Temporary leaders in federal agencies—commonly known as “actings”—are a fixture of the modern administrative state. These acting officials have recently come under fire, particularly after President Trump ousted Jeff Sessions and installed Matthew Whitaker as acting Attorney General in November 2018. Yet despite their ubiquity and the fervent criticism we know almost nothing about them.
This Article examines open questions about...
The 2008 financial crash precipitated a liquidity crisis of global proportions. With dollar funding shortages threatening the global financial system, the Federal Reserve turned to foreign central bank liquidity swaps as a key component of its crisis response. First used in the 1960s during the Bretton Woods era, foreign central bank liquidity swaps are essentially contracts between two central banks to lend each other currency....
The following Piece reflects the revised and extended remarks given by Barbara Novick at the Harvard Roundtable on Corporate Governance, November 6, 2019. Thank you to Lucian Bebchuk for inviting me to share some thoughts on investment stewardship to kick off the 2019 Corporate Governance Roundtable. I. Academic Theories on Investment Stewardship Corporate governance and […]
Introduction On May 3, 2019, the Fourth Circuit became the first federal court of appeals to hold that the indefinite solitary confinement of people on death row violates the Eighth Amendment. The case, Porter v. Clarke, was praised as a step forward for the rights of those held on death row, as well as a […]
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...
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 accountability, and is both unnecessary and ill-suited to shield government defendants from the burdens and...
Twentieth-century American constitutional, administrative, and corporate law were often contests over legal liberalism. We more or less accepted the basic liberal premise of separating the public from the private—and then battled over the relative size and power of the State versus the Market. At times, the State had the upper hand, and regulatory and welfare programs proliferated. At other moments, the Market struck back, forcing the State...
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...