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, […]
In regulated industries, including telecommunications, electric power, and natural gas, there has been a dramatic substitution of price cap regulation (PCR) for rate-of-return regulation (RRR). Despite this sea change in regulatory regimes, the Hope Standard, which protects the regulated firm from confiscatory rates so that it remains a financially viable enterprise, continues to serve as […]
Regulators have long been aware that differential access to information can undermine the efficiency and fairness of financial markets. In an effort to place investors on equal footing, the Securities and Exchange Commission in 2000 created Regulation Fair Disclosure (Reg FD), which prohibits public firms from disclosing material information to certain parties but not others. […]
The FDA recently published a list of top branded drug companies that are suspected of purposely blocking competition from the generic drug industry. Calling out big pharma by “naming and shaming” them into good behavior is an innovative, still largely experimental, regulatory tool designed to harness public opinion and build on pharma’s reputational sensitivities. This […]
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 […]
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 […]
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 […]
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, […]
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 […]
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 […]
In late 2017, Congress passed the first major tax reform in over three decades. This Essay considers the constitutional concerns raised by Section 965 (the “Mandatory Repatriation Tax”), a central provision of the new tax law that imposes a one-time tax on U.S.-based multinationals’ accumulated foreign earnings. First, this Essay argues that Congress lacks the […]
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 […]
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 […]