Print Edition

Article

Print Edition

Artificial Intelligence and Climate Change

PDF Download

As artificial intelligence (AI) continues to embed itself in our daily lives, many focus on the threats it poses to privacy, security, due process, and democracy itself. But beyond these legitimate concerns, AI promises to optimize activities, increase efficiency, and enhance the accuracy and efficacy of the many aspects of society relying on predictions and […]

Print Edition

Pharmaceutical Pricing When Success Has Many Parents

PDF Download

Pharmaceutical companies claim that high prices for drugs are needed to offset the costs and risks associated with research and development. In most instances, though, the initial (basic) research that leads to new discoveries is conducted at public institutions and paid for with public funds. Drugmakers tend to take over the process of bringing new […]

Print Edition

Maximin

PDF Download

For regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change, pandemics, or new and emerging technologies, regulators who are unable to […]

Print Edition

Algorithmic Accountability in the Administrative State

PDF Download

How will artificial intelligence (AI) transform government? Stemming from a major study commissioned by the Administrative Conference of the United States (ACUS), we highlight the promise and trajectory of algorithmic tools used by federal agencies to perform the work of governance. Moving past the abstract mappings of transparency measures and regulatory mechanisms that pervade the […]

Print Edition

Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis

PDF Download

When contemplating Chapter 11, firms often need to seek financing for their continuing operations in bankruptcy. Because such financing would otherwise be hard to find, the Bankruptcy Code authorizes debtors to offer sweeteners to debtor-in-possession (DIP) lenders. These inducements can be effective in attracting financing, but because they are thought to come at the expense […]

Print Edition

Toward Separation of Powers Realism

PDF Download

Many wonder if the separation of powers is going to be reinvigorated by the new appointees to the federal judiciary. But that doctrine in practice means that occasionally alarming, but exceedingly rare, doctrinal innovations—finding venerable parts of the administrative state or portions of high-profile congressional statutes to be unconstitutional, for example—make no real-world difference because […]

Print Edition

Private Markets, Public Options, and the Payment System

PDF Download

The speed at which money moves between people and businesses in the United States lags well behind international standards. Slow payment speeds lead to inefficiency across the economy, drive demand for high-cost credit products, and have hampered the federal response to 2020’s pandemic-driven economic crisis. To speed up the payment system, the Federal Reserve (“Fed”) […]

Print Edition

Modernizing Bank Merger Review

PDF Download

Sixty years ago, Congress established a federal pre-approval regime for bank mergers to protect consumers from then-unprecedented consolidation in the banking sector. This process worked well for several decades, but it has since atrophied, producing numerous “too big to fail” banks.    This Article contends that regulators’ current approach to evaluating bank merger proposals is […]

Print Edition

Not Everything Is About Investors: The Case for Mandatory Stakeholder Disclosure

PDF Download

Corporations are required to disclose specific types of information to the public, but only the federal securities laws impose generalized disclosure obligations that produce a holistic overview of corporate operations. While these disclosures are intended to benefit investors, they are accessible to anyone, and thus have long been relied upon by regulators, competitors, employees, and […]

Print Edition

Federal Grant Rules and Realities in the Intergovernmental Administrative State: Compliance, Performance, and Politics

PDF Download

Federal grants are one of the government’s most important policy tools. While high-profile debates about constitutional coercion, entitlement reform, and budget cuts receive most of the public attention given to federal grants, a more prosaic but equally important reality describes the operation of these grants on the ground: the web of detailed rules and massive […]

Print Edition

Taking Compliance Seriously

PDF Download

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 […]

Print Edition

The Private Equity Negotiation Myth

PDF Download

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 […]

Print Edition

Costs, Conflicts, and College Savings: Evaluating Section 529 Savings Plans

PDF Download

Americans collectively save hundreds of billions of dollars for their children’s education in Section 529 college savings plans. These plans are sponsored by states and largely exempt from the legal regimes that typically apply to money managers. This is the first academic study to comprehensively evaluate the quality of menus offered by these plans. While […]

Print Edition

Unenforceable Securitization Contracts

PDF Download

A “portfolio” here is a bundled set of contracts. In this Article, we address a commercially important example, where a local bank finances home purchases. The bank bundles the resultant contracts—the mortgage-backed securities (MBS)—into a portfolio, which it then sells to a firm, denoted an “originator.” The originator buys portfolios from several local banks and […]

Print Edition

Regulating Intermediate Technologies

PDF Download

Over the last several years, scholars studying health innovation policy have carefully considered the ways in which policymakers regulate different types of technologies to encourage their development and dissemination. Scholars have examined a range of legal incentives, including patents, Food and Drug Administration (FDA) exclusivity periods, taxes, grants, insurance reimbursement, and other tools to promote […]