compensation may in fact be an efficient or at least innocuous means of financing the cost of distributing financial products and services. The article concludes with a brief discussion of how consumer education might address trilateral dilemmas.
Howell E. Jackson, A Pragmatic Approach to the Phased Consolidation of Financial Regulation in the United States (Harvard Public Law Working Paper No. 09-19, Nov. 12, 2008).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Investment Products
,
Risk Regulation
Type: Article
Abstract
This essay proposes a phased transformation of financial regulation in the United States to focus the Federal Reserve Board on oversight of market stability, including systemically important institutions throughout the financial services industry, and to assign all other regulatory functions, including routine supervision and consumer protection, to an independent consolidated agency. I. The authority of the Federal Reserve Board to oversee financial market stability should be expanded to cover all sources of systemic risk in the financial services industry, should be structured to coordinate effectively with other supervisory agencies, and should be designed to allow for consistent, appropriate forms of intervention in response to systemic risks. II. Even after the authority of the Federal Reserve Board has been expanded, the consolidation of other federal financial regulatory functions should proceed; the experience of other leading jurisdictions indicates that consolidated supervision offer numerous benefits in terms of the quality and completeness of financial regulation and that the principal objections to consolidated supervision can be met through statutory safeguards and institutional design. III: Experience in other leading jurisdictions also demonstrates that many of the benefits of consolidated oversight can be achieved without the statutory consolidation of front-line supervisory units and the world's premiere consolidated agency, the British FSA, was established in a multi-stage process whereby the enactment and implementation of new substantive statutes did not occur until the FSA has been in operations for several years. IV. Drawing on these experiences, U.S. regulatory consolidation should follow a four-stage process: 1) immediate enhancement of the President's Working Group on Financial Markets; 2) prompt enactment of legislation creating an independent United States Financial Services Authority (USFSA or Authority) to provide industry-wide oversight, coordinate existing regulatory structures, and lay the groundwork for combination of existing supervisory agencies; 3) a second round of legislation authorizing the merger into the USFSA all other federal supervisory agencies; and 4) resolution of the organizational structure of the Authority should be postponed until regulatory consolidation is complete. V. This four-phase approach to regulatory consolidation improves the likelihood of successful transition by delaying controversial decisions, avoiding unnecessary steps, and providing an organizational structure that can lead reform while safeguarding continuity of supervision. VI. The creation of a United States Financial Services Authority is also consistent with expansion of the Federal Reserve Board's role in overseeing market stability and would actually improve the capacity of the Board to perform that function effectively.
Margaret E. Tahyar, Jaap Willeumier, Eric J. Pan, Howell E. Jackson & Eilis Ferran, Final Report of the Securities Law Subcommittee of the Task Force on Extraterritorial Jurisdiction of the International Bar Association (July 1, 2008).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Comparative Law
,
Foreign Law
,
European Law
,
Global Lawyering
Type: Article
Abstract
The International Bar Association's Securities Law Subcommittee of the Task Force on Extraterritorial Jurisdiction, comprised of a panel of academics, practitioners, senior in-house counsel at financial institutions and former regulators, has produced this report examining the need for reform of the regulation of the global securities markets. The report reviews approaches to addressing problems such as mutual recognition, regulatory convergence and disparities in enforcement intensity and makes a series of recommendations. The Subcommittee urges reform of domestic regulatory systems with a view towards its international impact and argues that such reform should be an urgent priority for legislative and regulatory bodies in major financial centers. (Full list of Subcommittee members located in the text of the report.)
Howell E. Jackson, Counting the Ways: The Structure of Federal Spending, in Fiscal Challenges: An Interdisciplinary Approach to Budget Policy 185 (Elizabeth Garrett, Elizabeth Graddy & Howell E. Jackson eds., 2008).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Finance
,
Financial Reform
,
Government Benefits
,
Congress & Legislation
,
Government Accountability
Type: Book
Abstract
Public discussion of federal fiscal policy typically focuses on several familiar metrics of performance, including the total deficit, the level of public debt and percentage of federal spending committed to mandatory spending and net interest payments. While useful, these measures are based on accounting conventions developed years ago, and do not capture many of the ways in which the federal government now commits public resources, including obligated budget authority, guarantees associated with various government insurance programs, retirement benefits for federal workers and military personnel, and - most substantially - federal social insurance programs such as Social Security and Medicare. Collectively these programs and activities represent substantial and largely overlooked current commitments of future federal resources. After reviewing current measures of fiscal performance, the article presents several alternative ways to quantify federal financial performance over the first half of this decade utilizing more comprehensive measures of mounting federal financial obligations. So, for example, while the commonly reported total deficit of the federal government in FY2005 was $318 billion, a more comprehensive measure of fiscal results over the course of the same year would have shown a deterioration in the country's net financial position in excess of $3.3 trillion - that is, an order of magnitude larger. To promote more informed debate and encourage more responsible public leadership, the more comprehensive measures of fiscal performance described in this article should be adopted as the primary metrics for reporting the financial performance of the federal government. (US, Canada).
Fiscal Challenges: An Interdisciplinary Approach to Budget Policy (Elizabeth Garrett, Elizabeth Graddy & Howell E. Jackson eds., Cambridge Univ. Press 2008).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Congress & Legislation
,
Administrative Law & Agencies
,
Government Accountability
,
Government Transparency
,
Public Law
,
Separation of Powers
Type: Book
Abstract
An Interdisciplinary Approach to Budget Policy Elizabeth Garrett, Elizabeth A. Graddy, Howell E. Jackson. 6 Counting the Ways The Structure of Federal Spending Howell E. Jackson In the realm of budget policy, numbers are important. ... and suggestions from participants at the February 2006 Conference on Fiscal Challenges: An Interdisciplinary Approach to Budget Policy held at USC Law School and ...
Howell E. Jackson & Eric Pan, Regulatory Competition in International Securities Markets: Evidence from Europe - Part II, 3 Va. L. & Bus. Rev. 207 (2008).
Categories:
Banking & Finance
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Administrative Law & Agencies
,
Congress & Legislation
,
Public Law
,
European Law
,
Comparative Law
,
Foreign Law
Type: Article
Abstract
This article presents the second installment of an empirical investigation into regulatory competition in international securities markets. It contributes to the current debate about competitiveness of U.S. capital markets by offering an account of transatlantic capital raising practices at the height of technology boom of the 1990s and before the passage of the Sarbanes-Oxley Act of 2002 and the corporate scandals that precipitated the Act. This article provides evidence that European issuers in the late 1990s were already turning away from U.S. public capital markets. While regulatory considerations appear to have played a role in that trend, even more important were the growing importance of private means of access of U.S. capital, the increased off-shore presence of U.S. institutional investors, and the relatively unsatisfactory trading performance of many foreign issuers that had gone to the trouble of obtaining U.S. public listings early in the 1990s. The picture of transatlantic capital raising presented in our survey suggests that the recent decline in competitiveness of U.S. capital markets may well be more a product of long-standing trends in global financial markets than a response to the Sarbanes-Oxley Act or other requirements of federal securities laws. We have supplemented our original analysis with a post-script from the vantage point of 2008 to draw connections between our findings and those of recent academic literature.
Howell E. Jackson, A System of Selective Substitute Compliance, 48 Harv. Int'l. L. J. 105 (2007).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
,
Corporate Law & Securities
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Securities Law & Regulation
,
Foreign Law
,
European Law
,
Comparative Law
Type: Article
Stavros Gadinis & Howell E. Jackson, Markets as Regulators: A Survey, 80 S. Cal. L. Rev. 1239 (2007).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Article
Abstract
Stock exchanges around the world have recently discarded their traditional mutual membership structure in favor of a for-profit corporate format. This development increased fears of conflicts of interest, as for-profit exchanges are more sensitive to pressures from their constituents and more likely to abuse their regulatory powers. In this Article, we explore the allocation of regulatory responsibilities to market infrastructure institutions, administrative agencies, and central government entities in the eight most influential jurisdictions for securities regulation in the world. Examining how different jurisdictions answer this question is particularly pressing given the December 2006 transatlantic stock exchange merger activity. After discussing the role of self-regulatory organizations in the oversight of modern stock exchanges, we report the results of a survey of the allocation of regulatory powers in a sample of eight key jurisdictions. In that survey, we examine the allocation (of such powers at three levels: rulemaking, monitoring of compliance with these rules, and enforcement of rules violations. Based on our findings, we categorize these jurisdictions in three distinct models of allocation of regulatory powers: a Government-led Model that preserves significant authority for central government control over securities markets regulation, albeit with a relatively limited enforcement apparatus (France, Get-many, and Japan); a Flexibility Model that grants significant leeway to market participants in performing their regulatory obligations, but relies on government agencies to set general policies and maintain some enforcement capacity (United Kingdom, Hong Kong, and Australia); and a Cooperation Model that assigns a broad range of power to market participants in almost all aspects of securities regulation, but also maintains strong and overlapping oversight of market activity through well-endowed governmental agencies with more robust enforcement traditions (United States and Canada).
Howell E. Jackson & Stacy A. Anderson, Can States Tax National Banks to Educate Consumers About Predatory Lending Practices?, 30 Harv. J. L. & Pub. Pol'y. 831 (2007).
Categories:
Banking & Finance
,
Government & Politics
,
Taxation
Sub-Categories:
Banking
,
State & Local Government
,
Taxation - State & Local
Type: Article
Abstract
Over the past quarter century, consumer lending markets in the United States have become increasingly national in scope with large national banks and other federally chartered institutions playing an ever important role in many sectors, including credit card lending and home mortgages. At the same time, a series of court decisions have ruled that a wide range of state laws regulating credit card abuses and predatory mortgage lending practices are preempted at least as applied to national banks and other federally chartered institutions. Given the dominant role of federal institutions in our country’s lending markets, these rulings have narrowed the capacity of states to police local lending transactions. As an alternative to direct regulation, the California Assembly recently considered legislation designed to improve consumer understanding of financial transactions through educational efforts to be financed by a new state tax on income from certain problematic loans made to California residents by financial institutions, including national banks and other federally chartered institutions. In this Article, we consider whether a tax of the sort proposed in California could survive a preemption challenge under recent court rulings as well as other potential constitutional attacks. While the States have quite limited powers to regulate federally chartered financial institutions, Congress in 12 U.S.C. § 548 explicitly authorizes states to tax national banks. We explore the scope of state taxing authority that § 548 and the relationship between that authority and recent preemption rulings After reviewing a range of legal precedents, we conclude that a state tax of the sort considered in California—which impose modest levies on federally chartered entities but do not prevent these from engaging in otherwise authorized activities— should qualify as a legitimate exercise of state taxing powers under 12 U.S.C. § 548 and also should withstand scrutiny under the Due Process and Commerce Clauses to the extent the tax is imposed on out-of-state banks.
Howell E. Jackson & Laurie Burlingame, Kickbacks or Compensation: The Case of Yield Spread Premiums, 12 Stan. J.L. Bus. & Fin. 289 (2007).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
,
Property Law
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Empirical Legal Studies
,
Administrative Law & Agencies
,
Congress & Legislation
,
Real Estate
Type: Article
Abstract
This article addresses whether yield spread premiums are harmful to consumers and, if so, how the practice might be regulated. Yield spread premiums are payments made to mortgage brokers by lending institutions based on the rate of interest charged on a borrower's loan, with higher interest rates producing higher yield spread premiums payments. While the legality and merits of these payments have been hotly debated over the past decade - in federal courts, before Congress, and elsewhere - little academic writing has seriously grappled with the fundamental questions this paper addresses. After describing the regulatory framework for yield spread premiums, the article reviews the unresolved empirical questions underlying the policy and legal debates over these payments. The article then presents an empirical study of approximately 3,000 mortgage financings of a major lending institution, the results of which suggest that yield spread premiums allow mortgage brokers to extract materially higher payments from consumers than in transactions without such payments. Contrary to claims of industry representatives, the study suggests that consumers fail to fully recoup the cost of these payments. Our best estimate is that consumers get less than thirty-five cents of value for every dollar of yield spread premiums. The study also provides evidence that the payment of yield spread premiums may allow mortgage brokers to engage in price discrimination among borrowers, with the least sophisticated borrowers being particularly susceptible to abusive pricing practices. The article concludes with a brief discussion of the implications of these results for the regulation of yield spread premiums.
Howell E. Jackson, The Impact of Enforcement: A Reflection, 156 U. Pa. L. Rev. 400 (2007) (In response to John C. Coffee, Jr., Law and the Market: The Impact of Enforcement, 156 U. Pa. L. Rev. 229 (2007).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Article
Howell E. Jackson, Variation in the Intensity of Financial Regulation: Preliminary Evidence and Potential Implications, 24 Yale J. on Reg. 253 (2007).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Government & Politics
,
Corporate Law & Securities
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Securities Law & Regulation
,
Empirical Legal Studies
,
Administrative Law & Agencies
,
Congress & Legislation
Type: Article
Abstract
This article begins with a discussion of the considerable difficulties of conducting a theoretically complete analysis of the costs and benefits of financial regulation, as well as the problems associated with making international comparisons between observed levels of the intensity of financial regulation. Notwithstanding these difficulties, the author next presents preliminary data about the direct regulatory costs of financial regulation in the US and offer some tentative international comparisons. Compared to at least the UK and Germany, the intensity of securities enforcement actions in the US appears to be strikingly higher. Not only are there more financial regulators in the US, but they also carry bigger sticks than their foreign counterparts. The article concludes with some thoughts about additional lines of research in this area and the implications of this data for the ongoing debate over regulatory convergence.
Howell E. Jackson, An American Perspective on the UK Financial Services Authority: Politics, Goals & Regulatory Intensity, in Regulatory Reforms in the Age of Financial Consolidation: The Emerging Market Economy and Advanced Countries 39 (Lee-Jay Cho & Joon-Kyung Kim eds., 2006).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
Investment Products
,
Comparative Law
Type: Book
Abstract
Although similarities between the British and American systems of financial regulation are often remarked upon in academic commentary, the organizational structure of financial supervision in the two countries has diverged substantially in the past decade, as the United Kingdom has now largely consolidated its financial regulatory agencies in the Financial Services Authority whereas the United States has maintained the world's most decentralized and fragmented collection of financial supervisory agencies. In this essay, Professor Howell Jackson explores various reasons why financial regulation in these two countries differs so dramatically in organizational structure. Focusing first on the differences in political economy that surrounded the enactment of the Financial Services and Markets Act of 2000 in the United Kingdom and the Gramm-Leach-Bliley Act of 1999 in the United States, Professor Jackson discusses deeper differences in the regulatory philosophies of the two countries and also presents data on the relative intensity of financial regulation in both jurisdictions. He speculates that the comparatively more ambitious regulatory agenda of the U.S. system pushes the country towards a more elaborate system of financial oversight that is inherently more difficult to consolidate. In the United Kingdom, in contrast, the goals of the financial regulators are more modest and, to the extent that cost efficiency is one of the country's regulatory objectives in the field of financial regulation, that policy tends to foster a less cumbersome system of financial regulation that more easily accommodates consolidation of regulatory functions. The paper concludes with some broader comparative data suggesting that while British financial regulation may be less intensive than financial regulation in the United States, it is substantially more intensive than financial regulation in many other jurisdictions, particularly civil law jurisdictions on the Continent.
Howell E. Jackson, Comments: Risk and Capital Regulations on SME Loans in Korea, in Regulatory Reforms in the Age of Financial Consolidation: The Emerging Market Economy and the Advanced Countries 285 (Lee-Jay Cho & Joon-Kyung Kim eds., 2006).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Investment Products
,
East Asian Legal Studies
Type: Book
Howell E. Jackson, Andreas M. Fleckner & Mark Gurevich, Foreign Trading Screens in the United States, 1 Cap. Markets L.J. 54 (2006)
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Securities Law & Regulation
,
European Law
Type: Article
Abstract
Remote trading screens allow investors to trade on exchanges located in other jurisdictions. The Securities and Exchange Commission (‘SEC’) has generally prohibited the placement of foreign trading screens in the United States unless the associated exchange complies with US regulatory requirements. While the SEC defends its position as an essential investor protection, European officials complain that SEC requirements constitute an unfair barrier to trade. This article argues that technological advances have largely mooted this contro-versy. Current requirements do not protect US investors as much as the SEC claims nor do they inhibit competition as much as the SEC's critics assert. To the extent that alternative trading mechanisms already give US investors de facto access to unregulated foreign exchanges, the SEC may well choose to revisit its position on foreign trading screens, particularly as US and European financial markets become more integrated and disclosure requirements on both sides of the Atlantic converge over the next few years.
Howell E. Jackson, Accounting for Social Security Benefits, in Behavioral Public Finance (Edward J. McCaffery & Joel Slemrod eds., 2006).
Categories:
Government & Politics
,
Labor & Employment
Sub-Categories:
Government Benefits
,
Retirement Benefits & Social Security
Type: Book
Abstract
For most working Americans, Social Security benefits represent a significant financial asset, in many cases their principal or sole source of retirement income.1 According to the Social Security Administration (SSA), the aggregate present value of Social Security benefits promised to those age sixty-two and older was $4.3 trillion dollars in January 2003 (U.S. Social Security Administration 2003).
Kern Alexander, Ellis Ferran, Howell E. Jackson & Niamh Moloney, Transatlantic Financial Services Regulatory Dialogue, 7 Eur. Bus. Org. L. Rev. 647 (2006).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Securities Law & Regulation
,
European Law
Type: Article
Abstract
The EU Financial Markets Dialogue led by the SEC and the European Commission has achieved some notable successes, particularly with respect to the consolidated supervision of financial conglomerates and the development of a plan to achieve convergence in corporate financial reporting. On both sides of the Atlantic, there is a clear ongoing commitment to the dialogue as a key mechanism for the development of efficient and credible regulatory solutions that guarantee effective investor protection and a high level of business efficiency. This paper reports on a two-day roundtable discussion that took place at Cambridge University in September 2005 to explore ways in which the academic community can contribute to this transatlantic debate. Lively discussion between the policy-makers, regulators, market participants and academics who attended the roundtable yielded a number of thematic concerns, which, the paper suggests, could form the basis of a programme for further work. Finally, the paper announces the establishment of a seminar series, to be based in the United Kingdom, on the Transatlantic Financial Services Regulatory Dialogue and invites contributions.
Howell E. Jackson, Consolidated Capital Regulation for Financial Conglomerates, in Capital Adequacy Beyond Basel: banking, securities, and insurance 124 (Hal Scott ed., 2005).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Investment Products
,
Financial Reform
Type: Book
Abstract
Over the past few years, financial regulators have devoted considerable attention to the development of consolidated capital rules for financial conglomerates. This chapter explores the theoretical justifications for these new requirements and explains that the case for consolidated capital oversight consists of four separate lines of argument: technical weaknesses inherent in traditional entity-level capital requirements; unique risks associated with financial conglomerates; additional diversification benefits that financial conglomerates enjoy; and recognition that financial firms increasingly employ modern risk management techniques that work on a group-wide basis. The specific rules for consolidated capital requirements that the Basel Committee proposed in April 2003 are reviewed, and it is argued that the Basel proposals constitute a relatively rudimentary system of consolidated capital requirements, dealing primarily with the technical weaknesses of entity level capital and making little effort to deal with more subtle issues such as unique risks of financial conglomerates, diversification benefits, and modern risk-management techniques. A number of significant practical considerations contribute to the relatively limited scope of the Basel Committee's proposal, which will likely prevent the development of a more comprehensive system of consolidated capital oversight for financial conglomerates in the foreseeable future.
Howell E. Jackson, Accounting for Social Security and its Reform, 41 Harv. J. on Legis. 59 (2004).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Securities Law & Regulation
,
Retirement Benefits & Social Security
Type: Article
Abstract
How well did the Social Security system do last year? According to the most recent annual report prepared by system's Board of Trustees, the Social Security trust funds showed a $165.4 billion net increase in assets in 2002 and reported accumulated reserves of nearly $1.4 trillion by year end. Unfortunately, these glowing reports are a cash-flow illusion, revealing only the difference between the system's annual cash receipts and its yearly payments for benefits and administrative expenses. Were the finances of the Social Security system restated under principles of accrual accounting, which recognizes commitments to make future payments when those obligations are actually incurred, the Social Security trust funds would have had to report a loss of several hundred billion dollars in 2002. Moreover, as of December 31, 2002, an accrual-based balance sheet of the Social Security system would have revealed more than $14.0 trillion of accrued liabilities to Social Security participants and beneficiaries. Even allowing for the system's $1.4 trillion of accumulated reserves as well as the value of excess future taxes to be paid by current participants over the rest of their working lives, the Social Security trust funds had unfunded obligations on the order of $10.5 trillion as of year-end 2002. This implicit debt of the Social Security system is several times greater than the explicit debt burden of the federal government and is growing by hundreds of billions of dollars each year. In addition to misrepresenting the magnitude of the Social Security system's looming financial crisis, the current accounting system for Social Security distorts public debate over Social Security reform proposals and confuses the relationship between Social Security and the rest of the federal budget. Accrual accounting, in contrast, would provide a clearer picture of the true state of the Social Security's current financial shortfall and the extent to which the system's burden on future generations is increasing each year. Accrual accounting would also create political incentives for our leaders to address Social Security's difficulties in a timely manner, and enhance the quality of public debate over the relative merits of competing reform proposals.
Howell E. Jackson, Accounting and Finance (Found. Press 2004).
Categories:
Banking & Finance
Sub-Categories:
Finance
Type: Book
Abstract
Accounting formats, bookkeeping, and legal aspects are introduced, followed by an overview of financial concepts in areas such as the relationship of time and money and corporate finance. This text is particularly suited to independent study or for use as a supplement to materials for courses in corporation law or contracts.
Howell E. Jackson, Reply, 41 Harv. J. on Legis. 221 (2004).
Categories:
Labor & Employment
,
Government & Politics
Sub-Categories:
Government Benefits
,
Retirement Benefits & Social Security
Type: Article
Abstract
Author's reply to Commentary re: Accounting for Social Security and Its Reform, 41 Harv. J. on Legis. 59 (2004).
Howell E. Jackson, Analytical Methods for Lawyers, 53 J. Legal Educ. 321 (2003).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Howell E. Jackson, To What Extent Should Individual Investors Rely on the Mechanisms of Market Efficiency: A Preliminary Investigation of Dispersion in Investor Returns, 28 J. Corp. L. 671 (2003).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Financial Markets & Institutions
,
Securities Law & Regulation
Type: Article
Howell E. Jackson, Could We Invest the Surplus?, 90 Tax Notes 1245 (2001).
Categories:
Banking & Finance
,
Government & Politics
,
Taxation
Sub-Categories:
Financial Markets & Institutions
,
Congress & Legislation
,
Tax Policy
,
Taxation - Federal
Type: Article
Abstract
Responding to recent claims that looming federal surpluses would disrupt U.S. capital markets if partially invested in private financial assets, this short essay argue that projected surpluses are not so substantial when compared with the likely size of U.S. capital markets at the end of the end of the decade when the bulk of the surpluses are projected to arise. The essay also notes several reasons why Congress should retain discretion to invest in private financial assets under certain circumstances.
Howell E. Jackson & Eric Pan, Regulatory Competition in International Securities Markets: Evidence from Europe - Part I, 56 Bus. Law. 653 (2001).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Financial Reform
,
Administrative Law & Agencies
,
Congress & Legislation
,
European Law
,
Foreign Law
Type: Article
Abstract
As the first installment of a two-part series, this Article reports the results of an empirical investigation designed to explore whether capital-raising practices in Europe in 1999 might illuminate the on-going debate in U.S. academic circles over the value of regulatory competition in international securities markets. Drawing on a series of 50 in-depth interviews with lawyers, investment bankers and regulators from London and other European financial centers, this Article presents new data about capital-raising practices in Europe in 1999. The authors find little evidence of the sort of market dynamics traditionally predicted by either proponents or critics or regulatory competition. Their research suggests that variations in the stringency of national systems of securities regulation across Europe is not a major factor in determining where and how European issuers access capital markets. Rather, European capital-raising practices seem to be heavily influenced by market forces that require issuers engaged in pan-European offerings to meet disclosure and due diligence standards modeled on and comparable to practices developed for private placements in the United States. The research also suggests that the growth of efficient trading linkages between European stock exchanges may diminish the need for European issuers to concern themselves with the legal requirements of other member states, a phenomenon not usually factored into discussions of regulatory competition in international securities markets.
Howell E. Jackson, Centralization, Competition, and Privitization in Financial Regulation, 2 Theoretical Inquiries L. 649 (2001).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Financial Markets & Institutions
,
Securities Law & Regulation
,
Corporate Governance
,
European Law
Type: Article
Abstract
This essay reviews recent debates over the allocation of regulatory authority in three separate fields of financial regulation: corporate governance, securities regulation, and the regulation of financial institutions. In each field, the essay argues, reform proposals can be organized into three basic groups: those that advocate centralization of regulatory authority; those that favor competition among governmental bodies; and those that recommend the privatization of regulatory standards. While this debate is most familiar in the field of corporate governance, highly analogous policy discussions are currently taking place in securities regulation and the regulation of financial institutions. This essay traces the development of arguments over the proper allocation of regulatory authority in various sectors of the financial services industry, noting differences both in the contexts in which the issue has arisen in various sectors of the industry and also in the ways regulatory authority is currently allocated in each sector. The essay concludes with several tentative thoughts about normative grounds on which debates over the proper allocation of regulatory authority might ultimately be resolved.
Howell E. Jackson, The Role of Credit Rating Agencies in the Establishment of Capital Standards for Financial Institutions in a Global Economy, in Regulating Financial Services and Markets in the 21st Century 311 (Eilis Ferran & Charles A.E. Goodhart eds., 2001).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Banking
,
Financial Markets & Institutions
,
Economics
,
Risk Regulation
,
Securities Law & Regulation
Type: Book
Abstract
Governmental bodies are increasingly incorporating the work of private credit rating agencies into regulatory standards. In this comment, Professor Jackson examines how a recent proposal of Basel Committee on Banking Supervision would extend this practice by factoring the credit ratings of borrowers into capital adequacy requirements for commercial banks. After reviewing various criticisms of the Basel Committee's proposal, the Comment considers alternative approaches to measuring the credit risk of commercial banks and concludes with a discussion of implications for regulatory policy in a global financial services industry.
Howell E. Jackson & Edward Symons, The Regulation of Financial Institutions: Selected Statutes, Regulations and Forms (West Publ'g 1999).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
Type: Book
Abstract
This volume of selected statutes and regulations is designed to supplement the casebook, Regulation of Financial Institutions (1999) by Jackson and Symons.
Howell E. Jackson, Regulation in a Multi-Sectored Financial Services Industry: An Exploratory Essay, 77 Wash. U. L.Q. 319 (1999).
Categories:
Banking & Finance
,
Government & Politics
,
Corporate Law & Securities
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
Investment Products
,
Securities Law & Regulation
,
Insurance Law
,
Congress & Legislation
Type: Article
Abstract
This essay reviews differences in regulatory structure across sectors of the financial services industry in the United States and then explores the difficulties these differences pose to our current system of regulation and also to proposals for financial modernization. The Essay begins with a description of a range of financial transactions from simple contracts to pooled investment vehicles to complex financial intermediaries. After reviewing the policy justifications underlying regulation across the financial services industry, the Essay summarizes the distinctive regulatory structures that characterize U.S. oversight of each major sector of the industry: private contract, securities regulation, futures contracts, investment companies, depository institutions, insurance companies, and employee benefit plans. The essay then reviews the legal definitions that are used to classify which regulatory structure applies to which financial transactions. Distinctions are drawn between formal and functional definitions of financial products, and the Essay claims that functional definitions, which suffer from both overinclusion and indeterminacy, are typically bounded by four types of limitations: de minimus exceptions, sophisticated investor exclusions, institutional carve-outs, and extra-territorial exemptions. The Essay continues to review a series of recent legal disputes in which private parties and government regulators have disagreed over the application of this system of classifying financial products. The Essay then draws some preliminary conclusions as to why disputes over legal classifications of financial products are so common and concludes by exploring the implications of the foregoing analysis for recent proposals to modernize the U.S. system of financial regulation.
Howell E. Jackson, Selective Incorporation of Foreign Legal Systems to Promote Nepal as an International Financial Services Center, in Regulation and Deregulation: Policy and Practice in the Utilities and Financial Services Industry (Christopher McCrudden ed., 1999).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Finance
,
Financial Markets & Institutions
,
Developing & Emerging Nations
,
Comparative Law
Type: Book
Abstract
This paper, which is to be published in a slightly altered form in a forthcoming Oxford University Press symposium volume on Regulatory Reform, addresses a problem confronting many developing countries: How should a country draw on foreign legal systems to develop its own system of financial regulation. Although addressed to a specific problem confronting the Kingdom of Nepal ? developing a regulatory structure that will encourage foreign financial firms to establish international operations in Nepal ? the paper presents a general framework for analyzing the utilization of foreign legal models for regulatory reform, and then advocates a particular reform strategy for Nepal: the selective incorporation of foreign legal systems into Nepalese law. Under the proposed system of selective incorporation, Nepal would first determine which foreign regulatory systems are sufficiently well-developed and well-administered to oversee foreign firms establishing international financial service operations in Nepal. Firms located in any of these selected jurisdictions could then apply to establish operations in Nepal without having to meet any additional Nepalese regulatory requirements, provided those applicant firms agreed to conduct their Nepalese operations in accordance with their home country?s regulatory requirements and to submit their Nepalese operations to home country supervision. So, for example, a British bank might establish operations in Nepal and be supervised under the law of England, whereas a Swiss bank with Nepalese operations might comply with Swiss law. In this way, selected foreign legal regimes would be incorporated into Nepalese law. After exploring the surprisingly large number of precedents for selective incorporation, this paper considers the advantages and disadvantages of this approach to regulatory reform for both Nepal and foreign financial firms. The paper then considers a number of possible objections to this approach, including the potential for inadequate supervision of Nepalese operations, the implications of the approach for countries whose laws are incorporated into Nepalese law, and the ramifications of the approach for the political economy of Nepal.
Howell E. Jackson & Edward L. Symons, The Regulation of Financial Institutions: Cases and Materials (West Publ'g 1999).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
Type: Book
Howell E. Jackson, Regulatory Problems in Privatizing Social Security, in Framing the Social Security Debate: Values, Politics and Economics (R. Douglas Arnold, Michael J. Graetz & Alicia H. Munnell eds., 1998).
Categories:
Government & Politics
,
Labor & Employment
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Government Benefits
,
Administrative Law & Agencies
,
Retirement Benefits & Social Security
Type: Book
Howell E. Jackson, The Regulation of Financial Holding Companies, in The New Palgrave Dictionary of Economics and the Law 232 (Peter Newman ed., 1998).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
,
Risk Regulation
,
Banking
,
Investment Products
Type: Book
Howell E. Jackson, The Expanding Obligations of Financial Holding Companies, 107 Harv. L. Rev. 509 (1994).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Finance
,
Banking
Type: Article
Howell E. Jackson, The Superior Performance of Savings-and-Loan Associations with Substantial Holding Companies, 22 J. Legal Stud. 405 (1993).
Categories:
Banking & Finance
Sub-Categories:
Banking
,
Financial Markets & Institutions
,
Risk Regulation
Type: Article
Howell E. Jackson, Reflections on Kaye, Scholer: Enlisting Lawyers to Improve the Regulation of Financial Institutions, 66 S. Cal. L. Rev. 1019 (1993).
Categories:
Legal Profession
,
Banking & Finance
Sub-Categories:
Banking
,
Financial Markets & Institutions
,
Professional Responsibility
,
Legal Ethics
,
Legal Services
Type: Article
Howell E. Jackson, Losses from National Bank Failures during the Great Depression: A Response to Professors Macey and Miller, 28 Wake Forest L. Rev. 919 (1993).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Banking
,
Shareholders
Type: Article
Howell E. Jackson, Commentary on Professor Garten's Paper: Market Discipline, 1991 N.Y.U. Ann. Surv. Am. L. 801.
Categories:
Banking & Finance
Sub-Categories:
Banking
,
Financial Reform
,
Financial Markets & Institutions
,
Risk Regulation
Type: Article
Abstract
Symposium: Banking Law, Commentary on Helen A. Garten's Whatever Happened to Market Discipline of Banks.

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