Volume 5.1

Winter

2026

Banks, which are businesses that simultaneously make loans and take deposits that are available to customers on demand, are inherently unstable. The instability exists because the mismatch in the (long-term) maturity of banks’ assets and the (short term) maturity of their liabilities makes them susceptible to runs and panics that destabilize the broader economy and require bailouts on a regular basis. As such, banks essentially hold society hostage. They must be continuously propped up by the government to prevent them from collapsing and bringing the rest of the economy down with them.
There is a strong need for the transaction-account services provided by banks, and there is a strong need for the loans provided by banks. Why it is necessary to combine lending and deposit taking, within a single firm, rather than have them supplied by separate firms, such as commercial lending companies and money market mutual funds, is an issue that has received surprisingly little attention. The main argument in favor of banks is that econ-omies of scope can be achieved by combining lending and deposit taking. For example, by offering checking accounts to borrowers, banks obtain private in-formation about these borrowers that is not available to rival, non-bank lenders. This private information from depositors is thought to make banks unusually efficient lenders.
In this Article I first argue that improvements in technology and information retrieval and sharing have reduced or eliminated the traditional efficiency justification for combining deposit-taking and lending. At the same time, other improvements in technology have made banks even more fragile by making it easier for depositors to trigger runs by withdrawing their funds electronically.
Previous scholars have argued for “narrow banks” that would unbundle the provision of lending and deposit-taking. Here I observe that these scholars do not consider the rationales offered by financial economists to explain why these activities are combined. They ignore the sparse but important literature in economics and finance that models how combining lending and deposit taking generates efficiencies in the form of synergies. Thus, these scholars focus on the costs of combining lending and deposit taking without considering the benefits.
While the scholars who argue for narrow banks ignore the beneficial efficiencies associated with combining lending and deposit taking, the financial economists who argue that combining lending and deposit taking is efficient ignore the harmful costs associated with combining these two functions. In particular, combining lending and deposit taking makes banks unstable, re-quiring the creation and maintenance of a thicket of regulation to deal with that instability, which still fails to prevent periodic runs and panics. This Article concludes that when the costs associated with combining lending and deposit taking are properly considered, the arguments that traditional banking is efficient appear highly doubtful.

Fraudulent transfer law is one of the principal bulwarks of private law. Fraudulent transfer law, however, now faces a crisis. Courts have long assumed that it was easy to determine whether a debtor made a fraudulent transfer of its property. One could use traditional markers of ownership to determine whether the debtor transferred property to a confederate. But today, most assets are intangible. Transactions happen in the blink of an eye, and they take place entirely on corporate books. Reliance on simple notions of what constitutes a “transfer” of property is wholly inadequate. Understanding what it means for a debtor to transfer property for fraudulent transfer purposes requires revisiting the foundational principles of fraudulent transfer law, a task that has proved elusive because one of those foundational principles has been forgotten.

The Texas Stock Exchange’s registration as a new national securities exchange is arguably the most formidable challenge to the NYSE and Nasdaq duopoly in recent memory. TXSE has raised expectations not only among those who champion the rise of Texas as a financial center and resist the imposition of progressive norms through securities law, but also among scholars who favor competition as a solution to structural problems in the national market system (NMS) for equity trading. This Article explores the extent to which a new exchange can manage these expectations. It further considers what it means to be a “fully integrated stock exchange” in a political and judicial climate increasingly hostile to the self-regulatory model and whether an opportunity for ideological competition can restore confidence in that model.

Should insurance companies be allowed to charge different prices based on a policyholder’s likelihood of making claims? This Article challenges the common view that “risk-based pricing” in insurance presents a tradeoff be-tween the twin goals of efficiency and fairness. It argues that the most com-pelling justification for charging policyholders prices that reflect their indi-vidual risk is grounded not in efficiency, but in egalitarian distributive jus-tice. The Article begins by shifting the focus of distributive analysis from the burdens of insurance (i.e., premium costs) to the benefits of insurance, measured as the consumer surplus each participant gains from coverage. It then demonstrates that risk-based pricing distributes this surplus more equally among high-risk and low-risk insureds than does a uniform “com-munity rate.” This egalitarian perspective helps to explain and justify a puz-zling feature of American law: the surprising lack of comprehensive antidis-crimination rules for insurance compared to other sectors like housing and employment. By providing a fairness-based defense of risk-based insurance pricing, the Article reframes the debate. The central conflict is not one of effi-ciency versus fairness

Courts routinely miscalculate pre-judgment interest, thereby failing to fully restore injured parties. Because pre-judgment interest can be substantial—often rivaling or even exceeding the underlying award—errors in its calculation are important and may create distorted incentives, promote opportunistic behavior, and suppress investment and economic activity. These errors often stem from reliance on speculation to determine the costs covered by interest. This Article argues that such speculation is unnecessary. The litigation claim is identified as the asset which has burdened the injured party with risks and costs imposed by the wrongful act, eliminating the need to rely on a hypothetical asset to estimate costs. From this premise, one can derive the appropriate rate of interest required to restore the claimant to the position he or she would have occupied absent the harm. Grounded in empirical evidence and established financial principles, this framework offers a rigorous and practicable alternative to prevailing methodologies.

Textualism has gotten a bad rap, at least insofar as employment discrimination law is concerned. Derided by antidiscrimination scholars as an interpretive smokescreen concerned less with faithfully construing statutory text than reliably yielding pro-employer results, textualism is understood to pose an existential threat to employment discrimination law. This Article challenges academic orthodoxy by demonstrating that, in practice, textualism is correlated with employee-favorable outcomes. Specifically, the Article examines a subset of the Supreme Court’s major employment discrimination cases over the past thirty years and finds that textualism is twice as likely to be associated with outcomes benefiting employees than it is with outcomes benefiting employers. It then considers this finding’s implications for an atextual evidentiary framework that has bedeviled employment discrimination plaintiffs for more than half a century: the multi-step, burden-shifting regime of McDonnell Douglas Corporation v. Green.

Private credit, a financing method where non-bank lenders provide loans to predominantly middle-market businesses, has experienced exponential growth since the 2008 financial crisis, with its offerings, client base, and collaborations with other market participants expanding significantly. Recent trends highlight regulatory acceptance of this growth and increased interconnectedness between private credit and the broader financial industry, as private credit firms form numerous new partnerships with traditional lenders and deposit-taking institutions. These developments have raised concerns about systemic risk, the potential for financial instability in private credit to spread to the broader financial system, and how to deal with increased exposure to this type of risk. This Comment examines the history, growth, and systemic risk implications of private credit, proposing a regulatory framework or “system” designed to mitigate the negative spillovers of these developments. This system emphasizes enhanced disclosure requirements, stricter capital reserves, leverage limitations, restrictions on certain investment activities, and covenant drafting to ensure financial containment of the systemic risks associated with private credit.

The music industry is highly concentrated at multiple stages along the production chain between the Big Three music group conglomerates (Universal, Sony, and Warner) and the three largest streaming services (Spotify, Apple, and YouTube). The Big Three and the streaming services have extensive vertical arrangements, from the Big Three having ownership stakes in the largest streaming services to their contracts for the streaming services’ algorithms to prioritize Big Three artists. This resembles historical radio era payola arrangements. This double layer of market concentration and the arrangements between music production and distribution primarily harm musicians, who lack the bargaining power to negotiate for better contracts or terms with either the Big Three or the major streaming services.
This Comment evaluates the reasoning behind, and outcomes of, radio era payola arrangements, compares these historical arrangements to the modern digital streaming era, and considers modern payola in the context of recent trends in antitrust law jurisprudence. Congress’s solution of required disclosure for radio era payola largely failed to substantially improve access to the radio for smaller artists and labels, and would likely fail again if attempted for the modern music streaming distribution system. In recent years, however, courts and regulators have utilized an increasingly holistic antitrust analysis with a growing focus on labor-side harms and vertical integration. The growing openness to labor-side concerns and the heightened scrutiny recently placed on vertical integration should weigh heavily in favor of musicians and independent labels in courts’ rule of reason analyses. These newly emphasized concerns provide new lenses for analyzing the modern music industry structure and payola and suggest a solution to Congressional inaction.