This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that […]

Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and […]

Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision […]

Founders and other corporate insiders often seek to control the companies they take public. For over a century, they have used high-vote stock to obtain disproportionate control rights, which has resulted in seemingly endless debate among scholars, investors, and regulators. More recently, insider shareholders have used a different mechanism to obtain outsized corporate control rights: […]

There are about 4600 FDIC insured banks in the United States as of June 2023.[1] Sometimes deposit insurance prevents bank failures and sometimes it does not. There were four very small bank failures in 2020.[2] There were no bank failures in 2021 or 2022.[3] In 2023, after more than two years without a bank failure […]

The March 2023 run on Silicon Valley Bank spurred renewed debate about how to structure deposit insurance to best eliminate future bank runs. This Article argues, however, that deposit insurance cannot be relied upon to eliminate all bank runs, especially if technological developments create potential new bank run triggers that deposit insurance may not be […]

The public rightly considers the traditional banking system expensive, slow, and unfair. In response, technology companies have developed an ‘open banking’ sector. They combine transaction data from financial institutions with other datasets to develop applications for additional financial services, including personalized financial management and credit underwritten by data that credit bureaus have not historically collected, […]

This Essay considers the role of bankruptcy law in the legal ecosystem that regulates banks and other financial intermediaries. It uses the recent spate of bank and crypto intermediary failures to consider the role of bankruptcy courts (and other resolution institutions) in protecting both customers, and the stability of the financial system when the instability […]

The Federal Home Loan Bank system is a $1.3 trillion government-sponsored enterprise that operates primarily for the benefit of member financial institutions. Federal Home Loan Bank members enjoy generous dividends and ready access to fresh liquidity. The biggest beneficiaries are the biggest users of the system, including the largest banks and insurance companies in the […]

The source-of-strength doctrine is a long-standing pillar of bank regulation. It holds that a bank holding company (BHC) is to serve as “a source of financial and managerial strength” for its bank subsidiaries. The doctrine, however, has always been more aspirational than actual. The doctrine has never clearly imposed any liability on BHCs. Thus, it […]

This Article offers a conceptual framework for analyzing public banking as an institutional form of finance. It examines the key elements of design of a public bank as a financial institution―its core functions, sources of funding, asset structure, and governance framework―and highlights the opportunities and challenges presented by various choices along these dimensions. By isolating […]

Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be a thick concept of administration. But as a field, administrative law today neglects administration, focusing instead on […]

What determines the effectiveness of corporate compliance programs, and who is accountable when they fail? Scholars and policymakers tend to answer these questions by focusing on internal compliance actors: directors, CEOs, general counsels, chief financial officers, and chief compliance officers. Yet in reality, all these corporate insiders rarely perform compliance tasks on their own. They […]

Even before the pandemic, the 90,000 local governments in the United States faced grim fiscal positions. During the pandemic, revenues cratered, costs increased, and many local governments teetered on the brink. Yet few of them considered filing for bankruptcy, though Chapter 9 of the Bankruptcy Code is designed for local governments. The choice to eschew […]

Under the New Deal framework for money and payments—which had its roots in the National Bank Act of 1864—banks in the United States were governed in many respects as public utilities. Charters were available only where they were consistent with public convenience and need, the usual standard for utilities. Banks enjoyed an exclusive privilege to […]