The post-1970s Supreme Court has abandoned precedents supporting tribal self-governance and devised new theories to strip tribes of sovereign powers. The Supreme Court’s assault on tribal sovereignty has undermined the rule of law in Indian country and constitutes judicial imperialism.

The Supreme Court’s muscular interpretation of the Federal Arbitration Act (FAA) has encouraged businesses to insert arbitration clauses in untold millions of contracts. This Article explores a subtler way in which arbitration’s kingdom is growing. Increasingly, defendants are trying to enforce ultra-broad arbitration agreements that nobody at the time of contracting could have foreseen would be relevant to the lawsuit.

A new wave of reformist prosecutors has risen to power promising to transform the criminal justice system from within, sparking fierce backlash from defenders of the prosecutorial status quo. Central to this conflict is a debate over the nature of prosecutorial discretion, influenced by a set of claims and assumptions that this Article terms the myth of individualized enforcement.

In the modern era, corporate marketing and branding processes frequently encompass a public commitment to progressive social causes favored by a firm’s base of both consumers and workers. So-called woke capitalism, or values-based branding, is designed to build a relationship between the firm and its stakeholders that will yield brand loyalty and increased profits.

Last Term, the Supreme Court held that cities may, consistent with the Eighth Amendment, criminalize sleeping in public, even for people who have no other alternatives. That decision, City of Grants Pass v. Johnson, ostensibly rests on a formalistic distinction between criminalizing status, such as the status of homelessness, and criminalizing conduct, such as sleeping in public.

In Sackett v. EPA, the Supreme Court held that the EPA lacks jurisdiction under the Clean Water Act to regulate wetlands, unless those wetlands share a “continuous surface connection” with an otherwise jurisdictional waterbody. In doing so, the Court struck down the EPA’s definition of “waters of the United States,” revisited forty-five years of practice, and signaled increasing suspicion of vague jurisdictional mandates in administrative law.

Home ownership is inextricably tied with the fulfillment of the American Dream. Reaching this lofty goal entails a tantamount commitment: Mortgages are on average a thirty-year obligation and one of the greatest sources of financial difficulty for old and new families alike. It follows that laws centering around owning a home are especially sensitive. Yet it can be asked: For whose benefit do these laws exist?

Patent law is, at its heart, all about the invention. Determining who qualifies as an inventor defines who controls the exclusory right conferred by the patent. The current law of inventorship, which values mental over physical aspects of the creative process, has remained largely unchanged for over a century. Yet, this approach doesn’t work well for a broad swath of

Most participants and observers of the criminal system perceive the Federal Sentencing Guidelines as excessively harsh. A foundational question has persisted since the creation of the Guidelines: is a guideline-based regime actually preferable, or should we embrace complete judicial discretion in sentencing? For decades, analysts have resorted to hypothetical cases to explore this issue. But a little-known world exists in

Diagnosing diseases, creating artwork, offering companionship, analyzing data, and securing our infrastructure—artificial intelligence (“AI”) does it all. But it does not always do it well. AI can be wrong, biased, and manipulative. It has convinced people to commit suicide, starve themselves, arrest innocent people, discriminate based on race, radicalize in support of terrorist causes, and spread misinformation. All without

A new paradigm for conceptualizing the doctrine of personal jurisdiction is long overdue. In the nineteenth century, the U.S. Supreme Court established a firm territorialist approach to jurisdiction befitting a geographically spread-out country with many local micro-economies. The more flexible “minimum contacts” test articulated in 1945 by International Shoe v. Washington ushered in a twentieth-century vision responding to increased automotive

2025 will mark the fifteenth anniversary of Professor Stephen Legomsky’s landmark article proposing “radical surgery” on American immigration adjudication. Professor Legomsky argued for creating an Article III Court of Appeals for Immigration (CAI), replacing both the Justice Department’s Board of Immigration Appeals (BIA) and the immigration jurisdiction of the regional circuit courts. For Professor Legomsky, his restructuring would: (1) reduce

On a black box stage, women donning beanies imbibe cans of hard seltzer at a slumber party. A few moments later, a crowd of actors breaks into choreographed song and dance to “Crank That” by Soulja Boy at a high school dance. On May 12, 2022, a federal district judge deemed these scenes and others from the up-and-coming musical, Vape,

On February 5, 2019, the Museum of Modern Art (MoMA) in New York announced that it had received the largest donation in its ninety-year history: a $200 million gift from the estate of David Rockefeller, the grandson of oil magnate John D. Rockefeller. Rockefeller was a tremendous steward of the MoMA not only at death, but also during his life.

The False Claims Act (FCA) represents one of the most important sources, if not the most important source, of liability in the healthcare system and other industries that routinely provide goods and services to the federal government. Originally designed to police fraud during the Civil War, the FCA has become a general statute to enforce many other complex legal schemes.

Examining the field of trademark law, this article contemplates the potential commercial benefits of infringement—to the holder of the infringed-on mark. Infringement may benefit some infringed-on brands by (i) increasing exposure to those already interested in such products; (ii) positioning the infringed-on brand as the “authentic” or “original” type of a certain product—thereby allowing the infringed-on product to

Climate change causes systemic financial risk, compelling long-term institutional investors to act. Its impacts extend beyond financial harms, aligning institutional investors with socially responsible investors, NGOs, and international organizations that seek to mitigate environmental crises. Addressing climate change requires collaboration among these diverse and transnational actors. But sustained collaboration requires institutional support. Investor climate alliances (ICAs) provide the infrastructure for

In this Article, we offer a new design for our patent system with a view to optimize its functioning. As multiple patent scholars have recognized, the root cause of the ills of our patent system is the high rate of low-quality patents. Extant patent law employs a binary screening process, under which inventions either qualify for protection or fail.

On her fourth attempt to escape, a Michigan survivor hoped that her abuser would not find her this time. But, as in her previous attempts, he was able to locate her new address: In the survivor’s words, “It is so easy to just look up some of that information.” Whether it be through free and easily accessible public records—such

Pregnancy is extremely dangerous for women. Maternal mortality rates are tragically high in the United States, and women of color have the greatest risk of death or other complications during and after pregnancy. Although some legislation aims to provide assistance to women with children—such as the Child Tax Credit and the Earned Income Tax Credit—women who choose to

In September 2022, Michelle Hazani won full custody of her children after three years of legal proceedings against her abusive husband, Yaron. Michelle was one of many women who have benefitted from a California statute that creates a presumption against awarding custody to an abusive parent. However, Michelle’s case was unusual in one respect: as evidence that Yaron abused Michelle

In 2000, Marcus DeAngelo Jones was convicted of two counts of unlawful possession of a firearm. As a convicted felon, Jones was prohibited from possessing a firearm under federal law. Yet Jones mistakenly believed that his felony convictions had been expunged and that he was able to purchase and possess a gun. He had cleared two background checks, one run

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it.

In 2024, the United States experienced its worst drug shortage in over a decade—more than 300 drugs are in shortage, leaving patients without access to lifesaving medicines. Luckily, drug manufacturers are not the only source of drugs. Through drug compounding, licensed pharmacists can create medications that are not commercially available due to discontinuations, shortages, or other supply chain issues.

The rule of lenity is undergoing a renaissance. Lenity requires courts to construct ambiguous penal statutes narrowly. In recent years, scholars have sought to reinvigorate lenity as an important tool for combatting the American crisis in overcriminalization. At the same time, the Supreme Court has issued a series of decisions debating the breadth and importance of lenity. This Article contributes

Although legal transitions—changes in legislation, regulations, or judicial decisions—are an inevitable part of legal progress, there are certain areas of the law where reform is more urgent and pronounced: for example, those impacted by climate change. It should therefore not be surprising to see that one of these areas, water law, has attracted significant attention from the United

Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point in the past (static equity). On

Hadley v. Baxendale, 9 Exch. 341 (1854), is an old British case commonly taught in first-year contracts classes. The case sets out a limitation on recoverable damages and introduces students to the concept of default rules and bargains around them. Defaults provide a serviceable off-the-rack option, but sophisticated parties in commercial transactions will contract around the default because they want

In “Consequential Damages Clauses: Alien Vomit or Intelligent Design,” Professors Choi and Gulati (and their cast of co-authors) have produced an interesting piece examining, and attempting to explain, how and why one particular clause common in M&A agreements, the “Excluded Loss” provision, has evolved. Their findings are intriguing and generally consistent with my own anecdotal conclusions as someone who has

Since their rollout in 2008 and widespread adoption in the years since, Automatic Dependent Surveillance-Broadcast (ADS-B) transponders have made air travel both smarter and safer. In 2024, anyone with a smartphone can download their plane tracking app of choice—made possible by crowdsourcing reception of ADS-B transmissions—and hold worldwide airspace in the palm of their hand. However, the ADS-B

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2024 Supreme Court case of Moore v. United States, taxpayers argued that

AI safety laws are coming. Researchers, advocates, and the White House agree. Rapidly advancing generative AI technology has immense potential, but it also raises new and serious dangers—deadly bioterrorism, crippling cyberattacks, panoptic discrimination, and more. Regulations designed to effectively mitigate these risks must, by technical necessity, include limits on what AIs are allowed to “say.” But, according to an

Courts have long deferred to the FDA’s scientific expertise, particularly on matters of drug safety and effectiveness. But now, in the aftermath of the U.S. Supreme Court’s unraveling of deference to administrative agencies, coupled with its relegation of abortion to elected officials, the FDA faces a ratcheting up of two distinct types of legal challenges: (1) direct challenges to FDA

Business managers must create and keep records for decision-making. Yet doing so presents an obvious problem for those who manage illegal businesses: their records would make for powerful evidence in the hands of prosecutors. That problem raises a question—why would one knowingly create and keep such records when their mere existence risks detection and sanction? The answer, in short

Federal district courts, after notice-and-comment process, can issue local rules to govern practice and procedure in all cases in a judicial district. An individual district judge can also regulate practice in cases assigned to that judge. Sometimes, a judge-specific regulation of practice issues for a particular case only. But a judge can also adopt a “standing” regulation of practice—one

What is criminal law minimalism? At first blush, minimalism appears to be the sober and sensible cousin of abolition. Where the language of abolition is radical, utopian, and absolute, the language of minimalism suggests moderation, pragmatism, and nuance. As calls for abolition have gained ground in the U.S. legal academy and in activist circles, some scholars have pushed back, arguing

American criminal law is facing a crisis of meaning. In our mass incarceration era, most argue that we are prosecuting too many, too often, for too much conduct. Spurred by this policy crisis, scholars and policymakers have fractured into two schools, each implicitly motivated by an archetype. First, the “traditional school” invokes the violent criminal archetype: a murderer, rapist, or

Reform. Abolish. Minimize. Criminal law scholars broadly understand that we need to do *something* about our penal system and the problem of mass incarceration. We just can’t agree on what that “something” is. The debate about the right path forward raises several existential questions. How can reform be bad if it helps even one person suffer just a little less?

Does the State have any obligation not to enforce its own law? Scholars have long debated whether and to what extent we—that is, us as citizens of the State—have an obligation to obey the law. Frequently taken for granted, however, is an assumption that the State generally has a corresponding duty to enforce the law. Now, to be

People suspected or convicted of crimes are constantly confronted with choices that can have significant impact on their liberty interests. They may be asked to consent to a search or seizure of their house, car, or person, or to explain themselves during interrogation. They may have to decide whether to accept a plea offer that not only requires them to

Many penal abolitionists hold that criminal courts have been complicit in mass incarceration and essential to an irredeemably unjust and discriminatory system. As abolitionist scholars explain, courts are “the legal pathway from an arrest to a prison sentence, with myriad systems of control in between.” As such, they share with other players in the criminal justice system—primarily the police

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed to rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January 2024 that it is unconstitutional to sentence eighteen-to-twenty-year-olds to life without parole. Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for parole

How much and what kind of criminal justice do fair societies need? This question underlies many of the debates on the criminal legal system around the world. In public debates on this issue in the United States people have offered three main answers to this question in recent decades. Tough-on-crime supporters of mass incarceration have claimed that the United States

Every couple of years, it seems, the debt limit shows up to wreak havoc in American law and public finance. By capping the face value of government securities that can be “outstanding at one time,” the statutory limit regularly threatens the Treasury’s ability to raise the revenue needed to fund required government spending. Brinksmanship over the limit has shut down

The digital world encodes our lives with incriminating clues. How you travel, live, love, and shop are tracked through growing surveillance technologies. Police have recognized this reality and are actively exploiting new surveillance tools for investigative purposes. The Fourth Amendment—the constitutional protection meant to limit police search powers—has not kept up with the privacy and security threats of

American healthcare is known for insufficient competition, high prices, and porous quality. This landscape seems to have not only degraded consumer welfare in general terms but also harmed marginalized communities. As examples, high prices levy greater costs on uninsured people who are more likely to forego treatment while medical bills constitute a primary reason why Americans declare bankruptcy. Helping to

The federal courts of appeals have a two-tier system of judicial opinions: “published” and “unpublished.” Published judicial opinions represent binding precedent, whereas unpublished ones do not. Published opinions, then, have much greater legal force just by virtue of their publication status, and the assignment of publication status to opinions is a critical part of judicial administration at the federal courts

Courts apply a strong presumption in favor of judicial review of government action. When they apply that presumption, they silently presume that they can determine, as a matter of law, whether such judicial review exists. In fact, however, whether judicial review exists may present a factual question. Consider a catch-22 at the center of immigration jurisdiction doctrine: for certain due

Economist Steven Levitt likens the game of poker to playing a sport or a musical instrument. Many people from all walks of life enjoy playing recreationally. It takes little skill to pick up a basketball or a guitar, but a great deal of skill obtained over thousands of hours of practice to play well. People spend money to improve, take

In July 2019, Brian Coughlin borrowed $1,100 from a payday lender named Lendgreen. Later that year, Mr. Coughlin filed for bankruptcy and listed his outstanding balance of about $1,600 owed to Lendgreen among his debts. Debt collection during a bankruptcy case is prohibited by the Bankruptcy Code’s automatic stay. Despite the stay, Lendgreen continued to try to collect Mr. Coughlin’s

Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, when the harmful agency action happens to be one “allocating a lump-sum appropriation” (whatever that means). When it comes to spending programs that courts deem to fit in this ill-defined category, …

Some have criticized mandatory securities regulation based on the claim that market competition alone adequately constrains exploitation of public investors in securities offerings. Other scholars support a mandatory regime. To date, empirical studies have been unable to resolve whether the securities laws actually provide meaningful protection to investors. This Article identifies transactional innovation in public offering markets as a case …

From biased lending algorithms to chatbots that spew violent hate speech, AI systems already pose many risks to society. While policymakers have a responsibility to tackle pressing issues of algorithmic fairness, privacy, and accountability, they also have a responsibility to consider broader, longer-term risks from AI technologies. In public health, climate science, and financial markets, anticipating and addressing societal-scale risks …

Reliance on flawed forensic disciplines has placed innocent people in prison with alarming frequency. In the past thirty years, forensic science has contributed to half of all the wrongful convictions that the Innocence Project has exposed, and one-quarter of all known wrongful convictions in the United States. One of the few forensic disciplines not developed for courtrooms but for life …

The legal status of resistance to tyranny as a universal human right has received little attention in recent years. Following the conclusion of World War II and the de-escalation of Cold War hostilities, it seemed to many that liberal democracies had won; a global wave of democratization saw more states adopting constitutions with provisions for judicial independence, the separation of …

Federal courts are in the midst of a crisis of legitimacy. Faith in the judiciary has plunged to historically low levels, leading the Biden administration to form the Presidential Commission on the Supreme Court for the explicit purpose of considering various court reforms. Though the Commission’s recommendations proved meek, the view that Justices and judges are little more than “politicians …

On March 18, 2022, the NCAA Women’s Division I Swimming and Diving Championships garnered national attention for more than just the record-breaking swims. The second day of competition saw Lia Thomas, the first known openly transgender athlete to compete at the NCAA Championships, beat out a field of Olympians in the 500 yard freestyle. Even though Thomas competed in accordance …

The First Amendment singles out “religion” for special treatment, but the boundaries of that concept have always been difficult to describe. Nevertheless, there is a growing consensus that—at least as an original matter—“religion” in the First Amendment refers only to more-or-less theistic doctrines. But scholars have long struggled to explain why theistic doctrines would be worth treating differently …

Privacy law is failing to protect individuals from being watched and exposed, despite stronger surveillance and data protection rules. The problem is that our rules look to social norms to set thresholds for privacy violations, but people can get used to being observed. In this Article, we argue that by ignoring de minimis privacy encroachments, the law is complicit in …

The Patient Protection and Affordable Care Act (ACA) is perhaps the most important piece of social legislation enacted in the United States in the last fifty years. Yet the ACA that exists today is not the same law that was passed by Congress in 2010. Rather, several of the most consequential provisions of the law have since been repealed or …

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space …

One of the most controversial issues in international investment law is how arbitral panels should deal with investments tainted by corruption at their inception. The current practice of investment arbitrators is to refuse to hear investors’ claims when bribery allegations are substantiated. A recent wave of scholarship has attacked this “corruption defense,” arguing that the practice unfairly harms investors and …

Taken to its idealistic extent, the American legal system is designed to provide relief from harms through an efficient, effective, and fair process. It is designed to weigh the interests of the parties against statutory and common law, purporting to resolve disputes in the most just way. The system does not always meet, but often falls short of, its goal …

In 2023, corporate social activism is all the rage. Surveyed investors and consumers both profusely indicate a preference for businesses to prioritize social pursuits alongside profits, and companies are responding. Be it abortion rights, racial inequality, or support for the LGBTQ+ community, modern corporations regularly take action on society’s pressing issues. Denim giant Levi Strauss, for instance, is lauded for …

In West Virginia v. EPA and Biden v. Nebraska, the Supreme Court firmly established the major questions doctrine as a tool of statutory interpretation, although debates about its legitimacy, wisdom, and administrability rage on. Commentators have argued that the doctrine has the power to change the federal regulatory landscape, dramatically limiting the ability of federal agencies to regulate subjects like …

Although the fundamental right to raise a family is among our most cherished, it is not equally afforded to everyone. Indeed, the United States has an appalling and enduring history of policing parenthood among people with disabilities. In recent years, the rights of parents with disabilities and their children have garnered unprecedented attention from activists, scholars, legal professionals, and policymakers. …

The recent mass shift by American retail investors into index funds has given rise to a modern form of common ownership. Significant stakes in most public companies are now held by a core group of large, diversified institutional investors. In parallel, this rise in common ownership has been accompanied by unprecedented levels of corporate tax avoidance. Recent evidence suggests that …

Rental housing in the United States is increasingly owned by corporate landlords that operate under a different set of incentives, behind a level of anonymity previously unavailable, and pursuant to practices that often exacerbate an already precarious housing landscape for tenants. Market-sensitive and nuanced rent stabilization laws have reemerged at the state and local level as a viable policy option …

For years, federal courts have recognized the sexual victimization of inmates as cruel and unusual punishment under the Eighth Amendment. But it is unclear what relief inmates who experience that victimization have. These questions are particularly alarming in the post-Dobbs world in which many sexually victimized inmates are held in states that prohibit abortions in the early weeks of pregnancy …

In February 2022, news broke that the San Francisco Police Department had used a woman’s DNA collected years prior—as part of a rape examination—to arrest her for retail theft. In the wake of this revelation, the city’s district attorney, state and local politicians, advocacy groups, and the police chief himself, all swiftly and forcefully denounced the practice of …

In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the …

Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic …

The American legal profession needs a prosecution bar. Before lawyers are permitted to appear for the government in a criminal case, they should be licensed not just to practice law, but to practice prosecution. The two are not the same. Regulating them as if they were fosters injustice and fortifies the carceral state. “Doing justice” is the orienting creed of …

American judges decry past moral lapses as intolerable. They paint their predecessors’ worst mistakes as tragedies that must never be allowed to happen again. When given the chance to avoid new injustices, however, judges increasingly flaunt their moral indifference. They insist that legal fidelity requires them to ignore whether their own rulings will be remembered as monstrous. But this cavalier …

The crypto boom and crash of 2020–22 demonstrated that (i) cryptocurrencies with fluctuating values are extremely risky and highly volatile assets and (ii) cryptocurrencies known as “stablecoins” are vulnerable to systemic runs whenever there are substantial doubts about the adequacy of reserves backing those stablecoins. Crypto firms amplified the crypto boom with aggressive and deceptive marketing campaigns that targeted …

It is universally assumed that courts, when picking a preliminary remedy, should consider more than the legal merits. They also should consider factors like the “equities,” “public interest,” and “irreparable harm.” But that assumption is mostly wrong. The idea behind it is that at the preliminary stage, the merits are too uncertain to give courts the full guidance they need. …

Introduction Mass arbitration has sent shock waves through the civil justice system and unnerved the defense bar. To see how quickly and dramatically this phenomenon has entered both the civil justice landscape and the public discourse, one need look no further than the January 2023 filings of hundreds of individual arbitration demands by former Twitter employees against Elon Musk,[2] along…

Abstract This Article discusses how a subgenre of retail investors makes investors’ apathy obsolete. In prior work, we dub retail investors who rely on technology and online communications in their investing and corporate governance endeavors “wireless investors.” By applying game theory, this Article discusses how wireless investors’ global-scale online interactions allow them to circulate information and coordinate, obliterating collective action…

Introduction The most substantial change in the United States Government has been the extraordinary growth and increased complexity of the United States Government itself. George Washington initially was President of a country with a population of about four million, eleven States, and three Cabinet Departments (State, Treasury, and War). Washington’s Government had no standing army, no Social Security, Medicare or…

Introduction The costly and highly public collapse of cryptocurrency exchange FTX has highlighted two key phenomena central to crypto-market design.[2] First, despite its originating claims to decentralization, crypto-markets are anchored by exchanges that operate in a profoundly centralizing manner. In other words, single organizations act as anchor intermediaries to perform a variety of critical functions: marketing, trading, risk management, lending,…

Introduction Special purpose acquisition companies (SPACs) exploded in popularity in the past few years, to such a degree that they made up 60% of IPOs in 2020, 66.3% in 2021, and 69.4% in 2022.[3] Celebrities from Colin Kaepernick to Jay-Z have launched SPACs,[4] but perhaps the most feverish attention came in October 2021, when a SPAC called Digital World Acquisition…

Abstract This paper assesses the emerging regulatory framework for special purpose acquisition companies (SPACs). According to this framework, mergers of SPACs, known as de-SPACs, must be “fair” to public (or unaffiliated) SPAC shareholders, and transaction participants face heightened liability risk for disclosure errors. In this environment, third-party fairness opinions have been regarded as a de facto requirement for de-SPACs. A…

Abstract “[I]t is better that ten guilty persons escape than that one innocent suffer.” 4 William Blackstone, Commentaries *358. “[I]t is better that ten innocent men suffer than that one guilty man escape.” Otto von Bismarck, Germany’s first chancellor, quoted in John W. Wade, Uniform Comparative Fault Act, 14 Forum 379, 385 (1979). Punishing the innocent is considered an “error”…

Abstract Larger-than-life corporate leaders, who can move fast and disrupt entrenched players, are often perceived as having the vision, superior leadership, or other exceptional qualities that make them uniquely valuable to their corporation. While the business press, management experts, and financial economists have long studied these “superstar” CEOs, the legal literature has largely overlooked this phenomenon. In this Article we…

Abstract Since its introduction in 1913, the federal income tax has viewed income expansively, subjecting virtually all types of enrichment as gross income unless Congress explicitly exempted the income from taxation. But in the income tax’s second decade, the Bureau of Internal Revenue created an exception to the broad reach, an exception not grounded in any type of congressional enactment….

Abstract Antitrust law regulates the consolidation and abuse of economic power. One of its core tasks is to ensure that market success is not rigged in favor of undeserving winners against excluded competitors at consumers’ and workers’ expense. But for their entire enforcement and doctrinal history, antitrust regulators and courts have built a legal infrastructure that assesses the exercise of…

Introduction In 1971, when Peter Bond was about twenty years old, he was convicted of a drug offense.[1] He served his penalty: one year probation.[2] By fifty-nine years old, Bond had become a district manager of a food service company and was responsible for supervising the food operations of “nearly 100 schools.”[3] After spending thirty-nine years committing no other crimes,…

Introduction Over the past two decades, social media has increasingly become a fundamental component of Americans’ lives, with more than seven out of ten adults using at least one social media site in 2021.[1] Within this digital landscape, certain people have cultivated thousands, or even millions, of followers to become “influencers” who build their careers by promoting brands’ products on…

Abstract This Essay introduces the concept of aged racism, a distinct species of systemic racism characterized by its intersection with age. This subject has yet to receive significant theoretical attention in the legal scholarship, despite the social importance of both age and race and the many ways in which they are embedded in the law and legal institutions. Aged racism…

Abstract A standard feature of the private equity industry, “side letters” are confidential agreements between the sponsor and individual investors that give the latter special rights, beyond those that apply to other investors in the private equity fund. Yet side letters have become a flashpoint for prominent critics of the industry, who argue that they allow private equity sponsors to…

Abstract Property often lies idle, even in times of dire need. Property scholars have largely overlooked this enduring social problem. The oversight is surprising, since the same scholars often write that property’s purpose is to help people put things to use. Some even contend that the right to exclude is and ought to be property’s essential core because it helps…

Abstract Each year, state agents search the homes of hundreds of thousands of families across the United States under the auspices of the family regulation system. Through these searches—required elements of investigations into allegations of child maltreatment in virtually every jurisdiction—state agents invade the home, the most protected space in Fourth Amendment jurisprudence. Accordingly, federal courts agree that the Fourth…

Abstract Intellectual property is understood to have an economic rationale: supplying incentives for innovation and for the creation and dissemination of knowledge and information. In the modern era, questions of how best to accomplish this have been explored with reference to economic efficiency and other concepts from microeconomics. But why not macroeconomics? In the microeconomic view, the intangibles of innovation,…

Introduction The legal battles in the telecommunications industry are fierce. The fact that no single industrial player is the single global leader in 5G technologies stimulates a sweeping wave of patent cross-licensing throughout the industry.[1] Standard-setting organizations and standard development organizations play important roles in developing 5G technical standards, which provide technical specifications for equipment by different manufacturers.[2] Many technologies…

Introduction Henry Ford’s early twentieth-century breakthroughs in automotive mass production merged the United States into the fast lane toward motor vehicles becoming a dominant mode of personal travel.[1] Today, for an hour a day, ninety percent of Americans over the age of sixteen will buckle into motorized, multi-ton projectiles and propel themselves along a vast infrastructure of roads designed and…

Abstract Surrogacy contracts depend on the exchange of information. Intended parents want information about the surrogate’s pregnancy to make decisions regarding prenatal care, during-pregnancy behavior, and birth. Contract provisions can cater to those desires and support the broader assumption that parents should seek as much prenatal information as possible. Yet surrogates have the right, by statute and as patients, to…

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 on their behalf. I label this…

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 is intended to improve the performance…

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, automated information generated for cryptocurrencies, robocalling,…

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, the I.R.S. could better leverage…

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 law enforcement to erode citizens’ Fifth…

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 assess “objective indicia” of society’s moral…

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 do this, Bourdain’s ex-wife tweeted, “I…

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. This Article, instead, focuses on…

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 has no other way to get…

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 the topic has recently exploded, no…

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, but common law privileges developed by…

Abstract Military uniforms serve a multitude of purposes in the twenty-first century. In the United States, they are a ubiquitous symbol of patriotism and military might. Individual military service branches use military uniforms to distinguish each from the other. In its quest for distinctiveness, the Marine Corps initiated a power struggle for unique uniform designs with its intellectual property protection…

Abstract A recent Pew Research poll indicated only 20% of Americans trust the federal government to “do the right thing.”[1] Although falling trust in government began in the mid-1960s and must be attributed to many factors,[2] a belief that members of Congress (“Members”) exploit their access to confidential information in order to enrich themselves certainly cannot help alleviate this distrust….

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. A confluence of constitutional law,…

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, the Alston opinion surreptitiously created a…

Abstract The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain acceptable across a host of situations. The…

Abstract Pricing algorithms are rapidly transforming markets, from ride-sharing, to air travel, to online retail. Regulators and scholars have watched this development with a wary eye. Their focus so far has been on the potential for pricing algorithms to facilitate explicit and tacit collusion. This Article argues that the policy challenges pricing algorithms pose are far broader than collusive conduct….

Abstract The Food and Drug Administration (FDA), like most federal agencies, is a captive client. Its “lawyer,” the Department of Justice (DOJ), ultimately decides whether and when to sue. When FDA goes to court, a DOJ lawyer decides what arguments to make, and whether to appeal if they lose. But Congress could, and perhaps should, change this arrangement. In this…

Abstract There is a general scholarly consensus that the law of parental determination should conform to the principles of equality. But the precise meaning of equality itself remains contested in the era of assisted reproductive technology. Increasingly, legal scholars argue that the commitment to equality requires the law to be untethered from its biology-centric focus and that the relational elements…

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married…

This Article presents findings revealing judges and government attorneys’ perspectives regarding nonmarital fathers as parents. The findings are drawn from original empirical data generated in a rigorous and extensive five-year qualitative study investigating the experiences of low-income litigants in family court. Specifically, this Article examines the perspectives of the judges and family court commissions who preside over IV-D child support cases as well the government…

The price of exit influences the terms of intimate relationships—and constitutes an important factor in distinguishing committed from contingent relationships. With or without legal recognition of the relationship itself, the dissolution of an intimate relationship requires disentangling any joint assets, determining who stays and who leaves a joint residence, and arranging the terms of continuing involvement with any children. Marriage…

Introduction Marriage plays an essential role in federal taxation. Marital status determines how you file your taxes and what rate is applied to your income. If you are married, you are entitled to file a joint return that will include the aggregated income of both spouses. Sometimes filing as a married couple can create a benefit. More often joint filing…

Introduction Consider the following scenario: Bill and Betty were married to other people for most of their adult lives but met two years ago at a social event organized in their community for persons of a certain vintage who share an interest in particular activities, such as international travel or local cultural performances. They have enjoyed spending time together and,…

Introduction Should the law recognize unmarried couples as family for purposes such as joint adoption, workplace leave, property distribution upon dissolution, and intestate succession? Questions concerning nonmarital couples have captured the attention of U.S. legal scholars.[3] Research has drawn on other countries’ experiences extending legal recognition to nonmarital families.[4] Yet this scholarship has largely overlooked South Africa. This Article helps…

Antiabortion civil remedy laws in effect in five states grant putative fathers the right to sue abortion providers for wrongful death regardless of their relationship to the gestating parent. While these laws represent an important new development in the movement to restrict the abortion right, they also expand parental recognition of unwed fathers. Constitutional law requires that unwed fathers who…

The law on the books has recognized the right of cohabitants to create enforceable legal obligations with each other for half a century. Yet few seek to enforce such obligations, and their attempts almost never prevail. This article explores one possible explanation for the invisibility of their claims. Marriage is so deeply rooted in our societal consciousness that it embodies…

The traditional constitutional law course is a staple of the first-year law school curriculum and a gateway to more advanced public law courses. In constitutional law, students are introduced to a range of topics—separation of powers, judicial review, suspect classifications, and protections for individual rights, among others. But curiously, few constitutional law courses discuss illegitimacy and the constitutional issues that…

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the…

There are over thirty million people ages forty-four to fifty-five in the civilian labor force in the United States, but the law and legal scholarship are largely silent about a health condition that approximately half of those workers will inevitably experience. Both in the United States and elsewhere, menopause remains mostly a taboo topic because of cultural stigmas and attitudes…

Regional disparities in immigration enforcement have existed for decades, yet they remain largely overlooked in immigration law scholarship. This Article theorizes that bottom-up pressure from states and localities, combined with top-down pressures and policies established by the President, produce these regional disparities in enforcement. The Article then provides an empirical analysis demonstrating enormous variations in how Immigration and Customs Enforcement’s…

Pharmaceutical patents listed in the FDA’s “Orange Book” are some of the most valuable patents in the world. Accordingly, for this valuable subset of patents, it is paramount that the Patent & Trademark Office (PTO) correctly issue valid patents and preclude invalid patents from issuing. In this paper, we study what happens to those patents in litigation, reporting the results…

INTRODUCTION Libraries are a fixture in American communities that people sometimes take for granted. People expect to find books on the shelves, computers for public use, children gathered for story times, and, increasingly, ebooks available to be checked out and read on personal devices. However, libraries face distinct financial disadvantages in purchasing and lending ebooks to readers, with both libraries…

INTRODUCTION As the Supreme Court stated in the 2020 case Barr v. American Association of Political Consultants, “Americans passionately disagree about many things. But they are largely united in their disdain for robocalls.”[1] Americans are similarly united in their disdain for spam emails.[2] However, Congress’s regulation of spam emails through the Controlling the Assault of Non-Solicited Pornography and Marketing Act…

Congress has not drafted one statute to govern all claims of employment discrimination, regardless of whether those claims are based upon any of the protected classifications of race, sex, religion, national origin, age, and disability. The factors which Plaintiff seeks to lump together in this lawsuit under the title of “age-plus” theories of discrimination are contained within four separate and…

ABSTRACT In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those that resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those related to quality improvement and optimizing use of scarce facilities,…

ABSTRACT Personal jurisdiction—the doctrine that determines where a plaintiff can sue—is a mess. Everyone agrees that a court can exercise personal jurisdiction over a defendant with sufficient in-state contacts related to a plaintiff’s claim. This Article reveals, however, that courts diverge radically in their understanding of what a claim is. Without stating so outright, some courts limit the claim to…

Introduction Criminalization of students occurs when schools refer children to criminal law enforcement for everyday disciplinary infractions—infractions that school administrators and counselors could appropriately manage.[2] The states bring criminal charges against students for school-specific crimes, like “disrupting class,” and general order-related crimes like “disorderly conduct.”[3] Criminal court judges and prosecutors substitute in for school administrators to adjudicate and punish students…

ABSTRACT In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism—essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply…

Introduction Charming leader, credible scientist, media darling, political icon—each of these terms could be used to describe Wang Fengyou, chief executive officer and chairman of the Yilishen Tianxi Group, which was founded in 1999.[1] Wang Fengyou and his managers advertised an inconceivable investment opportunity for impoverished farmers throughout China.[2] For the meager price of 10,000 yuan,[3] the farmers would receive…

Introduction The United States has a serious affordable housing problem,[1] and by nearly every measure the problem is worsening.[2] Across the country, counties and municipalities have been unable to meaningfully address the widening gap between housing prices and earned wages.[3] A meager thirty-seven affordable and available rental homes exist for every 100 extremely low-income households.[4] One in seven renting families—or…

ABSTRACT Tort law and criminal law are the two main vehicles utilized by the state to deter wrongful behavior. Despite the many similarities between the two legal fields, they differ in their treatment of collaborations. While tort law divides liability among joint-tortfeasors, criminal law abides by a no-division rule that imposes on each co-offender the full brunt of the sanction….

Introduction This article addresses a question at the core of antitrust enforcement: how should government enforcers or other plaintiffs identify and address harm from antitrust violations? The inquiry naturally breaks into three issues: proof of the kind of harm that antitrust law requires, proof of causation, and formulation of effective remedies. The best criterion for assessing harm is likely or…

ABSTRACT In principle, governments could protect against the potential economic devastation of future pandemics by requiring businesses to insure against pandemic-related risks. In practice, though, insurers do not currently offer pandemic insurance. Although they may well be able to obtain sufficient actuarial data to set pandemic underwriting standards and rate tables, insurers are concerned that they lack sufficient capacity, as…

ABSTRACT Corporate law has embraced private ordering—tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions, and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use….

ABSTRACT Data privacy law fails to stop companies from engaging in self-serving, opportunistic behavior at the expense of those who trust them with their data. This is a problem. Modern tech companies are so entrenched in our lives and have so much control over what we see and click that the self-dealing exploitation of people has become a major element…

ABSTRACT MDMA and psilocybin are drugs that exhibit almost never-before-seen relief—including complete remission—from debilitating mental health disorders including Post Traumatic Stress Disorder (PTSD) and Treatment-resistant depression. Doctors, however, are unable to legally prescribe them outside of tightly-controlled research trial settings because of the drugs’ categorization under Schedule I of the Controlled Substances Act (CSA)—the Act’s most restrictive schedule—by the Drug…

Introduction: The Human Cost of Vacancy “Behind every vacant property there is a story,”[1] and that story represents a wickedly complex narrative. Consider the story of 900 N. Payson, a historic and tragic rowhouse located in Baltimore, Maryland.[2] This once-beautiful property was one of seventeen two-story rowhouses constructed on its street in West Baltimore in 1904, and it began housing…

Abstract Focus on the deleterious effects of the privatization of functions in both the criminal adjudicative system and criminal legal system has increased on both the scholarship and policymaking fronts. Much of this attention lately has been directed toward privatized police forces, privatized prisons, and even privatized prosecutors. As important as the examination of privatization and outsourcing in these arenas…

ABSTRACT Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication. Revisiting the voluminous and long-neglected research that informed the APA, this Article argues…

ABSTRACT Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if…

ABSTRACT The real property recording system is designed to protect purchasers and mortgagees against defects in title. Navigating that system is beyond the capacity of most laymen; historically, purchasers hired lawyers and other professionals to identify and eliminate title risks. Institutional lenders, however, sought more protection than a lawyer’s opinion could provide, leading to the development of title insurance. Title…

Introduction and Summary of Argument Federal law generally grants federal district courts subject-matter jurisdiction over prescribed “civil actions.”[2] But despite the ubiquity of the term, courts and commentators have mostly ignored the crucial role it plays.[3] This Article looks at diversity jurisdiction through the lens of the civil action and argues that a commonly accepted assumption about the scope of…

Abstract As the most powerful actors in our criminal legal system, prosecutors have been and remain one of the principal drivers of mass incarceration. This was and is by design. Prosecutorial power derives from our constitutional structure—prosecutors are given almost unfettered discretion to determine who to charge, what to charge, and, often, what the sentence will be. Within that structure,…

Introduction More than 4.5 billion people use the internet, and 3.8 billion of these users live comfortably on social media.[1] Social media’s quick, cost-effective flow of information and unlimited reach are ideal for individuals looking to, for example, reconnect with a childhood best friend with whom they have lost touch or instantaneously share opinions and viewpoints with others from around…

Introduction Our antitrust laws are a product of their time. Beginning in the 1870s, fundamental changes in transportation, communications, population growth, production technology, business organization, and finance culminated in rapid economic growth.[1] As the United States industrialized, it entered the “Gilded Age,”[2] characterized by rapid social upheaval and technological advancement. Between 1870 and 1890, the population of the United States…

ABSTRACT Regulating speech online has become a key concern for lawmakers in several countries. But national and supranational regulatory efforts are being met with significant criticism, particularly in transatlantic perspective. Critiques, however, should not fall into the trap of merely relitigating old debates over the permissibility and extent of regulating speech. This Article suggests that the normative balance between speech…

  Abstract When victims of intimate terrorism leave their abusers, the abuse rarely ends. While many victims exit intimate relationships to try to escape the abuse, for most, their bravery in leaving only angers their abusers further. Rather than lose control over their victims, many abusers continue to manipulate and terrorize their former intimate partners for years post separation. Many…

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 process in which new innovations and…

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 of police among communities of color…

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 process with limited input from others….

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 a wider purpose is rising as…

Introduction Though there is no overt subscription fee for using “free” online platforms like Facebook, it is well established there is a hidden, continuous cost: the exchange of personally identifiable information (PII) for platform use.[1] Platforms that collect PII—the best known of which include Google and Facebook—make much of their revenue by selling digital advertisements to third parties.[2] This is…

Introduction In October of 1868,[1] Benjamin F. Randolph, a Black state senator in South Carolina, was shot dead by three white men as he was stepping off the train.[2] Though the assassination occurred in broad daylight with multiple witnesses, no one ever faced charges for the murder. D. Wyatt Aiken, a former Confederate colonel, was arrested in relation to the…

Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information-fiduciary concept flies in the face of fundamental corporate law principles…

This Article responds to recent proposals calling for the SEC to adopt a mandatory ESG-disclosure framework. It illustrates how the breadth and vagueness of these proposals obscures the important—and controversial— policy questions that would need to be addressed before the SEC could move forward on the proposals in a principled way. The questions raised include some of the most contested in the field of corporate…

Fiduciary duties in the vicinity of insolvency form a notoriously murky area where legal space warps. Courts openly acknowledge that it is difficult to identify its boundaries, and the content of these duties is equally uncertain and inconsistent across jurisdictions. This Article expands the theoretical basis for a special legal regime in virtually or liminally insolvent firms. In addition to the conventional rationale of opportunistic…

Whistleblowers are not among the actors who populate academic accounts of corporate governance. Nor are whistleblowers visible in formal governance frameworks consisting of legal and non-legal elements that enable a firm to operate, all traceable to a corporation’s charter and bylaws adopted in compliance with the law of the state of incorporation. Within a corporation, whistleblowers may be lower-rank employees,…

What role does corporate law play in holding directors accountable for compliance failures? Until recently, the answer has been “very little.” The prevalent standard for director oversight duties (Caremark duties) was set high, effectively demanding that plaintiffs show scienter without having access to discovery. As a result, derivative actions over directors’ failure of oversight were routinely dismissed at the pleading stage, and many commentators considered Caremark…

Comparative corporate governance has focused either on prevailing differences across legal systems or on spontaneous legal transplants of foreign institutions in response to global competition. This Essay argues that corporate law today is not only a product of the invisible hand of the market but also of the soft (and not-so-soft) hands of international organizations and standard setters. By tracing the emergence of international corporate law…

A 1970 New York Times essay on corporate social responsibility by Milton Friedman is often said to have launched a shareholder-focused reorientation of managerial priorities in corporate America. The essay correspondingly is a primary target of a rapidly growing group of critics of the present shareholder-centric approach to corporate governance. This article argues that it is erroneous to blame (or credit) Milton Friedman for the rise…

Period poverty is not new, but it has become more visible during the COVID-19 crisis. Worldwide, menstruation has long caused marginalization and vulnerability for many. The pandemic has only amplified these conditions. This Article makes three claims. The first is descriptive, identifying four interrelated aspects of global period poverty that have gained new salience during the coronavirus pandemic: lack of access to affordable menstrual products; lack…

This Note considers the constitutional implications and policy concerns arising from the updated compassionate release mechanism. Part I of this Note traces the statutory development of compassionate release in the federal prison system. Part II examines the place of compassionate release within the federal constitutional scheme. Part III turns to the policy concerns surrounding representation by appointed counsel of compassionate release petitioners. Finally, Part IV proposes…

This Note examines the bankruptcy courts’ attempt to satisfy the Undue Hardship Exception through the application of these four judicial tests. Through an analysis of each test’s shortcomings, this Note makes apparent the reasons why it is imperative for Congress to provide a definition of “undue hardship.” Not only have bankruptcy judges often bemoaned the duty to define “undue hardship,”15 but the four judicial tests…

Ownership is commonly regarded as a powerful tool for environmental protection and an essential solution to the tragedy of the commons. But conventional property analysis downplays the possibility of negative-value property, a category which includes contaminated, depleted, or derelict sites. Owners have little incentive to retain or restore negative-value property and much incentive to alienate it. Although the law formally prohibits the abandonment of real property,…

The ultimate end of patent law should be to spur innovations that improve human welfare—innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money—that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue….

Protections of noncitizens’ rights in immigration removal proceedings have remained minimal even as immigration enforcement has exponentially increased. An overlooked, but commonplace, problem in immigration court is the treatment of the constitutional right against self-incrimination. Two routine scenarios occur where noncitizens are asked to sacrifice their right against self-incrimination in immigration court. One involves testimony regarding conduct related to immigration status that may lead to prosecution for…

Part I of this Note will examine the history of the FCRA, the basics of Article III standing, and its applications to intangible harms and data-privacy related injuries. Part II of this Note will then propose two potential solutions to the standing issues that arise when consumers are granted a right to sue CRAs for data breach harms. First, this Note will argue that,…

The United States is a nation in transition, struggling to surmount its racist past. This transitional imperative underpins American race jurisprudence, yet the transitional bases of decisions are rarely acknowledged and sometimes even denied. This Article uncovers two main ways that the Supreme Court has sought “racial transition.” While Civil Rights era decisions focused on “reckoning” with the legacies of racism, more recent decisions have prioritized…

Each year in the United States, millions of women’s pregnancies end not with the birth of a living child, but in miscarriage or with the birth of a dead, stillborn child. Marginalized women face a higher risk of these undesired endings. Compared to white women, Black women are twice as likely to suffer a late miscarriage and to give birth to a stillborn child….

Since 2018, private law damages claims seeking to place animals in the role of plaintiffs have––in dramatic fashion––moved from academic debate to high-profile litigation. Focusing on two recent cases, this short Article asserts that lawsuits seeking to make animals plaintiffs in damages actions are much more than flashy news fodder; they raise profound policy issues that courts will struggle with into the foreseeable future. The…

This Note seeks to explore the historical underpinnings of the Team Four Plan by considering St. Louis’s dramatic economic decline alongside a citywide panic regarding the fate of the Midwest city. Though it acknowledges Congressional efforts to stop the urban plan in its tracks, this Note suggests that the strategy of “urban triage” presented by Team Four has been largely effectuated in the form of Missouri’s…

Conservative scholars and a Supreme Court majority support reviving the nondelegation doctrine as a way to downsize the administrative state. But proposals from these scholars and Justices inevitably maintain there should be an exception for national security. This Article explains why a national security exception defeats the nondelegation doctrine’s goals of preserving the separation of powers and individual liberty. In doing so, this Article charts…

This Article makes two contributions to the fields of policing and criminal legal scholarship. First, it sounds a cautionary note about the use of individual prosecutions to remedy police brutality. It argues that the calls for ways to ease the path to more police prosecutions from legal scholars, reformers, and advocates who, at the same time, advocate for a dramatic reduction of the criminal legal…

This Note will explain the critical distinction between “publishers” and “platforms,” why social media entities are currently considered “platforms,” and why the legal system should reevaluate the liability of social media entities based on how they moderate and regulate content. Part I of this Note will discuss the history of the common-law liability of content providers prior to the invention…

Rural America today is at a crossroads. Widespread socioeconomic decline outside cities has fueled the idea that rural communities have been “left behind.” The question is whether these “left behind” localities should be allowed to dwindle out of existence, or whether intervention to attempt rural revitalization is warranted. Many advocate non-intervention because rural lifestyles are inefficient to sustain. Others argue…

The 2018 lawsuit Jay-Z brought against the American Arbitration Association (AAA) because the list of twelve arbitrators AAA provided in a breach of contract dispute did not include a black arbitrator highlighted ongoing concerns about the lack of diversity in the arbitrator corps. Given arbitration’s already less formal structure, one method for enhancing its legitimacy among diverse disputants would be…

This Note discusses existing legal procedures by which the current system of time could be modified to adapt to contemporary social changes and reduce time switching. Part I describes how the current system of timekeeping evolved and explains why it results in frequent time switching today. Part II considers the effectiveness of ongoing efforts by localities and states to avoid…

Constitutional theory has long been influenced by the idea that the Supreme Court exercises “passive virtues,” avoiding politically divisive cases that threaten its legitimacy. The Article inverts the logic. Supreme Court Justices (and other judges too) do more than avoid divisive cases that could weaken the Court. They seek “unity” cases—meaning cases where law and politics align—that could strengthen the…

Agencies make many of their most important decisions in rulemaking well before the publication of a Notice of Proposed Rulemaking (NPRM), when they set their regulatory agendas and develop proposals for public comment. Agencies’ need for information from outside parties and openness to alternative courses of action are also generally at their greatest during these earlier stages of the rulemaking…

The law regulates some of society’s most significant relationships through status. Yet social and legal changes can diminish a status’s effectiveness and importance. The debates surrounding worker classification and nonmarital relationship recognition provide two pressing examples. By some estimates, over one quarter of all U.S. workers are part of the gig economy. If these gig workers are classified as employees,…

States often impose guardianship on people whose disabilities interfere with their decision-making ability, thereby entrusting another person with decision-making on their behalf. People with disabilities, activists, and scholars have critiqued the guardianship system for not doing enough to investigate the actual limitations of those subjected to guardianship and for denying too many of their rights. Guardianship exposes the tension between…

This Article explores the intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial…

Scholars have criticized requirements that inmates prove malice or deliberate indifference to establish constitutional claims against corrections officials. The Eighth Amendment currently requires convicted prisoners to show that a prison official acted “maliciously or sadistically” to establish an excessive force claim and with subjective “deliberate indifference” to establish a claim of unconstitutional prison conditions. Similar requirements can apply with respect…

Perinatal hospice refers to a cluster of medical services that some individuals choose after the diagnosis of a life-limiting fetal condition. At its core, perinatal hospice involves many kinds of support—including physical, emotional, social, and spiritual—for the pregnant person, family members, and the fetus or newborn from the time of diagnosis to bereavement. The American College of Obstetricians and Gynecologists and…

U.S. constitutional law prohibits the use of sex as a proxy for other traits in most instances. For example, the Virginia Military Institute (VMI) may not use sex as a proxy for having the “will and capacity” to be a successful student. At the same time, sex-based classifications are constitutionally permissible when they track so-called “real differences” between men and…

The financial system is unequal and exclusionary even as it is supported, funded, and subsidized by public institutions. This is not just a flaw in the financial sector; it is a foundational problem for democracy. Across the financial industry, entrepreneurs, regulators, media, and scholars promote the goal of “financial inclusion” or “access to credit.” Facebook’s Libra, Bitcoin, and fintech providers…

The advent of DNA technology in the late 1980s led to a wave of exonerations in the United States, shedding light on major problems with the U.S. criminal justice system. Many of these wrongful convictions were traced back to criminal informants, colloquially referred to as “snitches,” who provided incriminating testimony in exchange for a sentence reduction, leniency, inmate privileges, or some…

When agencies make decisions that are binding on the public, they must provide public notice, accept and consider public comments, and provide explanations for their final decisions. Their actions are then subject to judicial review to ensure that they acted within the scope of their authority and the decision was not arbitrary or capricious. The President, however, is not subject…

Legislation lags behind technology all too often. While trillions of dollars are exchanged in online transactions—safely, cheaply, and instantaneously—workers still must wait two weeks to a month to receive payments from their employers. In the modern economy, workers are effectively lending money to their employers, as they wait for earned wages to be paid. The same worker who taps a credit…

The Armed Career Criminal Act (ACCA) imposes mandatory minimum sentences on individuals convicted of being a felon in possession of a firearm who have at least three prior convictions for “violent felon[ies].” “Violent felon[ies]” include those crimes contemplated by the ACCA’s “residual clause.” The Supreme Court ruled that the residual clause was unconstitutional in Johnson v. United States in 2015….

Ample psychological studies demonstrate that emotions provide reasons for action and are powerful drivers of a host of behaviors, including criminal acts. Studies further establish that experiencing intense emotions might impair actors’ judgment and decision-making, sometimes culminating in committing homicide. Existing criminal law doctrines only partially correspond to these findings. They recognize mostly anger and fear as underlying the excuses of…