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Should Regulation Be Countercyclical?

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Politicians and commentators have from time to time proposed that regulations be suspended or delayed during recessions because of their adverse impact on employment. We evaluate this argument from within a macroeconomic framework. When the business cycle is taken into account, it is possible that regulations should be weakened during downturns and strengthened during upturns, […]

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Savings Policy and the Paradox of Thrift

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The debate among legal scholars about individuals’ failure to save enough for retirement adopts a “micro” perspective. It focuses on the causes and consequences of undersaving from the perspective of individuals and analyzes how legal interventions, such as tax subsidies and nudges, can best address individual saving mistakes. This debate depends on certain assumptions about […]

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How Lawyers Can Help Macroeconomists in the Wake of Three Major Challenges

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Macroeconomics has changed in light of both developments in the world and its internal intellectual evolution. This article explores ways in which legal scholarship can help inform macroeconomic research and macroeconomic policymaking in light of three important developments: (i) limitations on conventional monetary policy in a world with lower equilibrium interest rates; (ii) labor markets […]

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What Happens When an Acquaintance Buys Your Data?: A New Privacy Harm in the Age of Data Brokers

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Data brokers have begun to sell consumer information to individual buyers looking to track the activities of romantic interests, professional contacts, and other people of interest. The types of data available for consumer purchase seem likely to expand over the next few years. This trend invites the emergence of a new type of privacy harm, […]

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The Ownership of Clearinghouses: When “Skin in the Game” Is Not Enough, the Remutualization of Clearinghouses

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A central question for corporate law scholarship has revolved around the ownership structure of enterprises. Why are some businesses owned by employees, some by customers, and some by investors? Until now, the question has centered on the relative benefits offered to these stakeholders by one form or another. This Article explores how ownership structure can […]

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Cost-Benefit Analysis and the Structure of the Administrative State: The Case of Financial Services Regulation

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The viability and desirability of conducting cost-benefit analysis of financial regulation is a subject of intense academic debate. Opponents claim that such analysis is feasible for environmental regulation but not for financial regulation because of the difference in the benefits that require monetization in the respective areas. This Article argues that the recent debate misses […]

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Probabilistic Compliance

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Uncertain legal standards are pervasive but understudied. The key theoretical result showing an ambiguous relationship between legal uncertainty and optimal deterrence remains largely undeveloped, and no alternative conceptual approaches to the economic analysis of legal uncertainty have emerged. This Article offers such an alternative by shifting from the well-established and familiar optimal deterrence theory to […]

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Unstacking the Deck: Administrative Summary Judgment and Political Control

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The Administrative Procedure Act’s provisions on formal adjudication give individuals charged in administrative enforcement actions the right to an in-person oral hearing. But not always. Agency prosecutors can circumvent formal hearing procedures without the consent of the defendant by resolving cases on “administrative summary judgment.” A 1971 Harvard Law Review Article endorsed this procedure as […]

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Constitutionalized Consent: Preemption of State Tax Limits in Municipal Bankruptcy

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Many states impose absolute limits on municipal taxes, such as a one percent maximum property tax. States also commonly require electoral approval of municipal taxes. California’s Proposition 13 is the best-known example of such state-imposed requirements. Such restrictions reduce municipal flexibility in dealing with financial distress and may contribute to municipal financial distress. This Article […]

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Corporation as Courthouse

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Despite the considerable attention paid to mandatory arbitration, few consumer disputes ever reach arbitration. By contrast, institutions such as Apple’s customer service department handle hundreds of millions of disputes annually. This Article argues that understanding businesses’ internal dispute processes is crucial to diagnosing consumers’ procedural needs. Moreover, businesses’ internal processes interact with a larger system […]

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Conflicted Counselors: Retaliation Protections for Attorney-Whistleblowers in an Inconsistent Regulatory Regime

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Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing involving their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (SEC) are required by federal […]

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Corporate Political Activity and Non-Shareholder Agency Costs

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The Supreme Court’s controversial decision in Citizens United, much like its previous decision in Bellotti, was based in part on the notion that dissenting shareholders are sufficiently protected by state corporate law and the priority it accords to shareholder interests. There has been much debate in recent years over whether the Court’s reasoning was sound. […]

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Inside Safe Assets

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“Safe assets” is a catch-all term to describe financial contracts that market participants treat as if they were risk-free. These may include government debt, bank deposits, and asset-backed securities, among others. The International Monetary Fund estimated potential safe assets at more than $114 trillion worldwide in 2011, more than seven times the U.S. economic output […]

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Baptists, Bootleggers & Electronic Cigarettes

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Electronic cigarettes pose a competitive threat to the makers of cigarettes and other tobacco products, as well as to nicotine replacement therapies such as nicotine gum and patches. A common response to such a threat is support for government regulation to suppress competition. Predictably, cigarette manufacturers and other threatened producers, as well as the governments […]