Escaping Entity-Centrism in Financial Services Regulation

By:  Anita K. Krug

 

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric ...READ MORE

Missing the Forest for the Trolls

By:  Mark A. Lemley & A. Douglas Melamed

 

Patent trolls are increasingly blamed for the growing costs of patent litigation and seemingly excessive damages awards and patent royalties. There is much to support these allegations. Trolls now account for a majority ...READ MORE

Copyright Infringement Markets

By:  Shyamkrishna Balganesh

 

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement—which copyright law grants authors in order to render ...READ MORE

 

Why Wright Was Wrong: How the Third Circuit Misinterpreted the Bankruptcy Code . . . Again

By:  Alisha J. Turak

 

Whether a right to payment is a “claim” is one of the most important determinations in bankruptcy because only “claims” are subject to the bankruptcy process, including the all-important automatic stay and discharge provisions. The Bankruptcy Code ...READ MORE

Smile for the Camera, the World Is Going to See That Mug: The Dilemma of Privacy Interests in Mug Shots

By:  Gregory Nathaniel Wolfe

 

Under the Freedom of Information Act (FOIA), individuals can request certain agency records, including mug shots, from federal agencies. Until 1996, the policy of the United States Marshals Service (USMS) was to use FOIA’s broad law enforcement ...READ MORE

Predatory Pricing and Recoupment

By:  Christopher R. Leslie

 

Predatory pricing is a two-step strategy for securing monopoly profits. During the first step—the predation stage—a firm charges a price below its costs in the hope of driving its competitors out of the market by forcing them ...READ MORE

 

A New New Property

By:  David A. Super

 

Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that ...READ MORE

Legal Diversification

By:  Kelli A. Alces

 

The greatest protection investors have from the risks associated with capital investment is diversification. This Essay introduces a new dimension of diversification for investors: legal diversification. Legal diversification of investment means building a portfolio of securities that ...READ MORE

Qui Tam for Tax?: Lessons from the States

By:  Franziska Hertel

 

Tax fraud costs the federal government billions of dollars annually. Qui tam litigation, which features individuals bringing lawsuits on behalf of the government, is a powerful tool for the government in its fight against many types of fraud. ...READ MORE

 

The Arithmetic of Justice: Calculating Restitution for Mortgage Fraud

By:  T. Dietrich Hill

 

The Mandatory Victims Restitution Act requires restitution for federal crimes involving property. In particular, the defendant is required to return any property taken, or, if return is impossible, to pay for the victim’s loss, which may be ...READ MORE

Pathetic Argument in Constitutional Law

By:  Jamal Greene

 

Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ...READ MORE

Intellectual Property Defenses

By:  Gideon Parchomovsky & Alex Stein

 

This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls ...READ MORE

 

The Myth That Insulating Boards Serves Long-Term Value

By:  Lucian A. Bebchuk

 

According to an influential view in corporate law writings and debates, pressure from shareholders leads companies to take myopic actions that are costly in the long term, and insulating boards from such pressure serves the long-term interests ...READ MORE

The Regulator in Robes: Examining the SEC and the Delaware Court of Chancery’s Parallel Disclosure Regimes

By:  David Friedman

 

The Delaware Court of Chancery is a unique court that specializes in transactional jurisprudence. Due to Chancery’s expertise in and exposure to corporate litigation, its decisions act as “rules” for most corporate actors. However, Chancery is not the ...READ MORE

“Killing Time” in the Valley of the Shadow of Death: Why Systematic Preexecution Delays on Death Row Are Cruel and Unusual

By:  Angela April Sun

 

In the nearly four decades since the U.S. Supreme Court reinstated the death penalty in 1976, the average time between sentencing and execution in the United States has steadily increased to 16.5 years as of the end of ...READ MORE

 

Conventions of Agency Independence

By:  Adrian Vermeule

 

It is often said that the legal touchstone of agency independence is whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence. Many important agencies ...READ MORE

Trial by Preview

By:  Bert I. Huang

 

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they ...READ MORE

Defining “Found In”: Constructive Discovery and the Crime of Illegal Reentry

By:  Jason D. Anton

 

Over the past decade, the crime of illegal reentry has risen to prominence. It is not only the most common federal immigration charge, but also the most prosecuted federal crime. The cost of enforcing illegal reentry ...READ MORE

 

Casual or Coercive? Retention of Identification in Police-Citizen Encounters

By:  Aidan Taft Grano

 

In Bostick and Drayton, the Supreme Court announced that per se rules were inappropriate in answering the Fourth Amendment seizure question, “Would a reasonable citizen feel free to leave?” But when, if ever, can one factor in ...READ MORE

The Agency Costs of Agency Capitalism: Activist Investors and the Revaluation of Governance Rights

By:  Ronald J. Gilson & Jeffrey N. Gordon 

 

Equity ownership in the United States no longer reflects the dispersed share ownership of the canonical Berle-Means firm. Instead, we observe the reconcentration of ownership in the hands of institutional investment intermediaries, ...READ MORE