Bulletin

Bulletin

Bulletin

Reforming the True-Sale Doctrine

The true-sale doctrine is central to the multi-trillion dollar asset-backed securities (ABS) market. The assets backing ABS are only bankruptcy-remote if they were assigned in a true sale, rather than as collateral for a loan, and it is the true-sale doctrine that distinguishes sales from loans. Despite its importance, the doctrine is inconsistent, lacks normative […]

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The Modigliani-Miller Theorem at 60: The Long-Overlooked Legal Applications of Finance’s Foundational Theorem

2018 marks the sixtieth anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment, which purports to demonstrate that a firm’s value is independent of its capital structure. Widely hailed as the foundation of modern finance, their article is little known by lawyers and […]

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In-House Regulators: Documenting the Impact of Regulation on Internal Firm Structure

In a deregulatory environment, what do regulated firms do? The standard assumption is simple: firms revert to their pre-regulatory form. This Essay challenges that basic assumption. Increasingly, regulation is conducted through broad standards foisted on firms to implement internally. Congress articulates a policy goal; agencies enact specific standards for regulated entities; and firms are left […]

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The $1 Trillion Question: New Approaches to Regulating Stock Buybacks

Stock buybacks—transactions in which public companies buy back their own equity securities on the open market—are on track to reach $1 trillion in 2018. Such repurchases manipulate the market price for issuer securities. They represent a choice by firms to prioritize shareholder payouts over other uses of corporate funds, contributing to widening economic inequality. Currently, […]

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The Quiet Undoing: How Regional Electricity Market Reforms Threaten State Clean Energy Goals

In a series of largely unnoticed but extremely consequential moves, two regional electricity market operators are pursuing reforms to make it more difficult for states to achieve their clean energy goals. The federal energy regulator, FERC, has already approved one such reform and ordered a second market operator to go farther in punishing state-supported clean […]

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Electric Power Resilience: The Challenges for Utilities and Regulators

Few people doubt that the United States will continue to experience long-lasting electric power outages affecting a large number of people and businesses (e.g., outages from Superstorm Sandy, Hurricane Maria in Puerto Rico, and severe hurricanes in Florida). Some industry observers believe that the resilience of the U.S. electric-power network is deficient, and if industry […]

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Political Control Over Public Communications by Government Scientists

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Recent years have seen a great deal of controversy over political control of communications by government scientists. Legitimate interests can be found on both sides of the equation. Clearly there is a strong public interest in the free flow of scientific information. On the other hand, political leaders in any administration might need advance notice […]

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Regulating Equality, Unequal Regulation: Life after Obergefell

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This Essay examines the interplay between state statutes that created and regulate civil unions for same-sex couples and the landmark ruling in Obergefell v. Hodges. It observes Obergefell was silent on how to treat civil unions, and argues that Obergefell presents two competing definitions of marriage. These competing definitions expose the costs and legal complications […]

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An “Unusual Jurisdictional Argument”: The Codifier’s Canon in Ayestas v. Davis

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Not every one of a judge’s actions is judicial. Judges also engage in administrative tasks, such as hiring personnel. In Ayestas v. Davis, the Court has been asked to decide a jurisdictional question that rests on whether a particular authority was conferred on judges in their administrative or judicial capacities. This Essay offers a resolution […]

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Regulatory Reform in the Trump Era—The First 100 Days

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Introduction Within the first 100 days of his administration, President Donald J. Trump initiated a bold regulatory reform agenda intended to downsize the imprint and reduce the influence of the federal government. Through a series of executive orders, supported by guidance from the Office of Management and Budget (OMB), and his proposed budget to Congress, […]

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Why the Bank Examination Privilege Doesn’t Work as Intended

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Introduction Bank examinations are one of the key tools used by federal regulators to supervise the banking and financial services industry. A bank examination is a dialogue between a regulator and a bank about the bank’s policies and practices. Confidentiality is crucial to making this dialogue work. As such, publicizing examination records could inhibit candid […]

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Constitutional Avoidance and Presidential Power

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Introduction Recent developments have brought renewed attention to statutes designed to constrain and discipline the President. The federal anti-nepotism statute, the federal conflict of interest statute, and the Federal Advisory Committee Act all appear set to endure unusual stress in the coming years. Troublingly, these statutes have already been given limited constructions that weaken their […]

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Give Gorsuch a 21st Century Litmus Test

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Introduction The United States Senate began confirmation hearings on March 20 to vet Neil Gorsuch, who was nominated to succeed the late Supreme Court Justice Antonin Scalia. Lawmakers are expected to apply litmus tests, probing him on issues such as abortion. They should also delve into his views on technology. As Wired’s political reporter Issie […]

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No Country for Cybersecurity Arbitrage

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Introduction On October 28, 2016, regulations issued by the Copyright Office exempted a wide swath of cybersecurity research from the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA). These regulatory exemptions were motivated by assertions that the DMCA anti-circumvention prohibitions hinder cybersecurity research and practice. This article investigates the accuracy of these claims by […]

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What Shareholder Proposals on Proxy Access Tell Us About its Value

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Introduction Proxy access is the ability of certain privileged shareholders to have their own slate of director nominees included in the company’s proxy materials whether or not the board of directors (“Board”) approves. These materials include a proxy statement used to solicit shareholder votes and a voting card allowing shareholders to vote without having to […]