Welcome to the   Yale Law School Legal Scholarship Repository. This repository provides open, global access to the scholarship of Yale Law School faculty and jornals, as well as a selection of unique collections. 

  • A NEW STRATEGY FOR REGULATING ARBITRATION

    Sanga, Sarath (Northwestern University Law Review, 2019)
    The article argues that U.S. states should adopt a new strategy for regulating employment arbitration that deter formation of objectionable contracts. Topics discussed include a review of the last fifty years of Supreme Court arbitration jurisprudence, evidence on the pervasiveness of employment arbitration and examples of how states can deploy this strategy.
  • A Theory of Corporate Joint Ventures

    Sanga, Sarath (California Law Review, 2018)
    In a corporate joint venture, two corporations--often competitors--collaborate on a project. But how can corporations be partners and competitors at the same time? Though it sounds like a contradiction, such collaborations are commonplace. Many of the most familiar products come from corporate joint ventures, from hightechnology like solid-state drives for laptops or rocket boosters for NASA's Discovery program, to everyday items like Star Wars action figures and even Shredded Wheat cereal. Indeed, Meinhard v. Salmon, arguably the most celebrated case in all of business law, arose out of a dispute within a joint venture. Yet unlike more familiar business forms such as corporations or LLCs, neither case law nor statute provides a clear statement of what a joint venture is or even which laws apply. Given this confusion, it is not surprising that the literature has not produced a unified theory of the corporate joint venture: a coherent statement of both what it is as a matter of law and how it functions.
  • MAKING CONSUMER FINANCE WORK

    Sarin, Natasha (Columbia Law Review, 2019)
    The financial crisis exposed major fault lines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency--the Consumer Financial Protection Bureau--and changed the structure and function of these markets. Consumer advocates cheered reforms as welfare enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now available, this Article examines the successes and failures of the consumer finance reform agenda. Specifically, it marshals data from every zip code and bank in the United States to test the efficacy of three of the most significant postcrisis reforms: in the debit, credit, and overdraft markets. The results are surprising. Despite cosmetic similarities, these reforms had very different outcomes. Two (changes in the credit and overdraft markets) increase consumer welfare, while the other (in the debit market) decreases it. These findings run counter to prior work by prominent legal scholars and encourage reevaluation of our (mis)conceptions about the efficacy of regulation. The evidence leads to several insights for regulatory design. First, banks regularly levy hidden fees on consumers, obscuring the true cost of financial products. Regulators should restrict such practices. Second, consumer finance markets are regressive: Low-income customers often pay higher prices than their higher-income counterparts. Regulators should address this inequity. Finally, banks tend to discourage regulation by promising their costs will be passed through to consumers. Regulators should not be overly swayed by their dire warnings.
  • What's in Your Wallet (and What Should the Law Do About It?)

    Sarin, Natasha (University of Chicago Law Review, 2020)
    In traditional markets, firmscan charge prices that are significantly elevated relative to their costs only if there is a market failure. However, this is not true in a two-sided market (like Amazon, Uber, and Mastercard), in which firms often subsidize one side of the market and generate revenue from the other. This means consideration of one side of the market in isolation is problematic. The Court embraced this view in Ohiov American Express, requiring that anti competitive harm on one side of a two-sided market be weighed against benefits on the other side. Legal scholars denounce this decision, which, practically, will make it much more difficult to wield antitrust as a tool to rein in two-sided markets. This inability is concern in gas two-sidedmarkets are growing in importance. Furthermore, the pricing structures used by platform scan be regressive, with those least well-off subsidizing their affluent and financially sophisticated counter parts. In this Essay, I argue that consumer protection, rather than antitrust, is best suited to tame two-sided markets. Consumer protection authority allows for intervention on the grounds that platform users create unavoidable externalities for all consumers. The Consumer Financial Protection Bureau(CFPB) hasbroad power to curtail "unfair, abusive, and deceptive practices." This authority can be used to restrict practices that decrease consumer welfare, like the antisteering rules at issue in Ohio v American Express.
  • DYNAMIC REGULATION

    Sarin, Natasha (Southern California Law Review, 2021)
    There is widespread consensus that the Great Recession did not have to be as "Great" as it was; had regulators acted earlier, its consequences would have been less severe. Two explanations are typically offered for early inaction. The first is that crises occur unexpectedly, so there is little time to respond aggressively. The second is that even regulators who suspected a downturn was imminent lacked the legal authority to intervene. This Article disputes these myths. First, empirical evidence demonstrates that more than a year elapsed between the first tremors in financial markets and the crash. Second, legal analysis illustrates that regulators had at their disposal significant authority to bolster banks. In fact, they used this authority with respect to small banks but not with large, systemically important firms. There is an alternative explanation for the tepid initial response to the crisis. Regulators' default rule is inaction until regulatory measures of bank health signal distress. These measures are slow to update--in many cases, the day before banks failed, their regulatory capital measures suggested no cause for concern. In the absence of significant change, regulators will inevitably be firefighting future financial crises ex post rather than successfully policing financial markets ex ante. The reticence to forestall capital disbursements as the COVID-19 crisis has raged is a testament to difficulties faced by regulators today, in which the default rule as a crisis begins is inaction rather than action. The next crisis can be prevented, but to do so will require changing the default rule. This Article proposes a way forward, advocating for automating aggressive action when financial markets indicate distress is likely. Such reform will finally make costly bank failures a relic of the past.

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