Law Commons^™

Structural Overdelegation In Criminal Procedure, Anthony O'Rourke

Anthony O'Rourke

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making. Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …

Antitrust, Institutions, And Merger Control, D. Daniel Sokol

D. Daniel Sokol

This Article makes two primary contributions to the antitrust literature. First, it identifies the dynamic interrelationship across antitrust institutions. Second, it provides new empirical evidence from practitioner surveys to explore how the dynamic institutional interrelationship plays out in the area of merger control. This Article provides a descriptive, analytical overview of the various institutions to better frame the larger institutional interrelations for a comparative institutional analysis. In the next Part it examines mergers as a case study of how one might apply antitrust institutional analysis across these different kinds and levels of antitrust institutions. The Article utilizes both quantitative and …

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

Jonathan C. Lipson

This paper uses “institutional analysis”—the study of the relative capacities of markets, courts, and regulators—to make three claims about financial crises.

First, financial crises are increasingly a problem of “regulatory displacement.” Through the ad hoc rescues of 2008 and the Dodd-Frank reforms of 2010, regulators displace market and judicial processes that ordinarily prevent financial distress from becoming financial crises. Because regulators are vulnerable to capture by large financial services firms, however, they cannot address the pathologies that create crises: market concentration and complexity. Indeed, regulators may inadvertently aggravate these conditions through resolution tactics that consolidate firms, and the volume and …

Epic Fail: An Institutional Analysis Of Financial Distress, Jonathan C. Lipson

Jonathan C. Lipson

This paper presents an institutional analysis of financial distress. “Institutional analysis” compares the effectiveness of large-scale processes, such as markets, courts, and governments, at solving social problems. Although financial distress is one of our most acute problems, there has been virtually no effort to analyze it from an institutional perspective. This paper begins to fill that gap.

Institutional analysis shows that, contrary to conventional wisdom, financial distress is not a problem that courts, such as bankruptcy courts, usually solve by themselves. Instead, it is increasingly a problem that political organs (whether elected or regulatory) both create and purport to resolve. …

Beyond Macro-Prudential Regulation: Three Ways Of Thinking About Financial Crisis, Regulation And Reform, Tamara Lothian

Tamara Lothian

This paper considers the debate about the "macro-prudential regulation" of finance in the context of a broader view of the relation of finance to the real economy. Five ideas are central to the argument. The first idea is that the two dominant families of ideas about finance and its regulation share a failure of institutional imagination. Neoclassical economists blame localized market and regulatory failures for the troubles of finance. Keynesians invoke the way in which the money economy may amplify cycles of despondency and euphoria. Neither current of thought recognizes that the institutions of finance in particular, and of the …

Comparative Institutional Analysis In Cyberspace: The Case Of Intermediary Liability For Defamation, Susan Freiwald

Susan Freiwald

Almost every day brings reports that Congress is considering new cyberspace-targeted laws and the courts are deciding novel cyberspace legal questions. These developments lend urgency to the question of whether a particular cyberspace legal change should come through operation of new statutes, judicial decisions, or the free market. If we can develop sophisticated analytical methods to evaluate institutional competence in cyberspace, we can vastly improve the development of cyberspace law and public policy.

Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation promotes just such an approach. By describing and extending a recently proposed model of comparative …