On Rawlsian Contractualism and the Private Law
Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different …
Circuit Personalities
The U.S. Courts of Appeals do not behave as one; they have developed circuit-specific practices that are passed down from one generation of judges to the next. These different norms and traditions (some written down, others not) exist on a variety …
Criminal Law Exceptionalism
For over half a century, U.S. prison populations have ballooned, and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of …
A Third-Party Beneficiary Theory of Corporate Liability for Labor Violations in International Supply Chains
Large multinational corporations (“MNCs”) profit off their suppliers’ maintenance of sweatshop conditions in developing countries. Although some companies have responded to reputational pressure by taking nominal steps to improve working conditions, …
On Lenity: What Justice Gorsuch Didn’t Say
Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War …
The Common Law of Interpretation
Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian …
Stakeholderism, Corporate Purpose, and Credible Commitment
One of the most significant recent phenomena in corporate governance is the embrace, by some of the most influential actors in the corporate community, of the view that corporations should be focused on furthering the interests of all corporate …
Debunking the Nondelegation Doctrine for State Regulation of Federal Elections
One objection to the conduct of the 2020 election concerned the key role played by state executives in setting election rules. Governors and elections officials intervened to change a host of regulations, from ballot deadlines to polling times, …
On Lenity: What Justice Gorsuch Didn’t Say
Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War …
Constitutional Law, Fourth Amendment
Permission to Destroy: How a Historical Understanding of Property Rights can Reign in Consent Searches
Consent searches are by far the most common tool to circumvent the Fourth Amendment’s warrant requirement. Though police officers have the property owner’s permission, the searches they conduct are not always harmless. Without probable cause or …
Corporate Law, Insurance
Changing Guards: Improving Corporate Governance with D&O Insurer Rotations
Almost all public companies buy insurance for their directors and officers. D&O insurers should be active gatekeepers for the corporation, since they lose money if executives misbehave, but all available evidence suggests the opposite: insurers …
Bankruptcy, Finance & Banking
A Modern Poor Debtor’s Oath
Bankruptcy offers a fresh start that frees individuals from crushing debt burdens. Many insolvent Americans are, however, simply too poor to afford bankruptcy. Filing for even the simplest type of bankruptcy costs around $1,800, with most of this …
Federal Courts, Jurisprudence Theory
Judicial Minimalism in the Lower Courts
Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should …
Constitutional Law, Separation of Powers
Vagueness and Nondelegation
The void-for-vagueness doctrine and the nondelegation doctrine share an intuitive connection: when Congress drafts vague statutes, it delegates lawmaking authority to courts and the executive. In three recent cases, the Supreme Court gave expression …
Criminal Justice, Criminal Law
Pretrial Detention and the Value of Liberty
How dangerous must a person be to justify the state in locking her up for the greater good? The bail reform movement, which aspires to limit pretrial detention to the truly dangerous—and which has looked to algorithmic risk assessments to quantify …
Contracts, Corporate Law
Collaborative Intent
Why do parties—even sophisticated ones—draft contracts that are vague or incomplete? Many others have tackled this question, but this Article argues that there is an overlooked, common, and powerful reason for contractual gaps. Using original …
Constitutional Law, Corporate Law, Fourteenth Amendment, Legal History
Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection
This Article highlights the crucial role corporations played in crafting an expansive interpretation of the Fourteenth Amendment. Exposing the role of race in the history of the constitutional law of corporate personhood for the first time, this …
A Corpus Linguistic Analysis of “Foreign Tribunal”
In March, the United States Supreme Court heard a case involving the issue of whether a private arbitration panel in another country is covered by the statutory phrase “foreign or international tribunal.” The statutory language, enacted in 1964, …
Antideference: COVID, Climate, and the Rise of the Major Questions Canon
Skepticism on the Supreme Court toward administrative authority has evolved into open hostility over the course of the past year in two cases related to the COVID-19 pandemic. The legal vehicle was not, as widely expected, rejection of Chevron’s …
Proving Causation in Clinical Research Negligence
Investigators conducting clinical research create a risk of harm to their human subjects. The common law recognizes a variety of duties that these investigators owe to their subjects. When they breach these duties, such as by negligently designing …