The Federal Reserve System has come to occupy center stage in the formulation and implementation of national and global economic policy. And yet, the mechanisms through which the Fed creates that policy are rarely analyzed. Scholars, central bankers, and other policymakers assume that the Fed’s independent authority to make policy is created by law–specifically, the […]

Contract law does not adequately account for the harms that we can inflict on third parties by joint agreement. Some terms are prohibited, and some third party interests are protected by independent causes of action. But a wide variety of material interests that are otherwise recognized in law may be burdened by other people’s contracts. […]

We analyze contractual clauses which limit the ability of licensees to challenge patents at the basis of their licensing agreements. In particular, we study no-contest clauses, which prohibit licensees from contesting the validity of the patent, and challenge-penalty clauses, which penalize licensees for doing so. We develop a model that we use to compare three […]

Leveraged loans have reached new peaks in the post-crisis period. This Article assesses U.S. leveraged loan regulation and highlights the ways in which the entity- or institution-based focus of regulation have been the source of critical blindspots that have limited the ability of regulators to monitor and address the risks of leveraged lending. First, the […]

In light of recent developments in auction theory, this Article re-examines Delaware corporate law governing directors’ actions when structuring the sale of a corporation. A foundational doctrine of Delaware law is that when the board of directors resolves to sell a corporation, it must obtain the highest price reasonably available. Auction theory posits that, in […]

In this Article we identify a number of serious mechanical flaws in the statutes and judicial doctrines that govern fee liability for mutual fund managers. Originating in Section 36(b) of the Investment Company Act, mutual fund fee liability allows investors to sue managers for charging fees above a judicially created standard. Commentators have extensively debated […]

An examination of U.S. banking history shows that economically efficient private bank money requires that information-revealing securities markets for bank liabilities be closed. That is, banks are optimally opaque, which is why they are regulated and examined. This Article examines the transition from private bank notes, the predominant form of money before the U.S. Civil […]

Shadowy Banking is financial activity that is engineered to extract implicit subsidies from government safety nets. It substitutes innovative corporate entities and products for activities that could be performed more straightforwardly within a traditional banking firm. The shadows obscure organizational forms and transaction strategies that circumvent regulatory restraints and extract subsidies by regulation-induced innovation. Because […]

In this Article I review the literature on the conceptual and analytical arguments for and against capital adequacy and liquidity requirements for banks, in light of historical and recent experiences and evidence. Much research argues for higher capital adequacy requirements given their beneficial effects in terms of better incentives, greater buffers, and improved interventions in […]

Much of financial regulation and supervision is devoted to ensuring the safety and soundness of financial institutions. Such micro- and macro-prudential policies are almost always formulated as capital requirements, leverage constraints, and other statutory restrictions designed to limit the probability of extreme financial loss to some small but acceptable threshold. However, if the risks of […]

In 2013, a new system for mandatory public disclosure came into effect, the first since the creation of the Securities and Exchange Commission (SEC) in 1934. Today, major banks and certain other entities must make disclosures mandated not only by the SEC, but also by a new system developed by the Federal Reserve Board and […]

In the wake of the global financial crisis, attention has often focused on whether incentives generated by bank executives’ compensation programs led to excessive risk-taking. Post-crisis, compensation reform proposals have taken broadly three approaches: long-term deferred equity incentive compensation, mandatory bonus clawbacks upon accounting restatements and financial losses, and debt-based compensation. In earlier articles we […]

This Article argues for reorienting many antitrust investigations–and more generally regulatory approaches–to focus on how control of personal data by corporations can entrench monopoly power in an economy shaped increasingly by the power of “big data.” What is largely missed in analyses defending Google from antitrust action is how Google’s ever expanding control of user […]

The central and expanding role of the National Security Council in compiling the “kill list” of U.S. citizens and others approved for drone killing outside of recognized battlefields highlights the largely overlooked fact that, since the mid-1990s, the U.S. government has taken the categorical position that the National Security Council is exempt from both the […]

Solar, wind, and other renewable energy technologies have the potential to mitigate climate change, secure America’s energy independence, and create millions of green jobs. In the absence of a price on carbon emissions, however, these long-term benefits will not be realized without near-term policy support for renewable energy. This Article assesses the efficiency of federal […]