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Volume 100, Issue 3

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 on…

by Nicholas Almendares

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 is…

by Sharon Hannes, Adi Libson & Gideon Parchomovsky

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, automated…

by Nathan Cortez & William Sage

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,…

by Eric D. Chason

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 law…

by Aubrey Zimmerling

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 assess…

by Dominic Ferrante

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 do…

by Olivia Wall

Volume 100, Issue 2

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.…

by Saura Masconale & Simone M. Sepe

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 has…

by J. Jonas Anderson, Paul R. Gugliuzza & Jason A. Rantanen

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 the…

by Jeff Schwartz

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, but…

by David Rapallo

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Volume 100, Issue 1

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, the…

by Christopher R. Leslie

Content Under Pressure

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…

by Randy J. Kozel

Litigating Authority for the FDA

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,…

by C. Joseph Ross Daval

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Volume 99, Issue 6

Sexual Agreements

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…

by Albertina Antognini & Susan Frelich Appleton

Nonmarital Fathers in Family Court: Judges’ And Lawyers’ Perspectives

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…

by Tonya L. Brito

The Price of Exit

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…

by Eleanor Brown, Naomi Cahn & June Carbone

Taxation of Unmarried Partners

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…

by Patricia A. Cain

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Volume 99, Issue 5

Procedural Losses and the Pyrrhic Victory of Abolishing Qualified Immunity

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…

by Adam A. Davidson

Working Through Menopause

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…

by Bridget J. Crawford, Emily Gold Waldman & Naomi R. Cahn

Regional Immigration Enforcement

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…

by Fatma Marouf

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Volume 99, Issue 4

New Innovation Models in Medical AI

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…

by W. Nicholson Price II, Rachel E. Sachs & Rebecca S. Eisenberg

Ford’s Underlying Controversy

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…

by Christine P. Bartholomew & Anya Bernstein

Criminalized Students, Reparations, and the Limits of Prospective Reform

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…

by Amber Baylor

The Political Economy of WTO Exceptions

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…

by Timothy Meyer

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Volume 99, Issue 3

Antitrust Harm and Causation

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…

by Herbert Hovenkamp

Insuring the ‘Uninsurable’: Catastrophe Bonds, Pandemics, and Risk Securitization

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…

by Steven L. Schwarcz

Stealth Governance: Shareholder Agreements and Private Ordering

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…

by Jill E. Fisch

A Duty of Loyalty for Privacy Law

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…

by Neil Richards & Woodrow Hartzog

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Volume 99, Issue 2

The Rediscovered Stages of Agency Adjudication

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…

by Emily S. Bremer

A Reign of Error: Property Rights and Stare Decisis

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?…

by Michael Allan Wolf

Title Insurance: Protecting Property at What Price?

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…

by Stewart E. Sterk

Diversity Jurisdiction and the Common-Law Scope of the Civil Action

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…

by Patrick Woolley

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Volume 99, Issue 1

The [E]x Factor: Addressing Trauma from Post-Separation Domestic Violence as Judicial Terrorism

  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…

by Lisa A. Tucker

Churn

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…

by Peter Lee

Crime and the Mythology of Police

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…

by Shima Baradaran Baughman

The Contingent Origins of Financial Legislation

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…

by Peter Conti-Brown and Brian D. Feinstein

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Volume 98, Issue 6

A General Defense of Information Fiduciaries

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…

by Andrew F. Tuch

A Response to Calls for SEC-Mandated ESG Disclosure

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…

by Amanda M. Rose

My Creditor’s Keeper: Escalation of Commitment and Custodial Fiduciary Duties in the Vicinity of Insolvency

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…

by Amir N. Licht

Whistleblowers: Implications for Corporate Governance

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,…

by Deborah A. DeMott

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Volume 98, Issue 5

Period Poverty in a Pandemic: Harnessing Law to Achieve Menstrual Equity

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…

by Bridget J. Crawford & Emily Gold Waldman

“Extraordinary and Compelling” Circumstances: Revisiting the Role of Compassionate Release in the Federal Criminal Justice System in the Wake of the First Step Act

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…

by Siobhan O'Carroll

Back to Bankruptcy’s Equitable Roots: Recalibrate the Dischargeability of Student Loans Through a Modified Eighth Circuit Approach

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…

by Terry Ha

Negative-Value Property

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…

by Bruce Huber

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Volume 98, Issue 4

Getting Into Court When Data Has Gotten Out: A Two-Part Framework

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,…

by Alyssa Aubuchon

Racial Transition

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…

by Yuvraj Joshi

Miscarriage, Stillbirth, & Reproductive Justice

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…

by Jill Wieber Lens

Considering the Private Animal and Damages

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…

by Richard L. Cupp, Jr.

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Volume 98, Issue 3

How Content Moderation May Expose Social Media Companies to Greater Defamation Liability

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…

by Tanner Bone

Economic Regulation and Rural America

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…

by Ann M. Eisenberg

Arbitrator Diversity: Can It Be Achieved?

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…

by Sarah Rudolph Cole

It’s Five O’Clock Everywhere: A Framework for the Modernization of Time

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…

by Ryan Deal

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Volume 98, Issue 2

Model Language for Supported Decision-Making Statutes

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.…

by Rachel Mattingly Phillips

Copyright and the Brain

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…

by Mark Bartholomew

Inmate Constitutional Claims and the Scienter Requirement

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…

by Ann Woolhandler & Michael Collins

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Volume 98, Issue 1

Lies Behind Bars: An Analysis of the Problematic Reliance on Jailhouse Informant Testimony in the Criminal Justice System and a Texas-Sized Attempt to Address the Issue

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…

by Luke G. Allen

Constraining the Statutory President

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…

by Kathryn E. Kovacs

Payday

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…

by Yonathan A. Arbel

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