Capitalism Stakeholderism

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the best way to elevate the welfare of all stakeholders in a society is to maximally free markets, leaving the State with limited responsibilities in the marketplace—namely, to calibrate incentives for pro-social innovation, regulate evident market-failures, and occasionally provide for public goods

Central Bank Activism

Today, the Federal Reserve is at a critical juncture in its evolution. Unlike any prior period in U.S. history, the Fed now faces increasing demands to expand its policy objectives to tackle a wide range of social and political problems—including climate change, inequality, and foreign and small business aid. This Article develops a framework for recognizing and identifying the problems with “central bank activism.” It refers to central bank activism as situations in which immediate public policy problems push the Fed to aggrandize its power beyond the text and purpose of its legal mandates, which Congress has established. To illustrate, this Article provides in-depth exploration of both contemporary and historic episodes of central bank activism, thus clarifying the indicia of central bank activism and drawing out the lessons that past episodes should teach us going forward. This Article urges that, while activism may be expedient in the near term, there are long-term social costs. Activism undermines the legitimacy of central bank authority, erodes central bank political independence, and ultimately renders a weaker central bank. In the end, this Article issues an urgent call to resist the allure of activism. And it places front and center the need for vibrant public discourse on the role of a central bank in American political and economic life today

Punishing Crimes of Terror in Article III Courts

The United States is at war against al Qaeda, an international terrorist organization. Over the past decade, the United States has invested substantial resources fighting the War on Terror. Terrorism prosecutions in Article III courts have factored prominently in America\u27s unconventional war with al Qaeda and its affiliated extremist networks. In this rather unprecedented way, the executive branch has enlisted the third branch-the judiciary-to pursue its war aims

An International Law Response to Economic Cyber Espionage

Cyber threats have emerged as one of the most serious dangers to U.S. and global security. Increasingly, malicious actors—some private, but others that appear to be state-sponsored—seek to advance their strategic aims through violent or non-violent cyber-attacks. This Article considers the problem of non-violent, yet still destructive, economic cyber espionage, which targets the intellectual, industrial, and information property of major global powers like the United States. The Article argues that the international community’s reticence is owing to a stale set of international legal norms. The Article explains how existing principles of international law—such as state sovereignty, non-intervention, and state responsibility—should evolve to address the current threat of economic cyber espionage. The Article also discusses how norms against economic cyber espionage could also be interpreted to exist within the World Trade Organization (WTO) agreements that deal with intellectual property. These WTO rules together with the relevant (and modernized) customary norms arguably provide WTO member states recourse to the Dispute Settlement Body to assert their claims of economic cyber espionage. The Article urges victim states to channel their legal complaints through this economic body and its dispute resolution mechanism. It concludes with a realist perspective on why the WTO would be the most effective institution to ensure compliance with these norms

Presidential Pendulums in Finance

While administrative law formally requires that financial regulation derive from notice-and-comment rulemaking, Presidents of the past two administrations have made novel use of an array of executive branch tools to effectively regulate and deregulate the financial services industry. This Article claims that such a shift away from formal administrative law rule-making processes toward presidentially driven deregulation has implications for the overall stability of the financial system. Specifically, this Article suggests that a President’s ability to unilaterally and informally deregulate (and, by extension, regulate) the financial sector can make regulatory cycles more frequent. In turn, the financial cycle may become shorter, steeper, and more severe. If Presidents push and pull on the financial sector, the pendulum of economic activity can swing sharper and faster than it has before—with accompanying repercussions for businesses and households in the real economy

Central Bank Activism

Today, the Federal Reserve is at a critical juncture in its evolution. Unlike any prior period in U.S. history, the Fed now faces increasing demands to expand its policy objectives to tackle a wide range of social and political problems—including climate change, inequality, and foreign and small business aid. This Article develops a framework for recognizing and identifying the problems with “central bank activism.” It refers to central bank activism as situations in which immediate public policy problems push the Fed to aggrandize its power beyond the text and purpose of its legal mandates, which Congress has established. To illustrate, this Article provides in-depth exploration of both contemporary and historic episodes of central bank activism, thus clarifying the indicia of central bank activism and drawing out the lessons that past episodes should teach us going forward. This Article urges that, while activism may be expedient in the near term, there are long-term social costs. Activism undermines the legitimacy of central bank authority, erodes central bank political independence, and ultimately renders a weaker central bank. In the end, this Article issues an urgent call to resist the allure of activism. And it places front and center the need for vibrant public discourse on the role of a central bank in American political and economic life today