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Uptier Exchange Transactions: Lawful Innovation or Lender-on-Lender Violence?This Note examines the recent phenomenon of “uptier exchange transactions”: transactions in which a borrower takes assignment of existing loans from participating lenders—those lenders holding a majority of the principal amount of the loan—and then issues new superpriority tranches of debt to the participating lenders, subordinating nonparticipating lenders in the process. Uptier exchange transactions were born in the throes of the COVID-19 pandemic and continue to evolve in the courts. This Note analyzes these transactions and all major litigation concerning them to date. It makes a normative argument in favor of curbing the reach of uptier exchange transactions through equitable judicial interpretation. Finally, this Note proposes an amendment to Article 9 of the Uniform Commercial Code that would protect nonparticipating lenders against these transactions, invoking the Trust Indenture Act of 1939 as a textual model.
Restoring Indian Reservation Status: An Empirical AnalysisIn McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants. Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good or bad economic effects of altering existing jurisdictional relationships. One side raises a “parade of horribles.” The other contends that “the sky is not falling.” Yet, to date, there is hardly any empirical literature to ground these debates. Litigants have instead been forced to rely upon impressionistic reasoning and economic intuitions. We evaluate these competing empirical claims by exploiting natural experiments: judicial rulings altering the status quo of Indian reservation status. Applying well-established econometric techniques, we first examine the Tenth Circuit’s Murphy v. Royal decision in 2017 and the Supreme Court’s McGirt v. Oklahoma decision in 2020, which both held that the eastern half of Oklahoma was in fact Indian country. To do so, we leverage monthly employment data at the county level, annual output data at the county level, and daily financial data for public companies incorporated in Oklahoma. Contrary to the “falling sky” hypothesis that recognition of Indian jurisdiction would negatively impact the local economy, we observe no statistically significant effect of the Tenth Circuit or Supreme Court opinions on economic output in the affected counties.
Commission ChairsSince 1950, Congress has granted chairs of many multimember commissions chief-executive authority as a way to increase administrative efficiency. Although it intended to maintain the ability of commission majorities to dictate policy, it inadvertently strengthened the authority of chairs to such an extent that majorities cannot enact their preferred policies without their chair’s cooperation. Using their agenda authority and their authority to direct staff, chairs dictate which policy documents staff develop and which items receive a vote, meaning that a commission majority cannot enact policy if its chair prohibits staff from drafting a rule or refuses to allow a vote to occur. Despite this shift, it is common among scholars and judges to think of commissions as bodies of equals, resulting in applications of the unitary executive theory that fail to appropriately take into account the substantial amount of power chairs wield. This Article is the first comprehensive study of the authority of commission chairs, and it examines the statutes and power dynamics scholars routinely ignore. Using a novel dataset of all federal executive-branch commissions, this Article finds that the majority of commissions operate under a “strong-chair” model, while associate commissioners in fewer than one-in-five commissions have any statutory authority to restrict their chairs’ actions. Using this data, it evaluates the effects of the strong-chair model on commission governance and offers several changes that, if made, could give associate commissioners more control and supervisory authority over the agencies. Doing so would return chairs to their original role as officials who simply keep the agencies operating efficiently and ensure that majority rule drives commission actions. The Article then evaluates this research’s implications for doctrinal applications of the unitary executive theory. Because presidents appoint commission chairs, this research suggests that presidential control of independent agencies is far less attenuated than proponents of the unitary executive theory presently contemplate.
The Logic and Limits of the Federal Reserve ActThe Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars of mortgage-backed securities, and opened numerous ad hoc lending facilities to support ordinary businesses, nonprofits, and municipalities. This Article identifies the causes and consequences of the Federal Reserve's expanded footprint by recovering the logic and limits of its enabling act. It argues that to understand the Federal Reserve—including its independence, expansion, and capacity—it is necessary first to understand the statutory scheme for money and banking. Congress chartered investor-owned banks to issue most of the money supply and established the Federal Reserve for a limited purpose: to administer the banking system. Congress equipped the Federal Reserve with an interrelated set of tools to achieve a specific objective: ensure that the banking system creates enough money to keep economic resources productively employed nationwide. The rise of shadow banks—firms that issue alternative forms of money without a bank charter—has impaired the Federal Reserve’s tools. As the Federal Reserve has scrambled to adapt, it has taken on tasks it was not built to handle. This evolution has prompted calls for the Federal Reserve to tackle even more policy challenges. It has also undermined the Federal Reserve’s ability to effectively achieve its core goals. An overloaded Federal Reserve is understandable, but not desirable. Congress should modernize the Federal Reserve Act, and the banking laws on which it depends, to improve monetary administration in the United States.
Privacy for Sale: The Law of Transactions in Consumers’ Private DataLawmakers, regulators, consumer advocates, and the business community have focused increasing attention on the policy issues that arise at the intersection of privacy, technology, and commerce. Yet the law governing what businesses can do with consumer data remains unsettled and unclear. The United States has no dedicated and comprehensive privacy law, relying instead on a patchwork of general consumer protection laws and industry-specific regulations like HIPAA. The FTC has created what scholars have called a “common law of privacy” through its enforcement actions and published guidance, but how privacy law applies to business practices often remains uncertain. This Article uncovers a large new trove of privacy law, elaborating the jurisprudence of privacy with reports submitted to courts in which hundreds of millions of consumers’ private information has been put up for sale. A unique provision of bankruptcy law requires the appointment of a privacy expert when consumer information is put up for sale, to report on the sale’s legality. These expert reports constitute an unrecognized but substantial body of privacy law. The Article presents and analyzes reports submitted from 2005 to 2020—a hand-collected dataset gathered from 141 court dockets. The reports dramatically increase what is known about how the “common law of privacy” applies in practice to sales of consumer data in a legal forum, and what the future of privacy law may hold.