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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 […]

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When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots and Sticks to Confront the Challenge of Motivational Crowding-Out

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The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives — namely, rewards or penalties […]

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The Duty for Responsible Administration and the Problem of Police Accountability

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Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When lawmakers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess […]

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Modern-Day Monitorships

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When a sexual abuse scandal rocked Penn State, when Apple was found to have engaged in anticompetitive behavior, and when servicers like Bank of America improperly foreclosed upon hundreds of thousands of homeowners, each organization entered into a “Modern-Day Monitorship.” Modern-day monitorships are utilized in an array of contexts to assist in widely varying remediation […]

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Differentiating Deference

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There is now some consensus that the context of a statutory term plays a crucial part in its meaning. The argument continues, however, over what “kinds of context . . . matter.” Building on scholarship that addresses the wide range of contexts that contribute to legal meaning, this Article illuminates two factors crucial to interpreting […]

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Advancing a Framework for Regulating Cryptocurrency Payments Intermediaries

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This Article looks at competing models for regulating providers of services to individuals and businesses that take cryptocurrencies in payment for goods and services, including operators of online wallets and exchanges, and other cryptocurrency market intermediaries whose functions resemble “money service businesses” or “money transmission.” We conclude that, in addition to whatever “money services” or […]

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Fracking in Indian Country: The Federal Trust Relationship, Tribal Sovereignty, and the Beneficial Use of Produced Water

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Potentially toxic wastewater discharges from hydraulic fracturing–known as “produced water”–are not subject to RCRA’s or the CWA’s permitting requirements. This is because the EPA has categorized produced water as a “special waste” when put to “beneficial uses” in arid regions. Some chemical components in produced water, however, are patented trade secrets that may prove injurious […]

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The Ethics of Nudging

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All over the world, governments are using nudges as regulatory tools. Is this ethical? Much of the answer depends on whether nudges promote or instead undermine welfare, autonomy, and dignity. Many nudges, and those that deserve support, promote some or all of those ideals, and undermine none of them. If welfare is our guide, much […]

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Restructuring Failed Financial Firms in Bankruptcy: Selling Lehman’s Derivatives Portfolio

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Lehman Brothers’ failure and bankruptcy deepened the 2008 financial crisis whose negative effect on the United States’ economy lasted for several years. Yet, while Congress reformed financial regulation in hopes of avoiding another crisis, bankruptcy rules such as those that governed Lehman’s failure, have persisted unchanged. When Lehman failed, it lost considerable further value when […]