This Article describes the emergence of "too-liable-to-regulate" fossil fuel companies: firms whose environmental liabilities are so large that they effectively become judgment-proof, enabling them to evade remediation and decommissioning obligations. Although liability is typically thought to reduce production and deter corporate misconduct, large cleanup liabilities can insulate companies from regulatory enforcement, since regulators may hesitate to pursue enforcement that would push distressed firms into liquidation.

To understand how the judgment-proof problem is affecting fossil fuel asset remediation, we compile every domestic coal mine reclamation (cleanup) and onshore gas plug and abandonment (P&A) law and calculate cleanup obligations for two companies: Diversified Energy, the largest oil and gas well owner in the United States, and Indemnity National, the country's largest insurer of coal mine reclamation obligations. Our estimates show that both firms' continued operation depends on predictable underenforcement of cleanup and decommissioning laws.

Our analysis of Diversified and Indemnity supports four theoretical points. First, judgment-proof fossil fuel companies are making it difficult for environmental regulators to manage the decline of extractive industries. Second, significant cleanup liability may, counterintuitively, encourage continued production and lead to worse environmental outcomes as firms with poor environmental records operate at a loss rather than paying for cleanup. Third, the judgment-proof problem creates regulatory challenges not just for individual firms, but across entire industries, since well-capitalized firms avoid cleanup by transferring burdensome assets to judgment proof companies. Fourth, the decline of coal mining has created an adverse selection problem in the market for reclamation-bond insurance. As solvent insurers have exited, one severely undercapitalized company—Indemnity National—now underwrites up to seventy percent of reclamation bonds in Appalachia. We conclude by proposing reforms that would improve environmental outcomes in markets that have already seen significant liability partitioning, and also describe best financial assurance practices to ensure that decommissioning funds are available in markets that have yet to encounter the emergence of too-liable-to-fail firms.

Make-whole provisions appear in over eighty percent of corporate bond issuances. They emerged in the mid-1990s after traditional call provisions and non-refunding covenants failed to protect bondholders from opportunistic refinancing. Outside bankruptcy, they generate little controversy. But inside bankruptcy, they have generated extensive litigation over whether acceleration extinguishes the premium, whether Section 502(b)(2) disallows it as unmatured interest, and whether solvent debtors must pay it anyway. This Note makes three arguments.

First, the apparent circuit split over make-whole enforcement is illusory. Courts have reached different results because the underlying contracts have materially different language, not because of conflicting legal principles or policy preferences. Second, the solvent-debtor exception is best understood as a corollary to the absolute priority rule, not as a historical practice or equitable right. When a solvent debtor distributes value to equityholders while invoking Section 502(b)(2) to deny creditors postpetition interest, the statutory disallowance operates as a backdoor priority violation. Third, the real problem with make-whole provisions in bankruptcy is their economic structure. The standard formula discounts future payments at Treasury yields plus a fixed spread without adjusting for the issuer’s default risk. This design means the premium is largest when the debtor is in distress and the estate has the least capacity to satisfy other creditors.

Courts should subordinate bankruptcy-triggered make-whole premiums under Section 510(c) rather than disallowing them under Section 502(b)(2) or enforcing them at parity. This approach avoids the binary created by current doctrine. Disallowance eliminates the premium entirely and hands the savings to equityholders. The solvent-debtor exception, albeit in a few cases, pays it at parity. Subordination would preserve the claim but pays junior creditors, who bargained for fixed returns, ahead of make-whole holders.

We study the effects of mortgage forbearance on local economies and individuals. During the Great Depression, twenty-five states adopted foreclosure moratoria that temporarily prevented lenders from seizing farms. By interrupting foreclosures during systemic crises, forbearance policies can avert fire sales, stabilize bank balance sheets, and dampen credit contractions. At the same time, they can raise the cost of capital and entrench land in the hands of less productive operators. We empirically evaluate these trade-offs using county-level agricultural data and linked full-count census records. We show that the moratoria preserved at least 250,000 farms nationwide and that counties most exposed to mortgages, and thus foreclosure risk, experienced a persistent 15% increase in the number of farms. Farmers protected by the policy, and their children, were significantly more likely to remain in agriculture and less likely to transition into manufacturing even two decades later. The moratoria shifted agricultural production toward smaller, more labor-intensive farms operating on more marginal land with lower capital intensity. The resulting delay in consolidation depressed farm revenues and asset values. At the same time, the policies raised local borrowing costs by roughly 10% during a period of substantial interest-rate convergence. We also find suggestive evidence that highly exposed counties developed weaker manufacturing sectors in the long run, consistent with slower labor reallocation out of agriculture. Taken together, our results show that well-intentioned policies that temporarily suspend creditor remedies can have significant long-run costs.

Electricity rates in the United States have risen sharply over the past decade, outpacing inflation and imposing significant costs on households and businesses. While many forces contribute to higher bills, including infrastructure investment, wildfire liability, and rising demand, one underappreciated driver is persistent overcompensation of investor-owned utilities. Under traditional cost-of-service regulation, state commissions administratively determine utilities' allowed return on equity (ROE) using contested financial models. Decades of empirical evidence indicate that these methods systematically authorize returns above utilities' true cost of equity, generating billions of dollars annually in excess profits. Because every basis point of authorized ROE applies to billions in rate base, even small overestimates translate into substantial wealth transfers from captive ratepayers to shareholders.

This Article proposes a market-based solution to this problem: Competitive Direct Equity (CDE). Under CDE, utilities would raise new equity capital through standardized auctions in which investors bid the return they are willing to accept. The auction-clearing return becomes the allowed ROE for that tranche of equity, directly revealing the market cost of capital rather than inferring it from disputed models. CDE eliminates capital bias by aligning the return on equity with its opportunity cost over time.

Finally, we show that CDE is lawful under existing doctrine. Supreme Court precedent requires that rates be sufficient to attract capital but not confiscatory; it does not mandate any particular ratemaking methodology. Because CDE relies on competitive market evidence to establish a commensurate return, it meets the constitutional standard by demonstrating that rates are high enough to attract capital.

Private equity (PE) sponsors have acquired life insurers and increasingly loaded their balance sheets with private credit assets that are illiquid, risky, and difficult for regulators to value. This Article identifies how PE profits from these insurers while shifting the resulting risk onto competitors and taxpayers.

Unlike ordinary firms, life insurers do not pass through bankruptcy when they fail. Instead, when a life insurer becomes insolvent, state-based guaranty funds protect insurance policyholders by “assessing” surviving insurers to cover the shortfall. In most states, such outlays are fully creditable against state premium taxes over time, transforming an ostensibly industry-funded system into a public backstop. The result is a system that socializes losses more sharply than banking's federal deposit insurance, and does so with a resolution and supervisory architecture that is more fragmented and less connected to a broader macroprudential infrastructure. With the rise of PE's new private-credit strategy, insurance's unique insolvency, tax, and financial regulation regimes now form critical components of private credit's submerged legal infrastructure.

Against that backdrop, this Article shows how PE sponsors pair life insurers with private credit to capture value from both sides. After acquiring an insurer, the sponsor earns profits in two ways: a spread between what the insurer promises policyholders and what its investments earn, and management fees on those investments. Guaranty funds and their accompanying regulatory regime implicitly subsidize this model in three ways. First, opacity in private credit permits insurers to appear better capitalized than their true risk exposure warrants. Second, weak incentives for policyholder monitoring permit sponsors to siphon gains through inflated fees while shifting losses onto insurer balance sheets. Third, because guaranty-fund assessments are based on premium volume rather than risk contribution, conservatively-managed insurers (and, ultimately, taxpayers) finance the more aggressive strategies of their PE-owned competitors.

PE-owned life insurers reflect a structural transformation in which an insurer supports a broader asset-management business that is designed to extract value upfront and disperse losses. This Article proposes to curb the veiled subsidies for this shift with reforms that make insurance risks legible, price risk pre-failure, and allocate losses to sponsors post-failure. Doing so would restore insurance insolvency, tax, and financial regulatory law to their policyholder-protection role.

Proponents of the "Abundance Agenda" claim that opposition to zoning reform stems from narrow local constituencies, especially homeowners protecting property values. Since local politics is uniquely susceptible to capture by incumbents who benefit from housing scarcity, the prescribed policy solution is state or federal preemption of local land-use authority. This Article challenges that claim using a nationally representative survey of 60,000 voters in the 2024 election. This unusually large and rich dataset allows us to measure individual-level determinants of support for zoning reform while holding constant demographics, ideology, and neighborhood characteristics. We find limited support for several canonical NIMBY theories of restrictive zoning. Homeowners are indeed less supportive than renters, but the gap is modest. White respondents are less supportive than Black respondents, and racial resentment is strongly predictive of opposition to zoning reform, suggesting that racial exclusion remains a relevant explanation. Income, however, exhibits little independent relationship with zoning attitudes. Contrary to popular belief, liberals and voters concerned about the environment are more, not less, likely to support reform. We also identify two factors the literature has largely ignored: women are substantially less supportive than men (by a margin larger than the homeownership gap), and trust in state government strongly predicts support for zoning liberalization. These patterns suggest that many voters evaluate zoning reform primarily through its expected effects on school capacity, traffic, and public safety rather than through ideological or financial self-interest. Our findings cast doubt on the view that state or federal preemption alone can resolve political resistance to zoning reform. Shifting authority to state or federal governments may bypass local veto points, but it cannot eliminate the democratic constraints that drive opposition. We conclude that while bypassing local exclusionary tendencies through top-down governance is important, durable reform requires bottom-up coalition-building that addresses voter concerns about service quality and institutional competence.