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Faculty Working Papers

Bound print copies of George Mason School of Law’s working paper series on law and economics are available in the Law Library. The bound set often includes initial drafts of papers. Search Mason’s Catalog to locate a working paper.

Research Paper Series

Working Papers

Recent Working Papers:

Brief for Amicus Curiae, Professor John Yun in Support of Appellant, X Corp. v. World Federation of Advertisers (5th Cir. No. 26-10394)

John M. Yun

This amicus brief critiques the district court's holding that a group boycott plaintiff suffers antitrust injury only when the challenged coordination involves the plaintiff's competitor(s). Specifically, when members of a trade association jointly negotiate to improve the bargaining terms on which they deal with a trading partner, the harm falls directly on that partner, as in Professional Engineers, Trial Lawyers, and Indiana Federation of Dentists. Fifth Circuit precedent likewise confirms that a horizontal agreement need not involve, directly or indirectly, the victim's competitors; thus, the district court improperly narrowed the standing requirement. Additionally, an anticompetitive agreement may be manifested through an authority delegated to trade association leadership—such as, in the Supreme Court’s decision in Hydrolevel—so that Twombly's conscious-parallelism concerns are not implicated.

The State Constitutional Case Against Exclusionary Zoning

Joshua Braver, Ilya Somin
Exclusionary zoning is the biggest cause of the housing crisis besetting many parts of the United States. This Article shows how state constitutions can be used to combat it through two complementary paths: litigation under existing constitutional provisions and constitutional amendment. It provides the first comprehensive account of state constitutional jurisprudence on exclusionary zoning across all fifty states. It finds that state courts have rarely imposed meaningful limits, but uses this body of law as a foundation for expanding constitutional protection.
Most state courts have interpreted their takings clauses in lockstep with federal doctrine, including the highly deferential Penn Central test. New York, Pennsylvania, and New Jersey have developed more aggressive approaches. But their equivocal results have led many scholars to conclude that courts have little useful role to play.
We reject that conclusion. We identify two effective and judicially administrable approaches grounded in state takings and due process doctrine. The Article also proposes state constitutional amendments that would require compensation for exclusionary zoning, categorically prohibit specified exclusionary practices, or adopt more limited reforms. Together, litigation and amendment offer a practical state constitutional strategy for addressing exclusionary zoning.

Afrobeats: Global Rise, Local Realities, and the Future of African Music Economies

Olufunmilayo B. Arewa

Afrobeats has become one of Africa’s most successful cultural exports, propelled by Nigerian creative talent, informal innovation networks, and diaspora audiences, at a moment when streaming and platform consolidation are reshaping the global music industry. Yet despite generating substantial global value, only a fraction of that value returns to Nigeria. This pattern echoes older extractive economic arrangements and exposes structural gaps in Nigeria’s creative economy governance. Drawing on the concept of technological and institutional “leapfrogging,” this report traces how Nigeria’s music industry developed largely outside the distribution models that shaped core Western markets, with local factors contributing to the development of an industry marked by informality, weak data infrastructure, and contested royalty-collection institutions. The report identifies five interlocking structural issues: extractive global industry structures, informality and weak local data, opaque royalty systems and contracting practices, undeveloped African touring markets, and limited local capital for business scaling. It argues these constraints apply beyond Afrobeats to other fast-growing genres in the broader cultural and creative economy that are increasingly recognized as economically significant. The report closes with policy recommendations spanning regional regulatory frameworks, local financial ecosystems, touring infrastructure, data strategy, and African-centered intellectual property and contracting models, aimed at helping Nigeria and other African countries convert cultural influence into durable economic value.

Tear Down This Wall: Rethinking the Separation of Banking and Commerce

Todd J. Zywicki
For more than a century, the United States has sought to separate banking and commerce. The impulse was largely political, not economic: a distinctly American distrust of concentrated economic power and a fear that control over credit could dominate local economies, distort markets, and threaten democratic governance. In response to banking crises, industrial consolidation, and the rise of large financial institutions, policymakers built structural rules to keep financial and commercial power apart.
This paper argues that those rationales belong to an earlier era of fragmented local banking markets, geographic restrictions, and limited competition. Even then, forcing economic forces and consumer demand into arbitrary legal categories was a losing battle. Today, the project is even less realistic. Interstate banking, embedded finance, platform economics, banking-as-a-service, and emerging technologies such as agentic artificial intelligence have transformed financial intermediation and increased demand for integrated financial and commercial services.
The wall between banking and commerce is now increasingly leaky and asymmetric. Technology companies perform quasi-banking functions, while regulated banks often serve as infrastructure providers within broader digital ecosystems. At the same time, regulators have more sophisticated supervisory tools than ever before to address risks without preserving an archaic and anticompetitive structure.
Financial regulation should therefore move away from rigid categorical separation and toward principles-based oversight focused on conduct, interoperability, competition, systemic risk, and consumer protection. Rather than prohibit integration outright, policymakers should regulate the specific behaviors and risks associated with platform finance and modern financial intermediation. The question is no longer whether banking and commerce should interact. They already do. The question is how best to govern that interaction while preserving competition, innovation, financial stability, and consumer choice.

Settlers in Syria: Turkey's Population Transfers and the Geneva Conventions

Eugene Kontorovich, Erielle Davidson

This Article is the first work of legal scholarship to examine Turkish population transfers in northern Syria, which constitute perhaps the most aggressive movement of settler populations into occupied territory in current times. In particular, it examines the lawfulness of such movements under Article 49(6) of the Fourth Geneva Convention, which prohibits an occupying power from “deport[ing] or transfer[ring] parts of its own civilian population into the territory it occupies.” In a series of major military operations beginning in 2018, Turkey has seized nearly 3,000 square miles of territory in two sectors in northern Syria and established control. While it receives scant attention in the Western press or in legal academia, Ankara continues to maintain its occupation of what it terms as “buffers” or security zones, apparently indefinitely.

During its occupation of these areas, Turkey has overseen the movement of perhaps hundreds of thousands of people from within its borders into the occupied areas, significantly changing the delicate demographic balance there. The migrants are primarily Syrian Arab refugees previously residing in Turkey, internally displaced persons from elsewhere in Syria, and families of Turkish- backed Syrian National Army (SNA) fighters. But Turkey apparently has steered them to entirely different areas of Syria from those where they originate. This appears to be deliberate, using the Sunni Arab settlers to displace the local Kurdish populations and disrupt ethnic composition of formerly Kurdish- majority regions. Many of the migrants take over houses abandoned by Kurds, while in some cases Turkey or private Arab foundations have financed the construction of entirely new communities for the migrants in the occupied territories.

Article 49(6) of the Geneva Conventions has generated a considerable body of scholarship, as well as political interest. But discussions of Article 49(6) have been almost exclusively reserved for discussions relating to Israeli settlements in the West Bank. Other recent or ongoing occupations, including Turkey’s long- standing settlement project in northern Cyprus and analogous situations in Crimea have attracted neither the interest of scholars nor the condemnation of international bodies. Turkey’s demographic alterations in occupied northern Syria have not received prior attention from international legal scholars. Nor has it been condemned by the international community as a violation of Article 49(6).

After describing in detail Turkey’s demographic and migration practices in area, this Article considers whether such practices violate Article 49(6), raising several interpretive questions about the scope of the prohibition: first, what constitutes a “population transfer” (distinguishing coerced expulsions into the territory from voluntary return of refugees) and, second, who qualifies as the occupying power’s “civilian population” (particularly when most transferees were Syrian nationals, though residing in Turkey).

Energy in the Judiciary

Michael S. Greve

Climate change litigation has been a vibrant industry for two-plus decades, especially in the wake of the Supreme Court’s decisions in Massachusetts v. EPA (2007) and American Electric Power v. Connecticut (2011). State Attorneys General have played a central role, both in litigation over federal agencies’ rules and in cases challenging individual states’ efforts to compel sister states to reduce greenhouse gas emissions or to recoup damages from major producers in those states. This Article provides casual empirical data on state AGs litigation agenda. Their initiatives and interventions, I argue, have nothing to do with public-regarding benefits. They have everything to do with “horizontal federalism”—specifically, states’ competition for productive capital and labor. “Red” states seek to exploit their competitive and comparative advantages in producing cheap and abundant energy; “blue” states seek to shape and mobilize federal and state law for the purpose of raising their red-state rivals’ costs. This carbon war is fought on an open field: the Supreme Court has no coherent view of what states may or may not do to each other. It appears to have no interest in the question and has in many respects encouraged mutual state aggression. A deeply divided polity and for that matter the U.S. Constitution demand a more confident and constructive judicial role. The Article concludes with thoughts on what a coherent federalism jurisprudence, along the lines of constitutional argument that the Roberts Court has deployed in separation of powers cases, might plausibly look like. 

Regulatory Tripwires: How Arbitrary Thresholds Distort Financial Markets

Todd J. Zywicki
The use of asset-size thresholds in U.S. financial regulation is widespread. The use of “thresholds” is often promoted for their simplicity, transparency, and administrability. This article examines how thresholds frequently distort firm behavior, undermine competition, and generate unintended consequences that diverge from their stated policy goals.
Dodd-Frank dramatically expanded the use of these “regulatory tripwires.” The law established systemic-risk tiers (originally at $50 billion, later revised to $100 billion and $250 billion), the CFPB’s $10 billion supervisory trigger for depository institutions and “larger participant” rules for nonbanks, and the Durbin Amendment’s $10 billion cutoff imposing price controls on debit-card interchange fees. Rather than aligning oversight with actual risk or consumer harm, these bright-line rules create sharp compliance cliffs. Banks respond rationally by slowing organic growth, fragmenting operations, restructuring balance sheets, and pursuing mergers to spread fixed compliance costs.
The article argues that poorly calibrated thresholds too often substitute for reasoned regulatory analysis, invite political rent-seeking, and expand in scope over time without deliberate policy review due to the absence of inflation indexing or periodic evaluation. It recommends repealing or reforming flawed thresholds—particularly the Durbin Amendment—replacing hard cliffs with graduated approaches, indexing remaining thresholds, and modernizing supervision through risk-based frameworks supported by real-time data analytics and advanced technology.

The Fine Line Between Collaboration and Collusion: Comment for the DOJ-FTC’s Request for Guidance on Collaborations Among Competitors

John M. Yun
This comment, submitted in response to the DOJ’s and FTC’s request for public input on collaborations among competitors, offers two recommendations for the revised guidelines. First, the agencies should include a dedicated discussion of trade associations and joint negotiations, given that roughly one-third of cartel cases historically arise from association activity and that key questions—group boycotts and the conduct of delegated leadership—remain underdeveloped in existing guidance. Second, the agencies should reaffirm a market-based, consumer-welfare framework for evaluating collaborations, pushing back against the growing movement to grant antitrust carve-outs for favored industries pursuing public-interest objectives.

When “Genocide” Loses Its Meaning, Law, War, and the Case of Gaza

David E. Bernstein

This article argues that the term genocide has been conceptually and legally diluted in contemporary discourse surrounding the Israel–Hamas war in Gaza.

Drawing on the history of the Genocide Convention, the jurisprudence of the International Court of Justice, and comparative cases including the Holocaust, Rwanda, Bosnia, and Cambodia, the article contends that genocide is distinguished not by the scale of civilian suffering alone, but by the specific intent (dolus specialis) to destroy a protected group as such.

The article maintains that allegations of Israeli genocide frequently conflate devastating urban warfare with the legal crime of genocide, while disregarding established international legal standards requiring genocidal intent to be the “only reasonable inference” from state conduct. Indeed, Israel’s documented efforts to mitigate civilian harm—including evacuation warnings, humanitarian corridors, pauses in fighting, legal review of military strikes, and cooperation with an extensive vaccination campaign—however imperfectly implemented, make genocidal intent not merely something other than the “only reasonable inference,” but difficult to regard as a reasonable inference at all.

The article further traces the historical origins of genocide accusations against Israel to Soviet anti-Zionist propaganda after the 1967 Six-Day War and examines how these narratives evolved in international political discourse. It argues that the Gaza conflict, while marked by immense civilian suffering, does not fit the doctrinal or historical framework of recognized genocides, and that the allegation of genocide is instead a dishonest rhetorical tool used by those who oppose Israel's military actions for various reasons.

The article concludes by warning that redefining genocide to encompass a military campaign solely because it produces severe civilian casualties risks transforming the concept from a precise legal category into a generalized instrument of political condemnation, thereby undermining its moral and juridical significance.

Examining the Growing Movement to Grant Antitrust Exemptions for Coordinated Behavior

John M. Yun
This article examines the growing movement among legislators and competition authorities to create antitrust exemptions for coordinated conduct among competitors when such coordination is said to advance broader public policy goals, including environmental sustainability and journalism preservation. Using examples from the United States and Europe, the article explores the tension between traditional antitrust principles—which have long condemned collusion and price fixing—and emerging public-interest approaches to antitrust.

Specifically, this article advances that these exemptions create significant legal and economic risks. In particular, the boundaries of permissible coordination are difficult to define and enforce, exemptions may generate unintended market distortions and rent-seeking behavior, and selectively permitting collusion risks undermining the coherence and legitimacy of antitrust law. The article concludes that special carve-outs are unnecessary because antitrust law already accommodates genuinely procompetitive cooperation under the existing rule of reason framework.

The Declaration of Independence as Kindling the American Culture of Reason-Giving

Donald J. Kochan

As we search for the roots of the reason giving culture in American law and politics, it is important to examine the Nation’s birth certificate. The Declaration of Independence celebrates its semiquincentennial in 2026. Across 250 years, the study of the Declaration and its impact have, of course, been extensive. There is, however, a lesson to be drawn from the Declaration of Independence that has been underexplored: It was an exercise and exemplar of “reason giving,” arguably solidifying by example a custom and culture of reason giving in American law and politics. This Essay articulates the reasons why the Declaration of Independence should be credited with helping to firmly establish that culture and custom, and it explains the practical utility and legitimacy functions of reason giving against the backdrop of the very purposeful and direct appeal to reason giving in the Declaration—a design feature of the document to add to the legitimacy of the Founders’ claim to independence.

Fake News: Why the FTC’s Campaign Against “Big Tech Censorship” is Wrong on the Facts and the Law

Thomas A. Lambert, James C. Cooper

The U.S. Federal Trade Commission’s (FTC’s) recent campaign against “Big Tech censorship” of conservative viewpoints is unjustified as a matter of policy and likely to fail as a matter of law. The FTC’s policy argument for intervention rests on four factual premises: (1) that major technology platforms systematically and unjustifiably sup-press user-generated content that expresses conservative viewpoints; (2) that such sup-pression harms consumers by “drying up access to ideas”; (3) that censorship of conservative content is a manifestation of anemic competition among platforms; and (4) that intervention by the FTC would increase opportunities for expression and enhance market output. Each of those factual premises is unsound. A survey of the empirical literature demonstrates that right-leaning content is more often amplified than sup-pressed by leading technology platforms and that disparities in enforcement are better explained by differences in engagement patterns and misinformation sharing. Moreover, even if some platforms did suppress particular viewpoints, there is no evidence of marketwide “drying up” of ideas—the harm FTC leadership has identified as central to its interventionist rationale. Nor is content moderation a result of deficient competition among platforms; it is instead a means by which platforms compete, accommodate heterogeneous preferences of users and advertisers, overcome network effects, and expand opportunities for citizens to broadcast their ideas to large groups of people. Finally, there is little reason to believe that FTC intervention would improve upon the status quo, as each of the alternative content moderation approaches the Commission might impose would leave users worse off than they are under the current state of affairs. The policy argument for FTC intervention is thus quite weak.

When it comes to the law, the FTC’s prospective enforcement theories face serious—and likely fatal—obstacles. Efforts to penalize or coerce technology platforms for their content-moderation decisions raise substantial First Amendment concerns, as recent Supreme Court precedent makes clear that platforms’ editorial judgments about what speech to host, promote, or demote are protected expressive activity. Even apart from those constitutional limits, the FTC would likely fail because the statutory provision it claims the technology platforms are violating—the FTC Act’s prohibition on “unfair methods of competition” and “unfair or deceptive acts or practices”—provides no viable basis for liability. FTC liability theories based on inter-platform agreements, advertiser boycotts, agreements with the government, and unilateral exclusionary practices fail to establish an unfair method of competition. Nor can the Commission meet the legal tests for “deception” or “unfairness” and thereby establish an unfair or deceptive act or practice. An FTC enforcement action based on alleged Big Tech censorship of conservatives is thus likely to fail as a matter of law.

When Tax Law, Textualism, Property Law, and M&A Law Converge: AbbVie Inc. v. Commissioner of Internal Revenue

Donald J. Kochan
This article lies at an intersection of tax law, textualism, property law, and mergers and acquisitions law and policy. A June 2025 U.S. Tax Court decision interpreted International Review Code Section 1234 to determine that “break-up fees”— contractual fees agreed to be paid when certain merger and acquisition deals break down—as “ordinary business expenses.” They could not be capital losses—defined as losses “with respect to property” because the managers were making these commitments and the managers are not owners of the corporation. The decision makes sense – because it respects the text, is consistent with principles of authority and nemo dat non quod habet at the heart of property law, and because it creates a more welcoming treatment of merger-based risks, meaning it encourages merger negotiations something which is socially beneficial. The U.S. Tax Court got it right.  And the IRS decision not to pursue an appeal was both wise and beneficial the vitality of the merger market.

Zombie Antitrust: Is Robinson-Patman a Dead Law Walking?

Timothy J. Muris
By the 1970s, a nearly unanimous Antitrust community had concluded that the Federal Trade Commission‘s (FTC) enforcement of the Robinson-Patman Act perverted Antitrust law. FTC enforcement declined and then was abandoned entirely, with the Supreme Court declaring in 2006 that lower courts should avoid applying Robinson Patman in ways “geared more to the protection of existing competitors than to the stimulation of competition.” Shattering this consensus, the Biden FTC brought the first two government cases in many years (one continued by the Trump FTC). The Biden Commissioners claimed that the old consensus both misunderstood the nature of the statute and was based on faulty reasoning of the Chicago school and the Reagan Administration. 
The revivalist story of Robinson Patman’s history is fictitious, denying the statute’s protectionist origins. Only 15 days after the Supreme Court struck down the government’s attempt to end the Great Depression by cartelizing business to raise prices, Wright Patman introduced “The Wholesaler Grocer’s Protection Act,” written by the wholesaler grocer trade association and seeking the same goal in a different guise. To overcome significant opposition, including from the Roosevelt Administration, the actual legislation included new defenses and greater complexity and ambiguity. The result was, as historian Ellis Hawley concluded, “a vague law,” the “actual effects of which would depend on its administration and interpretation.” Nevertheless, the FTC through the 1960s took an aggressive competitor-protection approach to enforcement. An overwhelming consensus developed that the Act was used to protect competitors rather than competition and consumers. Beginning in 1970, the FTC abandoned Robinson Patman as the center of its competition universe, long before the Reagan Administration. 
Surprisingly, revivalists also claim no evidence shows that Robinson Patman enforcement was anticompetitive, ignoring both business responses to the Act and the many studies of problematic FTC enforcement. This report for the Competitive Enterprise Institute details numerous, well-known examples of enforcement and policy that raised cost and reduced competition. For example, the FTC encouraged direct competitors to share their prices; it discouraged selective price cutting in industries most susceptible to tacit or explicit collusion; and it discouraged small businesses from cooperating to compete successfully with larger ones. The overwhelming experience of the businesses, attorneys, and others most exposed to Robinson Patman is compelling evidence that led them to revolt and conclude that FTC enforcement was fundamentally inconsistent with antitrust’s purpose of protecting competition and consumers.
Finally, in a companion piece summarized here, “Stop Making Sense: Reviving the Robinson-Patman Act, and the Economics of Intermediate Price Discrimination,“ SSRN-6299819, Bruce Kobayashi and I discuss current economic literature, both theoretical and empirical, regarding intermediate price discrimination. Economists continue to debunk the economic incoherence of a favorite argument of revivalists, used 90 years ago and resurrected today, that discounts to large retailers are only possible because small firms pay more. Modern theoretical justifications of mandating uniform pricing show beneficial results are possible, but only in narrow circumstances that provide no practical or policy guidance. Moreover, when key institutional features of pricing that large firms actually use are incorporated, the results support using, not restricting, differential pricing. Not surprisingly, empirical studies fail to support revival. Causal evidence of harm from intermediate price discrimination is nonexistent, and indirect evidence is consistent both with the benefits of differential pricing and the high costs of the efforts of the FTC and others to impose uniformity.

Injury in Fact: Measuring the Causal Impact of Spokeo v. Robins on Judicial and Litigant Behavior

James C. Cooper, Bruce Kobayashi, Sasha Romanosky
Spokeo v. Robins represented a potentially sweeping change to standing doctrine, but its lack of clarity  left its ultimate impact on the law uncertain.  Several studies have measured Twiqbal’s impact, but to our knowledge, Spokeo’s impact has received no empirical attention despite its potential to nullify statutory requirements. We fill this gap by examining filings from Ninth Circuit cases.  We employ a “straddle design” to control for filing selection, comparing a treatment sample exposed to Spokeo with a control sample. We find evidence of large defendant motion selection and early settlement selection.  While we find that 25 percent of cases dismissed under Spokeo would have been negatively affected compared to the counterfactual, we find mixed evidence that Spokeo actually changed the legal standard.  The impact of Spokeo (both selection and judicial treatment) is confined to class actions, with any judicial treatment effects primarily concentrated on TCPA cases.

The Right to Use Private Property

Ilya Somin

The right to use is a central element of property rights. But it is an under-analyzed aspect of the right to private property protected by the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever it takes “private property” for public use. Modern Supreme Court jurisprudence wrongly provides only modest protection for the right to use. This chapter makes the case for a strong right to use under the Takings Clause. 

Part I outlines the importance of the right to use property in the real world. For most types of property, that right is an essential element of the “bundle of sticks” possessed by the owner, often even the most important element. That point applies to both property in land, and personal property.  Part II makes the originalist case for a strong right to use under the Takings Clause. William Blackstone—a major influence on early American concep­tions of property law and on the leading American Founders—regarded the right to use as a central element of property rights. The same was true of leading court decisions and legal theorists around the time when the Takings Clause and the rest of the Bill of Rights became “incorporated” against state and local governments in 1868.  Part II also gives a brief overview of the “police power” exception to Takings Clause liability and its relevance to the right to use. That exception would deny compensation in cases where the use restricted poses a significant threat to public health or safety. But it does not do so in other situations, including the vast majority of exclusionary zoning restrictions on housing construction.

Obviousness

Donald J. Kochan

This Essay defends the virtue and utility of stating the obvious from time to time, even inside rigorous academic analysis. And, like Professor Orin Kerr’s A Theory of Law, it aims to provide a citable source for obvious statements and for the contextual utility of stating obvious things. It fills a gap, because it may be impossible to find a source for obvious claims. As a solution, an author can cite to this Essay to (1) make a contestable assertion that the point is obvious and need not cite any other sources; and (2) to defend the scholarly utility of sometimes making obvious statements in academic work. The Essay also explains that the citation to it can serve a deliberative function. Such citation allows an author to clarify that they are staking a transparent claim that the statement to which this citation is appended is an obvious one, thereby directly welcoming peer criticism or contrasting challenge that the claim is instead non-obvious.

Comment to Consumer Financial Protection Bureau on Advance Notice of Proposed Rulemaking on Personal Financial Data Rights Reconsideration

Todd J. Zywicki
On August 22, 2025, the Consumer Financial Protection Bureau announced an Advance Notice of Proposed Rulemaking on Personal Financial Data Rights Reconsideration, aka, the “1033 Rulemaking.” This Comment, filed on October 21, 2025, addresses the four questions posed by the CFPB.
This Comment argues that the rulemaking provides an opportunity to enact a regulatory structure that can benefit consumers, competition, innovation, and financial inclusion, especially for consumers historically underserved by the traditional financial system. In addition, by creating an efficient, workable regulatory structure, the rule can increase consumer data privacy and security by eliminating the need for cumbersome workarounds like screen-scraping practices that impose costs on financial institutions and increase the risk of data breaches for consumers.
The Comment starts by observing that the data in question is not “owned” by either consumers or banks but instead is jointly produced by consumers and providers. As a result, instead of focusing on who “owns” the data, regulatory policy should focus on consumer’s decision-making over how their data is used and preventing misuse of their data, instead of unsolvable questions of data “ownership.”
Regarding the four specific questions posed by the CFPB, the Comment advocates for a broad definition of “representative” that includes third-party data aggregators and fintech providers, noting that narrow interpretations ignore the benefits consumers derive from seller-driven competition. It criticizes the high access fees demanded by large banks as a manifestation of an “anticommons” problem designed to extract monopoly rents and stifle rivals, suggesting instead that fees should be limited to marginal costs or ideally remain at a baseline of zero. On the issue of data security, clear, API-based sharing protocols are far safer than the ad hoc workarounds, such as “screen scraping,” that emerge when consumer demand for portability is blocked. Finally, the Comment urges the CFPB to move away from archaic “notice and consent” models toward a “tort approach” that focuses on preventing the actual misuse of information while facilitating legitimate uses that increase consumer welfare.

Litigation Without Romance: An Incentives Story

Donald J. Kochan
It is a romantic notion to believe that the motivations and drivers of litigation are solely grounded in the pursuit of justice, unaffected by the realities of human nature—including individuals pursuit of self-interest, incentives, interest in identifying and willingness to take advantages within systems that might lead to gains, and the temptations to invest in shaping doctrines and institutions to create new routes or conditions to better advance their interests. Borrowing from James M. Buchanan’s Noble-prize winning work on public choice theory and his characterization of those insights as being a tale of “politics without romance,” this Article calls for adopting a view of “litigation without romance,” to coin a phrase. We should examine litigation with the same skeptical eye that public choice has demanded of legislation, understanding that it is a venue for human activity that thus naturally is not devoid of human incentives.
While the court system is designed to be available for the redress of wrongs, its ability to generate financial gains independent of, or in excess of, compensation for wrongs creates an environment where individuals are incentivized to invest in litigation as a means for profit or to achieve redistributive effects. It is basic economics to predict that individuals will invest in outcomes that are cost beneficial. This Article examines a few manifestations of these incentives within the contemporary litigation system.

Church Autonomy and Interlocutory Appeals

Lael Weinberger, Branton Nestor

The church autonomy doctrine protects the freedom of religious institutions to decide for themselves, free from state interference, matters of church government, faith, and doctrine. While church autonomy is a well-established doctrine, it presents challenging questions that split scholars and divide courts—particularly about how church autonomy interacts with civil procedure. One puzzle that has arisen repeatedly in recent years is when a denial of a church autonomy defense can be appealed. In multiple cases arising in different circuits—involving suits by removed ministers, fired teachers, and disgruntled tithers—a religious institution asserted church autonomy as a defense to a lawsuit at an early stage (motion to dismiss, summary judgment).  But in each case, the district court denied the motion, allowing the case to go forward against the church.  And so the church sought to make an interlocutory appeal—an appeal before the case is over. Essentially every court of appeals in the last few years to address the question—the Second Circuit, the Seventh Circuit, the Tenth Circuit, the D.C. Circuit—has said that the interlocutory appeal is unavailable. They reason that the church autonomy doctrine does not generally protect against the litigation process itself, and that any harm to church autonomy can be addressed at the end of the litigation through an ordinary appeal. 

This Article argues that these courts are wrong. Under the existing law applied by the courts to decide when interlocutory review should be available, church autonomy makes the cut for permitting interlocutory appeal. Existing First Amendment doctrine is best read as protecting religious institutions from judicial review and inquiry into matters of church government, faith, and doctrine reserved to competent church authorities. Judicial control of these matters violates nonestablishment principles and contravene free exercise protections—and it is the very process of judicial review and inquiry, not just the end result, that can violate the Constitution. If church autonomy doctrine isn’t enforced at the front end of the litigation, the error cannot be fixed at the end of the litigation. If this is correct, then two civil procedure measures would be appropriate: First, denials of a church autonomy defense at the outset of litigation should be subject to interlocutory review. Second, courts should use their discretionary tools to manage litigation and to draft amendments to the appellate rules that recognize the ways that church autonomy protections will be affected by litigation. 

Church autonomy’s limitations on the exercise of judicial power by civil courts over matters of church government, faith, and doctrine have important implications for civil procedure—including interlocutory appeals. Church autonomy limits the process of judicial review by civil courts over church matters. In particular, it limits the power of civil courts to second-guess religious decisions by religious authorities, and it limits their power to subject those decisions to judicial scrutiny. Because the constitutional harms from such judicial review cannot be undone on the back-end, church autonomy should be subject to interlocutory appeal under current law. In doing so, civil procedure can respect foundational constitutional principles—protecting religious institutions in their appropriate sphere.

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