VOLUME 161, ISSUE 7 JUNE 2013
The Technology of Creditor Protection
Contract is the primary means through which creditors control a firm�s debt� equity conflict. There is an irony here, however. Actions that may render a debtor insolvent are the events against which creditors contract. Yet when a breach of contract yields a debtor�s… Expand
A Theory of Preferred Stock
Should preferred stock be treated under corporate law as an equity interest in the issuing corporation or under contract law as a senior security? Should a preferred certificate of designation be subsumed in the corporate charter and treated as an incomplete contract filled… Expand
Adapting to the New Shareholder-Centric Reality
After more than eighty years of sustained attention, the master problem of U.S. corporate law�the separation of ownership and control�has mostly been brought under control. This resolution has occurred more through changes in market and corporate practices than through… Expand
How to Avoid Implementing Today’s Wrong Policies to Solve Yesterday’s Corporate Governance Problems
The Toxic Side Effects of Shareholder Primacy
The past two decades have seen a dramatic shift… Expand
Poor Pitiful or Potently Powerful Preferred
Exploring the Limits of Contract Design in Debt Financing
The alignment of shareholder and manager interests… Expand
Protecting Search Terms as Opinion Work Product: Applying the Work Product Doctrine to Electronic Discovery
Music Piracy and Diminishing Revenues: How Compulsory Licensing for Interactive Webcasters Can Lead the Recording Industry Back to Prominence
This Comment suggests that Congress should amend the Copyright Act to ensure that promising new music-based technologies are able to survive. The establishment of a compulsory license for interactive webcasters will help ensure that sound recording copyright owners are…
VOLUME 161, ISSUE 6 MAY 2013
Algorithms and Speech
One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance�algorithm-based decisions. I begin by looking to broadly accepted legal… Expand
Machine Speech
Computers are making an increasing number of important decisions in our lives. They fly airplanes, navigate traffic, and even recommend books. In the process, computers reason through automated algorithms and constantly send and receive information, sometimes in ways that… Expand
Owning E-Sports: Proprietary Rights in Professional Computer Gaming
One of the most astounding and largely underappreciated developments accompanying the recent proliferation of mass-market computer technology has been the rise of video gaming. From arcade to console and computer desktop to interactive multiplayer network, the explosion in… Expand
Trust and Online Interaction
This Article considers one of the challenges of this evolution: the role of intermediaries� liability for the harm they cause to users. All online interactions are conducted through intermediaries�the routers, servers, applications, services, and switches that make up the… Expand
Information Privacy in the Cloud
Cloud computing is the locating of computing resources on the Internet in a fashion that makes them highly dynamic and scalable. This kind of distributed computing environment can quickly expand to handle a greater system load or take on new tasks. Cloud computing thereby… Expand
Information, Innovation, and Competition Policy for the Internet
Antitrust agencies around the world are increasingly focusing on digital indus- tries. Critics have justifiably questioned the ability of competition agencies to make beneficial enforcement decisions given the complexity and rapid pace of change in online markets. This… Expand
Protocol Layering and Internet Policy
An architectural principle known as protocol layering is widely recognized as one of the foundations of the Internet�s success. In addition, some scholars and industry participants have urged using the layers model as a central organizing principle for regulatory policy.…
VOLUME 161, ISSUE 5 APRIL 2013
The Geography of the Battlefield: A Framework for Detention and Targeting Outside the �Hot� Conflict Zone
The U.S. conflict with al Qaeda raises a number of complicated and contested questions regarding the geographic scope of the battlefield and the related limits on the state�s authority to use lethal force and to detain without charge. To date, the legal and policy… Expand
Exorcising McCulloch: The Conflict-Ridden History of American Banking Nationalism and Dodd-Frank Preemption
Conventional wisdom holds that federal laws conferring banking powers on national banks presumptively preempt state laws seeking to control the exercise of those powers. This conventional wisdom originates with McCulloch v. Maryland, which established that nationally… Expand
An Empirical Study of Patent Litigation Timing: Could a Patent Term Reduction Decimate Trolls Without Harming Innovators?
This Article conducts an empirical analysis of the relative ages of patents litigated by practicing and nonpracticing entities (NPEs). By studying all infringement claims for a sample of recently expired patents, I find considerable differences in litigation practices… Expand
Confusing the Means for the Ends: How a Pro-Settlement Policy Risks Undermining the Aims of Title VII
When analyzing cases arising from disputes over Title VII settlements, courts often begin with the proposition that Congress intended to encourage voluntary settlement of employment discrimination claims. As a result, courts resolve many issues attendant to the settlement… Expand
Suboptimal Social Science and Judicial Precedent
The social sciences have developed dramatically over the last century in both breadth and sophistication. These disciplines offer systematic data collection and an analytic methodology to test our empirical intuitions about individual behavior and social institutions. Prior…
VOLUME 161, ISSUE 4 MARCH 2013
Localist Statutory Interpretation
The average citizen�s point of contact with the judicial system as a litigant is, most likely, in the nation�s municipal, county, or local courts. Whether she is contesting a traffic infraction, being charged with a misdemeanor, being cited for a violation of a local… Expand
Neighborhood Empowerment and the Future of the City
In any given metropolitan region, scores of municipalities are locked in a zero-sum struggle for mobile sources of jobs and tax revenue. This competition appears to benefit small, homogeneous suburbs that can directly enact the uniform will of the electorate over large,… Expand
The Conditions of Pretrial Detention
The Supreme Court has set forth in detail the standards that govern convicted prisoners’ Eighth Amendment claims concerning their conditions of confinement, but has left undefined the standards for comparable claims by pretrial detainees. The law articulated by the lower… Expand
The State and the �Psycho Ex-Wife�: Parents� Rights, Children�s Interests, and the First Amendment
On June 6, 2011, a judge in a small Pennsylvania county courthouse issued a custody order and started a firestorm. The order, citing the children�s best interests, required a father embroiled in a custody battle to take down his critical blog �The Psycho Ex-Wife� and… Expand
The Property Matrix: An Analytical Tool to Answer the Question, �Is This Property?�
While it is easy for us to recognize a tangible object as property, we are less comfortable recognizing an intangible thing, such as trade secrets, news, advanced degrees, or our time, as property. The same goes for objects that, though tangible, lie too close to the…
VOLUME 161, ISSUE 3 FEBRUARY 2013
Four Conceptions of Insurance
This Article identifies four conceptions of insurance that have operated in the debates about insurance law in recent decades, analyzes these conceptions, and examines the normative agendas that drive them. These are the contract, public utility/regulated industry, product,… Expand
Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles
The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article,… Expand
Soul of A Woman: The Sex Stereotyping Prohibition at Work
In 1989, the Supreme Court in Price Waterhouse v. Hopkins declared that sex stereotyping was a prohibited form of sex discrimination at work. This seemingly simple declaration has been the most important development in sex discrimination jurisprudence since the passage of… Expand
Up for Grabs: A Workable System for the Unilateral Acquisition of Chattels
This paper is about the everyday occurrence of coming across an object in the world and evaluating whether or not it is up for grabs. My project explores the shared space at the precipice of the laws of finders, abandonment, destruction, and conversion: a space we often… Expand
Delay in Considering the Constitutionality of Inordinate Delay: The Death Row Phenomenon and the Eighth Amendment
The Supreme Court has repeatedly declined to address the validity of the unconstitutional delay claim raised by Valle and other death row inmates before him. The issue first came to the Court�s attention over fifteen years ago, in Lackey v. Texas. Justice Stevens issued a…
VOLUME 161, ISSUE 2 JANUARY 2013
Escaping Battered Credit: A Proposal for Repairing Credit Reports Damaged by Domestic Violence
Debt and domestic violence are connected in ways not previously imagined. A new type of debt�which I have labeled �coerced debt��is emerging from abusive relationships. Coerced debt occurs when the abuser in a violent relationship obtains credit in the victim�s name via… Expand
Federalism, Regulatory Lags, and the Political Economy of Energy Production
The production of natural gas from formerly inaccessible shale formations through the use of hydraulic fracturing has expanded domestic energy supplies and lowered prices and is stimulating the replacement of dirtier fossil fuels with cleaner natural gas. At the same time,… Expand
State Law, the Westfall Act, and the Nature of the Bivens Question
In the past few years, four courts of appeals have applied a presumption against recognition of a Bivens cause of action in dismissing damages suits alleging constitutional violations arising out of federal officials� pursuit of various national security and… Expand
Rethinking the Cooperation Clause in Standard Liability Insurance Contracts
Liability insurance literature has identified three central duties owed by the insurer to the policyholder that grow from the standard personal liability contract: the duty to defend covered claims against the policyholder, the duty to indemnify the insured against… Expand
Preserving Judicial Supremacy Come Heller High Water
Minimalism does not only facilitate doctrinal innovation in a given area of the law. On my account, the Court sometimes issues minimalist rulings in order to preserve its ability to develop doctrine at all. The Court�s ability to �say what the law is� depends entirely on…
VOLUME 161, ISSUE 1 DECEMBER 2012
Leaving the Bench, 1970�2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences
This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy… Expand
Can the States Keep Secrets from the Federal Government?
States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over… Expand
Information Issues on Wall Street 2.0
Billions of dollars have flooded new online marketplaces for trading private company stock. These marketplaces stand poised to become important, lasting features of the private company world as they provide a central meeting place for buyers and sellers and potentially… Expand
Tailoring Discovery: Using Nontranssubstantive Rules to Reduce Waste and Abuse
The current system of discovery in the federal courts can produce enormous costs for both litigants and the court system. These costs stem from the overuse of both discovery in general and costly mandatory discovery procedures that are relevant in only a small subset of… Expand
Take Care That the Laws Be Faithfully Litigated
In this Comment, I argue that the framework Presidents use to decide whether to defend arguably unconstitutional statutes should be elaborated for statutes that the President believes violate the Constitution’s guarantee of equal protection–specifically where he believes…