Vol. 120 No. 2

Class Action
Note

CLAIMLESS CLAIMANTS AND THE PRECLUSION PREMIUM: TROUBLING TRENDS IN CLASS ACTION SETTLEMENTS

Shai Berman*

In class action practice, settlements play a central role. As in all litigation, the parties on both sides see settlement as a way to make peace and avoid the risk associated with going to trial. Class settlements, however, offer defendants something that they cannot obtain by any other means—namely, the ability to cause individuals not in front of the court to release all claims that relate to the events at issue in the class action. Given the[...]

Constitutional Law
CLR Forum

SO GOES THE NATION: THE CONSTITUTION, THE COMPACT, AND WHAT THE AMERICAN WEST CAN TELL US ABOUT HOW WE’LL CHOOSE THE PRESIDENT IN 2020 AND BEYOND

Wilfred U. Codrington III*

Introduction The Electoral College has resulted in the loser of the national popular vote winning the presidency five times in our history, including twice in the past two decades. Over the course of more than two centuries, it has become one of the two most popular subjects for constitutional amendment proposals. But be­cause of the […]

Corporate Governance
Note

SEIZING THE FIRST-MOVER ADVANTAGE: RESOLVING THE TENSION IN DELAWARE LAW BETWEEN BOARDS OF DIRECTORS AND CONTROLLING SHAREHOLDERS

Lefteri J. Christodulelis*

In 2018, the Delaware courts confronted an extraordinary crisis of corporate governance: an open conflict between a corporation’s board of directors and its controlling shareholder. The board of CBS Corporation, a large media firm, voted to issue a dividend that would have diluted the shares of its controlling shareholder, National Amusements, Inc. (NAI). The dividend would have severed NAI’s control, leaving the board in sole command of CBS’s[...]

Administrative Law
Essay

WE THE SHAREHOLDERS: GOVERNMENT MARKET PARTICIPATION IN THE POSTLIBERAL U.S. POLITICAL ECONOMY

Jon D. Michaels*

Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private—and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regu­latory and welfare programs proliferated. At other moments, the Market struck back, forcing the State[...]

42 U.S.C. § 1983
Article

AFTER QUALIFIED IMMUNITY

Joanna C. Schwartz*

Courts, scholars, and advocacy organizations across the political spectrum are calling on the Supreme Court to limit qualified immunity or do away with the defense altogether. They argue—and offer compelling evidence to show—the doctrine bears little resemblance to defenses available when Section 1983 became law, undermines government account­ability, and is both unnecessary and ill-suited to shield government defendants from the burdens and[...]

Compliance
Article

COMPLEX COMPLIANCE INVESTIGATIONS

Veronica Root Martinez*

Whether it is a financial institution like Wells Fargo, an automotive company like General Motors, a transportation company like Uber, or a religious organization like the Catholic Church, failing to properly prevent, detect, investigate, and remediate misconduct within an organization’s ranks can have devastating results. The importance of the compliance function is accepted within corporations, but the reality is that all types of organizations—private[...]