"Frictionless financing" platforms promise consumers a simple, seamless, and instantaneous financing experience that allows them to finance any number of products through their preferred retailer. For many consumers, frictionless financing is a welcome development that eliminates irritating design barriers that hamper consumers' ability and desire to obtain financing at the point of sale. However, frictionless financing steers other consumers towards expensive, riskier, and more complicated borrowing options. It encourages them to make hasty financing decisions with limited information, exacerbating well-established consumer heuristics and biases. To date, there has been little scholarly evaluation of whether frictionless financing truly benefits consumers in light of these competing vices and virtues. This Article fills that gap and questions whether faster, simpler, and more seamless is better. Frictionless financing often comes with costs to consumer financial health, including eliminating important points of deliberation and making high-cost, non-traditional financing dangerously and deceptively attractive. This Article suggests that by reintroducing friction and other consumer protections that encourage deliberation, consumers may be better able to understand their preferred financing products-and better protected even when they do not. So, this Article proposes regulations that reintroduce friction into the point-of-sale financing ecosystem by targeting third-party financing brokers. While this Article focuses on frictionless financing, it also offers potential regulatory principles for consumer protection and the frictionless economy beyond these products.
Make-whole provisions appear in more than eighty percent of corporate bond issuances. They emerged in the mid-1990s after traditional call provisions failed to protect bondholders from opportunistic refinancing. Outside bankruptcy, they are routinely enforced. But inside bankruptcy, they have generated extensive litigation over three issues: whether acceleration extinguishes the make-whole premium, whether the Bankruptcy Code disallows it as unmatured interest, and whether a solvent debtor must pay it regardless of statutory disallowance. This Note makes three arguments about how courts should treat make-whole provisions in bankruptcy. First, the apparent circuit split over make-whole-provision enforcement is illusory. Courts have reached different results because the underlying contracts have had materially different language, not because of conflicting legal principles or policy judgments. Second, the solvent-debtor exception is best understood as a corollary to the absolute priority rule rather than as a historical practice or equitable right. When a solvent debtor invokes & sect; 502(b)(2) to deny creditors' postpetition interest while distributing value to equity holders, the statutory disallowance operates as a de facto priority violation. Third, the core problem with make-whole provisions in bankruptcy is their economic structure. Because the standard formula does not adjust for the issuer's default risk, the premium is largest when the borrower is in distress and the estate has the least capacity to satisfy other creditors. Therefore, this Note proposes that courts should subordinate bankruptcy-triggered make-whole premiums under & sect; 510(c) rather than disallowing them or enforcing them at parity. This approach avoids the binary created by current doctrine. Disallowance eliminates the premium entirely and redirects the savings to equity holders, while the solvent-debtor exception pays the premium in full, which shortchanges junior creditors. Subordination would preserve the claim but pay junior creditors ahead of make-whole-provision holders.
The third-party litigation funding (TPLF) industry is a rapidly growing phenomenon in the United States, making headlines in cases ranging from celebrity privacy scandals to multimillion-dollar NFL head-injury lawsuits. Proponents praise TPLF for increasing access to justice, particularly for underprivileged parties who may otherwise lack the resources to pursue their claims. Critics, however, warn that it fosters opacity, promotes frivolous lawsuits, inflates legal costs, and allows funders to exert undue influence over litigation strategies and settlement negotiations. To address these commonly held criticisms while preserving the advantages of the practice, this Article proposes a novel approach to TPLF, reconceptualizing these arrangements as a quasi-partnership. Based on the regulatory and theoretical principles governing limited partnerships, we develop a framework that specifies the roles, rights, and duties of claimants, funders, and their attorneys. The funders serve as "limited partners,"providing capital but being barred from directing litigation strategy or settlement decisions. Claimants are cast as "general partners," retaining substantive control but bound by fiduciary duties to the "partnership," including the funder's interests. The claimant's attorney, in turn, is redefined as owing duties to both the client and the partnership as a whole, balancing the interests of all parties involved. This framework clarifies why funders should have limited control over litigation decisions, delineates necessary disclosure obligations, and defines the permissible scope of funder access to case-related information. The proposed model is not only a more accurate account of how TPLF operates in practice but is also normatively superior to current arrangements, offering a principled and economically efficient model for integrating TPLF into modern litigation practices-one that preserves its access-to-justice benefits and mitigates its potential risks.
For nearly a century, debates over "corporate purpose" have framed the issue as a clash between two contested visions: should corporations maximize profits, or should they pursue broader social goals? This Article argues that this conventional framing obscures the true nature of the dispute. Using Wesley Hohfeld's map of rights, duties, privileges, and no-rights, I argue that the corporate-purpose debate is fundamentally about the scope and design of managerial privilege, rather than abstract commitments to shareholders or stakeholders. This Article offers a set of "critical questions" that any proposal for corporate-purpose reform should address to make itself legible, assessable, and comparable within a Hohfeldian framework, and employs these questions to examine three recent, influential proposals for stakeholderist reform. The analysis reveals that proposals for stakeholder-oriented reform often fail to constrain managerial privilege, while resting on risky empirical bets about corporate actors' benevolence.
Over the course of the twentieth century, the administrative state grew under the auspices of a functionalist understanding of constitutional and statutory provisions allocating decisions among the three branches of the federal government. That understanding eschewed well-defined limits on the roles of the branches in favor of a flexible approach that allowed the branches to adapt more or less cooperatively to the demands of a complex world. In recent decades, the Supreme Court has gradually, tentatively begun to roll back these accommodations and draw sharper lines around the branches' respective powers. The law-fact distinction is an important tool for allocating decisions between agencies and the courts. What has gone underappreciated is the extent to which the modern conception of the law-fact distinction makes it an awkward tool for the Court's project. It was forged alongside the modern administrative state, using the realist premises that blended the powers the Court is now striving to separate. Unrevised, the law-fact distinction will react with the new formalist doctrines to produce unstable compounds. The reaction will distort the authorities on which the Court relies and undermine the rule-of-law values that administrative law is meant to serve. This Article identifies two approaches to distinguishing law from fact. It shows that a functional approach that marginalizes factfinding pervades administrative-law doctrines across time. And it suggests that an alternative, formalist approach-one that defines "law" more narrowly-will make the Court's recent formalist turn more feasible and legally defensible.
