Print Edition

Print Edition

Print Edition

The Corporate Governance of Public Utilities

PDF Download

Rate-regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high- profile corporate scandals. They have bribed regulators […]

Print Edition

Equal Treatment Agreements: Theory, Evidence & Policy

PDF Download

While the rise of dual-class companies—companies like Facebook, Google, and Visa, which have two or more classes of common stock that differ in voting rights—has been widely observed over the past decade, prior commentators have largely overlooked the important “equal treatment” agreements that are embedded in many dual-class charters. Equal treatment agreements require that stockholders are treated […]

Print Edition

The Whistleblower Industrial Complex

PDF Download

Although the whistleblower programs (WBPs) created by Dodd-Frank have received universal acclaim, little is known about how they actually work. In 2021, the Securities and Exchange Commission (SEC) received an average of forty-nine whistleblower tips every workday. Success depends on sifting through this avalanche of tips to determine which ones to investigate. To date, however, […]

Print Edition

In Search of the Public Interest

PDF Download

“Public interest” standards in statutory delegations to agencies represent the greatest hopes and the darkest fears of the U.S. administrative state. On the one hand, the public interest standard provides a vessel for agencies to infuse policymaking with the moral and ethical commitments of the community. On the other hand, regulation in the public interest opens […]

Print Edition

“A Vast Labor Bureau”: The Freedmen’s Bureau and the Administration of Countervailing Black Labor Power

PDF Download

For a few short years starting in 1865, the Freedmen’s Bureau exercised regulatory power over labor markets in a fashion unprecedented in ambition, scope, and reach in U.S. history up to that point—and, arguably, since. The Bureau used its broad authority to construct, regulate, and coordinate labor in the post-slavery South according to a racial-egalitarian vision […]

Print Edition

The Promise & Perils of Open Finance

PDF Download

We are at the dawn of a new age of Open Finance. Open Finance seeks to harness the potential of new platform technology to enhance customer data access, sharing, portability, and interoperability—thereby leveling the informational playing field and fostering greater competition between incumbent financial institutions and a new breed of financial technology (fintech) disruptors. According […]

Print Edition

Stakeholder Capitalism in the Time of COVID

PDF Download

This Article tests the claims of supporters of stakeholder capitalism (“stakeholderism”) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, […]

Print Edition

Privacy for Sale: The Law of Transactions in Consumers’ Private Data

PDF Download

Lawmakers, regulators, consumer advocates, and the business community have focused increasing attention on the policy issues that arise at the intersection of privacy, technology, and commerce. Yet the law governing what businesses can do with consumer data remains unsettled and unclear. The United States has no dedicated and comprehensive privacy law, relying instead on a […]

Print Edition

Commission Chairs

PDF Download

Since 1950, Congress has granted chairs of many multimember commissions chief-executive authority as a way to increase administrative efficiency. Although it intended to maintain the ability of commission majorities to dictate policy, it inadvertently strengthened the authority of chairs to such an extent that majorities cannot enact their preferred policies without their chair’s cooperation. Using […]

Print Edition

Restoring Indian Reservation Status: An Empirical Analysis

PDF Download

In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even […]

Print Edition

Uptier Exchange Transactions: Lawful Innovation or Lender-on-Lender Violence?

PDF Download

This Note examines the recent phenomenon of “uptier exchange transactions”: transactions in which a borrower takes assignment of existing loans from participating lenders—those lenders holding a majority of the principal amount of the loan—and then issues new superpriority tranches of debt to the participating lenders, subordinating nonparticipating lenders in the process. Uptier exchange transactions were […]

Print Edition

Presidential Transitions: The New Rules

PDF Download

The Trump Administration was unusually aggressive in using an obscure set of tools to undo the Obama Administration’s regulatory legacy: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. These actions could be seen as part of the Trump Administration norm-breaking approach to regulatory […]

Print Edition

Cost-Based California Effects

PDF Download

The “California Effect” is a recurring trope in discussions about regulatory interdependence. This effect predicts that businesses active in multiple jurisdictions sometimes adopt the strictest regulatory standards that they face in any jurisdiction globally, even if the jurisdiction’s law does not require global compliance. As the argument goes, California Effects often occur because firms find […]

Print Edition

Hidden Agendas in Shareholder Voting

PDF Download

Nothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the […]