Rules are rules and orders are orders, and never the twain shall meet. Generations of scholars and practitioners were taught back in law school that the Administrative Procedure Act (APA) divides the universe of agency action into two exclusive and exhaustive categories: “rulemaking,” which is used for promulgating “rules,” and “adjudication,” which is used for […]

Introduction Deferred Action for Childhood Arrivals (DACA) has brought job opportunities and a brighter future to somewhere around 700,000 undocumented immigrant youth. Yet some contend that the employment authorization conferred upon DACA recipients renders the program illegal, because it converts it from a mere program of prosecutorial discretion into an ultra vires benefit. This essay […]

Abstract: Legal scholars worry that existing laws cannot adequately regulate large private companies (“unicorns”). At the same time, unicorns seem to be a key part of flourishing markets. Are unicorns a problem that requires solving or a sign that entrepreneurial finance is working? This essay addresses that question by tracking outcomes for the 32 startups […]

Abstract: This Essay argues that Facebook’s Oversight Board—an independent “Supreme Court” for Facebook, tasked with reviewing the platform’s content-moderation decisions—has the additional power to review Facebook’s algorithms. While much of the literature on the Board assumes that it does not have this power, the text and structure of the Board’s Charter clearly provide for oversight […]

Introduction Dagan and Kreitner have offered a rich and elegantly written discussion of the normative uses of economic analysis of law. For Dagan and Kreitner, a scholar uses economic analysis normatively either when she evaluates a legal rule or institution or when she makes policy recommendations. These two normative uses of economic analysis are closely […]

Tamar Kricheli Katz† Jennifer Arlen’s The Essential Role of Empirical Analysis in Developing Law and Economics Theory explores the relationship between law-and-economics theory and empirical analysis. The paper provides a rich discussion of empirical-analysis examples to inform normative theoretical understandings.  The paper focuses on empirical investigation of decision making, documenting the instances and conditions in […]

In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by Ernst & Young (EY). The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, we point out deep flaws in the Report’s evidence […]

Introduction The Department of Labor (“DOL”), through its administration of ERISA, has a critical role to play in the regulation of private “employee pension benefit plans.”. Most importantly, the DOL is tasked with enforcing the fiduciary duties of ERISA plan managers (trustees who retain investment and voting authority or “investment managers” who receive such authority […]

Killer instinct is a key business asset. Firms live and die by their strategic choices, and the desire to outcompete rivals colors most business decisions. While many firms strive to win market share on their merits, economists have recently identified an anti-competitive practice—killer acquisition—that enables incumbents to maintain market share by burying, rather than beating, […]

Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret.  To correct this, advocates have proposed that companies follow international human-rights law.  That law–by far the world’s best-known rules for governing speech–could improve […]

In recent years, social media platforms have been beset with hate speech, misinformation, disinformation, incitement of violence, and other content that cause real-world harm. Social media companies, focusing solely on profit-maximization and user-engagement, have been largely asleep at the wheel during outbreaks of violence in countries such as Myanmar, Sri Lanka, New Zealand, and India–events […]

Regulation is often claimed to be the enemy of socially desirable innovation because of factors including innovation’s unpredictability and regulation’s compliance costs. In this essay, we bring two intellectual property scholars’ perspectives to bear on the question of regulation’s impact on innovation. We offer a novel, yet intuitive, analytical framework that takes both market demand […]

In Trump v. Pennsylvania, the Supreme Court faces the question whether the Administrative Procedure Act’s provision governing scope of judicial review instructs courts to give universal injunctions – injunctions telling the government not to apply a challenged agency action to anyone, not just the plaintiff. That provision, section 706 of title 5 of the United States […]

Tyler J. Smith† Privacy law is an extremely complex and complicated problem. And, unfortunately, the United States remains one of the only Western countries without comprehensive consumer data protection laws. Until the federal government decides to address the ubiquitous collection and use of data by corporations with omnibus legislation similar to the EU’s GDPR—or until […]

On the margins of the partisan political divide is a groundswell of anti-corporate rhetoric conjuring images of an unbridled, unregulated, and uncontrollable corporate America. This Essay considers a casualty of this progressive imagery: serious legislative and regulatory reforms to ensure corporate accountability. Demonizing all corporations does little to promote a progressive reform agenda. More important, […]