VOLUME 163, ISSUE 7 JUNE 2015
VOLUME 163, ISSUE 6 MAY 2015
VOLUME 163, ISSUE 5 APRIL 2015
Structure and Value in the Common Law
Common law concepts have fallen into disrepute among legal theorists. The rise of Legal Realism in the early twentieth century marked a turning point in legal thought and analysis. One of the defining characteristics of the movement was complete disregard, not to say…
Helping Buyers Beware: The Need for Supervision of Big Retail
Since the 2008 financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms’ internal data outside the…
Presidential Settlements
Large groups regularly turn to the White House to resolve complex disputes collectively, much like a class action. These presidential settlements go back as far as the early Republic and were particularly popular in the Progressive Era, when President Teddy Roosevelt…
Modernizing Class Action Cy Pres Through Democratic Inputs: A Return to Cy Pres Comme Possible
Forty-five years ago, the ancient doctrine of “cy pres” was lifted from the pages of trust law and applied, for the first time, to the class action context. Cy pres stood for the proposition that, when the explicit purpose of a charitable trust became impossible, the court…
Prohibiting Sexual Orientation Discrimination in Public Accommodations: A Common Law Approach
Although forty-five states have enacted statutes prohibiting discrimination in so-called public accommodations broadly defined as those businesses offering lodging, food, entertainment, or other services to the public” the statutes of only twenty-one states and the…
VOLUME 163, ISSUE 4 MARCH 2015
VOLUME 163, ISSUE 3 FEBRUARY 2015
Court Competition for Patent Cases
There are ninety-four federal district courts in the United States, but nearly half of the six thousand patent cases filed in 2013 were filed in just two of those courts: the District of Delaware and the Eastern District of Texas. In the Eastern District of Texas and the…
Image Is Everything: Corporate Branding and Religious Accommodation in the Workplace
There is growing tension in the law between an employee’s right to religious expression in the workplace and an employer’s countervailing right to cultivate its corporate image. The existing case law provides little meaningful guidance to employers and employees faced with…
Tontine Pensions
Tontines are investment vehicles that can be used to provide retirement income. A tontine is a financial product that combines the features of an annuity and a lottery. In a simple tontine, a group of investors pool their money together to buy a portfolio of investments…
An Inconvenient Truth: How Forum Non Conveniens Doctrine Allows Defendants to Escape State Court Jurisdiction
Imagine you are a foreign citizen. You have been injured in a foreign country due to the negligence of a U.S. company and have a legitimate tort claim for millions of dollars against the company. You file suit in the state court in Missoula, Montana located at 200 W.…
Proposing a Transactional Approach to Civil Forfeiture Reform
Civil forfeiture is a truly extraordinary legal doctrine so much so that those who find themselves subject to a forfeiture proceeding frequently express disbelief that such an action could exist in the United States. The Kafkaesque civil forfeiture system is ancient,
VOLUME 163, ISSUE 2 JANUARY 2015
VOLUME 163, ISSUE 1 DECEMBER 2014
Old Statutes, New Problems
Congress is more ideologically polarized now than at any time in the modern regulatory era, which makes legislation ever harder to pass. One of the consequences of this congressional dysfunction is a reduced probability that Congress will update regulatory legislation in…
The Constitutional Standing of Corporations
Are corporations persons with constitutional rights? The Supreme Court has famously avoided analysis of the question, while recognizing that corporations may litigate rights under the Due Process Clause, Equal Protection Clause, First Amendment, Fourth Amendment, Sixth…
Dodd-Frank Orderly Liquidation Authority: Too Big for the Constitution?
The Dodd-Frank Act, enacted in the wake of the U.S. financial crisis of 2007 to 2009, is the federal government’s attempt to address a number of systemic issues perceived to be at the root of the financial meltdown. Title II of the Act goes to the heart of this effort by…
The Duryodhana Dilemma: United States v. A 10th Century Cambodian Sandstone Sculpture and a Proposed Code of Ethics-Based Response to Repatriation Requests for Auction Houses
On March 24, 2011, Sotheby’s New York unexpectedly removed its showcase lot, the Duryodhana, from its Indian & Southeast Asian auction scheduled to occur that same day. This last-minute adjustment occurred in response to a letter received hours earlier from the…
Pro Se Paternalism: The Contractual, Practical, and Behavioral Cases for Automatic Reversal
Johnnie Cochran, Robert Shapiro, and F. Lee Bailey all became famous as criminal defense attorneys. Television dramas depicting the high-stakes world of criminal trials, focusing on charismatic lawyers winning difficult cases, continue to captivate audiences around the…