Yale Journal on Regulation

http://digitalcommons.law.yale.edu/yjreg

List of Papers (Total 452)

Common Carriage's Domain

The judicial decision invalidating the Federal Communications Commission's first Open Internet Order has led advocates to embrace common carriage as the legal basis for network neutrality. In so doing, network neutrality proponents have overlooked the academic literature on common carriage as well as lessons from its implementation history.

Ending Public Utility Style Rate Regulation in Insurance

Many property-casualty insurers are subject to an elaborate state-based regulatory regime that enforces prohibitions against "excessive

Infrastructural Regulation and the New Utilities

From too-big-to-fail financial firms to net neutrality to internet platforms and the water crisis in Flint, Michigan, we now face a variety of legal and public policy problems which all share a common structure. While covering vastly different subject matter areas, these disputes are similar in that they all involve the same root problem: how should law and public policy operate...

Public Utility Regulation: Some Economic and Moral Analyses

This Essay analyzes various economic and moral issues that relate to the actual/alleged unregulated conduct of public-goods producers, public utilities, and "businesses affected with a public interest

George Stigler on His Head: The Consequences of Restrictions on Competition in (Bank) Regulation

Bank regulation used to be riddled with price, product, entry, and location restrictions. Such restrictions were intended to prevent the recurrence of crises, such as those of the 1930s and 1940s. Over time, however, regulatory acquiescence to technological and institutional innovation undermined their ability to limit competition. An intellectual turn toward valorizing...

Foreword to Revisiting the Public Utility Symposium: Revisiting the Public Utility

In Munn v. Illinois the U.S. Supreme Court upheld state price regulation of grain elevators. The Court took some inspiration from Lord Mathew Hale's notion that a business "affected with a public interest" requires special regulatory attention. "Every ferry," Lord Hale wrote in the Seventeenth Century, "ought to be under public regulation, to wit: that it give attendance at due...

Penalties in Equity: Disgorgement after Kokesh v. SEC

This Note defends the SEC's statutory authority to seek judicial disgorgement. In Kokesh v. SEC, the Supreme Court held that judicial disgorgement brought by the SEC constitutes a penalty for the purpose of the five-year statute of limitations in 28 U.S.C. ยง 2462. In the following months, scholars and practitioners-and at least one putative class action-have argued that this...

Presidential Authority to Revoke or Reduce National Monument Designations

The Antiquities Act of 1906 was passed in order to protect threatened historic ruins, structures and landmarks, and accordingly, it grants the President the power to designate such features as national monuments. Despite this goal, several Presidents have used this authority to unilaterally withdraw hundreds of thousands of acres of federal land from public use.

Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience

This Article examines presidential direction of administrative action in the Obama and early Trump Administrations against the backdrop of ongoing debates concerning: (i) the desirability of and appropriate techniques for presidential control of administration and (ii) the relevance of separated powers when American government is under unified political control. To give this...

REASONABLE PATENT EXHAUSTION

A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended with Impression Products v. Lexmark. The Supreme Court held that the sale of a patented thing exhausts the patentee seller's rights to enforce restrictions on that thing through patent infringement suits. Further, the parties cannot bargain around this rule through the seller's...

UNIVERSAL PROXIES

Contested director elections are a central feature of the corporate landscape and underlie shareholder activism. Rules governing proxy voting by shareholders prevent shareholders from "mixing and matching" among nominees from the two sides of contests. This Article's analysis shows that these proxy voting rules can lead to distorted proxy contest outcomes: different directors...

Eliminating Conflicts of Interests in Banks: The Significance of the Volcker Rule

Public policy has been focused on controlling the conflicts of interests in banks for the last eighty-five years with limited success. Banks have a unique place in the economy as intermediaries between investors and companies, allowing them to obtain significant private, proprietary information. Public policy is focused on trying to ensure that banks do not misuse this...

Diagramming Interpretation

Sentence diagramming a method of showing the relationship between different parts of a sentence-has long been used by judges to interpret legal texts. This Comment documents how judges employ sentence diagrams in constitutional, statutory, and contract cases. It finds that diagramming plays an important role in constitutional and statutory cases, complementing traditional canons...

Credit Default Swaps on Municipal Bonds: A Double-Edged Sword?

The municipal bond market has traditionally been viewed as a relatively safe market, where credit risk wasn't a primary concern. The spate of fiscal crises that state and local governments have experienced in recent years, however, has changed this narrative.

Delegation and Dysfunction

Much of the scholarly literature lauds cooperative federalism, in which states regulate to achieve federal standards, as an innovative federal-state partnership. But delegation of authority also has grave dangers caused by principal-agent problems, among others. The largely toothless nondelegation doctrine captures these challenges, but the bidirectional difficulties of...

Containing Systemic Risk by Taxing Banks Properly

At the root of recurring bank crises are deeply-implanted incentives for banks and their executives to take systemically excessive risk. Since the 2008-2009 financial crisis, regulators have sought to strengthen the financial system by requiring more capital (which can absorb losses from risk-taking) and less risk-taking, principally via command-and-control rules. Yet bankers

Regulating by Example

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, the theoretical literature contains no study of regulatory examples or of how they might be interpreted. Courts differ about whether examples serve as an independent source of law...

Stock Market Manipulation and Its Regulation

More than eighty years after federal law first addressed stock market manipulation, federal courts remain fractured by disagreement and confusion about manipulation law's most foundational questions. Only last year, plaintiffs petitioned the Supreme Court to resolve a sharp split among the federal circuits concerning manipulation law's central question: whether trading activity...

Resolving the Crisis in U.S. Merger Regulation: A Transatlantic Alternative to the Perpetual Litigation Machine

Regulation by litigation has driven U.S. merger regulation to crisis. The reliance on private lawsuits to police disclosures and potential conflicts of interest in mergers, takeovers, and other control transactions has resulted in the filing of claims after every major transaction. However, it has failed to achieve meaningful benefits for shareholders and has instead deprived...