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Volume 36 • Issue 2

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Administrative Regulation of Arbitration

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In Epic Systems v. Lewis, a case on arbitration agreements and class action waivers, the U.S. Supreme Court tangentially addressed the intersection of arbitration and agency deference. The Court’s opinion highlighted a gap in legal scholarship: very little has been written on administrative regulation of arbitration. By cataloging for the first time the instances in which […]

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Passive in Name Only: Delegated Management and “Index” Investing

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This Article provides the first detailed empirical analysis of the landscape of U.S. stock market indices. First, I hand collect detailed information about the universe of indices used as benchmarks for U.S. mutual funds. I document substantial heterogeneity across indices and find that the overwhelming majority of the indices in my sample are used as […]

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New Tech v. New Deal: Fintech as a Systemic Phenomenon

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Fintech is the hottest topic in finance today. Recent advances in cryptography, data analytics, and machine learning are visibly “disrupting” traditional methods of delivering financial services and conducting financial transactions. Less visibly, fintech is also changing the way we think about finance: it is gradually recasting our collective understanding of the financial system in normatively […]

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The False Promise of Presidential Indexation

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The Trump Administration faces mounting pressure from conservative thinkers and activists—including calls from its own National Economic Council director—to promulgate a U.S. Treasury Department regulation that indexes capital gains for inflation. Proponents of such a move—which is sometimes called “presidential indexation”—make three principal arguments in favor of the proposal: (1) that inflation indexing would be […]

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Harnessing Investor Interest in Sustainability: The Next Frontier in Environmental Information Regulation

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This Article rethinks the theory and application of environmental information regulation in light of growing investor interest in sustainability. Academics and policymakers have long viewed mandatory information disclosure as a powerful regulatory tool for improving corporate environmental performance, with some going so far as to call environmental information regulation the third phase of American environmental […]

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FOIA’s Common Law

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The Freedom of Information Act (FOIA) replaced the near-total control that agencies held over their records with a judicially enforceable “right” of public access to agency information. Underscoring the importance of this statutory right, FOIA rejected the judiciary’s traditional respect for agency expertise. It instead places the burden of proof on the government and mandates […]

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Split Derivatives: Inside the World’s Most Misunderstood Contract

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Derivatives are the “bad boys” of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these […]

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Split Derivatives: Inside the World’s Most Misunderstood Contract

PDF Download

Derivatives are the “bad boys” of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these […]