Vol. 116

Islamophobia is escalating at a frightening clip in the United States. Scrutiny of this bigotry, presently understood as “fear and suspicion of Muslims,” is rising at an alarming rate. Its rapid rise is reflected in the legal literature, encompassing scholarship analyzing the emerging national security strategies of the state to the civil liberties infractions and threats they pose to Muslim subjects. In short time, Islamophobia has become...

Administrative law presumes a neat system of agency rulemaking and adjudication followed by judicial review. But the reality of the administrative state departs starkly from this model. One such departure is the use of audited self-regulatory organizations (SROs)—private organizations comprised of specific industries that formulate binding law to regulate themselves. Although SROs operate subject to the oversight of federal agencies, their power...

JUST RELATIONSHIPS

Hanoch Dagan* & Avihay Dorfman**

Scholars traditionally conceptualize private law around a commitment to the values of formal freedom and equality. Critics of the traditional view (including lawyer-economists) dispute the significance of a distinction between public and private law, construing private law as merely one form of public regulation. Both positions are flawed. The traditional position is conceptually misguided and normatively disap­pointing; the critical position...

Bankruptcy judges consider both value to creditors and harm to employees in deciding whether to liquidate or reorganize firms. This Article proposes to systematize what is currently an ad hoc trade-off by making bankruptcy law explicitly counter-cyclical—that is, placing more weight on preserving employment during times of high unemploy­ment. Although the suggestion that bankruptcy law should consider em­ployment effects runs counter to decades...

Each state offers a property tax exemption to qualifying charitable organizations. Municipalities both administer these charitable ex­emptions and bear their economic cost. This creates an incentive for municipalities to adopt an interpretation of their state’s exemption framework that limits the exemption’s scope and preserves tax revenue. This Note focuses on community economic de­velopment (CED) organizations to explore how overly narrowed...

In its landmark Cracker Barrel no-action letter, the SEC staff an­nounced a bright-line rule permitting exclusion of any shareholder pro­posal pertaining to a company’s management of its general workforce, even if focused on a significant social policy issue such as employment discrimination, under the “ordinary business operations” exclusion. The SEC reversed Cracker Barrel in 1998, returning to a case-specific approach...

THE EQUIPOISE EFFECT

Bert I. Huang*

This Essay explores an overlooked way to use the remedy of dis­gorgement in torts, contracts, and regulation. It begins with a reminder that disgorging net gains does not force the liable actor to take a loss; by definition, it allows him to break even. As a matter of incentives, it places him in a sort of equipoise. This equipoise effect has a logical up­shot that might seem counterintuitive: Substituting disgorgement for any other remedy, part...

Introduction In April 2016, a massive leak of confidential legal documents, now known as the “Panama Papers,” attracted international scrutiny and con­demnation of offshore asset protection trust arrangements. Such trusts are legal to create but notoriously susceptible to abuse by wrongdoers seeking to hide assets from the peering eyes of tax collectors and credi­tors. The […]

Introduction The rapid rise of social media companies poses important questions for society, as legislatures, regulators, and courts try to balance consumer protections with the promotion of innovation and entrepreneurship. Indeed, technology is advancing much faster than the laws and regu­lations that govern it, creating a disconnect between the expectations of social media users and […]

In 1987, the Supreme Court held that the Constitution requires federal and state courts to retroactively apply all new federal-constitutional rules of criminal procedure to direct appeals of convictions. Since then, the Court has not addressed whether the U.S. Constitution also requires state courts to retroactively apply new criminal procedure rules derived from state law on direct review. This issue is particularly significant because state jurisdictions...