By Wayne A. Logan and Jake Linford. Full Text. For decades, the Supreme Court has applied what is known as the third-party doctrine, which allows police, acting without a warrant, to secure information that an individual has voluntarily revealed to others. Scholars have long criticized the doctrine and it only narrowly escaped its formal demise…

By Jeremy C. Kress. Full Text. The United States’ banking system has a problem: some financial conglomerates are so vast and complex that their executives, directors, and shareholders cannot oversee them effectively. Recognizing this “too big to manage” (TBTM) dilemma, both major political parties have endorsed breaking up the banks, and bipartisan coalitions in Congress…

By Jessica Feinberg. Full Text. The longstanding marital presumption of paternity, under which a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage, has reached a critical juncture. Pursuant to the Supreme Court’s mandate that states provide marriage to same-sex couples on the…

By Lisa T. Alexander. Full Text. The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities remains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States,…

“Too big to fail”—or “TBTF”—is a popular metaphor for a core dysfunction of today’s financial system: the recurrent pattern of government bailouts of large, systemically important financial institutions. The financial crisis of 2008 made TBTF a household term, a powerful rhetorical device for expressing the widely shared discontent with the pernicious pattern of privatizing gains and socializing losses it came to represent in the public’s eye. Ten years after the crisis, TBTF continues to frame much of the public policy debate on financial regulation. Yet, the analytical content of this term remains remarkably unclear.

Soon after the 2016 election of Donald Trump as President of the United States, while Republicans controlled Congress, opponents of the fledgling Consumer Financial Protection Bureau (CFPB) opened a campaign against the Bureau. Their target was less the substance of federal consumer financial protection laws than the structure of the CFPB itself. This emphasis on structure was a response to the fact that Congress in 2010 had given special thought to the design of the CFPB to safeguard the Bureau and its mission.

From its inception, the Consumer Financial Protection Bureau (CFPB) has been criticized in the court of public opinion for a host of reasons—mostly focused on the aggressive scope of its supervision, rulemaking, and enforcement actions. During the last several years, however, a new critique has emerged and gained traction—at least in federal courts. Defendants in CFPB enforcement actions began to routinely (and sometimes effectively) argue that the CFPB’s entire structure is unconstitutional. The CFPB faced its greatest constitutional crisis during the period from 2015 to 2018, when a D.C. Circuit case, PHH v. CFPB, threatened its structure, very existence, and—by extension—all of its prior enforcement actions. Though that case would ultimately be dismissed by the CFPB, questions about the CFPB’s constitutionality remain, even with 100 years of the Supreme Court’s key cases in executive power and agency independence behind us. This Article revisits this 100-year history, and then situates it against attacks upon the CFPB, finding that the CFPB’s design and structure stand on firm constitutional ground. However, the Article critiques the singular-director structure for other reasons and suggests improvements in order to improve the CFPB’s political—if not legal—standing for the future.