Faculty Bibliography

This article discusses legal and ethical issues raised by in vitro gametogenesis, including safety, Food and Drug Administration review, embryo destruction, eugenics, enhancement, unauthorized parenthood, inequitable access, and evolving conceptions of parenthood.

Merger review should reflect basic precepts of decision analysis, best practices in industrial organization economics, and teachings from related fields. Unfortunately, the analytical methods in modern merger guidelines fall short. Protocols violate standard prescriptions for information collection and decision-making, rely on a market definition paradigm that deviates significantly from core models of competitive interaction, fail to leverage central advances in understanding the efficiency consequences of mergers, and contravene or ignore fundamental dynamics relating to entry. This article elaborates correct analysis and contrasts it with that embodied in modern merger guidelines generally employed throughout the developed world, including the 2023 Merger Guidelines revision in the United States.

This paper examines the impact of defense counsel at first appearance (CAFA) on criminal justice outcomes using randomized control trials in two Texas counties. The study evaluates the influence of CAFA on bond amounts, pretrial release, conditions, and post-magistration outcomes such as recidivism and failure to appear. Results show that while CAFA reduces bond amounts and influences bond types in one jurisdiction, its effects on pretrial release and recidivism are limited. These findings highlight jurisdictional differences and suggest that CAFA’s impact may be more modest than previous studies indicate, underscoring the need for further research in this area.

A workaround is a maneuver that seems, on its face, consistent with the formal rules, but that employs those rules in an unanticipated way to circumvent a legal obstacle. Though some workarounds are tolerated or even celebrated, workarounds (and proposed workarounds) often provoke instinctive skepticism or hostility. When, if ever, is such skepticism justified? Do workarounds raise distinctive legal or public policy concerns? This Article seeks to provide a systematic normative assessment of workarounds in American public law. We argue, first, that from a general public interest perspective, the desirability of a workaround depends primarily on the desirability of the rule that is being worked around. Put simply, workarounds will typically advance the public interest when the legal obstacle being worked around does more harm than good, while workarounds will set back the public interest when the obstacle being worked around serves an important public purpose. Other objections to workarounds—for example, that they will erode government legitimacy, weaken norms of self-restraint, undermine the credibility of government commitments, or sap energy for more substantial reforms—are either empirically implausible or relatively insignificant when compared to the first-order question of whether the obstacle being circumvented is itself in the public interest. Questions concerning the legality of workarounds raise different issues. While adjudicators who emphasize the primacy of legal text should have no intrinsic objections to workarounds as such, adjudicators who place significant weight on fidelity to the purposes or functions of legal rules (or rule systems) should embrace an anti-workaround presumption. But this presumption can and should be overcome in certain cases. Most significantly - and perhaps most controversially—we argue that the anti-workaround presumption should give way when the obstacle that the challenged workaround would sidestep is itself inconsistent with the larger purposes of the rule system. The question should not be whether the alleged workaround, viewed in isolation, is inconsistent with the purposes of the relevant rules, but whether the combination of obstacle and workaround, considered together, is more inconsistent with the purposes of those rules than the obstacle standing alone. Therefore, even strong purposivists might embrace certain workarounds—including workarounds to the Senate filibuster, the statutory debt ceiling, and the Electoral College.

A great deal of work in behavioral science emphasizes that statistical predictions often outperform clinical predictions. Formulas tend to do better than people do, and algorithms tend to outperform human beings, including experts. One reason is that algorithms do not show inconsistency or “noise”; another reason is that they are often free from cognitive biases. These points have broad implications for risk assessment in domains that include health, safety, and the environment. Still, there is evidence that many people distrust algorithms and would prefer a human decisionmaker. We offer a set of preliminary findings about how a tested population chooses between a human being and an algorithm. In a simple choice between the two across diverse settings, people are about equally divided in their preference. We also find that that a significant number of people are willing to shift in favor of algorithms when they learn something about them, but also that a significant number of people are unmoved by the relevant information. These findings have implications for current findings about “algorithm aversion” and “algorithm appreciation.”

This study reports a comprehensive environmental scan of the generative AI (GenAI) infrastructure in the national network for clinical and translational science across 36 institutions supported by the CTSA Program led by the National Center for Advancing Translational Sciences (NCATS) of the National Institutes of Health (NIH) at the United States. Key findings indicate a diverse range of institutional strategies, with most organizations in the experimental phase of GenAI deployment. The results underscore the need for a more coordinated approach to GenAI governance, emphasizing collaboration among senior leaders, clinicians, information technology staff, and researchers. Our analysis reveals that 53% of institutions identified data security as a primary concern, followed by lack of clinician trust (50%) and AI bias (44%), which must be addressed to ensure the ethical and effective implementation of GenAI technologies.

The field of artificial intelligence (AI) has entered a new cycle of intense opportunity, fueled by advances in deep learning, including generative AI. Applications of recent advances affect many aspects of everyday life, yet nowhere is it more important to use this technology safely, effectively, and equitably than in health and health care. Here, as part of the National Academy of Medicine’s Vital Directions for Health and Health Care: Priorities for 2025 initiative, which is designed to provide guidance on pressing health care issues for the incoming presidential administration, we describe the steps needed to achieve these goals. We focus on four strategic areas: ensuring safe, effective, and trustworthy use of AI; promotion and development of an AI-competent health care workforce; investing in AI research to support the science, practice, and delivery of health and health care; and promotion of policies and procedures to clarify AI liability and responsibilities.

In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

In recent years, the United States has expanded its border externalisation efforts to prevent migrants from making their way north through Central America and Mexico. The resources the United States has funneled to the region to outsource migration control include funding and use of new technologies. These efforts reflect a pattern of exclusion and securitization of the border, often in tension with the right to seek asylum and non-refoulement obligations under both US and international law. This article will explore the main drivers behind funding for border externalisation and the competing protections in US and international law intended to safeguard asylum seekers. The article highlights how funding decisions focused on preventing migrants from reaching the United States—without adequate consideration of obligations to protect refugees—raise serious questions under international law.

Bankruptcy reformers advocate substituting relative priority for the prevailing absolute priority standard to promote a more consensual restructuring process. In deciding who does and does not get paid when there is not enough value to pay all creditors, bankruptcy’s prevailing absolute priority rule lines creditors up in rank-order, compensating highest ranking creditors in full before lower-ranking creditors get anything. By contrast, relative priority would account for the possibility that the firm could recover and become more valuable after the bankruptcy. Relative priority would compensate lower-ranking creditors for that chance of the debtor turning around, thereby reducing both their incentive to delay and seniors’ incentive to rush. Relative priority has these and other potential advantages, but we here show that it would also introduce valuation difficulties. Valuation difficulties are important because under either priority rule, the parties always have some Coasean incentive to come to a deal that maximizes the total value of the firm, and then assess how the rule would split that value; indeed, we show that the absolute priority conflict structure that relative priority seeks to mitigate could readily re-emerge under relative priority. Absolute priority requires point-estimate valuations of the enterprise, like valuing equity of a non-indebted enterprise. But relative priority would require judges, parties, and outside investors to make complex valuations needing additional information, because relative priority valuation requires that decisionmakers assess the chances of multiple future outcomes with substantial precision. Worse, the increased valuation uncertainty from relative priority’s added complexity would discourage quick settlement and full-firm sales. Indeed, in many instances relative priority would recreate the bargaining problems afflicting absolute priority. Relative priority would, moreover, work poorly with today’s population of large business bankruptcies, which increasingly are private firms, for which we show relative priority valuation would be particularly difficult. Today, financial professionals generally do not trade and offer for sale similar financial instruments: stock options requiring substantially similar valuation analyses exist for stable public firms, but rarely for distressed firms. True, relative priority has other advantages over absolute priority. These advantages, however, must outweigh the costs we identify here: namely that relative priority entails greater valuation uncertainty for the parties, the courts, and outside investors, leads to more valuation conflict than absolute priority, and, in this dimension, would increase bankruptcy’s cost.

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent massive power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every Term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rule-making and other processes) is, if anything, more menacing than its role in the rare instances when it deploys its heaviest weaponry of constitutional invalidation. Against progressive calls to reclaim the judiciary, this Article completes our proposal to disempower courts exercising lawmaking authority—including when they are interpreting statutes alone. Indeed, the same considerations that counsel the constitutional disempowerment of courts counsel their statutory disempowerment, and the allocation or reallocation of their authority over law to politically accountable agents. The heart of our Article offers a survey of court disempowerment strategies and tools, which are comparable to though not identical with the disempowerment mechanisms that have been proposed in the arena of constitutional reform. Such strategies and tools are appealing in the short term; but in the long term, a fuller rethinking our desirable institutional plan of legal interpretation beckons. Available and existing disempowerment strategies for courts are best conceived as early and partial versions of full-scale allocation of interpretive authority over law to “political” branches and openly political control.

People are said to show “algorithm aversion” when they prefer human forecasters or decision-makers to algorithms, even though algorithms generally outperform people (in forecasting accuracy and/or optimal decision-making in furtherance of a specified goal). Algorithm aversion also has “softer” forms, as when people prefer human forecasters or decision-makers to algorithms in the abstract, without having clear evidence about comparative performance. Algorithm aversion has strong implications for policy and law; it suggests that those who seek to use algorithms, such as officials in federal agencies, might face serious public resistance. Algorithm aversion is a product of diverse mechanisms, including (1) a desire for agency; (2) a negative moral or emotional reaction to judgment by algorithms; (3) a belief that certain human experts have unique knowledge, unlikely to be held or used by algorithms; (4) ignorance about why algorithms perform well; and (5) asymmetrical forgiveness, or a larger negative reaction to algorithmic error than to human error. An understanding of the various mechanisms provides some clues about how to overcome algorithm aversion, and also of its boundary conditions. These clues bear on the numerous decisions in law and policy, including those of federal agencies (such as the Department of Homeland Security and the Internal Revenue Service) and those involved in the criminal justice system (such as those thinking about using algorithms for bail decisions).

Chapter 11 was widely viewed as a failure in the first decade of the Bankruptcy Code’s operation, the 1980s. Large firms were mired in bankruptcy for years; the process was seen as expensive, inaccurate, and subject to abuse. While basic bankruptcy still has its critics and few would say it works perfectly, the contrast with bankruptcy today is stark: bankruptcies that took years in the 1980s take months in the 2020s. Multiple changes explain bankruptcy’s success—creditor learning, statutory reform, better judging and lawyering, new techniques, fuller integration of the improved mechanisms that the 1978 Code added—and we do not challenge their relevance. But in our analysis, one major change is missing from the current understanding of bankruptcy’s success: bankruptcy courts and practice in the 1980s rejected market value; today bankruptcy courts and practice accept and use market value. This shift is a major explanation for bankruptcy’s success. It reduces opportunities for conflict in bankruptcy. It speeds up proceedings. It allows firms to be repositioned in market transactions. Deals among claimants and interests are more readily reached and the firm can ride through bankruptcy without the bankruptcy process materially scarring the enterprise. This switch to market values has multiple channels: more whole-firm sales, wider and deeper access to financing for bidders and bankrupts, growing judicial deference to market valuations, and a bigger and more sophisticated private equity and distressed debt industry that buys bankrupt companies and their securities. We argue that valuation improvements explain much of the increased speed and efficiency of Chapter 11 practice over the decades. We provide evidence that valuation conflicts narrowed and that the corporate reorganization process accelerated. This market-based-valuation result has implications for bankruptcy law reform around the world. Several European and Asian nations have looked to Chapter 11 to model their own restructuring laws. We urge caution. Chapter 11 works best in conjunction with institutions that facilitate market valuation and market transactions. The United States developed such institutions only in recent decades; many nations have not developed them yet. Chapter 11 went from being viewed by many as a deficient legal structure in the 1980s to a substantial success story by the twenty-first century. The switch to market thinking across the bankruptcy spectrum—in bankruptcy transactions, in judging, and in lawyering—goes far in explaining why.

In an effort to expand the net of liability, mass tort claimants regularly assert concert-of-action and conspiracy claims against businesses that comprise the bulk of a given industry. Most commonly, these suits allege that, because the defendants conspired with one another not to warn of certain hazards associated with a product that each of them sells, they are jointly liable to any plaintiff injured by one such product. To date, these efforts have met with mixed results. In this Article, we consider whether civil conspiracy theories of this sort should succeed in the products liability context, even when the plaintiffs' claims sound in negligence or strict products liability. After considering common objections to the imposition of such liability, we identify two types of agreement-scenarios in which liability should attach: (a) genuine analogues to the classic concert-of-action scenario involving drag-racing; and (b) instances in which plaintiffs' allegations, although framed as negligence or products liability claims, are dependent on assertions that the defendants coordinated to make statements about their products that intentionally misrepresented the products' safety, or misrepresented them with a kind of recklessness that the law regards as equivalent to intentionality.

Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act ("ECRA"), which overhauled the statutory regime governing the counting of electoral votes. The ECRA's predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the attacks on the Capitol of January 6, 2021, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute's shortcomings. Yet it did so against a backdrop of unresolved questions about Congress's authority to legislate in this area. The scholarly literature, however, lacks a sustained defense of Congress's power to regulate the counting of electoral votes. This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress's authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress's authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment's significance in this area.

In the current era, product differentiation is increasing; it is often fueled by big data and artificial intelligence (AI). Whereas product differentiation is generally welfare enhancing when consumers are informed and fully rational, such differentiation might reduce welfare when consumers suffer from misperceptions, either because of a lack of information or because of behavioral biases. We show that the positive and normative implications of product differentiation depend on whether consumers over or underestimate the benefits from some products. In particular, overestimation of the benefits is a potential source of significant welfare losses. We also study sellers’ incentives to promote, or combat, misperception. Our analysis can inform policymakers who are debating regulation that can make product differentiation more difficult (or easier), especially when the differentiation is instigated by AI algorithms powered by big data.

Nearly one in four Americans lives in a homeowners’ association, particularly in the South and the West, those parts of the United States that are fastest growing. In several decisions this decade, courts have suggested that their state or federal constitutions act as limits on the power of the state to interfere with the regulatory activities of these associations, namely because of the regulation’s impact on subdivision covenants. A handful of other scholars and practitioners have begun considering how those within homeowners’ associations might challenge regulations affecting the enforceability of covenants under the state or federal takings clauses, which require just compensation for certain regulations that “go too far.” But there are early signs that the contract clause may also play a substantial role in the next round of housing-related litigation, and that is my focus in this Essay. In Part I, I offer a brief overview of the contract clause, today one of the less well-known provisions of the federal Constitution, as well as its state analogs. In Part II, I investigate previous contact between the contract clause and covenants, finding conflicting lines of decisions in different states as to the power of a state to void or invalidate preexisting restrictions. In Part III, I turn to a small number of recent decisions that have again brought covenants and the clause into contact, one involving housing-related legislation specifically. I conclude by examining what these recent cases foretell about the battles to come in tackling housing affordability, which are unlikely to end with public law change.

Millions in the United States have criminal records. Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this Article, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies. In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions. Kansas law only allows for petition-based expungement. Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.” Our primary contribution is an analysis of which statutory reforms would render the largest number of cases or charges eligible for a record-clearing remedy. We found that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression. In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval. This finding suggests that even when the government undertakes information suppression from its own databases, it finds the task challenging. Finally, we examine why certain records were not eligible for expungement or sealing in each state. This insight will inform legislatures and activists where their efforts can be most effective.

Do people like financial nudges? To answer that question we conducted a pre-registered survey presenting people with 36 hypothetical scenarios describing financial interventions. We varied levels of transparency (i.e., explaining how the interventions worked), framing (interventions framed in terms of spending, or saving), and ‘System’ (interventions could target either System 1 or System 2). Participants were a random sample of 2,100 people drawn from a representative Australian population. All financial interventions were tested across six dependent variables: approval, benefit, ethics, manipulation, the likelihood of use, as well as the likelihood of use if the intervention were to be proposed by a bank. Results indicate that people generally approve of financial interventions, rating them as neutral to positive across all dependent variables (except for manipulation, which was reverse coded). We find effects of framing and System. People have strong and significant preferences for System 2 interventions, and interventions framed in terms of savings. Transparency was not found to have a significant impact on how people rate financial interventions. Financial interventions continue to be rated positive, regardless of the messenger. Looking at demographics, we find that participants who were female, younger, living in metro areas and earning higher incomes were most likely to favor financial interventions, and this effect is especially strong for those aged under 45. We discuss the implications for these results as applied to the financial sector.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Sometimes legal systems are “noisy”; they show unjustified variability or “scatter,” which means that what emerges is likely to be unpredictable and unfair. Potential examples include assessment of whether a risk is “significant” or “unreasonable,” fines for environmental harms or safety violations, compensatory damage awards for libel, pain and suffering, hedonic losses, and sexual harassment, and punitive damage awards for corporate wrongdoing. To understand why and when law is noisy, it is useful to note that psychologists commonly distinguish between two kinds of scales: category scales and magnitude scales. Category scales are bounded and anchored in verbal descriptions at specified points. By contrast, magnitude scales are unbounded and defined by a meaningful zero point. In some settings, money might operate as a magnitude scale. For purposes of policy and law, here are the two key psychological findings. First, judgments on magnitude scales are often highly variable, or noisy, when there is no “modulus” to define the various points. The variability occurs even when there is no reason to believe that people actually disagree about anything meaningful. Second, distributions of judgments are “positively skewed,” with a long right tail. People involved in law and policy often use magnitude scales, above all money. High levels of noise, and susceptibility to bias (especially from anchors), are likely results. This is the problem of “noisy law,” an insufficiently explored area of behavioral public policy. Theories of optimal deterrence might help to reduce noise, but many policymakers, and many people involved in law and policy, do not accept those theories.

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining why neither the historical-exceptions nor the functionalist paradigm has prevailed entirely over the other despite the vastly greater appeal of the former, when viewed in the abstract, to an increasingly originalist Court.

This Article examines the striking parallels between contemporary privacy challenges and past public health crises involving tobacco, processed foods, and opioids. Despite surging state and federal privacy legislation, many of these new privacy law and policy activities follow familiar patterns: an emphasis on individual choice, narrowly defined rights and remedies, and a lack of holistic accounting of how privacy incursions affect society as a whole. We argue instead for a salutary shift in privacy law and advocacy: understanding privacy through the lens of public health.  By tracing systemic factors that allowed industries to repeatedly subvert public welfare—from information asymmetries and regulatory capture to narratives of individual responsibility—we explore a fundamental rethinking of privacy protection. Our analysis of case studies reveals remarkable similarities between public health challenges of the past half-century or so and the ongoing consumer privacy crisis. We explore how public health frameworks emphasizing preventative policies and reshaping social norms around individual choices could inform privacy advocacy. To do so, we examine a spectrum of proposals to align privacy with public health, from adopting public health insights to provocatively reframing privacy violations as an epidemic threatening basic wellbeing. This Article offers a novel framework for addressing the current privacy crisis, drawing on the rich history and strategies of public health. In reframing privacy violations as a societal health issue rather than a matter of consumer choice, we see new avenues for effective regulation and protection. Our proposed approach not only aligns with successful public health interventions of the past but also provides a more holistic and proactive stance towards safeguarding privacy in the digital age.

Research on psychedelic medicines is experiencing a revival. Some clinicians, scientists, and ethicists believe that psychedelics are so different from other treatments that they warrant special consideration in how they are researched, regulated, commercialized, and administered. Others argue that psychedelic medicines show clinical potential, but they should be treated like other medical interventions. In other words, identical standards should apply. This article analyzes whether psychedelic medicines warrant special consideration from a regulatory and ethical perspective.

American jurisdictions are considering switching to proportional representation (PR) in volumes unseen for a hundred years. But the forms of PR currently being debated have drawbacks. The most (domestically) prominent of these, proportional ranked-choice voting (P-RCV), is both vulnerable to vote leakage among parties and cognitively challenging for voters. Another salient system, open-list proportional representation (OLPR), risks underrepresenting minority voters. This Article therefore introduces a new form of PR—ranked-list proportional representation (RLPR)—that promises to alleviate these concerns. Under RLPR, voters first vote for a single party. They then rank only this party’s candidates. Voters’ party votes determine each party’s seat share. And voters’ candidate rankings establish which of each party’s candidates win its allotted seats. Like all forms of list PR, RLPR makes it impossible for votes to leak across party lines. RLPR is also cognitively simpler for voters because it asks them to rank only one party’s (not all parties’) candidates. And RLPR’s sequential reallocations of votes typically lead to proportional minority representation (both intraparty and overall). Accordingly, American jurisdictions should add RLPR to their menu of PR options. If they choose to adopt it, they should pair it with P-RCV in the primary election.

This volume introduces the legal philosopher Adolf Reinach and his contributions to speech act theory, as well as his analysis of basic legal concepts and their relationship to positive law. Reinach's thorough analysis has recently garnered growing interest in private law theory, yet his 'phenomenological realist' philosophical approach is not in line with contemporary mainstream approaches. The essays in this volume resuscitate and interrogate Reinach's unique account of the foundations of private law, situating him in contemporary private law theory and broader philosophical currents. The work also makes Reinach's methods more accessible to those unfamiliar with early phenomenology. Together these contributions prove that while Reinach's perspective on private law shares similarities and points of departure with trends in today's legal theory, many of his insights remain singular and illuminating in their own right. This title is also available as Open Access on Cambridge Core.

Under both the Court's current Buckley test and under any plausible version of originalism, contributions to independent political action committees are regulable. SuperPACs are, therefore, not constitutionally required - 14 years of mistaken lower court rulings not with standing.

Over the past generation, conflicting trends have reshaped the ownership of corporate equity on the one hand and corporate debt on the other. In equity, the two great trends have been the shift from public markets to private ownership and the consolidation of American companies’ stock in the hands of powerful investment funds. In debt, by contrast, the great trends have been a shift from private loans to quasi-public markets and dispersed ownership. In this Article, we chronicle the recent and dramatic reversal of these trends in the debt markets. Private investment funds executing a “private credit” strategy have become increasingly important corporate lenders, bringing into corporate debt the same forces of privatization, concentration, and illiquidity that have been reshaping the equity markets. We offer new data that illustrate the meteoric rise of the now $1.5 trillion private credit industry, and we explore the allure and implications of private credit. For many corporate borrowers, private credit offers a faster, more efficient, and more accessible source of financing than either banks or the public (and quasi-public) debt markets. Yet the transition from bank-intermediated finance to private credit will transform not only corporate finance, but also firm behavior and economic activity more generally. First, as the corporate debt markets follow the equity markets in going dark, information about many large firms will be lost to the investing public. For better or worse, these firms will act with unprecedented discretion—having been shielded from the discipline and scrutiny of regulators, the trading markets, and the general public. Second, corporate debt—like corporate equity—will become the dominion of investment funds, some of which are already unimaginably large. These funds will influence everything from firm operations and strategy to corporate distress, with uncertain consequences.