VOLUME 170, ISSUE 1 December 2021

Articles

Cleaning Corporate Governance

Jens Frankenreiter, Cathy Hwang, Yaron Nili & Eric Talley

Although empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the accuracy and integrity of a small, specialized collection of corporate governance data. In this Article, we unveil a novel collection of three decades’ worth of corporate charters for thousands of public companies, which shows that this faith is misplaced.

The Case for Resurrecting the FTC Act’s Penalty Offense Authority

Rohit Chopra & Samuel A.A. Levine

On April 22, 2021, the Supreme Court unanimously ruled that the Federal Trade Commission cannot continue to seek monetary relief from wrongdoers through § 13(b) of the Federal Trade Commission (FTC) Act—the authority predominantly relied on to challenge lawbreaking in federal court. This news followed a string of mounting criticisms in recent years that have undermined public confidence in the Agency. A decade ago, after the FTC largely stood idle against abuses by subprime lenders, Congress stripped the Agency of key authorities over the financial sector. Today, concerns about the adequacy of the FTC’s antitrust enforcement and about its effectiveness as a privacy and data protection watchdog are once again raising questions about whether the FTC can protect the public from digital abuses.

The Perils of Land Use Deregulation

Richard C. Schragger

Land use regulation and zoning have long been core functions of local governments. Critics of local land use practices, however, assert that local regulations are too restrictive and that “exclusionary zoning” ordinances increase housing costs, reduce mobility, entrench racial segregation, prevent the poor from accessing jobs and services, and reduce economic productivity. Spurred in large part by an affordable housing crisis in popular metropolitan areas, the YIMBY (“Yes in My Backyard”) movement has urged state and even federal action to override local land use regulations that raise barriers to the construction of market-rate housing. The conventional wisdom is that local governments cannot be trusted with land use policymaking and that striking down local regulatory barriers is necessary to address a whole range of ills.

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Centering Whiteness and Entrenching the Myth of Race-Neutral Alternatives to Affirmative Action

Courtney Bledsoe

In August 1935, Lloyd Gaines, a recent Black graduate from Lincoln University—then a Black-only college operated by the University of Missouri—submitted an application for admission into the University of Missouri Law School, as Lincoln University did not have a law school at the time.1 Upon receipt of Gaines’ application, the University of Missouri directed him to contact Lincoln University instead, pointing Gaines to a recently enacted state statute which promised provision of tuition for any law school in an adjacent state “[p]ending the full development of the Lincoln university.”2 In other words, because the school only offered tuition funds to Black students attending out-of-state law schools, the University of Missouri would not accept Black law school applicants and Gaines could only apply to an out-of-state law school. While Gaines was otherwise qualified to attend the University of Missouri School of Law, he was refused admission on the grounds of his race.3 Gaines promptly brought an action against the University of Missouri, arguing that this denial violated the Fourteenth Amendment and demanding admission into the law school.4 The Supreme Court found that the state of Missouri was compelled to procure a legal education for Gaines within the state, rather than providing tuition for an out- of-state school, and determined that Gaines was entitled admission to the University of Missouri School of Law if no other legal education was available in the state.5 Gaines’ story of exclusion is but a vignette of the myriad struggles Black students and other students of color have faced while attempting to gain entry into institutions of higher education in the United States.6

Private Merger Challenges Under Section 16 of the Clayton Act: Caution Post-JELD-WEN

Erin L. Fischer

Private merger enforcement is a thorny corner of antitrust law. Private merger challenges pose considerable potential financial downside for industry because in many cases, the motivations of private plaintiffs in initiating a challenge do not align with the purposes of antitrust law. These actions are risky for plaintiffs as well because they are difficult to win. Plaintiff successes have been so uncommon that in a Fourth Circuit case decided in February of 2021, the court stated, “private suits seeking divestiture are rare and, to our knowledge, no court had ever ordered divestiture in a private suit before this case.”1 While claims brought under section 16 of the Clayton Antitrust Act of 1914 (Clayton Act)2 have been historically underdiscussed, the Fourth Circuit’s grant of divestiture to a private plaintiff in early 2021 affords us an opportunity to evaluate this oft overlooked corner of antitrust law. Should private plaintiffs be able to mold the shape of industries to such a degree?