This Article explores the efficient design of civil liability for mandatory securities disclosure violations by established issuers. An issuer not publicly offering securities at the time of a violation should have no liability. Its annual filings should be signed by an external certifier—an investment bank or other well-capitalized entity with financial expertise. If the filing contains a material misstatement and the certifier fails to do due diligence, the certifier should face measured liability. Officers and directors should face similar liability, capped relative to their compensation but with no indemnification or insurance allowed. Damages should be payable to the issuer, not traders in its shares, because the true social harm from issuer misstatements is poor corporate governance and reduced liquidity.  For countries considering implementation of securities disclosure civil liability systems for the first time, this design helps them get it right from the start.

This Essay explores the merits of a new criterion for default rules in incomplete contracts: filling gaps with terms that are favorable to the party with the greater bargaining power. This Essay explores the justifications for such a bargain- mimicking principle, the ways in which it could be implemented by courts, and the subtle ways it is already in place.

In the 1985 case of United States v. Hensley, the Supreme Court ruled that the Fourth Amendment permits police officers to perform warrantless investigatory stops for completed felonies. However, Hensley explicitly declined to address whether the Fourth Amendment allows such stops to investigate suspicion of completed misdemeanors. Since then, courts have ruled inconsistently on this issue, creating uncertainty in this important area of search and seizure law. This Note attempts to settle this uncertainty by examining the Fourth Amendment’s text, history, and jurisprudence. It argues that warrantless stops to investigate completed misdemeanors are constitutional when the underlying crime presents an ongoing danger.

This Note argues that the preemption doctrine should be extended to cover unwritten practices of state agencies. Preemption is a judicially created doctrine, grounded in the Supremacy Clause, which allows courts to invalidate state laws if they conflict with or otherwise obstruct a federal law. The Supreme Court has applied preemption to a range of state actions, from statutes to adjudicatory decisions of state agencies. The Court has not, however, indicated whether it would apply preemption in the absence of a textual statement of the rule by the state agency. This Note argues that to resolve the tension between federal interests and state autonomy, the courts should find preemption to apply only when the unwritten practice constitutes a custom, borrowing from § 1983 municipal liability claims the “persistent and widespread” standard for finding instances where an unwritten practice constitutes the equivalent of a law.