Churn

ABSTRACT From biopharmaceuticals to information technology, patents play a powerful role in the birth, death, and renewal of innovative industries. While patent scholarship has fruitfully explored the impact of exclusive rights on individual acts of invention, this Article explores patent law’s underappreciated contributions to evolutionary economic change. It argues that patents promote churn—a continual processContinue reading “Churn”

Crime and the Mythology of Police

ABSTRACT The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principle emanating from these theoretical critiques is that the mistrust ofContinue reading “Crime and the Mythology of Police”

The Contingent Origins of Financial Legislation

ABSTRACT Courts and scholars often view major financial legislation warily. One popular theory holds that Congress only legislates in this area when pushed by opportunistic activists in response to crises that neither activists nor legislators fully understand. Another account contends that financial legislation is the well-designed product of deeply entrenched special interest groups that control the processContinue reading “The Contingent Origins of Financial Legislation”

Corporate Purpose and Corporate Competition

ABSTRACT The large American corporation faces ever-rising pressure to pursue a purpose beyond shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that has not been comprehensively analyzed and is generally ignored. It is not just purpose pressure that is rising: firms’ capacity to accommodate that pressure for aContinue reading “Corporate Purpose and Corporate Competition”

Rodrigo’s Portent: California and the Coming Neocolonial Order

Through the style of a fictional narrative, this paper demonstrates how colonialism is starting to supplant race as an organizing principle, enabling whites to maintain control in the face of demographic change. The paper argues that qualitative concerns, as well as numbers and statistics, supported this thesis and that California was beginning to take onContinue reading “Rodrigo’s Portent: California and the Coming Neocolonial Order”

A No-Excuse Approach to Transitional Justice:
Reparations As Tools of Extraordinary Justice

It is sometimes the case that a debate goes off the rails so early that riders assume the rough country around them is the natural backdrop for their travels. That is certainly true in the debate over reparations in transitions to democracy. Reparations traditionally are understood as material or symbolic awards to victims of anContinue reading “A No-Excuse Approach to Transitional Justice:
Reparations As Tools of Extraordinary Justice”

Rediscovering Oyama v. California: At the
Intersection of Property, Race, and Citizenship

Oyama v. California was a landmark case in the history of civil rights. Decided in January 1948, Oyama held unconstitutional a provision of California’s Alien Land Law, which allowed the state to take an escheat action on property given to U.S. citizens that had been purchased by their parents who were not eligible to become citizens. At theContinue reading “Rediscovering Oyama v. California: At the
Intersection of Property, Race, and Citizenship”

The Argot of Equality: On the Importance of
Disentangling “Diversity” and “Remediation” As
Justifications for Race-Conscious Government
Action

The rules governing “benign” forms of race-conscious government action are easy to state but very difficult to apply in practice. A great deal of the difficulty arises from the lack of precision associated with the use of terms of art, such as “diversity,” “remediation,” and “affirmative action.” Each of these terms should have a concreteContinue reading “The Argot of Equality: On the Importance of
Disentangling “Diversity” and “Remediation” As
Justifications for Race-Conscious Government
Action”

The Procedural Foundation of Substantive Law

The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in theContinue reading “The Procedural Foundation of Substantive Law”