“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is...
We argue that the state-law rules governing poison pills are vulnerable to challenges based on preemption by the Williams Act. Such challenges, we show, could well have a major impact on the corporate-law landscape.
The Williams Act established a federal regime regulating unsolicited tender offers, but states subsequently developed a body of state anti- takeover...
The Individuals with Disabilities Education Act’s predecessor established a multilevel administrative and judicial review system for special education decisions, and ever since, the volume of special education cases in federal court has ballooned. Most present cases involve disputes over whether the school district drafted an individualized...
Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been almost entirely ignored: forced ownership, or “forcings.” While legal compulsion to begin or continue ownership is neither entirely...
States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally elected officials. These “takeover boards” are frequently accused of representing...
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm—in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This...