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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 […]

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The Institutions of Federal Reserve Independence

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The Federal Reserve System has come to occupy center stage in the formulation and implementation of national and global economic policy. And yet, the mechanisms through which the Fed creates that policy are rarely analyzed. Scholars, central bankers, and other policymakers assume that the Fed’s independent authority to make policy is created by law–specifically, the […]

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Other People’s Contracts

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Contract law does not adequately account for the harms that we can inflict on third parties by joint agreement. Some terms are prohibited, and some third party interests are protected by independent causes of action. But a wide variety of material interests that are otherwise recognized in law may be burdened by other people’s contracts. […]

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Licensee Patent Challenges

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We analyze contractual clauses which limit the ability of licensees to challenge patents at the basis of their licensing agreements. In particular, we study no-contest clauses, which prohibit licensees from contesting the validity of the patent, and challenge-penalty clauses, which penalize licensees for doing so. We develop a model that we use to compare three […]

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Managing Regulatory Blindspots: A Case Study of Leveraged Loans

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Leveraged loans have reached new peaks in the post-crisis period. This Article assesses U.S. leveraged loan regulation and highlights the ways in which the entity- or institution-based focus of regulation have been the source of critical blindspots that have limited the ability of regulators to monitor and address the risks of leveraged lending. First, the […]

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Adjudicating Corporate Auctions

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In light of recent developments in auction theory, this Article re-examines Delaware corporate law governing directors’ actions when structuring the sale of a corporation. A foundational doctrine of Delaware law is that when the board of directors resolves to sell a corporation, it must obtain the highest price reasonably available. Auction theory posits that, in […]

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The Flawed Mechanics of Mutual Fund Fee Litigation

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In this Article we identify a number of serious mechanical flaws in the statutes and judicial doctrines that govern fee liability for mutual fund managers. Originating in Section 36(b) of the Investment Company Act, mutual fund fee liability allows investors to sue managers for charging fees above a judicially created standard. Commentators have extensively debated […]