A treatise on Business Associations is a crowded shelf. Mine takes one structural commitment seriously: every device a reader needs to understand the doctrine lives in the book itself. Statutory text appears in verbatim excerpt boxes when it matters, with one state per box. Deal documents pulled from SEC filings appear as primary text, annotated in the margins. Black-letter rule statements are quoted verbatim from the statute or the Restatement. A running hypothetical follows three founders across sixteen chapters as they build, fight, and dissolve a series of ventures. Why-boxes surface the economic logic behind each rule, marked clearly so students who want to skip them can do so without losing the doctrine.
The book makes one departure from the standard casebook. It treats decentralized autonomous organizations as a chapter-level entity form alongside agency, partnership, LLC, and corporation. The DAO chapter sits at full doctrinal weight, with its own governance failure modes, its own design tradeoffs, and its own statutory landscape from Wyoming, Tennessee, Utah, and the Marshall Islands. It is the longest chapter in the book and the one I am most proud of.
Across sixteen chapters, the manuscript carries nineteen annotated deal-document excerpts (LLC operating agreements, voting trust agreements, indemnification provisions, drag-along clauses, SAFEs, convertible notes), thirty-eight verbatim statutory and Restatement boxes, ten reference tables, and a sustained narrative through-line tracking three founders and the entities they build. The economic argument that motivates the work is preserved in Why-boxes that students can engage or skip. The cases speak for themselves in Voice of the Court sidebars. Debate Boxes mark the doctrinal terrain where scholars actively contest the standard view, so students learn early that some of what the casebook teaches is contingent.
Aspen Press received the manuscript a full year ahead of the contract delivery date. Publisher-requested structural fixes are integrated. Peer review came back positive. The work that remains is finish-carpentry: citation harmonization, the final DOCX conversion, and the cross-references that only become possible once everything has its final form.
A companion website at oranburg.law/BA hosts chapter materials, the new Knight RUP restoration project, and supplementary resources for adopters.
]]>The book is in the public domain. Every digital edition I have found contains errors. Some are scanned and OCR-mangled. Some have been reset by typists who silently introduced changes. Some have had headers and footers stripped, sometimes including the footnotes the headers indexed. For a text that has shaped business law, financial regulation, and the theory of the firm for over a century, that is an embarrassing state of affairs.
This is a problem for a treatise that draws on Knight, which mine does. It is a larger problem for the discipline of business law, which uses Knight’s distinction without ever quite agreeing on what page to cite.
The Business Associations companion site now hosts a restoration project at oranburg.law/BA/RUP. The text is being cleaned up against the 1921 first edition, with paragraph-level provenance and footnotes corrected where digital editions have lost or scrambled them. Contributors with access to a clean physical copy or a reliable scan are welcome. Pull requests, errata, and corrections are wanted.
When the restoration is complete it will be the canonical free digital edition. Knight deserves better than what is currently online. So do students of the discipline he helped found.
]]>This is the central observation of Legitimate University Governance, my forthcoming article in the Dartmouth Law Review, which closed editorial review this week. The paper introduces a category I call sovereign charities. These institutions exercise the influence of public bodies and enjoy the autonomy of private ones, while answering to neither the accountability mechanisms of government nor the discipline of markets. The architecture is novel. The governance failures that follow are predictable.
The paper is the structural companion to Exclusive Inclusion, which documented systematic identity-based exclusion at elite universities across a range of groups: Jewish students, Women of Color in STEM, Black students at liberal arts colleges, conservative faculty, students with disabilities. Exclusive Inclusion showed the pattern. Legitimate University Governance explains why the architecture produces it.
The mechanism is straightforward once named. A self-perpetuating board hears only the constituent voices it chooses to amplify. A fiduciary duty owed to nobody in particular is enforceable by nobody. A tax exemption granted on the basis of public benefit, with no operational test for whether benefit is delivered, becomes a transfer without a return. Universities have all three.
The paper proposes three structural responses, each adapted from a working analog in another body of law.
First, stakeholder standing modeled on corporate derivative suits. If a fiduciary duty exists in name, someone must be able to enforce it.
Second, enforceable mission specificity. Charitable purpose has historically been interpreted so broadly that it ceases to discipline anything. Narrowing the operational meaning of a stated mission, and requiring institutions to live within it, would restore content to the fiduciary obligation.
Third, an operational test for tax exemption adapted from the hospital community benefit standard. Nonprofit hospitals must demonstrate community benefit through specific operational measures. Universities, with comparable subsidies and comparable claims to public benefit, currently do not.
The article will appear in the Dartmouth Law Review later this year. SSRN draft: Legitimate University Governance.
]]>The Howey test was written in 1946 to deal with orange groves sold as investment contracts. It asks whether a buyer expects profits from the efforts of others. For a token, the answer can change minute by minute as a protocol matures. Early-phase tokens sold to fund development look like securities. Later-phase tokens used to access a decentralized service look like commodities. The same code, the same buyer, the same wallet, classified two different ways depending on when you ask. The current framework cannot accommodate that fact, which is why every regulatory action has felt arbitrary.
The CLARITY Act offers a lifecycle-phase framework. Tokens are evaluated by what they do at the time of the transaction, in light of where the underlying protocol sits in its maturity. That moves the question from labels to function, and from political contest to administrable rule.
The op-ed makes the policy case in lay register. The doctrinal case lives in Replacing Howey with CLARITY: Resolving Securities Regulation’s Temporal Paradox, forthcoming in the Review of Banking & Financial Law at Boston University. The two pieces share thesis architecture.
Read the op-ed: End the Crypto Culture Wars with CLARITY (perma).
]]>In Antitrust Law for Blockchain Technology, published in the Journal of Corporation Law, I argue that the Neo-Brandesian movement’s push to break up Big Tech rests on a fundamental misunderstanding of how the internet actually works. The market for information on the World Wide Web is structurally different from the oil and railroad markets that gave birth to antitrust doctrine 130 years ago. Applying the old tools to the new market could backfire spectacularly – not by taming monopolists, but by preventing the decentralized competitors that would actually challenge them.
The Neo-Brandesian case against Big Tech, championed most prominently by former FTC Chair Lina Khan, draws heavily on historical analogy. Khan’s influential scholarship compares Amazon’s market position to Standard Oil’s and analogizes Big Tech’s vertical integration to the railroad monopolies that prompted the Sherman Act. The argument is that concentrated market structures promote anticompetitive conduct, and the solution is structural reform – breaking up dominant firms.
My response is direct: the analogy fails because the markets are structurally different.
Antitrust doctrine originally developed from a law enacted 130 years ago to deal with monopolist “robber barons” like Standard Oil. Since 1890, the structure of markets has changed. Today’s information markets through the internet are much different from the railroad and oil markets of more than a century ago.
Oil and railroads are physical commodities controlled through physical infrastructure. Building a competing railroad requires laying track – a capital-intensive, geographically constrained undertaking that naturally tends toward monopoly. The internet is a decentralized-distributed network where information travels through automated route-selection processes. No single node controls the flow.
I use Barrett Lyon’s Opte Project – a visualization of the World Wide Web generated by tracing Border Gateway Protocol (BGP) routes – to illustrate the internet’s structure. The image reveals a branching, decentralized network of peers. Zoom in on any node, and it appears dominant: all local information flows through it. Zoom out, and it becomes an insignificant part of a much larger system with countless alternative pathways.
This structural observation has legal consequences. Antitrust structuralism – the theory that concentrated market structures promote anticompetitive behavior – requires showing that a market actually has a monopolistic or oligopolistic structure. If the internet’s information market is decentralized and distributed, the structural premise collapses.
An apparently dominant firm today could be negligible tomorrow. Unlike rail lines laid in the 19th century, the web changes constantly, growing new branches and cutting off old ones in response to economic, political, and technological factors. Market dominance on the internet is inherently dynamic in ways that railroad or oil dominance never was.
To show how the Neo-Brandesian approach could backfire, I construct a thought experiment. Imagine a distributed organization called “Duber” – a Web3, blockchain-based alternative to Uber. Duber operates through smart contracts and decentralized governance rather than a corporate hierarchy. It could offer the same ride-hailing service without the centralized control that antitrust regulators worry about.
Here is the problem: aggressive antitrust enforcement against existing dominant platforms, combined with a regulatory philosophy that presumes market power from market share, could prevent Duber from ever gaining a foothold. If regulators treat any firm that achieves significant market share as presumptively anticompetitive, they penalize success – including the success of decentralized challengers that represent the very competition antitrust law is supposed to protect.
Khan’s regulatory philosophy, I argue, could reinforce dominant firms by preventing entry. The irony is sharp: an agenda designed to promote competition could instead calcify existing market structures.
The deeper issue is that Neo-Brandesian antitrust focuses on market structure rather than consumer welfare. Under the consumer-welfare standard that has dominated antitrust analysis since Robert Bork’s The Antitrust Paradox (1978), the question is whether a firm’s conduct harms consumers through higher prices or reduced output. Under structuralism, the question is whether the market is too concentrated – regardless of whether consumers are actually harmed.
I contend that structuralism is the wrong lens for information markets. The price theory approach – evaluating actual consumer harm – better accounts for the dynamic, decentralized nature of the internet. A firm that looks dominant on a snapshot of the web’s topology today may face vigorous competition from technologies and competitors that do not yet exist.
For antitrust plaintiffs seeking to apply structuralism to Big Tech, I identify a high burden: they would need to convince courts not only that structuralism matters, but that the internet’s information market actually resembles a monopoly or oligopoly. The decentralized-distributed architecture of the web cuts against that showing.
Blockchain technology offers the most plausible pathway for decentralized competitors to challenge Big Tech. DAOs, peer-to-peer networks, and Web3 applications can replicate many of the services dominant platforms currently provide – without the centralized control that triggers antitrust concern. But this potential is realized only if the regulatory environment permits it.
If antitrust enforcement treats any firm that achieves significant market share as presumptively anticompetitive, it penalizes success – including the success of decentralized challengers that represent the very competition antitrust law exists to protect. The irony is sharp: an agenda designed to promote competition could instead calcify existing market structures by preventing entry.
Read the full article: Seth C. Oranburg, Antitrust Law for Blockchain Technology, 49 Journal of Corporation Law 379 (2024).
]]>I went because I believed that witnessing the aftermath of October 7 was not only morally necessary, but essential to understanding what the legal categories — proportionality, distinction, incitement — actually mean in practice. I am a law professor. I teach doctrines. I had never stood inside the doctrine.
At the Tekuma car graveyard, more than 800 civilian vehicles sit in silence — sedans, hatchbacks, mopeds, an ambulance. An IDF officer recounted how Hamas blasted that ambulance with dozens of AK-47 rounds, threw hand grenades inside, then fired a rocket-propelled grenade. When cleared, they recovered the remains of 18 people, including an 18-year-old girl in a wheelchair. I filmed the wreckage of a burned-out white Audi A5 — the same model I drive. I imagined my wife and daughter in that car.
At Kibbutz Nir Oz, the communal dining tables were still set. Each bore a red hostage poster. Some posters were marked “dead,” crudely taped over “kidnapped.” One table had a child’s highchair with a poster of baby Kfir Bibas. His wide, toothless grin looked just like my daughter’s. I stared at his father Yarden’s photo and thought: had I stayed in Israel after my kibbutz summer twenty years ago, would I be in one of those tunnels now?
The kibbutz’s mailboxes were marked “kidnapped” or “murdered,” as appropriate. Our guide was Sharone Lifshitz, whose father Oded — an octogenarian peace activist who had spent years driving sick Gazans to Israeli hospitals — was kidnapped by Palestinian Islamic Jihad. He was later murdered in captivity.
At the Nova Festival site, I met Bar Hinitz, a survivor. He told us he had come to “celebrate life” at a sunrise trance festival. By 6:30 a.m., rockets were overhead and the DJ was on the mic: “Red alert, red alert, it’s not a drill, evacuate as quick as you can.” Bar hid in a bush for forty minutes while automatic weapons fired around him. His best friend Omer — who was not supposed to be there — was murdered. “Talking is healing,” Bar said. “I want to tell people what really happened here.”
At the Nahal Oz command center, I walked through the ruins where 15 of 22 young female soldiers were killed — suffocated by chemical accelerants while in their nightclothes. Keyboards and mice had melted into surreal puddles. The air still smelled faintly of chemical smoke. I had studied arson as a doctrinal matter. This was not theory. This air had poisoned people.
Then I watched the raw footage. Hamas bodycam recordings, CCTV, dashboard cameras, mobile phones of both attackers and victims. One sequence has haunted me since: a terrorist, having just killed a civilian, picked up the victim’s phone and called his parents. In a voice dripping with pride, he boasted of the number of Jews he had killed. Not “Zionists.” Not “Israeli soldiers.” Jews.
I returned to my campus and my classroom with a question that had not troubled me before the trip: is the definitional debate over whether anti-Zionism “is” antisemitism even the right question?
The scholarly debate is real and important. The IHRA definition, the Jerusalem Declaration, the Nexus Document — each has strengths and weaknesses. Kenneth Stern, who coordinated the IHRA drafting, warns against codifying it into law. Cary Nelson defends its clarity. David Feldman urges keeping the concepts analytically distinct. Raeefa Shams cautions against conflating them while acknowledging that much anti-Zionist rhetoric on campus draws from antisemitic tropes.
But after standing in Nir Oz, the definitional debate felt overly cerebral. The central question is not whether a perfect definition exists, but whether institutions are willing to recognize when calls to “resist Zionism” devolve into targeted hostility against Jews. As I wrote in the paper: the stakes are not academic — “unless you are referring to the literal gray matter of innocents that Hamas terrorists splattered onto the dashboards of passenger sedans.”
What I propose instead is a functional analysis: the label is less important than the effect. What does the speech actually do? Does it single out Jews for hostility, exclusion, or violence? Does it invoke antisemitic tropes under the guise of anti-Zionism? If so, institutions may — and must — respond.
When Jew-hatred erupted across campuses after October 7, many universities responded not with moral clarity but with procedural neutrality. They cited the First Amendment. They deferred to protest guidelines. They “monitored the situation.” They issued statements so equivocal they failed even to name the atrocity. As Miriam Elman observed, many administrators effectively equated Hamas’s terrorism with Israel’s self-defense.
This paralysis masquerades as fairness. University leaders claim they are constrained by definitional ambiguity. They invoke one framework or another. But the problem is deeper than which definition they adopt. It is the institutional habit of using definitions as shields against responsibility. As Stern himself wrote: “This was not written to be a campus hate speech code.” When universities respond to Jew-hatred with yet another reference to definitional frameworks, they are not exercising legal restraint. They are evading moral discernment.
Definitions are useful tools. They assist in training, policy drafting, and pattern recognition. But they cannot substitute for judgment. They do not tell a university president what to say when protesters chant “Death to Zionists” outside a Jewish student center. They do not tell a faculty committee how to respond when a tenured professor celebrates mass murder as political resistance. Nor do they absolve leadership from the obligation to lead.
I am a classical liberal. I direct a program at NYU’s Classical Liberal Institute. But classical liberalism does not require institutions to remain neutral in the face of illiberal ideologies. On the contrary, it demands integrity — coherent alignment between purpose, structure, and conduct. Too often, university leaders confuse liberalism with passivity.
The framework I propose draws on four traditions: Holmes’s legal realism (law must be grounded in experience, not abstraction), Hayek’s classical liberalism (liberty requires general rules but not institutional paralysis), Aristotle’s virtue ethics (character is formed through habitual practice of judgment, not through rule-following), and Maimonides’s moral formation (the path to understanding begins with repeated, intentional action that shapes the soul).
The synthesis: universities must ask not only “What are we allowed to do?” but “What kind of institution are we becoming?” That is not a rhetorical question. It is the beginning of institutional virtue.
This is not a call for censorship. It is a call for clarity. Universities must distinguish between disagreement and dehumanization. Not through punishment, but through principled speech, moral leadership, and institutional courage. Liberalism, properly understood, is not relativism. It is a structured commitment to individual dignity, civic equality, and the pursuit of truth. When universities fail to defend those values, they are not being liberal. They are being lost.
Read the full article: Beyond the Ivory Tower: Confronting Antisemitism, Anti-Zionism, and Free Speech Through Firsthand Observation and Engagement, AEN Research Paper No. 7 (2025).
]]>That gap – the “Series A gap” – is the central problem identified in my Bridgefunding: Crowdfunding and the Market for Entrepreneurial Finance, published in the Cornell Journal of Law and Public Policy. It is the space between $1 million and $5 million where startups have trouble raising capital, and it is a direct consequence of how startup financing is structured and regulated.
Startup financing follows a predictable cycle. Angel investors – wealthy individuals who meet the SEC’s “accredited investor” definition – typically invest about $400,000 per company. Venture capital firms typically invest about $7 million. Between those two numbers lies a dead zone.
This is not a natural market outcome. It is a regulatory artifact. Angel groups invest relatively small amounts because they are individuals deploying personal capital. Venture capitalists invest large amounts because their fund economics demand it – management fees and carried interest only work at scale. The result is “lumpy” startup investment with a structural hole in the middle.
The ratio of seed-funded to VC-funded companies dropped from about 2:1 to about 4:1 between 2008 and 2012. More companies were getting angel funding, but fewer were graduating to venture capital. One thousand startups were “orphaned” in that period – funded enough to start, but stranded short of the capital needed to scale.
Congress passed the Jumpstart Our Business Startups Act of 2012 to address startup capital formation. Title III – Regulation Crowdfunding – allows startups to sell stock online to the general public. The idea was to democratize startup investing.
The problem, I argue, is that the JOBS Act caps crowdfunding raises at $1 million. That puts crowdfunding squarely in competition with angel investors for the earliest, smallest investments – precisely the segment of the market that was already working.
The JOBS Act only allows startups to raise $1 million per year through crowdfunding, which does not address the Series A gap. Instead, it merely allows the general public to compete with professional angel investors to make the first investment in startup companies.
Meanwhile, the real gap – the $1 million to $5 million range where good startups die – remains unaddressed. The law aimed crowdfunding at the wrong market segment.
Making matters worse, the JOBS Act imposed costly antifraud requirements on crowdfunding. Startups must spend up to $150,000 on independent audits, disclosure documents, filing fees, and legal fees before they can sell equity through a funding portal. Raising money from angel investors is not only up to six times cheaper, but angel investment costs are mostly incurred after financing is assured. Crowdfunding forces startups to sink costs up front. Under these conditions, only startups that fail to get angel funding will turn to crowdfunding – a classic adverse selection problem.
My solution is elegant: invert the crowdfunding limits. Instead of a $1 million ceiling, set a $1 million floor and a $5 million ceiling.
If existing crowdfunding limitations were inverted – such that startups had a $1 million floor and a $5 million ceiling – it would become rational for high-quality startups to seek crowdfunding for gap financing.
This “bridgefunding” regime would slot crowds into the financing cycle precisely where they are needed – bridging startups from angel funding to venture capital. The proposal has several advantages.
First, it reduces fraud risk. If a startup has already raised $1 million from professional angel investors who conducted due diligence, the crowd can free-ride on that vetting. Angels have already determined the company is legitimate and the founders are competent. Bridgefunding fraud is harder to commit because angels have already done the work.
Second, it addresses business risk more effectively. The biggest danger in early-stage investing is not fraud but startup failure. A company that has survived to the point of needing Series A capital has already proven certain fundamentals – product-market fit, team capacity, initial traction. Crowds investing at the bridgefunding stage face lower business risk than crowds investing at formation.
Third, it leverages what crowds actually do well. Crowds are not sophisticated financial analysts. But they are excellent at generating buzz, validating products, and providing market signals. A bridgefunding campaign doubles as a marketing campaign. The crowd becomes both investor and customer base.
I use game theory – specifically the concepts of hold-out and free-rider problems – to demonstrate that the Series A gap is a genuine market failure, not just a temporary mismatch. In the current system, individual angel investors have incentives to hold out rather than lead a round, and potential venture capitalists have incentives to free-ride on others’ due diligence without committing capital. These dynamics systematically prevent coordination in the $1-5 million range.
Bridgefunding solves both problems. The crowd does not face hold-out dynamics because individual contributions are small and no single investor’s participation is decisive. And the free-rider problem is turned into a feature: crowds are supposed to free-ride on angel due diligence. That is the whole point of requiring a $1 million floor.
If you are a startup founder, the current system forces you into an awkward choice: raise a small angel round and hope you can stretch it to venture scale, or burn resources trying to attract VC attention before you are ready. Bridgefunding would create a viable middle path.
If you are a policymaker, the lesson is that crowdfunding regulation should be calibrated to the market segment where crowds can add the most value. That segment is not pre-seed formation – it is the Series A gap.
The JOBS Act was not wrong to bring crowds into startup finance. It was wrong about where to put them.
Read the full article: Seth C. Oranburg, Bridgefunding: Crowdfunding and the Market for Entrepreneurial Finance, 25 Cornell J.L. & Pub. Pol’y 397 (2015).
]]>This was crosstagion: bidirectional risk contagion between traditional finance and decentralized finance.
The GENIUS Act protects against the forward channel — stablecoin failure destabilizing banks. Reserve requirements, monthly attestations, and insolvency priority for token holders all address the risk that a stablecoin issuer fails. But the SVB event demonstrated that financial risk runs in reverse too: traditional bank failure destabilized the stablecoin, which destabilized DeFi, which traditional finance relies on for collateral markets.
This is not episodic. Treasury market stress events in March 2020, September 2022, and early 2023 each produced measurable depegging pressure on reserve-backed stablecoins. The pattern is structural: it is an artifact of GENIUS-style reserve concentration requirements, not of any idiosyncratic weakness in a particular issuer.
The policy designed to make stablecoins safe by anchoring them to the safest assets in the world is simultaneously the policy that transmits Treasury market stress into the stablecoin market with maximum efficiency.
The SVB cascade was contained only because the FDIC chose to protect uninsured depositors — a discretionary policy intervention, not a legal safeguard. Had the FDIC applied standard depositor preference rules, Circle would have faced substantial losses on its uninsured SVB deposits. The USDC depeg would have been permanent. The DeFi cascade would have continued. The containment reflects a government decision that was not legally compelled. The next reverse-channel event may not receive the same discretionary rescue.
The CLARITY Act’s mutual exclusion clause creates an unintended problem under stress. A compliant payment stablecoin under GENIUS is explicitly not a digital commodity for CFTC purposes. But when a stablecoin breaks its peg, its GENIUS compliance status becomes ambiguous. An asset trading at $0.87 rather than $1.00 may no longer qualify as a “payment stablecoin” designed to “maintain a consistent 1:1 value.”
If the stablecoin loses its GENIUS classification even temporarily, it falls into the digital commodity category — shifting jurisdiction from OCC to CFTC at the exact moment of maximum market stress. The classification itself becomes unstable under stress.
This is not a theoretical concern. It means that at the precise moment when coordinated regulatory action is most needed, the jurisdictional boundaries between agencies are shifting. The OCC may lose authority over an asset it supervised yesterday. The CFTC may gain authority over derivative markets it was not monitoring. And the SEC may simultaneously claim the depegged stablecoin as a potential investment contract under Howey — because an asset whose value no longer tracks its peg starts to look less like a payment instrument and more like a speculative one.
No statute allocates liability or mandates coordination among these three agencies when contagion crosses their boundaries. The Stablecoin Certification Review Committee includes Treasury, the Fed, and the OCC. The CFTC is not represented — despite holding jurisdiction over the derivative markets through which the cascade propagates. The OCC’s implementing rulemaking does not cite the CLARITY Act even once, despite being issued after CLARITY had been under congressional consideration for over a year. The two statutes were designed in isolation. They do not talk to each other.
The finance literature maps crosstagion through price and liquidity channels. It does not account for the distinctly legal mechanism by which DAO governance failure accelerates and amplifies the cascade. A flash loan attacker can borrow sufficient governance tokens, pass a malicious proposal, drain a protocol treasury, repay the loan, and exit — all in a single thirteen-second Ethereum block. The Beanstalk attack of April 2022 demonstrated this: $182 million drained in one block, with no telephone number to call, no assets to freeze, and no entity capable of posting margin.
The CFTC can sue a DAO (CFTC v. Ooki DAO). Token holders may face personal liability (Sarcuni v. bZx DAO). Immutable smart contracts cannot be sanctioned as “property” (Van Loon v. Dep’t of Treasury). Together these cases describe a landscape in which agencies have theoretical authority but no operational tools that function on the timescale of a crosstagion cascade. The CFTC brought its Ooki DAO action in September 2022; the court entered default judgment in June 2023; the $643,542 penalty remained uncollected because the DAO held no attachable assets in any U.S. jurisdiction.
Closing the crosstagion gap requires not new prudential requirements but a designated tri-agency coordination mechanism — triggered by observable stress indicators — that assigns jurisdictional primacy before a crisis and activates a classification standstill rather than after the contagion has already propagated across the TradFi-DeFi boundary. The mechanism must operate at a speed that existing frameworks (FSOC annual reports, inter-agency memoranda) were not designed for.
Congress responded to exactly half of the two-way risk with the most significant federal stablecoin legislation ever enacted. The other half remains unowned.
Read the full article: Seth C. Oranburg, Crosstagion: The GENIUS Act, CLARITY, and the OCC-CFTC-SEC Gap in Bidirectional Stablecoin Contagion, SSRN (2026). SSRN
]]>The data tells a different story. In Market Power and Governance Power, I examine empirical research on governance token distribution in leading DAOs and find Gini coefficients of 0.90 to 0.98 — near-total concentration of voting power at the top. Organizations marketed as decentralized are, by this measure, more concentrated than most traditional corporations.
The delegation mechanism makes it worse. Many DAOs allow token holders to delegate their votes to visible “delegates” — essentially proto-board-members who accumulate voting power from passive holders. The mechanism is structurally identical to the proxy system in corporate governance, where management routinely wins because retail shareholders delegate rather than vote. Formal decentralization produces functional oligarchy.
This matters for antitrust. Regulators cannot take “decentralized” labels at face value. I propose a dual-metric framework that integrates traditional market concentration measures (HHI) with governance concentration metrics (the Nakamoto coefficient, which counts the minimum number of entities needed to reach 51% of governance power). A DAO with a Nakamoto coefficient of 3 is not meaningfully decentralized, regardless of how many token holders appear on the ledger.
The four-quadrant matrix I develop — crossing market concentration with governance concentration — determines when intervention is warranted. Some entities that look competitive by market share are dangerously concentrated by governance. Some that look monopolistic by market share are genuinely decentralized by governance. Antitrust analysis that ignores the governance dimension will get the answer wrong in both directions.
The Beanstalk attack illustrates the stakes. In April 2022, a flash loan attacker borrowed enough governance tokens to pass a malicious proposal, drain $182 million from the protocol treasury, repay the loan, and exit — all in a single thirteen-second Ethereum block. A protocol with a Nakamoto coefficient of 1 (for those thirteen seconds) was marketed as decentralized. The label was the attack surface.
Read the full article: Market Power and Governance Power: New Tools for Antitrust Enforcement in the Decentralized Gig Economy, Competition Policy International (2025).
]]>Proponents of mandatory ESG disclosure believe it will make corporations more accountable and thus increase CSR activity. In The Unintended Consequences of Mandatory ESG Disclosures, published in the Business Lawyer, I argue the opposite: mandating ESG disclosures could lead to less CSR, not more.
The argument rests on what I call the information paradox. Companies that are genuinely committed to CSR – the “true believers” – already disclose voluntarily. They do so because their ESG performance is good and they want investors, consumers, and regulators to know it. Voluntary disclosure is a signal of quality.
Mandatory disclosure eliminates this signal. When every company must disclose, the market can no longer distinguish between companies that disclose because they are proud of their record and companies that disclose because they are forced to. The true believers lose their competitive advantage.
The assumption that mandatory ESG disclosures will lead to more CSR activity is theoretically and empirically unsound. Instead of leading to more CSR, mandating ESG disclosures could lead to less CSR.
Mandatory disclosure also creates a new incentive: greenwashing. Companies that have little genuine commitment to CSR but face disclosure requirements will invest in making their reports look good rather than in making their practices better. The compliance cost of producing ESG reports is substantial, and every dollar spent on compliance paperwork is a dollar not spent on actual environmental or social improvement.
I review empirical studies showing that ESG-related mandatory disclosures are not associated with beneficial real-world outcomes. The disclosures produce paper, not progress.
The article concludes by examining the direct costs of mandatory ESG disclosure – legal fees, auditing, reporting infrastructure – and argues that the SEC should be required to quantitatively weigh these costs against the expected benefits before imposing new mandates. If mandatory disclosure reduces genuine CSR activity while imposing significant compliance costs, the net social value could be negative.
This is not an argument against corporate social responsibility. It is an argument that the mechanism chosen to promote it – mandatory disclosure – may be counterproductive. I do not enter the Berle-Dodd debate about whether corporations should serve society. I ask the narrower and more technical question: will this particular regulation achieve what its proponents claim? The answer is likely no.
Read the full article: The Unintended Consequences of Mandatory ESG Disclosures, 77 Business Lawyer 697 (2022).
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