By Kathleen Clark. Full text here. Congress authorized the Treasury Department to use outside entities (contractors and financial agents) to implement the TARP bailout program. Treasury embraced this authority, engaging in the wholesale delegation of the administration of TARP to these outsiders. While outsourcing government work is common, one aspect of Treasury’s outsourcing is not: its…

By Claire Hill & Richard Painter. Full text here. In both business and government, we can distinguish between two types of conflicts. One type traditionally and more effectively dealt with by law is a direct conflict, involving self-interest narrowly construed. Two common examples are the government official who is negotiating for a private sector job with…

By Lisa M. Fairfax. Full text here. Corporate governance reforms strive to shore up directors’ roles, not only seeking to ensure that boards have sufficient incentives to engage in effective oversight, but also aiming to ensure that boards are held accountable for their oversight failures. The newest wave of reforms is no exception. The current financial…

By Steven M. Davidoff. Full text here. The Article traces the terms of the government’s private ownership during the financial crisis, and provides a near-term critique of the government’s corporate ownership experience. It concludes that the government largely achieved its economic and social goals. The government ultimately saved the financial system, stalled a financial panic, and…

By Stephen M. Bainbridge. Full text here. The question before us is whether Dodd-Frank’s corporate governance provisions, like those of SOX, are mere quackery. Part I of the Article focuses on the problem of quack corporate governance regulation in the abstract. What are the defining characteristics of a quack law? Why would Congress adopt such laws?…

By Daniel Schwarcz. Full text here. In certain regulatory regimes, including those governing banking and corporate law, firms are permitted to choose among multiple competing regulators. This Article examines the desirability of such regulatory competition in the context of property, casualty, and life insurance markets. It analyzes various different approaches to structuring such regulatory competition, including…

By Sanford Levinson & Jack M. Balkin. Full text here. A constitutional dictatorship is a system (or subsystem) of constitutional government that bestows on a certain individual or institution the right to make binding rules, directives, and decisions and apply them to concrete circumstances unhindered by timely legal checks to their authority. Constitutional dictatorship, far from…