In 1886, Oliver Wendell Holmes, Jr., then a Professor at Harvard Law School, gave a talk to the students of Harvard College, which included a much-quoted line: “I say—and I say no longer with any doubt—that a man may live greatly in the law . . . . [H]e may wreak himself upon life, may drink the bitter cup […]
Issue Archives
For centuries, the duty of loyalty has been the hallowed centerpiece of fiduciary obligation, widely considered one of the few “mandatory” rules of corporate law. That view, however, is no longer true. Beginning in 2000, Delaware dramatically departed from tradition by granting incorporated entities a statutory right to waive a crucial part of the duty of loyalty: the corporate opportunities doctrine. Other states have since followed Delaware’s...
In the fall of 1982, I was planning a month-long trip to Italy with a friend. Debby Greenberg had organized a conference on comparative affirmative action at the Rockefeller Foundation’s Bellagio Center that summer, and Jack and Debby traveled around Italy while there. Jack invited me and my “spousal analog”—a coinage of his own that […]
The number of refugees worldwide has expanded dramatically in the first decades of the twenty-first century, with tens of millions of people forced to seek shelter outside their countries of origin. Currently, the most critical form of protection that people in this vulnerable position are guaranteed is the duty of non-refoulement. This duty ensures that countries to which refugees flee cannot return them to places where their lives may be endangered....
Almost every state has experimented with charter schools to improve education outcomes for high-needs students. Charter schools operate with more autonomy and flexibility than traditional public schools, but at the expense of democratic accountability mechanisms. While this model has produced positive results, some charter schools deny access to or underenroll students with disabilities. The Individuals with Disabilities Education Act entitles...
Introduction In their edifying and ambitious recent article Just Relationships, Professors Hanoch Dagan and Avihay Dorfman suggest that everyone before them has erred in their account of the distinction between public law and private law. Classic liberal scholars—a category meant to cover Thomas Hobbes and William Blackstone through the nineteenth century to Richard Epstein, Ernest […]
This Essay examines the roles that federal administrative agencies have begun to play in response to the rise of private arbitration, particularly in the consumer and employment contexts. Such agency actions have included enforcement strategies designed to mimic the effects of private litigation when such litigation may not be possible due to the presence of arbitration agreements. And, in some cases, they have involved regulatory responses, including...
“‘Al Hill is the legal scholar’s scholar.’” Al Hill died on December 5, 2015 at the age of 98, outlasting most of his contemporaries. Al had taken senior status when I came to Columbia Law School, and I succeeded him in the course on federal courts. The little I saw of Al left […]
Colleges and universities are facing mounting pressure to tackle the pervasive problem of student-perpetrated sexual misconduct. Whether these institutions lack the expertise or, less optimistically, the willpower, colleges and universities have struggled to sift through a morass of Department of Education regulations, conflicting case law, and institutional incentives in order to design disciplinary procedures that protect the rights of both complainant...
While vaccination is a hot political topic, it is largely settled as a matter of law. Ever since the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, state governments have possessed the authority to enforce mandatory vaccination laws. Furthermore, courts have long recognized that States are not required to provide religious exemptions to these vaccination mandates, though most do. The Supreme Court recently denied certiorari in a...