Ruth Bader Ginsburg

IN MEMORIAM:
JUSTICE RUTH
BADER GINSBURG

A series of tributes honoring the life and legacy of
Justice Ruth Bader Ginsburg.

Vol. 121 No. 8

Corporate Law
Essay

THE CORPORATE GOVERNANCE MACHINE

Dorothy S. Lund* & Elizabeth Pollman**

The conventional view of corporate governance is that it is a neutral set of processes and practices that govern how a company is managed. We demonstrate that this view is profoundly mistaken: For public companies in the United States, corporate governance has become a “system” com­posed of an array of institutional players, with a powerful shareholderist orientation. Our original account of this “corporate governance machine” generates[...]

Criminal Law
CLR Forum

STATE OFFICIAL MISCONDUCT STATUTES AND ANTICORRUPTION FEDERALISM AFTER KELLY V. UNITED STATES

Ben Covington*

In Kelly v. United States, the Supreme Court vacated the federal corruption convictions of the three government officials behind “Bridgegate.” In the process of doing so, the Court flagged an interesting tool that states have in their anticorruption toolkits that might’ve applied to the conduct before the Court: official misconduct statutes. These dynamic statutes are on the books in twenty-three states and territories, and another[...]

Constitutional Law
Article

THE PUZZLES AND POSSIBILITIES OF ARTICLE V

David E. Pozen* & Thomas P. Schmidt**

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar[...]

Constitutional Law
CLR Forum

FIRST AMENDMENT LIMITATIONS ON PUBLIC DISCLOSURE OF PROTEST SURVEILLANCE

Tyler Valeska*

During and after last year’s expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identi­fiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision.[...]

Constitutional Law
Article

THE PRINCIPLE AND POLITICS OF EQUAL VALUE

Nelson Tebbe*

An unfamiliar equality principle is gaining prominence in consti­tutional discourse. Equal value presumptively prohibits government from regulating protected activities while exempting other activities to which the government’s interest applies just as readily. Although the principle is being developed in the context of free exercise, it has implica­tions for other guarantees in constitutional law. This Article offers two arguments.[...]

Administrative Law
Note

ULTRA-APA ULTRA VIRES REVIEW: IMPLIED EQUITABLE ACTIONS FOR STATUTORY VIOLATIONS BY FEDERAL OFFICIALS

Alexandra Nickerson*

After President Trump declared a national emergency and diverted funds to build a wall on the southern border, several litigants challenged his action as ultra vires, or beyond his constitutional and statutory authority. The litigants asserted abstract equitable rights of action, implied in federal courts’ equitable powers. The Supreme Court has left unclear, however, whether or not such an implied equitable action for statutory[...]

Consumer Protection Law
Note

KEEPING CONSUMERS IN THE DARK: ADDRESSING “NAGGING” CONCERNS AND INJURY

Alison Hung*

In the digital context, companies often use “dishonest design”—commonly known as “dark patterns”—to trick or push consumers into doing things they wouldn’t necessarily have done otherwise. Existing scholarship has focused on developing a taxonomy and definitions for different categories of dark patterns, conducting empirical research to better understand the effectiveness of dark patterns, and broadly survey­ing[...]