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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”

SPACTIVISM

Abstract In this Essay, we propose a modified version of the SPAC, called the Activist SPAC, that is uniquely designed to allow the public to participate in the world of corporate activism. This version of the SPAC that we envision is designed for investment in public companies, as opposed to private ones. Such investment isContinue reading “SPACTIVISM”

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”

Actions Speak Louder Than Words: Compelled Biometric Decryption is a Testimonial Act

Abstract Most Americans can open their personal device using only their finger, not to type the password, but as the password itself. Using features like Touch ID or Face ID—forms of biometric decryption—to unlock a personal device provides several benefits, including heightened information security. Yet biometric decryption has also created a modern loophole for lawContinue reading “Actions Speak Louder Than Words: Compelled Biometric Decryption is a Testimonial Act”

Addressing the Supreme Court’s Half-Baked Eighth Amendment Majoritarianism: How States Can Use Advisory Ballot Questions to Give More Legitimacy to the Court’s Death Penalty Decisions

Introduction Over its half-century-long struggle[1] with how to determine whether a particular application of the death penalty is unconstitutional under the Eighth Amendment’s prohibition on “cruel and unusual punishments,”[2] the Supreme Court has arrived at a two-part approach for how to answer these questions. The first part of this approach requires the Court to assessContinue reading “Addressing the Supreme Court’s Half-Baked Eighth Amendment Majoritarianism: How States Can Use Advisory Ballot Questions to Give More Legitimacy to the Court’s Death Penalty Decisions”

A Privacy Torts Solution to Postmortem Deepfakes

Introduction In 2021, Road Runner, a documentary about late celebrity chef Anthony Bourdain, became embroiled in controversy for using AI-generated voice technology to create a voiceover of Bourdain reading an email which he wrote but never spoke aloud.[1] In response to the director’s claim of having received a blessing from Bourdain’s loved ones to doContinue reading “A Privacy Torts Solution to Postmortem Deepfakes”