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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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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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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 […]

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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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Exemption Federalism: Regulatory Carve-Outs and the Protection of Local Farms

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When national regulatory programs exempt small-scale operators or producers from certain requirements, the result looks surprisingly like federalism. That is, many local (or intrastate) operators end up subject only to state or local regulations; most national (or interstate) operators end up subject to federal regulation. While small-scale businesses may rely on these exemptions in practice, […]

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The Faulty Foundation of the Draft Restatement of Consumer Contracts

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Professor Gregory Klass’s replication study of the Draft Restatement of the Law of Consumer Contract’s empirical analysis of privacy policies found troubling and pervasive problems with the Reporters’ coding of cases. We extended Professor Klass’s study with a replication of the coding of the two largest datasets supporting the Draft Restatement, those on the enforceability […]

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The FSOC’s Designation Program as a Case Study of the New Administrative Law of Financial Supervision

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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 […]

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Does Agency Structure Affect Agency Decisionmaking? Implications of the CFPB’s Design for Administrative Governance

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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 […]

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Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries

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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 […]