The United States taxes both corporations and shareholders on corporate profits. In principle, the United States could rely on only one of these taxes, as many commentators have suggested. Although choosing to tax the corporation or its owners may seem like taking money from one pocket or the other, this Essay emphasizes a key dif­ference: These taxes prompt different planning. Relying on one or the other mitigates some distortions and leaks,...

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...

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...

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...

Balancing the harms and benefits of speech—what this Article calls “free speech consequentialism”—is pervasive and seemingly unavoid­able. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular...

Introduction Sellers of patented products ranging from printer cartridges to pharmaceuticals frequently charge higher prices in the United States than they do abroad. To maintain this price differential, such sellers often prohibit the resale of their goods in the United States. The Federal Circuit has maintained that importers may be sued for infringing U.S. patents […]

The 2008 financial crisis raised puzzles important for understanding how the capital market prices common stocks and in turn, for the intersection between law and finance. During the crisis, there was a dramatic five-fold spike, across all industries, in “idio­syncratic risk”—the volatility of individual-firm share prices after adjustment for movements in the market as a whole.

This phenomenon is not limited to the most recent financial...

When governmental actors offend federal rights, victims are often left with no one to hold accountable in federal courts. This Article explores this accountability gap in cases involving local officials’ violations of the Constitution. Local government, after all, is the layer of government that is often closest to our daily lives, from law enforce­ment to education. This Article argues that as a descriptive matter, contrary...

  For me, Harvey Goldschmid and Columbia are inextricably connected. I can’t think of one without the other. Harvey discovered his passion for learning as a student at the college and the law school. Only five years after graduating, Harvey returned to Columbia to join our faculty, serving for four and a half decades. When […]

    Others in this tribute, more qualified to do so, will certainly comment on Harvey Goldschmid’s impeccable scholarship and outstanding public service. I will devote my space to our personal and professional relationship spanning forty-plus years in many endeavors, often connected to Columbia Law School. Harvey will be remembered as not only brilliant, but […]