Over forty years after the Hatch-Waxman Act created a patent-based framework for balancing pharmaceutical innovation with competition, the system it established needs reform. We use data on pharmaceutical research and development over this four-decade period to argue that the current equilibrium is accurately characterized as an arms race of strategic legal activity. Brand-name firms amass […]

“Frictionless financing” platforms promise consumers a simple, seamless, and instantaneous financing experience that allows them to finance any number of products through their preferred retailer. For many consumers, frictionless financing is a welcome development that eliminates irritating design barriers that hamper consumers’ ability and desire to obtain financing at the point of sale. However, frictionless […]

The third-party litigation funding (TPLF) industry is a rapidly growing phenomenon in the United States, making headlines in cases ranging from celebrity privacy scandals to multimillion-dollar NFL head-injury lawsuits. Proponents praise TPLF for increasing access to justice, particularly for underprivileged parties who may otherwise lack the resources to pursue their claims. Critics, however, warn that […]

Over the course of the twentieth century, the administrative state grew under the auspices of a functionalist understanding of constitutional and statutory provisions allocating decisions among the three branches of the federal government. That understanding eschewed well-defined limits on the roles of the branches in favor of a flexible approach that allowed the branches to […]

The frontier of contemporary AI development is dominated by AI systems built on foundation models—highly versatile algorithms, trained in the first instance on broad swaths of data, that can function as speakers, tools, and agents across a wide variety of commercial, social, military, and political domains. For the moment, at least, the process of developing […]

For nearly a century, debates over “corporate purpose” have framed the issue as a clash between two contested visions: should corporations maximize profits, or should they pursue broader social goals? This Article argues that this conventional framing obscures the true nature of the dispute. Using Wesley Hohfeld’s map of rights, duties, privileges, and no-rights, I […]

When a federal judge encounters a statutory gap too wide to fill through ordinary statutory interpretation, should she borrow state law or make her own rule? The Supreme Court instructs judges to err on the former side, weighing the preservation of otherwise-applicable state law against federal needs that might compel a common-law (i.e., judge-made) rule. […]

Prominent analyses of contractual default rules are ex ante in orientation. According to economic accounts, default rules, like the rules of contract interpretation, should be designed to further the substantive objective of social welfare maximization either by filling gaps with terms that maximize the parties’ joint welfare or by giving parties incentives to write such […]

Payday loans continue to be a commonly used yet controversial source of credit for low-income consumers. Regulation of this market must balance the beneficial uses of payday lending with harmful, inefficient uses that exacerbate financial hardship. The best way to strike this balance, we argue, is to regulate at the margin—that is, experiment with different […]

This essay defends Alan Schwartz’s intellectual project of liberalizing contract law among commercial parties by integrating consequentialist and deontological perspectives. It responds to two major critiques of Schwartz’s assumptions: the “rationality objection,” which argues that not all merchants are truly sophisticated and therefore require paternalistic protection; and the “moralist objection,” which holds that some transactions […]

When many plaintiffs sue a single defendant, each plaintiff’s decision to settle affects what the others can recover. The existing literature shows how defendants can exploit this interdependence; we show that plaintiffs can also be exploited by their fellow plaintiffs, depending on how settlement negotiations are structured. We examine formal models of various settlement postures […]

Inspired by Alan Schwartz’s contractarian approach to business law, we provide a framework for determining when corporate stakeholders should be able to opt out of legal rules in order to advance social goals beyond wealth maximization. We argue that, under this Schwartzian framework, shareholders and other corporate decisionmakers would be able to credibly opt out […]

The growing prevalence of controlling shareholders and new forms of shareholder control in large public companies poses a serious dilemma for corporate law—particularly in Delaware, the longstanding jurisdiction of choice for such firms. On the one hand, allowing controlling shareholders to act unfettered runs counter to corporate law’s classic board-centric governance model and its policy […]

Many market participants believe that Chapter 11 has increasingly become more expensive. Using a new dataset detailing the fees paid to the debtor’s lead law firm in large bankruptcy cases filed between 2004 and 2022, I find evidence that this is true. On average, Chapter 11 fees consumed four times as much of a debtor’s […]

Emerging technologies for the automatic enforcement of contracts, conventionally referred to as smart contracts, have the potential to realize Professor Alan Schwartz’s ideal of an efficient contract law for sophisticated parties, as they reduce the cost of textualist enforcement, added contingencies, and privately-provided templates, and offer a way to get around mandatory rules relating to […]