In the event of a buyer’s willful breach of a merger agreement, lost-premium provisions allow a target corporation to claim damages that include the lost premium or economic entitlements that its stockholders would have received had the deal closed. In the recent Crispo v. Musk decision the Delaware Chancery Court held these provisions to be unenforceable under the anti-penalty doctrine. In this Article we challenge the analysis in Crispo by arguing that lost-premium provisions are doctrinally defensible, economically sensible, and supported by policy considerations. Lost-premium provisions became enforceable in Delaware from August 1, 2024, following amendments to the Delaware General Corporation Law. But the issue may crop up again in other jurisdictions. This Article explains why courts in other states both can and should uphold lost-premium provisions.

Founders and other corporate insiders go to great lengths to control the companies they take public, and the mechanisms they use to maintain control have been a central theme of corporate law. Dual-class structures, which give insider shareholders voting rights that exceed their economic rights, are a common way for insiders to maintain post-IPO control. Scholars and policymakers have endlessly debated the costs and benefits of these structures, which have surged in popularity over the past 20 years. As one prominent scholar put it, dual-class structures are “[t]he most important issue in corporate governance today.”

Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but mostly curtailed protections for the nearly 165 million Americans who receive health insurance from employers. The tragedy is that health benefit plans are in dire need of regulatory scrutiny. The costs of health insurance have risen dramatically faster than inflation, cutting into worker take-home pay and inflicting disproportionate harm on middle- and lower-income workers, while the generosity of employer-provided plans has thinned. The sorry state of employer-sponsored health insurance is due, in part, to inattention and inadequate probity from the parties subject to ERISA’s fiduciary obligations. In sharp contrast, the efficiency and value of retirement benefits have improved over that same period. Because of what ERISA requires, and because of what managers of employee health benefits have failed to do, there is enormous opportunity to employ ERISA to enhance the value of health benefits for employees, which also means enhancing the value of the nation’s entire health sector. A handful of pioneering lawsuits have just started invoking ERISA to subject health benefits managers to fiduciary obligations, and more are certain to come. Now is the time for ERISA jurisprudence to confront the consequences of neglecting health insurance, for courts to consider what demands ERISA imposes on health benefits managers, and critically, for the Department of Labor to exercise its regulatory authority under ERISA and enforce fiduciary obligations that the statute imposes and the market sorely needs. This Article documents ERISA’s authority over health benefits managers, explains why ERISA litigation is on the upswing, and offers guidance on how the Department of Labor could establish regulatory safe harbors to bring accountability and predictability to the enormous health benefits marketplace.

A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would then shore up markets’ self-correcting tendencies without requiring moral judgment. In the past few years, by contrast, regulators have prioritized sector-wide regulation, enforcement sweeps, and strategic cases against market leaders. They have justified their actions not (exclusively) in terms of informed choice or efficiency but in terms of values like protecting the vulnerable, preventing harassment, preserving privacy, and correcting for unjust inequalities. Focusing doctrinally on uses of the unfair-practices authority shared by several agencies, this Article situates the shift both historically and theoretically. Historically, it argues that consumer sovereignty lost ground after the global financial crisis of 2007 and controversies over Big Tech. Theoretically, it argues that the consumer sovereignty framework relied on a too simple model of markets as deviations from “perfect competition” that needed only better information to get back in line and that the paradigm emerging in its place is properly committed to correcting for power asymmetries in irredeemably imperfect markets. I call the new paradigm an “antidomination framework” and defend it.

Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines—some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other in important respects: deliberate changes to the standard form reflect strategic lawyering on behalf of sovereign clients, while errors that only benefit subsequent activists reflect haste in adapting precedents to new transactions. Using both quantitative data and interviews with market participants, we find that the conventional view fails to recognize the unique and distorting role that lawyers play in the drafting of standard form contracts. Systematic asymmetries in the market for the lawyers who negotiate and draft these contracts explain why real-world contracts depart from the efficient contract paradigm.

In times of crisis such as the 2008 financial crisis and the 2020 COVID-19 pandemic central banks throughout the world engage in interventions with lasting effects on financial markets and the macroeconomy, for better and worse. The negative political consequences of these interventions—fears of politicizing central banking and inflationary concerns about dramatic interventions among them—can dampen the enthusiasm for such interventions early in the face of crisis. This dynamic creates a dilemma for the US central bank, the Federal Reserve, causing it to eschew interventions beyond monetary policy until the crisis has already crashed, at which point the Fed moves into every aspect of policy throughout the economy. This Article highlights the inadequacy of this dynamic. Sole reliance on monetary policy is insufficient in the face of growing crisis, while the Fed's vast emergency lending facilities face ever stiffer political, inflationary, and equity concerns. The Article advocates instead for a new approach to macroeconomic stability, not just through monetary policy or emergency interventions, but through judicious use of the sleeping giant of Fed policy, the bank-intermediated discount window. Focusing on the problematic credit market for debtors-in-possession in the midst of bankruptcy, the Article suggests a reformed system that safeguards the Fed, supports small and medium-sized enterprises, and stabilizes the macroeconomy without exposing the system to the pockets of instability that the Fed’s overreliance on dramatic intervention can do.

The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To decarbonize its economy, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely on clean but intermittent renewable resources. These new resources demand new approaches to electric grid reliability—approaches that NERC is failing to adequately embrace. This Article traces NERC’s history, situates NERC in ongoing debates about climate change and grid reliability, and assesses the viability of reliability self-regulation in the electric era. A self-regulatory model for maintaining U.S. electric-grid reliability sufficed in prior decades, when regulated monopolies managed nearly every segment of electricity production. But the criteria that NERC once used to justify self-regulation— ’ expertise, clear accountability metrics, and public-private alignment of interests—no longer hold. The climate crisis creates a need for expertise beyond NERC’s domain, while the introduction of competition in the electricity sector blurs lines of accountability for reliability failures. NERC’s structure also perpetuates an incumbency bias at odds with public goals for the energy transition. These shifting conditions have caused to fail to keep pace with the reliability challenges of the electric era. Worse still, outdated NERC standards help entrench fossil-fuel interests by justifying electricity-market rules poorly suited to accommodate renewable resources. We therefore suggest a suite of reforms that would increase direct government oversight and accountability in electricity-reliability regulation.

The challenge of financial inclusion is among the most intractable policy problems in banking. Despite living in the world’s wealthiest economy, many Americans are shut out of the financial system. Five percent of American households lack a bank account, and an additional thirteen percent rely on expensive and sometimes predatory fringe financial services, such as check cashers or payday lenders. Financial inclusion presents a policy trilemma. It is possible to simultaneously achieve only two of three goals: widespread availability of services to low-income consumers, fair terms of service, and profitability of service. Thus it is possible to provide fair and profitable services, but only to a small, cherry-picked population of low-income consumers. Conversely, it is possible to provide profitable service to a large population, but only on exploitative terms. Or it is possible to provide fair services to a large population, but not at a profit. The financial inclusion trilemma is not a market failure. Instead, it is the result of the market working. The market result, however, does not accord with policy preferences. Rather than addressing that tension, American financial inclusion policy still leads with market-based solutions, soft government nudges, and the hope that technology will transform the economics of small-balance deposit accounts and small-dollar loans. It is time to recognize the policy failure in financial inclusion and consider to a menu of stronger regulatory interventions: hard service mandates, taxpayer subsidies, and public provision of financial services. In particular, this Article argues for following the approach taken in Canada, the European Union, and the United Kingdom. This approach—the adoption of a mandate for the provision of free or low-cost basic banking services to all qualified applicants—is the simplest solution to the problem of the unbanked. Addressing small-dollar credit, however, remains an intractable problem, largely beyond the scope of financial regulation because the challenge many low-income consumers face is solvency, not liquidity.

It is now generally understood that personal data––that is, data that relate to individual consumers––drive digital markets. Personal data underlie targeted advertising, which draws billions of dollars into ad-supported markets. Personal data are useful for other purposes as well. Firms in digital markets rely on personal data to deliver their core products and services––we refer to these collectively as “web services”1––to hone and improve them, and to recommend related products and services. These data facilitate innovation, allowing yet more services and “smart” products with increasingly personalized functionalities. Personal data can allow governments to deliver better public services, such as transportation systems, or can help researchers better understand how humans interact with algorithms and which policies might best serve society. And data can also facilitate competition, by improving quality and providing insight into consumer conduct that encourages entry. In these various ways, the massive quantity of personal data currently collected undoubtedly contributes to consumer welfare. But there also are downsides to the collection and use of personal data on such a grand scale. “Surveillance capitalism,” as Professor Shoshana Zuboff has termed it, has blurred the line between the personal and the public, and has commodified our habits, interests, and beliefs in ways that can feel distasteful and invasive. Massive data collection also has made information about us more accessible to government and commercial actors who often face little to no accountability for its misuse.

This Article is concerned with competition in digital platform markets where network effects are strong. As is widely acknowledged, these markets have an inherent tendency towards concentration, leaving consumers with little competition in the market. We explain how interoperability regulation can help stimulate competition in the market in a way that benefits consumers. There are different types of regulations that involve different levels of regulatory control of firms’ strategies and products. Interoperability is a form of regulation that is less intrusive than many others and is particularly suited to digital business models and fast changing digital technology. The report solicited by the European Commission on “Competition Policy for the Digital Era” (the Vestager Report) made this point in 2019,1 and we build on it here. Policy tools in this area include data portability and open standards, as well as interoperability. We will distinguish among these tools below, but we note here that the focus of this Article is on interoperability.