Issue Archives

Introduction The Electoral College has resulted in the loser of the national popular vote winning the presidency five times in our history, including twice in the past two decades. Over the course of more than two centuries, it has become one of the two most popular subjects for constitutional amendment proposals. But be­cause of the […]

In class action practice, settlements play a central role. As in all litigation, the parties on both sides see settlement as a way to make peace and avoid the risk associated with going to trial. Class settlements, however, offer defendants something that they cannot obtain by any other means—namely, the ability to cause individuals not in front of the court to release all claims that relate to the events at issue in the class action. Given the...

In 2018, the Delaware courts confronted an extraordinary crisis of corporate governance: an open conflict between a corporation’s board of directors and its controlling shareholder. The board of CBS Corporation, a large media firm, voted to issue a dividend that would have diluted the shares of its controlling shareholder, National Amusements, Inc. (NAI). The dividend would have severed NAI’s control, leaving the board in sole command of CBS’s...

Data scraping—the automated collection of data on the internet—is used in a variety of contexts. On the commercial side, scraping might be used as a means of competition—such as scraping by one company to retrieve information on prices for services provided by a competitor. On the noncommercial side, scraping could be used as a research tool—such as scraping by a news outlet to investigate Amazon’s...

Introduction The IPO parade of 2019 is making the early shareholders of technology startups such as Uber, Lyft, Slack, and Pinterest (among others) staggeringly wealthy. Now that these companies are publicly trad­ed, equity owners can easily cash out at a huge profit. As shares of stock, this profit would normally be taxed at long-term capital […]

Introduction In Apple Inc. v. Pepper, the Supreme Court held that consumers who allegedly paid too much for apps sold on Apple’s App Store because of an antitrust violation could sue Apple for damages because they were “di­rect purchasers.” The decision sidesteps most of the bizarre complexities that have resulted from the Supreme Court’s 1977 […]

Introduction My article Harmless Errors and Substantial Rights challenged conventional wisdom about the harmless constitutional error doctrine in criminal procedure. Specifically, I contended that the traditional way of understanding harmless error as a remedial doctrine rooted in so-called “constitutional common law” created significant anomalies. The remedial perspective does not explain which errors can properly be […]

Since the turn of the millennium, a remarkably large number of incumbent presidents have managed to stay past the end of their consti­tutionally mandated terms. Russia’s Vladimir Putin, Rwanda’s Paul Kagame, and Colombia’s Alvaro Uribe represent a sizeable collection of presidents who were democratically elected but remained in power long past their original mandates. Such attempts to stay in office are not new, but in recent decades their...

The Supreme Court’s 2018 Jesner v. Arab Bank, PLC decision caused uncertainty for future and ongoing Alien Tort Statute (ATS) litigation in federal courts. In holding that foreign corporations are not subject to liability under the ATS, the Court foreclosed one avenue hu­man rights plaintiffs have sought to use for the past few decades to garner attention, and in some cases receive significant monetary settle­ments, for the abuses. Further,...

In recent years, Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (or entitlements) that are them­selves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commit­ments, 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...