Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA-approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the Free Exercise Clause of…
Category: Articles
The Arbitration Clause as Super Contract
It is widely acknowledged that the purpose of the Federal Arbitration Act (FAA) was to place arbitration clauses on equal footing with other contracts. Nonetheless, federal and state courts have turned arbitration clauses into “super contracts” by creating special interpretive rules for arbitration clauses that do not apply to other contracts. In doing so, they…
Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination Law
In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void by analyzing the legal and political debates that resulted in the passage of the Pregnancy…
Intruders in the Boardroom: The Case of Constituency Directors
Under current fiduciary rules, directors who fail to maintain an undivided loyalty to common shareholders are essentially “intruders,” exposed to shareholder retribution and liability for breach of fiduciary duty. This Article argues that the increasing appointment of “constituency directors” has made the fiduciary principle of undivided loyalty to the common shareholders both outdated and normatively…
Taking Groundwater
In February 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world…
Taxing Polygamy
The tax law treats married and unmarried taxpayers differently in several respects. Married persons, for example, can file and pay their taxes as a unified taxpayer, with rates that are different than those that apply to unmarried taxpayers. This different treatment of married persons has elicited criticism over the years. Some of the more salient…
Sovereignty Mismatch and the New Administrative Law
In the United States, making international policymaking work with domestic administrative law poses one of the thorniest of modern legal problems—the problem of sovereignty mismatch. Purely domestic regulation, which is a bureaucratic exercise of sovereignty, cannot solve the most challenging issues that regulators now face, and so agencies have started cooperating with their foreign counterparts,…
How NFIB v. Sebelius Affects the Constitutional Gestalt
This Essay examines the effects of the Supreme Court‘s decision in National Federation of Independent Business v. Sebelius, in which the Court addressed the constitutionality of the Affordable Care Act. More precisely, what effects will NFIB have on the law—especially constitutional law? We can divide these effects into two general categories, direct and indirect. “Direct…
Regulation of Book Markets
Over the years, many European countries have regulated their national book markets. Chief among the regulatory schemes is the resale price maintenance (“RPM”) regime, under which booksellers must offer books for a fixed price for a limited time period. The suggested rationales for this legal regime are mainly: (1) viewing books as cultural goods that…
Privacy Law’s False Promise
Privacy laws have never seemed stronger. New international, national, state, and local laws have been passed with the promise of greater protection for consumers. Courts across the globe are reclaiming the law’s power to limit collection of our data. And yet, our privacy seems more in danger now than ever, with frequent admissions of nefarious…
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