Issue Archives

Business corporations long ago rejected the idea of unaccountable directors running firms with only their consciences to keep them in check. Yet unaccountable boards are the norm in the nonprofit sector. This need not be the case. The laws of all fifty states and the District of Columbia provide a template for accountability in nonprofit governยญance: memberยญship statutes. These statutes define the roles and responsiยญbilities of nonยญprofit members,...

In Borrowing Equality, Professor Atkinson deftly demonstrates Congressโ€™s nonsensical bifurcation of the twin concepts of โ€œcreditโ€ and โ€œdebt,โ€ whereby it celebrates and encourages the former and regulates and punishes the latter. She then shows that, in refusing to acknowledge the harmful consequences of indebtedness while legislating credit-based soluยญtions to inequality, these credit policies in fact entrench the very hierarยญchies...

During her twenty-five-year tenure on the Supreme Court, Justice Sandra Day Oโ€™Connor became one of the most admired figures in American public life. A recent biography by historian and journalist Evan Thomas chronicles her extraordinary personal qualities, remarkable professional journey, and constructive brand of patriotism. In this Book Review, a former Oโ€™Connor clerk describes a legacy in three parts: a lived example of how to thrive in...

In June 2015, the Supreme Court decidedย Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.ย and held that disparate impactย claimsย are cognizable under the Fair Housing Act. Four years later, in August 2019,ย the Department of Housing and Urban Development published a proposed rule purporting to align the agencyโ€™s regulations with the Supreme Courtโ€™s interpretation of the Fair Housing Act inย Inclusive...

A fundamental question for corporate bankruptcy law is why it exists in the first place. Why are there special rules that apply only in financial distress? The conventional law-and-economics answerโ€”known as the Creditorsโ€™ Bargain Theoryโ€”identifies two core purposes of bankruptcy law: recreating a hypothetical ex ante bargain and respecting creditorsโ€™ nonbankruptcy entitlements.

This Article challenges...

CATEGORICAL NONUNIFORMITY

Sheldon A. Evans*

The categorical approach, which is a method federal courts use to โ€˜categorizeโ€™ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law convictionโ€”as defined by the legal elements of the crimeโ€”sufficiently matches...

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA...

In 2019, the Supreme Court slammed the federal courthouse doors on partisan gerrymandering claims from contested state redistricting plans in Rucho v. Common Cause. Yet racial gerrymandering claims remain justiciable. Judicial review of contested redistricting plans is therefore suspended in a state where racial gerrymandering is unconstitutional at the same time that partisan gerrymandering is nonjusticiable, leaving federal courts in...

Introduction Recent developments, such as incidents of legalized discrimination against Black expatriates, tourists, and students in China, raise questions about why Black scholars and legal practitioners are largely absent from global debate over how Chinaโ€™s laws and legal institutions function. Despite the Supreme Courtโ€™s opinion that U.S. law schools and the legal community benefit from […]

FAKE TRADEMARK SPECIMENS: AN EMPIRICAL ANALYSIS

Barton Beebe* & Jeanne C. Fromer**

United States trademark law requires that a mark be used in commerce for it to qualify for registration at the U.S. Patent and Trademark Office (PTO). Applicants prove that they have met the use requirement by submitting to the PTO photographic specimens of their use of the mark in commerce. This Piece reports the results of new empirical work showing that an appreciable number of U.S. trademark applications originating in China...