This Article presents two important results. First, depending upon the magnitude of ideological conflict in society, a flexible right, rather than an inflexible right, can produce the socially efficient outcome. In general, if social conflict decreases as a right becomes more flexible, then the right is described as “ductile,” and not weak. Conversely, if social conflict increases as the right becomes more inflexible, then the right is described as “brittle,” and not strong. Second, a negative correlation can exist between ideological conflict in society and personal freedom. That is, the more people are negatively impacted purely by what others do, the less people are free to do what they so choose. This Article terms this result the paradox of ideological incitement and considers the cable news channels as an illustrative example. In addition, this Article contends that the State has, under certain circumstances, an obligation to resolve direct conflict that can arise in the exercise of fundamental rights. As part of this obligation, the State must provide remedial mechanisms that create the separation necessary for the exercise of two otherwise conflicting fundamental rights to coexist, spending public funds to implement a ductile right as defined here.

In many cases, gambling is relatively easy to identify. You just know it when you see it. But sometimes you do not. In some cases, gambling is not so easy to identify. Over time, questions have arisen as to whether certain transactions, often of critical importance in the moment, constitute gambling. This confusion over what constitutes gambling matters because vastly different outcomes can obtain depending upon whether a transaction is classified as gambling or not. In general, if the law classifies a transaction as gambling, then the government tends to regulate the transaction much differently than other risk transactions, typically giving the transaction heightened regulatory scrutiny to address certain problems commonly linked to gambling, such as addition. Given the significance of a transaction being categorized as gambling, the continuing confusion over what constitutes gambling is surprising.

This Article suggests that this confusion stems, in large part, from the fact that gambling is not presently well-defined under state or federal law and fails to distinguish a risk transaction that transfers an existing risk of economic profit or loss, such as a securities investment or insurance contract, from a transaction that creates risk solely through the contractual exchange of bets. In response, this Article, as its main contribution, provides a much more formal and precise definition of gambling than presently exists in the legal literature. This Article proposes a model statutory definition of gambling that includes the concept of risk creation as a limiting principle to distinguish gambling from other bilateral risk transactions. As an illustrative application of the analytic framework, the Article applies this novel definition to the regulation of synthetic trading positions and makes the case that the increased use of derivative contracts has allowed investors to enter synthetic trading positions that constitute gambling no different than placing a wager on the outcome of a sporting contest. As a second application, this Article briefly demonstrates how the analytic framework can be employed to make the purely theoretical case that trading in cryptocurrency constitutes unregulated gambling.

The Article proceeds as follows: Part II examines how the law defines the following three risk transactions: (1) securities investments, (2) insurance, and (3) gambling. Part III introduces a theoretical model of bilateral risk transactions and applies this model to the three different types of risk transactions surveyed in Part II. Part III introduces three baseline models of bilateral risk transaction: (1) bilateral risk transfer, (2) bilateral risk creation, and (3) bilateral risk destruction and extends these models to include two additional variables: (1) endogenous risk, and (2) risk mitigation. The addition of these two variables narrows the broad definition of a bilateral risk transaction to include the three risk transactions examined in Part II. Other types of bilateral risk transactions are also considered, including derivative contracts. Highlighting two main regulatory concerns in connection with bilateral risk transactions, (1) moral hazard or fraud, and (2) risk mitigation, Part IV summarizes how the current regulatory environment addresses these two concerns and explores possible regulatory gaps suggested by the baseline models.

This Article examines how the law can help reduce retail vacancy rates in volatile urban real estate markets. Two potential drivers of high vacancy rates along retail corridors in otherwise healthy real estate markets are identified: (1) location risk, and (2) positive feedback effects. This Article suggests that local governments can pursue a nudge-based approach to encourage landlords and retail tenants, especially small business owners, to adopt percentage rent or some other form of profit-sharing to more efficiently allocate location risk. To address positive feedback effects in which each storefront vacancy increases the likelihood of an additional storefront vacancy, a case is made for slightly stronger government intervention. Current legislative responses to the problem of retail vacancy are also considered, including vacant property taxes, commercial rent control, and zoning reclassification, and the advantages and disadvantages of each are examined.

This Article offers a novel typography of expenditures on corporate social responsibility highlighting that such spending often requires a public business corporation to engage in corporate speech. When this speech pertains to social or political issues unrelated to the company’s business, this Article argues that such expenditures are generally not in the best interests of the firm’s stockholders, and terms this spending “corporate activism.” Corporate activism is described as the product of agency costs and ideological conflict that derive from an expansion of corporate speech rights under the First Amendment. To protect shareholders from corporate activism, courts have relied upon various disciplining mechanisms that are often not up to the task. This Article offers a different solution, placing the responsibility squarely upon the board of directors of public corporations to limit “expressive” expenditures on corporate social responsibility that do not directly advance the best interests of a company’s shareholders. As a tentative policy proposal, this Article suggests that the Securities and Exchange Commission (SEC) require all public companies that trade on stock exchanges in the United States to have a “Communications Committee” responsible for the oversight of all forms of corporate speech.

This article models the duty of care as a response to moral hazard where the principal seeks to induce effort that is costly to the agent and unobservable by the principal. The duty of loyalty, by contrast, is modeled as a response to adverse selection where the principal seeks truthful disclosure of private information held by the agent. This model of corporate loyalty differs importantly with standard adverse selection models, however, in that the principal cannot use an observable and verifiable outcome as a screening mechanism to ensure honest disclosure and must rely upon an external third-party audit technology, such as the court system. This article extends these simple models to the issue of corporate compliance and argues that the optimal judicial approach would define the duty to monitor as a subset of due care–and not loyalty–but hold that the usual legal protections provided for due care violations no longer apply. The framework set forth provides a theoretical justification for drawing such a conceptual distinction.

This Article explores how the anticompetitive impact of a zoning ordinance is assessed under the antitrust laws and substantive due process and concludes that neither is likely to satisfactorily curb the anticompetitive impact of commercial land use regulation. The Article highlights the distinction between a local government’s zoning power and its more general police power. For rational basis review to act as a meaningful check on zoning power, as distinguished from more general police powers, this Article contends that such review must require a local government to produce evidence of a causal link between the zoning action and the stated government interest. Rejecting antitrust law as the proper doctrinal vehicle through which to curb the anticompetitive impact of commercial zoning restrictions, this Article proposes a three-part administrative procedure, grounded in notions of due process and the legitimate exercise of a locality’s zoning power, to reduce the frequency with which local governments impose socially inefficient restrictions on commercial land use. The concept of an economic impact statement is introduced.

This Article provides a survey of land use restrictions related to cannabis dispensaries and examines how localities have used such restrictions to control where this new land use can locate. Several of these zoning ordinances have been challenged in court as preempted by state or federal law, and this Article examines a few of these cases. The Article considers both policy and legal arguments against the regulation of cannabis dispensaries by local governments, setting forth the legal argument that zoning ordinances that ban, or substantially restrict, activities or operations related to cannabis may, in certain circumstances, constitute an improper application of a locality’s delegated zoning power. This Article also highlights localism in the context of women’s reproductive rights as an important case study in the importance of having state statutes that expressly preempt local government action related to potentially locally unwanted land uses.

This Article argues that not all forms of residential segregation are alike. Certain patterns of residential segregation can be distinguished along two key dimensions: (1) voluntariness, and (2) net social impact. Voluntary residential segregation is largely incompatible with outcome-based policies designed to promote residential integration. This Article claims that the existence of voluntary spatial clustering implies that the government must adopt a choice-based approach to residential integration that seeks to protect and enable freedom of choice in housing rather than an outcome-based approach that seeks to implement and maintain specific patterns of residential segregation. The central thesis of this Article is that the FHA mandate to “affirmative further fair housing” (AFFH) must be interpreted as a responsibility to promote fair housing choice, as a duty to understand in which local communities those in need of affordable housing truly want to live, and as an obligation to expand or modify the set of affordable housing choices to encompass as many of these desired locations as is fiscally feasible, and not as an outcome-based mandate to site affordable housing in a limited number of areas that best implements certain patterns of residential integration considered socially optimal by otherwise well-meaning policy elites.