The expression “personnel is policy” has become a truism in Washington. Yet our understanding of how the political branches use appointments to project influence into the administrative state is incomplete. This Article leverages data on almost one-thousand commissioners serving on eleven major independent regulatory commissions to chart, for the first time, Congress’s growing practice of […]

A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well […]

Acute agency costs exist in unions as they do in other complex organizations. Specifically, union officials are imperfect representatives of the rank-and-file workers they ostensibly represent. Yet far less attention has been paid to addressing agency costs in the context of unions than in the context of public corporations, where the separation of share ownership […]

This paper uses network theory to argue that the consequences of horizontal ownership by large investment institutions are more complicated than, and sometimes the complete opposite of, what conventional economic theory predicts. Horizontal ownership occurs when a large investment institution, such as Vanguard or BlackRock, simultaneously holds large stakes in many different companies in the […]

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 […]

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 […]

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 […]

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 […]

When considering Chapter 11 bankruptcy, companies often find themselves in the challenging position of needing financing to sustain their operations during the bankruptcy process. Given the inherent risk of lending to a bankrupt entity, the Bankruptcy Code recognizes this difficulty and allows debtors to provide incentives, known as sweeteners, to debtor-in-possession (DIP) lenders. These incentives […]

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 […]

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”) […]

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 […]

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 […]

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 […]

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 […]