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Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis

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When contemplating Chapter 11, firms often need to seek financing for their continuing operations in bankruptcy. Because such financing would otherwise be hard to find, the Bankruptcy Code authorizes debtors to offer sweeteners to debtor-in-possession (DIP) lenders. These inducements can be effective in attracting financing, but because they are thought to come at the expense […]

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Toward Separation of Powers Realism

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Many wonder if the separation of powers is going to be reinvigorated by the new appointees to the federal judiciary. But that doctrine in practice means that occasionally alarming, but exceedingly rare, doctrinal innovations—finding venerable parts of the administrative state or portions of high-profile congressional statutes to be unconstitutional, for example—make no real-world difference because […]

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Private Markets, Public Options, and the Payment System

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The speed at which money moves between people and businesses in the United States lags well behind international standards. Slow payment speeds lead to inefficiency across the economy, drive demand for high-cost credit products, and have hampered the federal response to 2020’s pandemic-driven economic crisis. To speed up the payment system, the Federal Reserve (“Fed”) […]

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Modernizing Bank Merger Review

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Sixty years ago, Congress established a federal pre-approval regime for bank mergers to protect consumers from then-unprecedented consolidation in the banking sector. This process worked well for several decades, but it has since atrophied, producing numerous “too big to fail” banks.    This Article contends that regulators’ current approach to evaluating bank merger proposals is […]

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Not Everything Is About Investors: The Case for Mandatory Stakeholder Disclosure

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Corporations are required to disclose specific types of information to the public, but only the federal securities laws impose generalized disclosure obligations that produce a holistic overview of corporate operations. While these disclosures are intended to benefit investors, they are accessible to anyone, and thus have long been relied upon by regulators, competitors, employees, and […]

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Federal Grant Rules and Realities in the Intergovernmental Administrative State: Compliance, Performance, and Politics

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Federal grants are one of the government’s most important policy tools. While high-profile debates about constitutional coercion, entitlement reform, and budget cuts receive most of the public attention given to federal grants, a more prosaic but equally important reality describes the operation of these grants on the ground: the web of detailed rules and massive […]

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Agency Lawyers’ Answers to the Major Questions Doctrine

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This Note addresses two questions: how does the major questions doctrine affect the way agency lawyers advise policymaking clients, and how does that advice affect agency statutory interpretation and regulation? I first describe the doctrine and discuss normative theories for the role agency lawyers should play in statutory interpretation. Second, I consider the effects the […]

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Taking Compliance Seriously

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How can we ensure corporations play by the “rules of the game”—that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives—through discounts to penalties—to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms […]

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The Private Equity Negotiation Myth

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Private equity fund agreements have been criticized for failing to protect investors from exploitation by fund managers. One defense frequently used by the industry has been to invoke what I call the private equity negotiation myth, which claims that because fund agreements are highly negotiated, substantive concerns about their terms are unwarranted. This myth assumes […]

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Costs, Conflicts, and College Savings: Evaluating Section 529 Savings Plans

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Americans collectively save hundreds of billions of dollars for their children’s education in Section 529 college savings plans. These plans are sponsored by states and largely exempt from the legal regimes that typically apply to money managers. This is the first academic study to comprehensively evaluate the quality of menus offered by these plans. While […]

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Unenforceable Securitization Contracts

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A “portfolio” here is a bundled set of contracts. In this Article, we address a commercially important example, where a local bank finances home purchases. The bank bundles the resultant contracts—the mortgage-backed securities (MBS)—into a portfolio, which it then sells to a firm, denoted an “originator.” The originator buys portfolios from several local banks and […]

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Regulating Intermediate Technologies

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Over the last several years, scholars studying health innovation policy have carefully considered the ways in which policymakers regulate different types of technologies to encourage their development and dissemination. Scholars have examined a range of legal incentives, including patents, Food and Drug Administration (FDA) exclusivity periods, taxes, grants, insurance reimbursement, and other tools to promote […]

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Enforcement Networks

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Policy and academic debates often depict agencies as siloed, in solitary pursuit of their own statutory mandates. But such views overlook an important reality. Agencies do not work alone, but in fact exercise power via networks, in tandem with other federal and state agencies as well as foreign powers. While agencies have relied on networks […]

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Accountable Compensation: The Progressive Case for Stakeholder-Focused, Board-Empowering Executive Compensation Laws

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Shareholder primacy has long dominated American legal thought and politics across the ideological spectrum. Over the past several years, however, U.S. political progressives have begun to criticize shareholder primacy, arguing that corporations should also serve other stakeholders. This Note conducts the first academic analysis of this emerging movement’s executive compensation policy proposals. This Note finds […]

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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 […]