When legal scholars specializing in financial regulation have examined the Financial Stability Oversight Council (FSOC), their lens has usually focused on matters outside of the core public law expertise they are best positioned to contribute. This curious state of affairs is the consequence of the historical mutual disinterest between administrative law scholars and financial regulatory […]
An extensive literature has analyzed the accountability of administrative agencies, and in particular, their relationship to Congress. A well-established strand in the literature emphasizes that Congress retains control over agencies by their design, with a focus on the structure and process by which agency decisionmaking is undertaken. This Article examines the relationship between agency structure […]
The typical federal agency issues a vast amount of guidance, advising the public on how it plans to exercise discretion and interpret law. Under the Administrative Procedure Act (APA), the agency must follow onerous procedures to issue full-blown regulations (including notice and comment) but can issue guidance far more easily. What justifies this difference, in […]
This Article explores a “hidden” mechanism that insulates management from hostile takeovers and activist intervention: the global antitakeover device (“GAD”). A GAD is based on the ability of public firms to “mix and match” between different forms of regulation by cross-listing on multiple stock exchanges or incorporating in foreign jurisdictions. This action subjects any hostile […]
The Draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contract terms. This Article reports an attempt to reproduce that study’s results. Using the Reporters’ data, this study was […]
The law of successor criminal liability is simple—corporate successors are liable for the crimes of their predecessors. Always. Any corporation that results from any merger, consolidation, spin-off, etc., is on the hook for all the crimes of all the corporations that went into the process. Such a coarse-grained, one track approach fails to recognize that […]
This Note defends the SEC’s statutory authority to seek judicial disgorgement. In Kokesh v. SEC, the Supreme Court held that judicial disgorgement brought by the SEC constitutes a penalty for the purpose of the five-year statute of limitations in 28 U.S.C. § 2462. In the following months, scholars and practitioners—and at least one putative class […]
The Antiquities Act of 1906 was passed in order to protect threatened historic ruins, structures and landmarks, and accordingly, it grantsthe President the power to designate such features as national monuments. Despite this goal, several Presidents have used this authority to unilaterally withdraw hundreds of thousands of acres of federal land from public use. Moreover, […]
This Article examines presidential direction of administrative action in the Obama and early Trump Administrations against the backdrop of ongoing debates concerning: (i) the desirability of and appropriate techniques for presidential control of administration and (ii) the relevance of separated powers when American government is under unified political control. To give this analysis a concrete […]
A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended with Impression Products v. Lexmark. The Supreme Court held that the sale of a patented thing exhausts the patentee seller’s rights to enforce restrictions on that thing through patent infringement suits. Further, the parties cannot bargain around […]
Contested director elections are a central feature of the corporate landscape and underlie shareholder activism. Rules governing proxy voting by shareholders prevent shareholders from “mixing and matching” among nominees from the two sides of contests. This Article’s analysis shows that these proxy voting rules can lead to distorted proxy contest outcomes: different directors being elected […]
It has long been said that market forces alone will result in a problematic under-sharing of information by public companies. Since the 1930s, the main regulatory response to this market failure has come in the form of the massive mandatory-disclosure regime that sits at the foundation of modern securities law. But thisregime—especially when viewed along […]
Public policy has been focused on controlling the conflicts of interests in banks for the last eighty-five years with limited success. Banks have a unique place in the economy as intermediaries between investors and companies, allowing them to obtain significant private, proprietary information. Public policy is focused on trying to ensure that banks do not […]
Sentence diagramming—a method of showing the relationship between different parts of a sentence—has long been used by judges to interpret legal texts. This Comment documents how judges employ sentence diagrams in constitutional, statutory, and contract cases. It finds that diagramming plays an important role in constitutional and statutory cases, complementing traditional canons of legal interpretation, […]
The municipal bond market has traditionally been viewed as a relatively safe market, where credit risk wasn’t a primary concern. The spate of fiscal crises that state and local governments have experienced in recent years, however, has changed this narrative. With credit risk increasingly on the forefront of investors and bond issuers’ minds, credit default […]