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Research Paper Series

Recent Working Papers:


Comment of the Global Antitrust Institute on the Australian Digital Platform Services Inquiry 2020-2025 – Final Report

11-2024 | Tad Lipsky, Douglas Ginsburg, Alexander Raskovich, Dario da Silva Oliveira Neto

ABSTRACT:

The Global Antitrust Institute (“GAI”) submits this Comment to the Australian Competition & Consumer Commission (ACCC) in response to its request for public views regarding the 10th and final report of the ACCC’s Digital Platform Services Inquiry 2020-2025. This Comment is based on our extensive experience and expertise in competition law and economics. As an organization committed to promoting sound economic analysis as the foundation of antitrust enforcement and competition policy, the GAI commends the ACCC for inviting public submissions regarding competition in the rapidly changing digital platform sector. 
 
The ACCC’s request for public input (hereinafter “Inquiry”) follows a lengthy market studies examination of digital platforms that the Australian Competition Authority has been producing since 2017. The GAI has submitted two previous comments to the ACCC’s Inquiries projects on Digital Platforms: GAI Comment on the ACCC’ Digital Platforms Inquiry (2017-2019), Preliminary Report; and GAI Comment on the ACCC’s Digital Platform Services Inquiry’s Discussion Paper for Interim Report No. 5: updating competition and consumer law for digital platform services, (December 2018); and one comment to the Australian Treasury regarding the recommendations of the ACCC’s Digital Platform Services Inquiry, Interim Report No. 5: regulatory reform (September 2022). 
 
Regarding the current final report, and according to the Issue Paper released by the ACCC, the agency is focusing the Inquiry on three different topics: (i) recent international legislative and regulatory developments in markets for digital platform services and their impact on competition and consumers; (ii) major developments and key trends in certain markets for digital platform services (for example, those explored in earlier reports of the Inquiry), and (iii) potential and emerging competition and consumer issues which relate to digital platform services. Apparently, the ACCC report tends to advocate legislative and regulatory developments in Australia to adopt an ex ante digital markets regulation in accordance with Recommendations 3 (Additional Competition Measures for Digital Platforms) and 4 (Targeted Competition Obligations) of the ACCC’s Digital Platform Services Inquiry, Interim Report No. 5, Regulatory Reform.
 
This Comment identifies several economic considerations that suggest caution regarding adoption of novel limitations on competitive conduct by digital platforms – especially ex ante regulation – before greater experience can be obtained with the application of existing antitrust law to digital platforms. That experience will provide a better understanding of the reasons for the success or failure of particular antitrust approaches. This Comment describes economic methodologies that support these suggestions.

Presumptive or Presumptuous? The Global Antitrust Institute’s Comment on the EC’s Draft Guidelines on Exclusionary Abuse

11-2024 | Alexander Raskovich, Douglas Ginsburg, Tad Lipsky, John Yun, Dario da Silva Oliveira Neto

ABSTRACT:

We identify several flaws in the European Commission's Draft Guidelines on exclusionary abuse. The Commission’s choice to ground the Draft Guidelines in EU case law on Article 102— spanning both early case law that followed a formalistic approach to the enforcement of exclusionary abuse and modern case law that follows an effects-based approach—has resulted in internal inconsistencies and confusion. We recommend that more recent CJEU judgments predominate over earlier case law in the interpretation of Article 102. The most egregious flaw in the Draft Guidelines is the presumptuous introduction of presumptions of exclusionary abuse, which would relieve the Commission of its duty to determine whether conduct has anticompetitive effects. This flies in the face of not only modern EU case law but also a standard interpretation of the very text of Article 102. We urge the Commission to return to the spirit of the effects-based approach it articulated in the 2008 Guidance Paper, which has been influential in shaping modern EU case law. In particular, we propose that the Commission explicitly accept responsibility for showing anticompetitive effects, adopt the consumer welfare standard as the unifying principle for discerning competition on the merits, and adopt the As-Efficient-Competitor standard as the unifying principle for discerning whether exclusionary conduct by a dominant undertaking is likely to be abusive.

COVID-19 Exclusion, Policy Contagion, and Colonial Hangover in Africa

10-2024 | Olufunmilayo Arewa

ABSTRACT:

African countries have experienced multiple consequences from the COVID-19 pandemic that extend beyond its immediate impact on human health. In Africa, much like elsewhere in the world, the pandemic has had a significant economic impact, leading to profound global economic distress. African countries have also experienced consequences that are unlike those of much of the rest of the world. The pandemic has contributed to a surge in sovereign debt defaults, including in Zambia in late 2020, Mali in early 2022, Ghana in late 2022, and Ethiopia in 2023. Travel bans and COVID-19 vaccine exclusion have also had a particular impact in Africa. The experiences of African countries during the COVID-19 pandemic highlight key consequences of colonial hangover and fundamental structural impediments and inequalities evident in global and local contexts.

Second Amendment Originalism, the “General Law,” and Rahimi’s Two-Fold Failure

10-2024 | Nelson Lund

ABSTRACT:

New York State Rifle & Pistol Association v. Bruen (2022), set out a bold new standard of review for Second Amendment cases. The Court rightly repudiated the  intermediate-scrutiny approach adopted by a strong consensus of the circuit courts after District of Columbia v. Heller (2008). Bruen purported to require that any gun regulation falling within the plain text of the Amendment be upheld only if the government can demonstrate that the regulation is consistent with America’s historical tradition of firearm regulation. United States v. Rahimi (2024) confirmed what was already clear in Bruen: that a majority of the Justices are not prepared to take this seemingly rigorous historical test seriously.
 
This article considers and rejects an innovative interpretation of Bruen, offered by William Baude and Robert Leider, under which Second Amendment jurisprudence would become a form of common-law constitutionalism. It then argues that a better alternative to Bruen is the more traditional application of means-end scrutiny to advance the primary purpose of the Second Amendment, which is to protect the fundamental natural right of self-defense.
 
In addition to showing that Rahimi did not apply Bruen faithfully, the article explains why a sound constitutional analysis does not support Rahimi’s decision to uphold the statute at issue in the case.

The Dark Side of Codifying U.S. Trust Law

10-2024 | Thomas Gallanis

ABSTRACT:

For most of Anglo-American history, trust law was case law. The law of trusts was born and molded in the English Court of Chancery and then re-shaped by the courts of the U.S. states. The U.S. law of trusts primarily was to be found in the decisions of state courts and in respected secondary sources digesting and refining the rules from those decisions, such as the American Law Institute’s Restatements and the multi-volume treatises on trust law originally authored by Austin Wakeman Scott or George Gleason Bogert.

U.S. trust law no longer is primarily case law. In 2000, the Uniform Law Commission published the Uniform Trust Code. Thirty-five U.S. states and the District of Columbia have enacted enough of the Code to be counted by the Uniform Law Commission as enacting jurisdictions. The Commission also has enacted other statutes in or allied to trust law, such as the Uniform Powers of Appointment Act and the Uniform Statutory Rule Against Perpetuities.

This Article examines some of the consequences of this shift in the U.S. law of trusts from case law to statute law. For convenience, this shift is termed “codification” because we have no word in English for “statutification.”

Perversely, the codification itself of trust law sometimes has opened the door to outcomes diametrically opposed to the goals of the Uniform Law Commission and the American Law Institute. The perverse outcomes were not intended but should have been foreseen.

This Article analyzes the dark side of the codification of U.S. trust law and offers a path for future law reform.

The Folly of AI Regulation

9-2024 | John Yun

ABSTRACT:

The explosive growth of AI related technology has drawn the attention of government authorities around the globe. As these authorities consider various regulatory proposals, this chapter advocates a model similar to the one used when the internet first emerged, that is, a relatively restrained approach to regulation. This position is founded on several core tenets. First, there can be trade-offs between technological growth rates and addressing specific harms. Thus, even if a regulation is ultimately successful in addressing a specific harm, if it dampens the rate of innovation, then this could lead to a net welfare loss. Second, premature regulatory solutions can crowd out market-based solutions, which may offer more efficient solutions to emergent harms. Finally, premature regulations can have the consequence of entrenching incumbents and raising barriers to entry, which, perversely, harms the competitive process rather than promoting it. Importantly, this proposal is not a call to ignore the dangers that AI generated output can pose – nor is it a call for a “more permissive” treatment of AI under existing laws or existing regulatory schemes of general application.

Land Use Regulation

9-2024 | Ilya Somin

ABSTRACT:

Land use regulation is a major function of every government in the world. It raises many issues for classical liberalism. This chapter provides an overview of three of the most important areas of land-use policy: the use of eminent domain to forcibly take property for government-approved projects, regulations that restrict property owners’ use of their land, and the relationship between property rights in land and migration restrictions. 
 
Part I covers the use of eminent domain to take private property, and arguments for its limitation to genuinely “public” projects, as opposed to coerced transfers between private owners. Advocates of the latter argue they are needed to overcome “holdout” problems. But unconstrained use of eminent domain is a serious threat to property rights and hampers economic development. 
 
 Part II considers regulatory restrictions on land use that do not involve physical occupation of property. There is a longstanding debate about the value of such restrictions and whether the government should pay owners compensation. The most significant regulatory restrictions of this type in many nations are zoning rules restricting housing construction.
 
Finally, Part III provides a critical overview of property-rights rationales for restricting mobility, particularly in the form of international migration. Such theories justify severely constraining the liberty and property rights of both migrants and natives.

The Presumptive Case for Organ Markets

9-2024 | Ilya Somin

ABSTRACT:

The debate over legalizing organ markets has gone on for years, and the basic arguments are well-known. This chapter recasts the issue by emphasizing not just the nature, but the enormous magnitude of the considerations weighing in favor of legalization: saving tens of thousands of innocent lives, preventing prolonged suffering for many thousands more people, and enhancing bodily autonomy. That magnitude creates a strong presumption in favor of legalization, at least in some substantial form. Any countervailing argument must not only be valid in and of itself, but also sufficiently weighty to overcome the presumption. Standard arguments based on the risks of kidney donation, concerns about the “exploitation” of the poor, and dangers of “commodification” and moral corruption, fall short of that standard. Recent evidence on the number of lives that can be saved by legalizing organ markets and the diminishing risks of donating kidneys further accentuate the enormous magnitude of the gap between the benefits and costs of legalization

Part I provides an overview of the kidney shortage in the United States and the immense potential gains of legalizing organ sales. Doing so would save tens of thousands of lives every year, and also save many thousands more kidney failure patients from the pain and suffering of enduring many months or years of kidney dialysis. It would also enhance rights of bodily autonomy for both sellers and users of kidneys put on the market. These enormous benefits create a strong presumption in favor of legalization. Part II goes over several standard objections and explains why they fail to meet that demanding standard. These include claims that organ markets would lead to “exploitation” of the poor, arguments that they would lead to the commodification of the body, and concerns that they impose too great a risk on sellers. Each of these arguments lacks the necessary weight. In addition, to the extent objections are valid, they can be addressed by steps short of banning organ sales entirely.

A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson

8-2024 | Ilya Somin

ABSTRACT:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the Court ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy.

Section 3 states that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.         

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for “insurrection.” Part III considers the question of whether the January 6 attack qualifies as an “insurrection,” and—more briefly—whether Trump “engaged” in it. The answers to both questions are “yes,” though the second is a closer call than the first.  Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court’s effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

Breaking Barriers or Breaking Bad? The FTC’s Proposed Ban on Noncompete Agreements in Employment Contracts

8-2024 | Alexander Raskovich, Bruce Kobayashi, Tad Lipsky, Joshua Wright, John Yun

ABSTRACT:

There is no reliable support in either economic theory or empirics for the Federal Trade Commission’s proposed categorical ban on noncompete agreements (NCAs)—even if such a ban were limited to NCAs involving low-wage workers. The theories and evidence for NCA effects fall far short of meeting the Supreme Court’s standard that a practice be “always or almost always” anticompetitive to merit treatment as per se illegal. Applying the more flexible rule of reason approach to the facts of particular cases—as is appropriate for vertical restraints such as NCAs—is more likely to deliver benefits to both workers and consumers, on net and in the aggregate. The NPRM’s preliminary computations of the potential benefits of a ban to the contrary are deeply flawed, relying on a problematic out-of-sample forecast based on estimates from a single empirical study. Importantly, any sweeping ban on NCAs would likely have unintended consequences, hurting both workers and consumers.

Injunctions for Patent Infringement: Historical Equity Practice Between 1790 - 1882

8-2024 | Adam Mossoff

ABSTRACT:

A significant debate in patent law today concerns what remedy a patent owner may receive when a court finds a defendant liable for patent infringement. In eBay v. MercExchange (2006), the Supreme Court held that courts must use a “four-factor test historically employed by courts” in a “long tradition of equity practice.” This was the sole justification offered by the eBay Court for its four-factor test. Chief Justice John Roberts further claimed, from “the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases.”

Both of these historical claims are conventional wisdom today in law and scholarship, and both claims are empirically unverified. This article tests both historical claims in reporting the results of a database of 899 opinions in which federal courts sat in equity in patent lawsuits. The database represents opinions by trial courts and appellate courts sitting in equity in all patent lawsuits filed between 1790 and 1880 compiled in the Federal Cases reporter.

The database confirms and challenges the conventional wisdom. First, eBay is wrong: there was no four-factor test in the “long tradition of equity practice” in patent cases. In the 899 opinions, no judge applied a four-factor test in granting an injunction, either for a permanent or a preliminary injunction. Second, Chief Justice Roberts is correct: courts did grant permanent injunctions in a vast majority of cases as a remedy for patent infringement. In the 899 opinions, courts awarded permanent injunctions in 91.2% of the cases in which a defendant infringed a valid patent. Given the stark absence of a four-factor test, the article describes the historical equitable doctrines applied by federal courts. Based on the opinions, it details how courts applied the same equitable doctrines and principles in patent cases as in redressing continuing trespasses of real property, protecting patents as much as they protected real estate and other property interests.

Global Antitrust Institute Comment on Australia’s Exposure Draft Regarding Amendments to the Review of Mergers and Acquisitions

8-2024 | Alexander Raskovich, Douglas Ginsburg, Tad Lipsky, Dario da Silva Oliveira Neto, John Yun

ABSTRACT:

The Global Antitrust Institute submits this comment regarding Australia’s proposed amendments to the review of mergers and acquisitions. The proposed move from a voluntary to a mandatory pre-merger notification system holds the potential to reduce false negative error in merger review. There is a “loophole” in the proposed amendments, however, that would tend to exacerbate the risk of false positive error by allowing the Australian Competition and Consumer Commission to extend the determination period for merger review indefinitely, in a way not subject to review by the Australia Competition Tribunal. This loophole would tend to have a chilling effect on mergers and acquisitions that are not likely to substantially lessen competition. We propose a simple fix to close the loophole.

“Law and Political Economy”: A Solution in Search of a Problem

8-2024 | David Bernstein

ABSTRACT:

Creating and implementing solutions to social problems requires a realistic assessment of the status quo. The authors of the Law and Political Economy Project movement’s ur-text instead tilt at windmills. They believe that law professors have a tremendous influence on public policy, when our influence, though greater than the average citizen’s, is insignificant relative to macro-trends in politics and society. They believe that the legal academy has been captured by Posnerians in private law and by neoliberals in constitutional law. In reaching this conclusion, they grossly exaggerate the influence of law and economics, misapprehend the focus of modern law and economics scholarship, and ignore the very strong leftward ideological leanings of public law scholars.

The authors believe that the American state has been “chastened” by neoliberalism, when it spends more and regulates more than ever. They think that economic policy is the font of inequality in America, while ignoring the changes in family dynamics that are the primary driver of multi-generational poverty and economic struggle. They blame public policy since the 1970s for oppressing women and non-white Americans, even though both groups are demonstrably better off today than they were fifty years ago. And their standard for a proper egalitarian democracy goes beyond the quixotic and into the impossible.

There may be a provocative, enlightening case to be made that the US needs to move its political and economic system closer to a left-progressive ideal. There may even be some reason to believe that an organized group of law professors interested in political economy is needed to move the US in that direction. But if either or both are true, the founders of the Law and Political Economy movement fail to demonstrate it.

Getting Possessive About Data: Why Cloud Storage Isn't Really Like Bailment

8-2024 | Christopher Newman

ABSTRACT:

This essay engages with recent scholarly suggestions that the traditional property categories of possession, bailment, and conversion can and should be applied in a fairly straightforward manner to storage of digital data. On the one hand, I am sympathetic to the concerns underlying these proposals, and agree that digital files meet the basic criteria of “thingness” that could make them intelligible as objects of property rights. While intangibility is not a per se disqualifier in this regard, I nevertheless contend that here the absence of exclusivity as a prerequisite to use of data files causes the animating logic of possession-based doctrines to unravel. 

Capturing Intangibles in a Property Restatement

8-2024 | Christopher Newman, Henry Smith

ABSTRACT:

The field of property law is often viewed as a "grab bag" of loosely related topics, whose doctrines are treated as a heap of rules, and whose subject matter is in turn conceptualized as a "bundle of sticks" having more or less arbitrary contents. One of the goals of the Restatement (Fourth) of Property is to present property doctrine as a coherent system of principles and doctrines that addresses recurring problems of resource allocation, control, and use across a variety of different contexts. When technology intersects with law in the Restatement process, it puts into issue some basic notions in property and even their very nature. This paper analyzes the notions of possession, thing, and conversion in the light of valued intangible resources. The range of intangibles, from cryptoassets to data files, are different in terms of the nexus of human activity that they present and the social legibility of such activity. Attention to the architecture of property and its function as a system helps manage the tradeoffs involved in property protection in the area of intangibles.

Federal Judicial Selection After the 2024 Election

7-2024 | Robert Luther

ABSTRACT:

As Associate Counsel to the President of the United States during the Trump administration, I had the unique opportunity to be at the forefront of the judicial selection process. I want to take this opportunity today, for the first time, to lay out my blueprint for judicial selection in 2024, so that whoever ends up in the role I occupied under President Trump may build on our successes.

Testimony on “The U.S. Intellectual Property System and the Impact of Litigation Financed by Third-Party Investors and Foreign Entities” Before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, and the Internet

7-2024 | Donald Kochan

ABSTRACT:

This testimony was provided on Wednesday, June 12, 2024, before the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. The testimony includes: (1) a brief introduction to the scope of third party litigation financing (“TPLF”) in today’s civil justice system; (2) a discussion of the most important concerns associated with this developing channel of investment, including a brief analysis of the overall lack of disclosure creating far too many known unknowns and unknown unknowns about the impact of TPLF, as well as a brief discussion of the risks of undue and dangerous disruption of our civil justice system through foreign influence; (3) an explanation of why the traditional arguments supporting a market for developing innovative investment vehicles do not obtain when investing in outcomes generated by courts for financial speculation or for other strategic purposes rather than to right wrongs; and (4) insights from the field of law and economics on why TPLF financiers have an incentive to not just invest in particular cases but also to fund rule-changing litigation that expands tort liability (i.e., increases the scope and number of available vehicles for payouts from TPLF investments) for private profit rather than for public good.

A Specious Form of Judicial Restraint

7-2024 | Nelson Lund

ABSTRACT:

When eight members of our disputatious Supreme Court join an opinion on a controversial topic like the Second Amendment, it’s safe to expect a narrow decision. Chief Justice John Roberts’s opinion in United States v. Rahimi is indeed narrowly drawn, and this consensus will encourage proponents of strong gun rights to applaud the Court’s restraint.      

Every Justice rejected the Biden Administration’s proposal to give legislatures wide latitude to disarm individuals or groups considered by the government to be dangerous or irresponsible. But while the decision certainly could have been worse, we should recognize that the Court misapplied its own precedent and misinterpreted the Second Amendment. Only Justice Clarence Thomas’s solo dissent was genuinely restrained because it alone was faithful to the Constitution.

The Unfinished Business Of Regulating Clearinghouses

12-2020 | Paolo Saguato

ABSTRACT:

Financial derivatives have been widely blamed for causing the 2008 financial crisis. These complex instruments created a deep and opaque web of bilateral links between major financial institutions that contributed to the transmission of systemic risk throughout financial markets. In order to stabilize the derivatives markets, legislators included radical provisions in the Dodd-Frank Wall Street Reform Act of 2010. As a result, traders are now required to process derivatives through clearinghouses: specialized risk managers that act as middlemen between buyers and sellers and guarantee each party’s performance.

Policymakers believed that clearinghouses would provide much-needed stability in derivatives markets by acting as designated systemic risk managers. However, this Article argues that the effect of clearinghouses on systemic risk is less clear-cut than scholars and policymakers have generally believed. While clearinghouses have removed much of the financial risk from markets, they have simultaneously concentrated it within their own walls. Yet, these walls stand on fragile foundations: the economic and governance incentives of clearinghouses and their stakeholders are misaligned, which could undermine their systemic resilience.

This Article contends that the current regulatory framework has critical, overlooked flaws that exacerbate clearinghouses’ moral hazard while creating new, risky, too-big-to-fail institutions. It urges policymakers to intervene: in order to rectify this situation, financial regulators must do more to ensure that clearinghouses are bastions of financial stability and not systemic risk amplifiers. The implementation of a multi-stakeholder board and the creation of hybrid financial instruments to complement the capital structure of clearinghouses are the first steps toward enhancing the accountability and systemic resilience of these critical market infrastructures.

The Ownership of Clearinghouses: When “Skin in the Game” Is Not Enough, the Remutualization of Clearinghouses

7-2016 | Paolo Saguato

ABSTRACT:

A central question for corporate law scholarship has revolved around the ownership structure of enterprises. Why are some businesses owned by employees, some by customers, and some by investors? Until now, the question has centered on the relative benefits offered to these stakeholders by one form or another. This Article explores how ownership structure can be a matter of public importance for financial stability and proves that it is so by delving into an institution of immense importance and timeliness: the clearinghouse, a critical financial market infrastructure.

Clearinghouses process, settle and guarantee the performance of several trillion dollars in securities and derivatives trades daily. By operating as central counterparties, they act as private stability mechanisms, reducing counterparty credit risk and sharing default risk among their members. Clearinghouses achieve this result via a unique economic structure, which includes a double layer of capital: the traditional equity capital and the so-called mutual guaranty fund (the clearinghouse’s loss sharing fund).

Historically, clearinghouses have been mutual enterprises owned by their members (users), who contributed to the firm’s mutual guaranty fund. But most clearinghouses have recently demutualized their ownership structure, opening their equity capital to external investors and transforming into for-profit public corporations, while keeping members on the hook for losses. This structural evolution has catalyzed new agency costs between the now coexisting and “competing” stakeholders: members and external shareholders. These costs, which have been further exacerbated by the post-crisis systemic role of clearinghouses are exemplified by shareholders with control and economic rights but limited “skin in the game,” and members who bear the final risk and losses if things go south, but who have no control or monitoring rights. This Article identifies how the agency costs between members and shareholders threaten the financial stability of clearinghouses and argues that aligning control and monitoring rights with final risk-bearing costs is the path clearinghouses should follow to achieve a more resilient ownership and governance structure.


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