Introduction Evidence compellingly demonstrates—as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA)—that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. In 2011, a […]
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Introduction The Constitution protects us from criminal conviction unless the state can prove guilt beyond a reasonable doubt. However, after defining reasonable doubt, many trial courts will then instruct jurors “to search for the truth” of what they think really happened. Defendants have argued that such truth-related language reduces the state’s burden of proof to […]
In the 1932 case Gebardi v. United States, the Supreme Court held that the failure of a statute to punish a party necessary to the commission of the proscribed conduct reflected an affirmative legislative policy to leave such party unpunished. As such, the Court declined to use the conspiracy statute to frustrate Congress’s grant of immunity. In doing so, the Court carved out an exception to the federal conspiracy statute: an exception...
Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation...
The Supreme Court’s 2014 decision in Fifth Third Bancorp v. Dudenhoeffer rejected a long-held presumption in the U.S. circuit courts that fiduciaries of employee stock ownership plans (ESOPs) act prudently in investing in company stock. Instead, the Supreme Court held, ESOP fiduciaries should be subject to the same duty of prudence as all ERISA fiduciaries, leaving ESOP fiduciaries vulnerable to plaintiffs testing the new standard.
To...
A pharmacist fills a prescription for birth control pills with prenatal vitamins. An in vitro lab loses a cancer survivor’s eggs. A fertility clinic exposes embryos to mad cow disease. A sperm bank switches a selected sample with one from a donor of a different race. An obstetrician predicts that a healthy fetus will be born with a debilitating condition.
These errors go virtually unchecked in a profession that operates free of meaningful...
Introduction Pressure is building again for Congress to reform patent law. Various proposals would reduce patent-litigation costs through fee shifting, delaying discovery, or allowing manufacturers to defend suits on behalf of their customers. Eluding consideration, however, is one simple change that might eliminate millions or even billions of dollars worth of waste across the entire […]
This Essay challenges a central narrative in the history of Anglo-American business by questioning the importance of the corporate form. The Essay shows that the corporate form was not, as we have long believed, the exclusive historical source of powers such as limited liability, entity shielding, tradable shares, and legal personhood in litigation. These powers were also available throughout modern history through a little-studied, but enormously...
Climate change represents, perhaps, the greatest challenge of the twenty-first century. As temperatures and sea levels rise, governments around the world will face massive and unprecedented human displacement that international law currently has no mechanism to address. While estimates vary, the scope of the migration crisis that the world will face in the coming decades is startling. In addition to losing their homes, climate change migrants,...
Economic analysis of law has traditionally assumed that legal rules are or ought to be designed to maximize social welfare taking as given that legal subjects are like Holmes’s “bad man”—rational, self-interested agents who care about complying with the law only insofar as noncompliance exposes them to the risk of sanctions. But while it is plausible to suppose that some legal subjects are, like Holmes’s bad man, “externalizers” of...