Essay

This Essay challenges a central narrative in the history of Anglo-American business by questioning the importance of the corporate form. The Essay shows that the corporate form was not, as we have long believed, the exclusive historical source of powers such as limited liability, entity shielding, tradable shares, and legal personhood in litigation. These powers were also available throughout modern history through a little-studied, but enormously...

The United States taxes both corporations and shareholders on corporate profits. In principle, the United States could rely on only one of these taxes, as many commentators have suggested. Although choosing to tax the corporation or its owners may seem like taking money from one pocket or the other, this Essay emphasizes a key dif­ference: These taxes prompt different planning. Relying on one or the other mitigates some distortions and leaks,...

This Essay explores an overlooked way to use the remedy of dis­gorgement in torts, contracts, and regulation. It begins with a reminder that disgorging net gains does not force the liable actor to take a loss; by definition, it allows him to break even. As a matter of incentives, it places him in a sort of equipoise. This equipoise effect has a logical up­shot that might seem counterintuitive: Substituting disgorgement for any other remedy, part...

Judges and juries are frequently called upon to evaluate a party’s actions in retrospect—with the benefit of hindsight. Traditionally, courts and scholars have been understandably wary about how hindsight bias influences verdicts, focusing on how to keep outcome information away from jurors and how to minimize its influence on adjudication. But outcome information can be probative evidence: Bad outcomes can be indicative of bad decisionmaking....

This Essay develops an approach to interpreting computer trespass laws, such as the Computer Fraud and Abuse Act, that ban unauthorized access to a computer. In the last decade, courts have divided sharply on what makes access unauthorized. Some courts have interpreted computer trespass laws broadly to prohibit trivial wrongs such as violating terms of use to a website. Other courts have limited the laws to harmful examples of hacking into a computer....

Insufficient liquidity can trigger fire sales and wreak havoc on a financial system. To address these challenges, the Federal Reserve (the Fed) and other central banks have long had the authority to provide financial institutions liquidity when market-based sources run dry. Yet, liquidity injections sometimes fail to quell market dysfunction. When liquidity shortages persist, they are often symptoms of deeper problems pla­guing the financial system....

This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, coherence, and procedural fairness—which provide a framework for an account of the rule of law’s demands of administrative governance. Together these principles have intriguing results for the eval­uation of administrative...

This Essay uses Peter Strauss’s work as a springboard to explore the particularly precarious position of the agencies charged with promulgating science-intensive rules (“expert agencies”) with respect to presidential oversight. Over the last three decades, agencies promul­gating science-intensive rules have worked to enhance the accountability and scientific credibility of their rules by developing elaborate procedures for ensuring both...

It has been an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial. Litigants today, as a matter of course, are made to preview the evidence they will use. This practice is celebrated because standard theory says it should induce the parties to settle; why incur the expenses of trial, if everyone knows what will happen? Rarely noted, however, is one complication: The impact of...