The Undemocratic Class Action

Abstract Class actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works onContinue reading “The Undemocratic Class Action”

The Disembodied First Amendment

Abstract First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automatedContinue reading “The Disembodied First Amendment”

Crypto Assets and the Problem of Tax Classifications

Abstract To date, Internal Revenue Service (I.R.S.) guidance on cryptocurrencies has been thin. When the I.R.S. has issued guidance, it occasionally mishandles the technical details (such as confusing air drops and hard forks). More personnel (and personnel with greater technical expertise) would allow the I.R.S. to keep pace with the explosive growth of cryptocurrency. Nevertheless,Continue reading “Crypto Assets and the Problem of Tax Classifications”

Citizen Corp.–Corporate Activism and Democracy

Abstract Corporations are increasingly taking stands on a wide range of social issues: gun control, gender and race, immigration, abortion. Scholars have praised this development as the rise of responsible capitalism. Popularized accounts have attacked the “woke corporation” as ideological, elitist, and fraudulent. Both views examine the new “corporate activism” as a corporate governance matter.Continue reading “Citizen Corp.–Corporate Activism and Democracy”

Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit

Abstract Ordinarily, in federal court, only case-ending judgments can be appealed. The writ of mandamus is one exception to that so-called final judgment rule. Mandamus permits a litigant who is dissatisfied with a lower court ruling to obtain immediate reversal if, among other things, the ruling was indisputably wrong and the party seeking mandamus hasContinue reading “Extraordinary Writ or Ordinary Remedy? Mandamus at the Federal Circuit”

Stewardship Theater

Abstract Large asset managers like BlackRock and Vanguard have amassed staggering equity holdings. The voting rights that accompany these holdings give them enormous power over many of the world’s largest companies. This unprecedented concentration of influence in a small group of financial intermediaries is a pressing policy concern. While law and finance literature on theContinue reading “Stewardship Theater”

House Rules: Congress and the Attorney-Client Privilege

Abstract In 2020, the Supreme Court rendered a landmark decision in Trump v. Mazars establishing four factors for determining the validity of congressional subpoenas for a sitting president’s personal papers. In an unanticipated move, Chief Justice John Roberts added that recipients of congressional subpoenas have “long been understood” to retain not only constitutional privileges, butContinue reading “House Rules: Congress and the Attorney-Client Privilege”

Past-Acts Evidence in Excessive Force Litigation

Abstract Myriad obstacles prevent victims of police violence from vindicating civil claims against the officers who have harmed them and the cities which have failed them. Though these plaintiffs face legal hurdles even getting into court, this article explores an unusual evidentiary imbalance that occurs for those few plaintiffs who do make it to trial.Continue reading “Past-Acts Evidence in Excessive Force Litigation”

Disapproval of Quick-Look Approval: Antitrust after NCAA v. Alston

Abstract In its most recent antitrust opinion, National Collegiate Athletic Association v. Alston (2021), the Supreme Court condemned the NCAA’s policy against compensating student athletes as a violation of the Sherman Act. Although perceived as a pro-plaintiff antitrust decision, the Court’s opinion is anything but. While granting a victory to the plaintiffs at hand, theContinue reading “Disapproval of Quick-Look Approval: Antitrust after NCAA v. Alston”