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...
Article
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 accountÂability, and is both unnecessary and ill-suited to shield government defendants from the burdens and...
In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are themÂselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitÂments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly understood phenomenon, which it labels a form of “disappropriation.”
The...
The topic of political branch motivation has long bedeviled courts and scholars, especially when facially neutral government action is under constitutional challenge. The definitive decision in this realm, Washington v. Davis, holds that a finding of discriminatory intent is necessary to prompt more exacting scrutiny of facially neutral legislation or administrative action. One major problem with this rule is that it risks licensing malintent by...
Index funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers—how they monitor, vote, and engage with their portfolio companies—can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article...
Civil forfeiture is controversial. Critics allege that law enforcement authorities use forfeiture to take property from often-innocent victims free of the constraints of criminal process. Yet despite recent statutory reforms, a significant obstacle to meaningful change remains: Under longstanding Supreme Court precedent, the Constitution imposes few limits on civil forfeiture. Relying on a perceived tradition of largely unfettered government power...
The financial crisis exposed major fault lines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency—the Consumer Financial Protection Bureau—and changed the structure and function of these markets.
Consumer advocates cheered reforms as welfare enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now...
Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presiÂdential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful. Among constitutional originalÂists, this so-called “Vesting Clause Thesis” is now conventional wisdom. But it...
The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce prejuÂdicial attiÂtudes and shift societal norms. However, neither the scholarship nor disaÂbility law...
A handful of digital platforms mediate a growing share of online commerce and communications. By structuring access to markets, these firms function as gatekeepers for billions of dollars in economic activity. One feature dominant digital platforms share is that they have inteÂgrated across business lines such that they both operate a platform and market their own goods and services on it. This structure places domiÂnant platforms in direct competition...