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Presidential Authority to Revoke or Reduce National Monument Designations

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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, […]

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Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience

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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 […]

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Reasonable Patent Exhaustion

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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 […]

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Universal Proxies

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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 […]

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Making a Market for Corporate Disclosure

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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 […]

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Eliminating Conflicts of Interest in Banks: The Significance of the Volcker Rule

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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 […]

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Diagramming Interpretation

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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, […]

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Credit Default Swaps on Municipal Bonds

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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 […]

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Delegation and Dysfunction

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Much of the scholarly literature lauds cooperative federalism, in which states regulate to achieve federal standards, as an innovative federal-state partnership. But delegation of authority also has grave dangers caused by principal-agent problems, among others. The largely toothless nondelegation doctrine captures these challenges, but the bidirectional difficulties of principals adequately monitoring agencies, and vice versa, […]

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Containing Systemic Risk By Taxing Banks Properly

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At the root of recurring bank crises are deeply-implanted incentives for banks and their executives to take systemically excessive risk. Since the 2008- 2009 financial crisis, regulators have sought to strengthen the financial system by requiring more capital (which can absorb losses from risk-taking) and less risk-taking, principally via command-and-control rules. Yet bankers’ baseline incentives […]

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Resolving the Crisis in U.S. Merger Regulation

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Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived […]

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Stock Market Manipulation and Its Regulation

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More than eighty years after federal law first addressed stock market manipulation, federal courts remain fractured by disagreement and confusion about manipulation law’s most foundational questions. Only last year, plaintiffs petitioned the Supreme Court to resolve a sharp split among the federal circuits concerning manipulation law’s central question: whether trading activity alone can ever be […]

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Regulating by Example

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Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, the theoretical literature contains no study of regulatory examples or of how they might be interpreted. Courts differ about whether examples serve as an […]

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Should Regulation Be Countercyclical?

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Politicians and commentators have from time to time proposed that regulations be suspended or delayed during recessions because of their adverse impact on employment. We evaluate this argument from within a macroeconomic framework. When the business cycle is taken into account, it is possible that regulations should be weakened during downturns and strengthened during upturns, […]