For decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be...
Vol. 123
The federal government relies on private parties to deter and enforce fraud with the False Claims Act (FCA). Unlike practically every other federal law on the books today, the FCA not only empowers the Department of Justice to go after fraudsters, but it also enlists everyone else by promising a financial reward to individuals who bring claims on behalf of the government. This qui tam enforcement regime is based on the rationale that encouraging...
It has become common to oppose the equal citizenship of transgender persons by appealing to the welfare of cisgender women and girls. Such Cis-Woman-Protective (CWP) arguments have driven exclusionary efforts in an array of contexts, including restrooms, sports, college admissions, and antidiscrimination law coverage. Remarkably, however, this unique brand of anti-trans contentions has largely escaped being historicized, linked together, or subjected...
The effects of the pandemic have shed light on the evolution of technology in the legal space, including the use of technology in videoconferencing proceedings and facilitating court procedures. Despite the benefits associated with technology, the rapid adoption of videoconferencing proceedings in courts may have unprecedented impacts on the relevance and practicality of the forum non conveniens doctrine. Additionally, the drastically different...
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...