In the context of section 10(b) securities fraud class actions, conceptualizing corporate intent is both an unnatural and a necessary exercise. Circuit courts apply a variety of different approaches to analyze the question of corporate scienter, but they typically start with agency law and impute the intentions of corporate employees to the corporation itself.
Recognizing the fraud-deterrence purpose of these class actions suggests that...
Fourth Amendment jurisprudence governing emergency searches and seizures for mental health evaluation, crisis stabilization, and treatment is in disarray. The Supreme Court has yet to opine on what Fourth Amendment standards apply to these โpsychiatric holds,โ and lower courts have not, on the whole, distinguished legal standards governing emergency holds from those governing routine criminal procedure.
This Article argues against the...
It is conventional wisdom that the states are freeโwithin wide constitutional parametersโto structure their governments as they want. This Article challenges that received wisdom and argues that the Supreme Court has drawn on an eclectic set of constitutional provisions to develop a broader body of federal constitutional rules of state structure than previously understood.
This Article gathers and systemizes that body of law. It first...
This Essay surfaces an obstacle to decarceration hiding in plain sight: progressivesโ continued support for the carceral system. Despite progressivesโ increasingly prevalent critiques of criminal law, there is hardly a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areasโ often areas in which...
Introduction In his compelling new book, Invisible Atrocities, Professor Randle DeFalco explores the function of the aesthetics of violence in international law. In particular, he questions international lawโs preference for sanctioning spectacular demonstrations of violence rather than more banal, bureaucratic actions that cause massive scales of suffering and misery. The book resonated with us because […]
People routinely refer to copyright and trademark as โsoft IPโ to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practitioners. โSoft IPโ implies that patent law alone is hard, even though patents are no more physically, metaphorically, or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary,...
Plaintiffs in securities class actions have increasingly relied on reports published by anonymous short sellers when alleging the element of loss causation. Indeed, short-seller reports are useful for plaintiffs, as they purport to reveal negative information about a targeted company and generally cause a decline in the targeted companyโs stock price. Unlike other types of corrective disclosures, however, short-seller reports are unique in that...
The Columbia Law Review launched its Karl Llewellyn Lecture series on March 19, 2024, celebrating pioneers in the law who have innovated and challenged legal theory. The inaugural Lecture was delivered by Judge Guido Calabresi who spoke on the promise and peril of “Law and โฆ” disciplines, such as Law and Economics, Law and Philosophy, and Law and History. A transcript of Judge Calabresi’s Lecture is published in this...
The law does not possess the language that we desperately need to accurately capture the totality of the Palestinian condition. From occupation to apartheid and genocide, the most commonly applied legal concepts rely on abstraction and analogy to reveal particular facets of subordination. This Article introduces Nakba as a legal concept to resolve this tension. Meaning โCatastropheโ in Arabic, the term โal-Nakbaโ (ุงูููุจุฉ) is often...
This Piece responds to recent critiques of litigation articulating a religious liberty right to access abortion. It argues that under current and expansive religious liberty doctrine, patients seeking a religious right to abortion have standing to sue even prior to pregnancy, their sincerity should not be unfairly disputed, and existing secular exemptions in abortion laws undermine the stateโs alleged compelling government interest in prohibiting...