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Immigration Status Federalism

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Recent subfederal interventions into immigration policymaking have sparked an explosion of federalism scholarship, but nearly all such accounts focus on two domains: enforcement and state benefits. The literature continues to assume that the federal government maintains exclusive control over immigration status decisions. This Article challenges that conventional wisdom by identifying a third missing category of […]

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Sex & Startups

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Venture capital is widely perceived to have a gender problem. Both founders seeking capital and the investors themselves are overwhelmingly male, fomenting concerns about how—and how fairly—the VC sector distributes its economic gains. Although gender disparities in funding are well documented, we still know little about whether the governance of VC-backed startups similarly manifests gender […]

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Statutory Contracts

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Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One […]

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Predatory Small-Business Lending: Market and Regulatory Failures

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Small businesses are the mainstay of the U.S. economy, but they face particular challenges in acquiring financing because of a set of informational problems. It is difficult for lenders to obtain reliable information about small businesses’ finances, and even when they can get information, credit modeling is difficult because of small businesses’ heterogenous nature. These […]

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Presidential Regulation

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This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade […]

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Killers Interrupted: Stopping Pharmaceutical Killer Acquisitions via IP Release Clause

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Pharmaceutical innovation relies on pharmaceutical firms’ ability to acquire promising new molecules and the biotech firms that discovered them. Such nascent competitor acquisitions allow the pharmaceutical industry to efficiently finance the risky drug development process. But they also enable “killer acquisitions,” where incumbents purchase startups and discontinue their promising drug projects to protect existing products. […]

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Antitrust Abandonment

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This Article identifies the problem of “antitrust abandonment”: a pattern of long-term, unexplained disuse of antitrust-like enforcement powers held by industry regulators. Much of antitrust scholarship focuses on the primary federal enforcers, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This Article looks instead at several other federal agencies that hold statutory […]

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Unfairness, Reconstructed

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A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would […]

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The Public Law of Public Utilities

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This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that […]

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Hiding in Plain Sight: ERISA’s Cure for the $1.4 Trillion Health Benefits Market 

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Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and […]

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Altering Rules: The New Frontier for Corporate Governance

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Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision […]

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Contractual Control in Dual-Class Corporations

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Founders and other corporate insiders often seek to control the companies they take public. For over a century, they have used high-vote stock to obtain disproportionate control rights, which has resulted in seemingly endless debate among scholars, investors, and regulators. More recently, insider shareholders have used a different mechanism to obtain outsized corporate control rights: […]