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Regulatory Influence in the Financial Markets Revisited
Full text linkHistorically, the financial markets of the United States and their corresponding regulatory scheme wielded unique influence throughout the globe. But this influence is waning, due largely to the centralization of financial services rulemaking within the European Union and the growth of global emerging markets. It is thus an important time to consider the circumstances under which a jurisdiction may assume and exercise the global regulatory influence traditionally wielded by the U.S. regime.
This Article develops a new framework to specifically address regulatory influence within global financial regulation and financial markets more broadly, looking beyond market size to establish a more complex understanding of the factors that influence global regulatory decisions within this area. This Article begins from the premise that existing theories of regulatory influence and regulatory competition, such as Anu Bradford’s “Brussels Effect,” are applicable to financial markets. This Article then sets forth novel factors regarding the jurisdiction adopting a given regulatory position that must also be considered.
This Article presents three illustrative case studies where the EU’s regulatory agenda has intersected with global financial regulation: (i) limitations on payment for the use of soft-dollar research; (ii) supervision of financial benchmarks following recent market manipulation scandals; and (iii) environmental, social, and governance (ESG) disclosures for financial products. These case studies introduce new principles for evaluating regulatory influence that have been lacking in the existing legal literature and that are of particular importance given the continuing growth of emerging markets worldwide
“Context in Context”: The Collapse of Title IX’s Substantial Control Requirement
Full text linkTitle IX of the Education Amendments of 1972 (Title IX) plays a critical role in addressing sex discrimination in academic settings. Though the statute envisions robust administrative enforcement, courts have largely been responsible for shaping Title IX’s liability framework, including in cases involving student-on-student sexual harassment. In two early decisions, the Supreme Court introduced five conditions necessary to establish a federal funding recipient’s liability in such cases. Among them was a two-part “substantial control” requirement: the recipient must have exercised control over both the harasser and the context of the harassment. The Court, however, never clearly articulated these conditions, leading to disparate tests among the lower appellate courts—most of which have expanded recipient liability by diminishing (or altogether eliminating) the substantial control requirement. While this shift reflects a desire to remedy Title IX’s limitations, it distorts case law, creates inconsistent expectations for recipients, and undermines the potential for effective administrative redress.
This Note argues that the Supreme Court should resolve the growing circuit split by adopting the five-element framework initially outlined in early Title IX case law and reaffirmed in recent regulatory amendments. Such a test would reconcile increasingly diverging standards; better reflect statutory language and administrative action; and provide clarity to courts, federal funding recipients, and students alike
AI and the Erosion of Law’s Moral Authority
Full text linkOver the past decade, artificial intelligence (AI) has begun to assist, augment, and influence judicial and legislative work. At the end of 2023, U.S. Supreme Court Chief Justice John Roberts was “confident” that technological changes would continue to transform the common law and that judicial work would “be significantly affected by AI.”
In the legislative realm, there are AI tools devoted exclusively to drafting statutes, and the use of AI by members of the U.S. Congress is now officially sanctioned. These developments have led to a focus on technical and performance-related issues with AI, including those of accuracy and reliability, efficiency, fairness and bias, accountability and transparency, and security and privacy.
But a critical issue has been neglected. More than as mere rules and codes of behavior, more than as a morally neutral social fact, we perceive and respond to law—both common law generated by courts and statutory law generated by legislators—as if it possesses, in Professor Donald Regan’s words, a “halo” of morality: law exerts moral authority over us, influences our own moral beliefs, and signals to us what others believe about moral issues. Thus, as the creation of law is increasingly offloaded onto AI, a simple, vital, but heretofore overlooked question must be asked: As AI influences the creation of law, does our perception of law itself change? More specifically, does AI diminish law’s halo?
Through a series of original empirical studies, a clear and unequivocal answer emerges. The more AI contributes to law creation (that is, the more extensive judges’ and legislators’ use of AI), the less the halo that forms around a judicial opinion, and the less the moral authority we grant to a statute. In other words, within the judiciary, the more a court uses AI, the less that court’s ruling is perceived and responded to as law. And the same is true for legislatures and the statutes they enact. Law influenced by AI is not law as we know it. The implications of this are resounding and far-reaching: the intertwining of AI and law is leading to fundamental changes in the nature of law and our relation to it, threatening this pillar of society. This Article identifies the problem and sets the stage for critical decisions about the future of artificial legal intelligence
Rural Solar Rights
No full textUtility-scale solar projects on private land—the fastest growing form of energy development in the United States today—generate low-cost, carbon-free electricity and can invigorate rural economies. However, they are also attracting unprecedented local opposition as local governments across the country adopt ordinances prohibiting or severely restricting solar farm development within their jurisdictions. Fortunately, state legislatures have multiple means of preventing municipal governments from unreasonably restricting solar energy. Among other things, states can legislatively preempt excessive local solar siting restrictions, manage more solar project permitting at the state government level, or statutorily require municipalities to classify solar farms as a “permitted use” within certain land-use zoning districts. Such legislative strategies comprise a new generation of “solar rights” laws analogous to decades-old statutes in some states that prohibit cities and homeowner associations from unreasonably restricting rooftop solar installations. As federal support for utility-scale solar softens under the new Trump administration and local roadblocks to these projects become more commonplace, the need for a new generation of state solar rights statutes is greater now than ever. This Article describes and analyzes the growing local opposition to rural solar energy and ultimately argues for a wave of new state legislation designed to strengthen rural landowners’ rights to develop utility-scale solar projects on their land
The Social Psychology of Religious Liberty Depolarization
Full text linkThis Article examines the U.S. Supreme Court\u27s approach to cases involving religious liberty and LGBTQ+ rights through the lens of social psychology. As Americans increasingly sort into opposing “mega- identities” defined by political, racial, and religious traits, religious liberty has become a deeply polarized issue, with traditional Christians and LGBTQ+ advocates often positioned as adversaries in a zero-sum conflict. Against this backdrop, the Article argues that the Roberts Court has employed social psychological techniques—specifically “aporia” (acknowledging complexity) and “affirmation” (validating diverse viewpoints)—to de-escalate this cultural tension. By analyzing key decisions in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Fulton v. City of Philadelphia, and 303 Creative LLC v. Elenis, the Article demonstrates how the Court\u27s opinions have created “safe harbors” for religious dissenters while simultaneously affirming LGBTQ+ rights. Drawing on empirical studies of the Court\u27s impact on cultural intermediaries, business behaviors, and litigation patterns, the Article reveals how judicial rhetorical strategies can foster a “live-and- let-live” approach to contentious cultural issues. While acknowledging the limitations of the Court\u27s depolarizing influence amid broader social division, the Article concludes that the Court\u27s nuanced engagement with religious liberty represents a meaningful contribution to American pluralism