This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade […]
Pharmaceutical innovation relies on pharmaceutical firms’ ability to acquire promising new molecules and the biotech firms that discovered them. Such nascent competitor acquisitions allow the pharmaceutical industry to efficiently finance the risky drug development process. But they also enable “killer acquisitions,” where incumbents purchase startups and discontinue their promising drug projects to protect existing products. […]
This Article identifies the problem of “antitrust abandonment”: a pattern of long-term, unexplained disuse of antitrust-like enforcement powers held by industry regulators. Much of antitrust scholarship focuses on the primary federal enforcers, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This Article looks instead at several other federal agencies that hold statutory […]
A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would […]
This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that […]
Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and […]
Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision […]
Founders and other corporate insiders often seek to control the companies they take public. For over a century, they have used high-vote stock to obtain disproportionate control rights, which has resulted in seemingly endless debate among scholars, investors, and regulators. More recently, insider shareholders have used a different mechanism to obtain outsized corporate control rights: […]
The False Claims Act’s qui tam provisions, authorizing private parties or relators to sue on behalf of the U.S. government, have faced renewed constitutional challenges despite record recoveries. Within the past two years, three Supreme Court Justices suggested qui tam may violate Article II of the Constitution, and a district court dismissed a qui tam […]
There are about 4600 FDIC insured banks in the United States as of June 2023.[1] Sometimes deposit insurance prevents bank failures and sometimes it does not. There were four very small bank failures in 2020.[2] There were no bank failures in 2021 or 2022.[3] In 2023, after more than two years without a bank failure […]
The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be […]
The public rightly considers the traditional banking system expensive, slow, and unfair. In response, technology companies have developed an ‘open banking’ sector. They combine transaction data from financial institutions with other datasets to develop applications for additional financial services, including personalized financial management and credit underwritten by data that credit bureaus have not historically collected, […]
This Essay considers the role of bankruptcy law in the legal ecosystem that regulates banks and other financial intermediaries. It uses the recent spate of bank and crypto intermediary failures to consider the role of bankruptcy courts (and other resolution institutions) in protecting both customers, and the stability of the financial system when the instability […]
The Federal Home Loan Bank system is a $1.3 trillion government-sponsored enterprise that operates primarily for the benefit of member financial institutions. Federal Home Loan Bank members enjoy generous dividends and ready access to fresh liquidity. The biggest beneficiaries are the biggest users of the system, including the largest banks and insurance companies in the […]
The source-of-strength doctrine is a long-standing pillar of bank regulation. It holds that a bank holding company (BHC) is to serve as “a source of financial and managerial strength” for its bank subsidiaries. The doctrine, however, has always been more aspirational than actual. The doctrine has never clearly imposed any liability on BHCs. Thus, it […]