In 2013, a new system for mandatory public disclosure came into effect, the first since the creation of the Securities and Exchange Commission (SEC) in 1934. Today, major banks and certain other entities must make disclosures mandated not only by the SEC, but also by a new system developed by the Federal Reserve Board and […]
In the wake of the global financial crisis, attention has often focused on whether incentives generated by bank executives’ compensation programs led to excessive risk-taking. Post-crisis, compensation reform proposals have taken broadly three approaches: long-term deferred equity incentive compensation, mandatory bonus clawbacks upon accounting restatements and financial losses, and debt-based compensation. In earlier articles we […]
Special district governments exist in every state, providing services ranging from protection against fire to protection against fire ants. These governments are easy to form, but often they are difficult to dissolve or consolidate. Nevertheless, in many states, the number of special district governments is declining. This Comment draws on statistical analyses and interviews with […]
In recent years, states have subjected more occupations to burdensome regulatory requirements that are often imposed to fetter competition. There is broad agreement that many such restrictions reduce consumer welfare and impose particular burdens on economically disadvantaged groups. This Note examines why existing tools have failed to constrain this protectionist trend. Drawing upon U.S. and […]
This Article argues for reorienting many antitrust investigations–and more generally regulatory approaches–to focus on how control of personal data by corporations can entrench monopoly power in an economy shaped increasingly by the power of “big data.” What is largely missed in analyses defending Google from antitrust action is how Google’s ever expanding control of user […]
The central and expanding role of the National Security Council in compiling the “kill list” of U.S. citizens and others approved for drone killing outside of recognized battlefields highlights the largely overlooked fact that, since the mid-1990s, the U.S. government has taken the categorical position that the National Security Council is exempt from both the […]
Solar, wind, and other renewable energy technologies have the potential to mitigate climate change, secure America’s energy independence, and create millions of green jobs. In the absence of a price on carbon emissions, however, these long-term benefits will not be realized without near-term policy support for renewable energy. This Article assesses the efficiency of federal […]
In a prior article, I examined how a U.S. debt default might occur and analyzed its potential consequences. Even a mere “technical” default, such as temporarily missing an interest or principal payment, “almost certainly [[would] have large systemic effects with long-term adverse consequences for Treasury finances and the U.S. economy.” The most plausible U.S. debt […]
Recent debates over microfinance regulatory frameworks have misunderstood an important instrument: repayment frequency. Despite recent laws mandating lower microfinance repayment frequency under the banner of consumer protection, this Comment argues that repayment frequency is unable to protect borrowers beyond what substantive anti-coercion rights and procedural law can, and have begun to, accomplish. Moreover, repayment frequency, […]
Under Brand X, federal courts must reverse their own prior precedent in deference to an intervening agency decision if that agency decision is based on a reasonable interpretation of the statute. Thus, if the first-in-time court sets the law at A, and if a second-in-time agency later finds that B is a superior interpretation of […]
Injunctions against foreign sovereigns have come under criticism on comity and enforcement grounds. This Feature argues that these objections are overstated. Comity considerations are important but not dispositive. Enforcement objections assign too much significance to the court’s inability to impose meaningful contempt sanctions, overlooking the fact that, when a foreign sovereign is involved, both money […]
This Article studies business deadlocks and their resolution. We advance a proposal to reform the way that courts resolve business deadlocks and value business assets. Specifically, we argue that Shotgun mechanisms, where the court mandates one owner to name a single buy-sell price and compels the other owner to either buy or sell shares at […]
The Consumer Financial Protection Bureau’s recently-released “qualified mortgage” rules effectively discourage predatory lending but miss an equally important source of systemic risk: low-equity clustering. Specific “volatility-inducing” mortgage terms, when present in a substantial cluster of mortgage contracts, exacerbate macroeconomic risk by increasing the chance that the housing and lending markets will have to absorb a […]
This Article challenges the prevailing view of the efficacy of harmonized international financial regulation and provides a mechanism for facilitating regulatory diversity and experimentation within the existing global regulatory framework, the Basel Accords. Recent experience suggests that regulatory harmonization can increase, rather than decrease, systemic risk, an effect that is the precise opposite of the […]