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...
Issue Archives
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...
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 […]