In recent years, financial economists and commercial providers of governance services have created measures of corporate governance quality that collapse into one number (a governance rating or index) the multiple dimensions of a company’s governance, measures which commercial providers market to institutional investors as aids for portfolio and proxy voting decisions. The aim of this Article is twofold: to analyze the effectiveness of corporate governance indices in predicting corporate performance and to consider the implications for public policy that follow from that assessment. Our core conclusion is that there is no consistent relation between governance indices and measures of corporate performance. Namely, there is no one “best” measure of corporate governance:  The most effective governance system depends on context and on firms’ specific circumstances.

This Article seeks to test textualists’ central claims—that their approach is most consistent with the faithful agent conception of the judicial role in statutory interpretation and more likely to constrain judges’ capacity to do mischief under the guise of statutory interpretation— by critically examining the manner in which textualists have interpreted jurisdictional statutes. If textualist judges are supposed to act as faithful agents of Congress, following the plain meaning of statutory text, then when Congress confers jurisdiction without qualification we would expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in relying on the plain language of statutes that appear to confer expansive grants of jurisdiction.

In current debates about undocumented or illegal immigration, three themes have emerged as central: the meaning of unlawful presence, the role of states and cities, and the integration of immigrants. This Essay's starting premise is that a reappraisal of these themes is essential to a conceptual roadmap of this difficult area of law and policy. This Essay argues that it is too narrow and too shallow to examine any of the three themes in isolation, as is typically done. Rather, each theme pairs up with another to reveal and elucidate a more fundamental question.

Research in the field of behavioral economics indicates that humans stumble in their decisionmaking in predictable ways that can often be corrected by a gentle nudge from the appropriate regulatory authority. Two new books—Dan Ariely’s Predictably Irrational and Richard Thaler and Cass Sunstein’s Nudge—recount the findings of behavioral research on predictable patterns in human decisionmaking and lay the foundation for regulation through choice architecture that recognizes these human stumbles. In this Review Essay, we provide a critical account of remaining gaps in behavioral economics research and suggest that some types of behavioral insights may be better translated into law and policy reforms than others. We further argue that Nudge’s concept of “libertarian paternalism” both understates and exaggerates the jurisprudential and policy implications of regulatory innovation

Most federal circuits recognize a qualified journalist’s privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest.

This Note considers the tension between two recent trends in federal law. On the one hand, the Supreme Court has recently attempted to place limits on the scope of congressional commerce power. On the other hand, the past forty years have seen a rapid expansion of federal criminal law, with many federal criminal statutes relying on the Commerce Clause for their authority. This tension has led to uncertainty regarding the constitutionality of many federal criminal statutes, and general disagreement over the circumstances under which Congress may ever regulate or criminalize intrastate noneconomic activity.