Fintech : Is the Water Fine?

This article examines how the growth of financial technology (fintech) raises numerous legal and regulatory issues, as well as complex ethical and social justice questions, through the lens of the continuing dispute between the Office of the Comptroller of the Currency (OCC) and the New York Department of Financial Services (NYDFS) over the Office’s Fintech Charter Decision. In doing so, the article highlights comparisons between U.S. and international banking and regulatory environments and how these varying conditions impact the development of fintech, especially the fintech that supports social justice rather than intensifying existing injustices. Specifically, the issues of federal pre-emption in the fintech sector are examined. Federal pre-emption deprives consumers of necessary protections from predatory practices. This has especially pernicious implications for people of colour based on a long history of unequal banking rights in the United States. This article finds that the Office’s overreach through the fintech charter erodes protections necessary to ensure that those who are already historically at risk of predatory and discriminatory banking practices are not further compromised by twenty-first century financial systems. Ultimately, this article argues that the adversarial nature of litigation impedes thoughtful development of fintech regulations that support innovation and protect consumers