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Harnessing Investor Interest in Sustainability: The Next Frontier in Environmental Information Regulation

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This Article rethinks the theory and application of environmental information regulation in light of growing investor interest in sustainability. Academics and policymakers have long viewed mandatory information disclosure as a powerful regulatory tool for improving corporate environmental performance, with some going so far as to call environmental information regulation the third phase of American environmental […]

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FOIA’s Common Law

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The Freedom of Information Act (FOIA) replaced the near-total control that agencies held over their records with a judicially enforceable “right” of public access to agency information. Underscoring the importance of this statutory right, FOIA rejected the judiciary’s traditional respect for agency expertise. It instead places the burden of proof on the government and mandates […]

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Split Derivatives: Inside the World’s Most Misunderstood Contract

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Derivatives are the “bad boys” of modern finance: exciting, dangerous, and fundamentally misunderstood. These misunderstandings stem from the failure of scholars and policymakers to fully appreciate the unique legal and economic structure of derivative contracts, along with the important differences between these contracts and conventional equity and debt securities. This Article seeks to correct these […]

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The Faulty Foundation of the Draft Restatement of Consumer Contracts

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Professor Gregory Klass’s replication study of the Draft Restatement of the Law of Consumer Contract’s empirical analysis of privacy policies found troubling and pervasive problems with the Reporters’ coding of cases. We extended Professor Klass’s study with a replication of the coding of the two largest datasets supporting the Draft Restatement, those on the enforceability […]

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The FSOC’s Designation Program as a Case Study of the New Administrative Law of Financial Supervision

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When legal scholars specializing in financial regulation have examined the Financial Stability Oversight Council (FSOC), their lens has usually focused on matters outside of the core public law expertise they are best positioned to contribute. This curious state of affairs is the consequence of the historical mutual disinterest between administrative law scholars and financial regulatory […]

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Does Agency Structure Affect Agency Decisionmaking? Implications of the CFPB’s Design for Administrative Governance

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An extensive literature has analyzed the accountability of administrative agencies, and in particular, their relationship to Congress. A well-established strand in the literature emphasizes that Congress retains control over agencies by their design, with a focus on the structure and process by which agency decisionmaking is undertaken. This Article examines the relationship between agency structure […]

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Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries

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The typical federal agency issues a vast amount of guidance, advising the public on how it plans to exercise discretion and interpret law. Under the Administrative Procedure Act (APA), the agency must follow onerous procedures to issue full-blown regulations (including notice and comment) but can issue guidance far more easily. What justifies this difference, in […]

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Global Antitakeover Devices

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This Article explores a “hidden” mechanism that insulates management from hostile takeovers and activist intervention: the global antitakeover device (“GAD”). A GAD is based on the ability of public firms to “mix and match” between different forms of regulation by cross-listing on multiple stock exchanges or incorporating in foreign jurisdictions. This action subjects any hostile […]

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Empiricism and Privacy Policies in the Restatement of Consumer Contract Law

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The Draft Restatement of the Law of Consumer Contracts includes a quantitative study of judicial decisions concerning businesses’ online privacy policies, which it cites in support of a claim that most courts treat privacy policies as contract terms. This Article reports an attempt to reproduce that study’s results. Using the Reporters’ data, this study was […]

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Successor Identity

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The law of successor criminal liability is simple—corporate successors are liable for the crimes of their predecessors. Always. Any corporation that results from any merger, consolidation, spin-off, etc., is on the hook for all the crimes of all the corporations that went into the process. Such a coarse-grained, one track approach fails to recognize that […]

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Presidential Authority to Revoke or Reduce National Monument Designations

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The Antiquities Act of 1906 was passed in order to protect threatened historic ruins, structures and landmarks, and accordingly, it grantsthe President the power to designate such features as national monuments. Despite this goal, several Presidents have used this authority to unilaterally withdraw hundreds of thousands of acres of federal land from public use. Moreover, […]

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Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience

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This Article examines presidential direction of administrative action in the Obama and early Trump Administrations against the backdrop of ongoing debates concerning: (i) the desirability of and appropriate techniques for presidential control of administration and (ii) the relevance of separated powers when American government is under unified political control. To give this analysis a concrete […]

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Reasonable Patent Exhaustion

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A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended with Impression Products v. Lexmark. The Supreme Court held that the sale of a patented thing exhausts the patentee seller’s rights to enforce restrictions on that thing through patent infringement suits. Further, the parties cannot bargain around […]

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Universal Proxies

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Contested director elections are a central feature of the corporate landscape and underlie shareholder activism. Rules governing proxy voting by shareholders prevent shareholders from “mixing and matching” among nominees from the two sides of contests. This Article’s analysis shows that these proxy voting rules can lead to distorted proxy contest outcomes: different directors being elected […]

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Making a Market for Corporate Disclosure

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It has long been said that market forces alone will result in a problematic under-sharing of information by public companies. Since the 1930s, the main regulatory response to this market failure has come in the form of the massive mandatory-disclosure regime that sits at the foundation of modern securities law. But thisregime—especially when viewed along […]