27127 research outputs found
Sort by
Trustless Trust and Antitrust: A Synthesis
No full textAuthors have written of antitrust law’s demise in the face of blockchain, which, seemingly, achieves the pro-competitive ends of the law through technology and private ordering. Permissionless blockchains in particular are said to offer a vision of radical disinter mediation and a break with the platform economy troubling the regulators today. At the same time, blockchain supposedly presents challenges to antitrust doctrine, from the most basic of concepts to the viability of enforcement and remedies. Finally, blockchain community governance is said to allow for private ordering of antitrust, i.e., enforcement of rules attempting to protect competition, which are at the same time illegal; not coming from the courts or agencies, they constitute competition wrongs themselves. This Article argues that all three claims are overstated and proposes a synthesis of law and code. The legal doctrine can be modified to tackle the novel technological landscape quite easily, with adoption of novel legal fictions. This is necessary since blockchains—both public and even more so private ones—while ingenious, do not remove a need for the law to protect the market from anticompetitive conduct. Indeed, even public ledgers have power structures allowing for abuse, while private blockchains may, in fact, allow for its proliferation. The law needs to find a regulatory access point to the ledgers. This is not an easy task; however, cooperation of blockchains with the law, and encoding of antitrust rules on the ledgers themselves, offers a possibility of a reconciliation between the law and the code. At the same time, this lends legitimacy to pro-competitive actions of those cyberspace communities and ensures a preservation of the rule of law. This is the blockchain antitrust synthesis
Shadow Banking and Securities Law
Get PDFShadow banking may be the single greatest challenge facing financial regulation. Financial institutions that function like banks, but outside the scope of banking regulation—aptly termed “shadow banking”—were at the heart of the Global Financial Crisis and most episodes of serious financial stress since then. Scholars have largely focused on one response to this problem—extending traditional banking regulation to shadow banks. Yet more than fifteen years after the crisis, major regulatory efforts along this route have stalled.
In this Article, we explore the uneasy case for greater regulation of shadow banking through securities law. Our first contribution is analytical. We demonstrate the enormous jurisdiction already enjoyed by securities regulators over shadow banking. This fact has deep roots in the architecture of U.S. financial regulation. While banking law adopts a narrow and formalistic definition of banking, securities law does the opposite, adopting a set of open-ended, capacious, and functional definitions of its core categories—“security,” “investment company,” “dealer,” and the like—that end up encompassing almost all financial investments. As a result, securities regulators can regulate shadow banking. More importantly, we show that how shadow banking falls under securities law matters. Each status provides a distinct statutory basis that will shape the policy levers available to regulators. This will only prove more important in an era of increased judicial skepticism of agency power.
Our second contribution is to explore the promise and limits of regulating shadow banking through securities law. The core affirmative case lies in the fact that securities regulators have clear authority to act, and that shadow banking poses grave dangers to financial stability. In fact, securities regulators already address financial instability to a greater extent than is widely appreciated. The case remains uneasy, however, because the SEC’s mandate and balance sheet are limited, and there are legitimate concerns about the agency’s ability to effectively craft ex ante regulations aimed at shadow banking. Nonetheless, we argue that greater action is on balance justified. Our account has important implications for policy as well as for understanding the architecture of financial regulation
Curbing Private Enforcement of The Voting Rights Act: Thoughts On Recent Developments
Get PDFFor decades, private plaintiffs have brought claims to enforce key provisions of the Voting Rights Act (VRA). Recent decisions have tossed out these claims on the ground that enforcement authority lies solely with the Attorney General of the United States. These decisions are deeply flawed. The VRA’s text and structure, history, precedent, and longstanding practice all support private enforcement of the VRA—including private enforcement of Sections 2 and 11(b). This Essay explains why
A Feminist Critique of the VA Rating Schedule
Get PDFFibromyalgia crept into Tina’s life, slowly stealing away her energy and inflicting pain on her body. She experienced a myriad of symptoms including severe and constant pain, fatigue, and memory issues; as she put it, “brain fog.” Her symptoms were so intense she could barely get out of bed, let alone engage in the activities she once loved. Doctors blamed her hormones, believed her pain was psychosomatic, or dismissed her as someone seeking drugs. After several years of severe symptoms and missing work, she was fired from her job. As a United States Air Force veteran who served in the Persian Gulf, Tina turned to the Department of Veterans Affairs (“the VA”) for help. The VA finally diagnosed her with fibromyalgia and determined that her illness was related to her military service in Southwest Asia. The VA gave Tina a 40% disability rating, a measure intended to reflect how her disability and its symptoms would likely impact her employment. Although grateful that her unrecognized condition was finally being seen, Tina did not understand how her experiences only amounted to a 40% rating when, in reality, she was physically unable to work. As she would later discover, 40% was the maximum rating for fibromyalgia
The Implications of ChatGPT For Legal Services and Society
Get PDFOn November 30, 2022, OpenAI released a chatbot called ChatGPT.1 To demonstrate the chatbot’s sophistication and its potential implications, both for legal services and society more generally, most of this paper was generated in about an hour through prompts within ChatGPT. Only this abstract, the preface, the outline headers, the footnotes, the epilogue, and the prompts were written by a person. ChatGPT generated the rest of the text with no human editing. To be clear, the responses generated by ChatGPT were imperfect and at times problematic, and the use of an AI tool for law-related services raises a host of regulatory and ethical issues. At the same time, ChatGPT highlights the promise of artificial intelligence, including its ability to affect our lives in both modest and more profound ways. ChatGPT suggests an imminent reimagination of how we access and create information, obtain legal and other services, and prepare people for their careers. We also will soon face new questions about the role of knowledge workers in society, the attribution of work (e.g., determining when people’s written work is their own), and the potential misuse of and excessive reliance on the information produced by these kinds of tools.
The disruptions from AI’s rapid development are no longer in the distant future. They have arrived, and this document offers a small taste of what lies ahead
Postmortem Privacy
Get PDFSince their inception in the late nineteenth century, privacy rights have been widely understood to terminate with a person’s death. The “no-privacy-rights-for- the-dead” doctrine has been repeated for nearly 130 years. As demonstrated in this Article, the reality on the ground deviated from this common pronouncement even early on. The divergence is so great today that sustained consideration of postmortem privacy is essential. This is especially so given urgent calls to protect the digital assets of the dead and evolving technology that allows for the reanimation of deceased performers and loved ones. This Article provides a theoretical foundation for determining whether, when, and how the law should extend privacy rights after death.
We begin by mapping what we call “postmortem privacy,” revealing both the surprisingly wide extension of privacy protections after a person’s death, and the haphazard, inconsistent, and at times incoherent state of the law. We then interrogate the array of interests that could justify postmortem privacy rights. We first situate this analysis in the law’s “jurisprudence of exclusion,” which withholds rights from entities that lack traits deemed essential for rights ascription. We then consider why, despite the initial impetus to deny rights to the dead, the law increasingly gravitates toward doing so. The best reasons to extend postmortem privacy are rooted not in the ongoing interests of the dead, but instead in the interests of the living and society. In particular, living individuals have interests in the treatment of their future deceased selves that we denominate the interests of the “future-decedents.” The living also have interests tied to their deceased relatives and loved ones that we designate the interests of the “relational-living.” Finally, society has a collective interest in treating the dead with respect.
Postmortem privacy, however, must be bounded both to accommodate competing interests and also to ensure that it appropriately furthers its objectives. Accordingly, in its final part, this Article explores important limits on the scope of postmortem rights, including boundaries of eligibility, standing, temporal duration, and the competing interests of the living, including the freedom of speech. Ultimately, we conclude that there are convincing reasons to recognize postmortem privacy rights. However, the current law, by focusing on commercial value after death as the prime basis to extend rights, is off kilter. Postmortem privacy should be for everyone, not just the famous, and should empower survivors and future-decedents to limit the commercialization of the dead. Instead, the current system incentivizes unrelated companies to exploit and profit from the dead without meaningfully protecting postmortem privacy. Our analysis frames a markedly different normative and practical vision than the one we have today and provides a foundation on which to build a more coherent, fair, and predictable postmortem privacy
U.S. Food & Drug Administration v. Alliance for Hippocratic Medicine: Brief for Food and Drug Law Scholars and Professors as Amici Curiae Supporting Petitioners and Reversal
Get PDFAmici curiae are U.S. food and drug law scholars and professors from academic institutions across the United States. A full list of amici is included as an Appendix to this brief. Amici have expertise in food and drug law, including the drug approval process and regulation of pharmaceuticals under the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. § 301 et seq. Amici submit this brief to address important issues raised by this case concerning the authority of the U.S. Food & Drug Administration (FDA or the Agency) to regulate prescription drugs.
The Federal Food, Drug, and Cosmetic Act sets out a comprehensive process under which FDA reviews and approves new drugs, and major changes to approved applications, before such products may be introduced into interstate commerce. FDA will approve a new drug application (NDA) only if it determines, based on the full record before the Agency, that the product is safe and effective for the proposed conditions of use. That determination requires the review of scientific evidence that sponsors submit in support of their applications. In specified circumstances, the FDCA authorizes FDA to impose distribution and use restrictions to assure that a drug’s benefits outweigh its risks, but the statute requires the Agency to minimize the burdens of such restrictions on patient access and, to the extent practicable, the healthcare system
Debunking Criminal Restitution
Get PDFCriminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution.
Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in the criminal legal system—as courts across the country order people without means to pay. Meanwhile, most criminal restitution goes uncollected, providing little satisfaction to the victims the schemes are designed to “make whole.” At the federal level and in several states, criminal restitution has become a mandatory part of sentencing, without any consideration for a defendant’s economic circumstances. This Article reframes the lens through which we examine criminal restitution and debunks the widely accepted belief that it is an appropriate criminal financial obligation. Similarly problematic and pervasive as other types of financial punishment, criminal restitution has transformed into a form of wealth extraction from the most vulnerable, perpetuating existing inequalities with few benefits to victims. To that end, this Article calls for a reimagining of criminal restitution and explores various alternative frameworks for achieving its policy goals, while also promoting defendants’ successful reintegration into their communities
Tax Delegation Post-Loper Bright
Get PDFIn its recent decision in Loper Bright, the Supreme Court has fundamentally shifted the contours of judicial deference to administrative interpretations by repealing the Chevron doctrine. However, while the Court has curtailed deference, it simultaneously underscored the legitimacy of statutory delegation to agencies. The Internal Revenue Code (Code) is the most intricate legislative text within the U.S. legal framework, necessitating significant technical expertise for its application. It is, therefore, unsurprising that Congress often delegates authority to the IRS for the execution of the statute. In light of the Court\u27s decision in Loper Bright, it becomes imperative to clarify the parameters of permissible tax delegation. Loper Bright introduces the concept of constitutional limits in delegation, referring to the nondelegation doctrine, which posits that Congress cannot cede its core legislative powers to an executive agency. Current jurisprudence renders this standard relatively lenient. In a recent case, a plurality endorsed delegation but left open the possibility for future reevaluation. Notably, three Justices in dissent expressed a willingness to reconsider the longstanding leniency toward delegation, emphasizing the need for standards that are sufficiently definite and precise. This paper discusses which types of delegation in the Code meet this standard. In addition, given the potential for challenges to IRS regulations, it is particularly urgent to identify those not founded on any delegation. To navigate this landscape effectively, Congress should reassert its intent by adding delegations as needed and by explicitly outlining the parameters of the delegation. This would not only fortify the IRS\u27s regulatory framework but also provide a clearer basis for judicial review, enabling courts to exercise their interpretive roles more flexibly and judiciously
Bank Runs During Crypto Winter
No full text“Crypto Winter” refers to a systemic event that occurred in the cryptocurrency ecosystem—what we call “crypto space”—in 2022. Crypto space was wracked by plummeting crypto prices, the troubles of a large crypto hedge fund, and runs on many crypto lending platforms. Several large crypto firms went bankrupt. Collectively, everyday people lost billions of dollars. And crypto investors are still feeling the aftershocks.
We begin with two observations: First, despite mass marketing campaigns to the contrary, crypto lending platforms recreated and replicated traditional banking. They were vulnerable to runs because, like all banks, they borrowed short and lent long. This is the essence of banking, so we label these lending platforms “crypto banks.” Second, crypto space was largely circular. Once crypto banks obtained deposits and investments, these firms borrowed, lent, and traded mostly between themselves. As a result, Crypto Winter did not cause the kind of financial turmoil that we witnessed in either 2008 or 2020, nor did it cause an economic recession.
We then sound a warning for regulators. The next generation of crypto firms are linking up with the financial sector, which means their failures will spill over into the real economy. To contain the inevitable growth of systemic risk, regulators should use banking laws to address a banking problem