Category Archives: 89:1

Toward a Reality-Based Constitutional Theory

Despite the alleged triumph of legal realism and the empirical turn of closely related fields such as judicial behavior, a startling number of constitutional theorists continue to approach their work as a purely conceptual enterprise. This is particularly true of originalists, but it is true of many others as well. Indeed, much of normative constitutionalContinue reading “Toward a Reality-Based Constitutional Theory”

Activist Distressed Debtholders: The New Barbarians at the Gate?

The term “corporate raiders” previously struck fear in the hearts of corporate boards and management teams. It generally refers to investors who target undervalued, cash-flush or mismanaged companies and initiate a hostile takeover of the company. Corporate raiders earned their name in part because of their focus on value extraction, which could entail dismantling aContinue reading “Activist Distressed Debtholders: The New Barbarians at the Gate?”

In Defense of the Substance-Procedure Dichotomy

John Hart famously observed, “We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure,” but for most of Erie’s history, the Supreme Court has answered the question “Does this state law govern in federal court?” with a “yes” or a “no.” Beginning, however, with Gasperini v. CenterContinue reading “In Defense of the Substance-Procedure Dichotomy”

Offsetting and the Consumption of Social Responsibility

This Article examines the relationship between individual consumption and consumption-based harms by focusing on the rise in consumption offsetting. Carbon offsets are but the leading edge of a rise in consumer options for offsetting externalities associated with consumption. Moving from examples of quasi offsetting to environmental offsetting and the possibility of poverty offset institutions, IContinue reading “Offsetting and the Consumption of Social Responsibility”

Key Implications of the Dodd-Frank Act for Independent Regulatory Agencies

The enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act both transcends and transforms financial regulation. The immediate setting of the law is by now a familiar one. By 2008, there was an urgent need for a fundamental restructuring of federal financial regulation, primarily based on three overlapping causes. First, an ongoing economicContinue reading “Key Implications of the Dodd-Frank Act for Independent Regulatory Agencies”