The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.
This Article uses the tools of legal...
Two recent scandals spotlighted corporate fraud: the recent Wirecard scandal, which revealed €1.9 billion of missing corporate cash, and FTX’s bankruptcy scandal. Those incidents raised questions about the blameworthiness of professional third parties—lawyers, auditors, and banks, among others—who repeatedly fail to protect large public corporations from corporate fraud and misconduct. Professional third parties often are not held accountable...
When litigation outside the United States needs discovery inside the United States, U.S. judges provide assistance to their foreign counterparts. 28 U.S.C. § 1782 was designed to provide the statutory mechanism for this form of judicial assistance. But a recent empirical study has shown that, nowadays, a majority of requests for discovery assistance under 28 U.S.C. § 1782 come from private parties rather than from tribunals. And the proportion...
Child welfare agencies and family courts have long removed children from allegedly abusive or neglectful parents as an ultimate means of ensuring a child’s safety. The theory that high numbers of removals are necessary to keep children safe, however, had never been tested—there was no mechanism or political will to do so until the onset of the COVID-19 pandemic in March 2020. With the near-complete shutdown of New York City, the child welfare...
Approximately two-thirds of states have functional parent doctrines, which enable courts to extend parental rights based on the conduct of forming a parental relationship with a child. Different jurisdictions use different names—including de facto parentage, in loco parentis, psychological parenthood, or presumed parentage—and the doctrines arise from different sources of authority—common law, equitable, and statutory. While much has been...
In 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, a landmark case that established a new categorical rule in takings law: When the government enacts a regulation authorizing a temporary invasion of a property owner’s land, it effects a per se taking under the Fifth Amendment for which it must pay just compensation. By examining the interaction between this holding and legal challenges to New York’s Housing Stability...
National security review of corporate transactions has long been a relatively sleepy corner of regulatory policy. But as governments merge economic and national security, national security reviews are expanding in frequency and scope, causing numerous deals to be renegotiated or even blocked. This expansion of national security’s impact on corporate transactions—which this Essay calls “national security creep”—raises theoretical questions...
Compelled interoperability can be a useful judicial or statutory remedy for dominant firms, including digital platforms with significant market power in a product or service. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth.
Given the wide variety of structures and business models for big tech, “interoperability”...
This Comment examines the collateral order doctrine, a narrow exception to the otherwise general rule that appeals from interlocutory orders are generally disallowed in the federal court system. It does so in the context of fugitive disentitlement orders. This Comment focuses on a recent Second Circuit decision, United States v. Bescond, analyzing its consequences for interlocutory challenges by foreign defendants who live and conducted...
This Note examines how increasing complexity fueled by financial innovations can impair mandatory disclosure as an investor-protection mechanism. It focuses on structured notes, a type of debt security that has transformed significantly since the global financial crisis. This Note highlights several financial innovations that have fueled an unprecedented increase in structured note issuance volume by expanding access and catering to more idiosyncratic...