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.

This study provides estimates of the impact of increased access to home mortgage credit on local crime rates and uses national home mortgage loan origination volume as a shift-share instrument for local home mortgage loan origination volume. The focus of the study is San Diego County from 2007-Q1 to 2013-Q1. The regression estimates indicate that increased access to home mortgage loans during this time period had a statistically significant negative impact on local crime rates: the baseline specification suggests that a ten percentage point increase in the growth in home mortgage loan originations decreases the growth in total crime incidents by approximately 2.75 percentage points. This finding is robust to different model specifications.

This Article argues that the social impact of vandalism must be factored into the expected criminal punishment for this offense. Existing law does so unevenly. Acts of vandalism may have a positive social impact, either as street art or as a form of protected speech, or a negative social impact as costs that preclude the provision of public goods or goods traded upon the basis of access, and not ownership. In general, vandalism cannot be prevented by means of observable security measures; rather, vandalism must be deterred by means of higher expected criminal punishment. A large expected punishment, however, implicates what this article terms the “broken community theory of punishment.” Although broken community effects militate in favor of relatively minimal punishment for vandalism, a negative consequence of this punitive approach is less investment in the infrastructure or physical appearance of urban communities. A number of urban communities may, in fact, benefit significantly from vandalism laws that allow for greater capital investment by more harshly punishing the deliberate damage or destruction of public goods or goods traded upon the basis of access, as vandalism in the first-degree.

Data mining techniques can be used to locate statistical outliers that are incorrectly characterized as evidence of unlawful conduct. Using home mortgage loan data made publicly available by financial regulators, a simple data mining exercise finds that approximately three percent of all lender-MSA pairs (or approximately seven to nine percent of all lending institutions) flagged as having redlined minority neighborhoods is attributable to a failure to correct for the multiple hypothesis testing problem. The false positive rate does not fully explain, however, the estimated high frequency of statistical redlining. Three possible models of information disclosure by regulatory agencies are considered: (1) full information, (2) no information, and (3) limited information. Under a limited information model, litigation serves to correctly implement statistical hypothesis testing: a plaintiff must formulate a hypothesis prior to examination of the data and obtains the information necessary to test this hypothesis only through discovery.

The central claim of the present article is that some form of government intervention is necessary to make telework arrangements sufficiently binding in the long-run for employees living in, or near, city centers to feel comfortable incurring the costs of relocating to more remote, lower-priced areas, and to ensure the long-run financial self-sufficiency of private telework centers, which provide important benefits, not just to employers and employees, but to society generally. The public benefit considered here is the capacity for telework, and telework centers specifically, to provide lower-priced housing alternatives for middle- and high-income earners who choose to live in, or near, the city center to reduce the time spent commuting, but who would otherwise choose to live in more remote, lower-priced areas if commuting costs were lower. As explained, a minimal amount of government intervention is necessary, however, to overcome several key economic challenges that preclude employees from relocating to remote, lower-priced exurban or rural communities, as well as the formation of a new and exciting private-sector enterprise: the privately-operated telework center.

This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem (as defined here) to be consistent, private ownership must yield the Pareto-optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing” parties to share ownership of a contested scarce resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Provided transaction costs are high and shared ownership is socially-optimal, a role for the courts is suggested wherein de facto shared ownership is established by rendering private property rights random or unclear — judicial behavior that stands in contrast to the normative implications of the Coase Theorem.