The Expressive Synergies of the Volcker Rule

In this Article, I propose an implementation of the Volcker Rule that balances the statutory mandate to promote the safety and soundness of U.S. banking organizations with the significant role that bank-affiliated dealers currently play as providers of liquidity in over-the-counter markets. The Volcker Rule restricts the proprietary trading activities of U.S. banks and their affiliates subject to exemptions for traditional banking activities and certain “client-oriented” activities. This Article draws upon the academic literature regarding expressive law, the history of federal banking legislation, and the text of the Dodd-Frank Act to argue that federal financial regulators have the discretion to implement the Rule’s exemption for “market-making-related activities” to realize synergies with Dodd-Frank’s initiatives in the regulation of over-the-counter markets. Specifically, I envision that the market making exemption could be implemented with a view to encouraging the provision of liquidity to competitive trading facilities. I further argue that such an implementation may well be essential to the vitality of the Volcker Rule, in light of the political forces aligned in favor of the Rule’s repeal

Principles for Publicness

What duties does a “public” company owe investors, markets, and society? In recent years, Congress has both strengthened and diluted the federal disclosure and corporate governance regime that applies to public companies in the United States. However, it has never articulated a framework for what it means to be “public,” and how the obligations of public companies should reflect the needs of the constituencies whose financial and social interests they affect. As a result, firms fear that becoming public is an impediment to growth, and they game gradations of publicness to avoid compliance burdens. This Article proposes reframing the regulation of public companies under U.S. securities law around three regulatory principles: (1) suitability, (2) efficiency, and (3) representativeness. These principles—and associated tiers of regulation— will enable stock exchanges, investment banks, and other market intermediaries to shepherd companies toward heightened degrees of public exposure and accountability as their capital-raising needs evolve

Preserving Human Agency in Automated Compliance

As technology transforms financial services, so too must it transform the regulation of financial markets and intermediaries. The imperative of real-time, prophylactic regulation increasingly compels reallocation of regulatory and compliance budgets to surveillance and enforcement technology. At the same time, in light of the well-known weaknesses of automated systems, securities firms (and their regulators) must temper investment in automation with efforts to augment the agency of compliance professionals. This symposium contribution considers how investment in the professional development of compliance personnel can better integrate automated tools within established compliance and supervisory structures and thereby advance regulatory and operational objectives