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...
Issue Archives
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...
The topic of political branch motivation has long bedeviled courts and scholars, especially when facially neutral government action is under constitutional challenge. The definitive decision in this realm, Washington v. Davis, holds that a finding of discriminatory intent is necessary to prompt more exacting scrutiny of facially neutral legislation or administrative action. One major problem with this rule is that it risks licensing malintent by...
The 2010s have been a momentous decade for Medicaid. With enrollment of over seventy-two million people (19% of the country’s population), Medicaid is the nation’s largest public health insurance program, and it is the primary or sole source of health insurance for vulnerable groups such as low-income children and pregnant women, adults with disabilities, and […]