Articles

Public company boards of directors have opened up a new front in their longstanding battle with hedge fund activists by rewriting the procedural rules governing board elections. Many boards now require shareholders to make long and complicated sets of disclosures in order to nominate candidates for board elections. These disclosure requirements—contained in advance notice bylaws (ANBs)—have come under fire in the Delaware courts for being drafted so expansively that they seem like “tripwires” intended to protect incumbents against even the possibility of a proxy contest.

In this paper, I analyze modern ANBs, drawing insights from a new dataset consisting of over 14,000 full sets of bylaws filed by more than 3,800 U.S. public companies from 2004 to 2023. During this time, ANBs have become longer and more complex market-wide, and variation in disclosure requirements across firms has increased. Additionally, firms with relatively few disclosure provisions have tended to add more provisions if they are targeted by an activist. These changes in drafting practice may have significant effects on corporate governance. When ANBs are long and complex with ambiguous requirements, it is more costly for activists to launch proxy contests, and boards are more insulated from outside pressure. This reduction in accountability is likely more severe for small firms and firms with high agency costs. However, modern ANBs also provide the benefit of filtering out campaigns by unsophisticated activists and bad actors.

Legal reforms could reduce the costs associated with modern ANBs without

eliminating their benefits. These include (1) requiring shareholders to approve

ANB amendments, (2) requiring companies to give activists time to cure deficient

nomination notices, and (3) allowing shareholders to facially challenge ANBs

under an “overbreadth” theory. Recent efforts by shareholders also suggest that

private ordering may curb some of the effects of modern ANBs without outside

intervention.

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys relative consensus.

Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self- governance should turn their attention to the administrative state’s second face.

The last several years have been marked by contentious disputes about which governments represent the states of Venezuela, Libya, Yemen, Myanmar, Afghanistan, and Niger. Such disputes are far from idle curiosities—rather, they go to the core of the modern international legal order. States are the building blocks of the international legal system, but it is the consent of their governments that forms the cornerstone of international law and diplomacy. When the rightful government is contested, numerous questions emerge with enormous implications for both the states involved and the international community as a whole. Most critically, who is permitted to consent on behalf of the state—to military intervention, to treaties, to the use of state assets—or receive immunities? Who represents the state in international fora? Who is responsible for ensuring the state complies with human rights law and international humanitarian law? And what happens if different governments are recognized by different states and international organizations, as is not only possible, but common?

This Article aims to bring clarity to this debate. It begins by explaining the difference between state and government recognition. It then identifies seven important rights and responsibilities that accompany government recognition, ranging from the right to consent to military intervention to the obligation to uphold international human rights and international humanitarian law. It shows that individual states, and to a lesser extent, international organizations, are currently the primary actors in government recognition decisions. Their varying approaches to government recognition have resulted in incoherence and inconsistency that threaten to undermine international law. This Article makes the case for a new approach: granting the United Nations Credentials Committee, through the United Nations General Assembly, the power to determine the recognized government of a given state for all matters directly implicating international law. This approach would bring greater coherence to government recognition and would thereby strengthen the international legal order as a whole.

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, this analysis sheds new light on Lon Fuller’s classic functions of contractual formalities. Second, it reveals five novel functions of these formalities: diagnostic, expressive, constitutive, mapping, and experiential. Third, it shows the relevance of empirical work in behavioral science on the so-called Question Behavior Effect to our understanding of contracting behavior.

These insights from extralegal contracts are theoretically interesting in their own right and practically relevant to our understanding of legal contracts. The Article develops an account of strategic contracting behavior across legal contexts, drawing on the novel functions and Question Behavior Effect mechanisms, specifically dramatizing the impact through contract domains where enforcement is uncertain or unlikely, including preliminary agreements, surrogacy contracts, and demands for assurances.

This Article aims to reimagine impact litigation as movement law. It does so through a case study of Floyd v. City of New York, historic litigation which successfully challenged the New York Police Department’s aggressive stop and frisk policies. It documents a seminal period in the history of policing and community resistance by providing the first insider’s account of how a vibrant police accountability movement sought to leverage class action litigation to destabilize police narratives around Black criminality and significantly curtail the NYPD’s systemic program of discriminatory street encounters. It chronicles the multidimensional ways in which the litigation fed the movement and the movement fed the litigation, and how the movement ultimately utilized newfound political power to save the historic litigation outcomes from a hostile federal appellate court.

This Article proposes a theory of change in which a reimagined impact litigation can advance movement aims beyond the inherently vulnerable pursuit of judicial rights recognition in courts of law and makes an original contribution to the literature around movement lawyering by articulating concrete and replicable strategies and tactics through which the novel concept of “impact litigation as movement law” can both challenge the power of dominant political and social institutions and build the power of individuals and movements. The analysis is informed in great part through a process of oral history, drawing on interviews of numerous (but certainly not all) critical stakeholders in the Floyd process—lawyers and organizers alike—to bring the strategy, intensity, and high stakes of this fifteen-year struggle into the broader theoretical claims I seek to make.

Specifically, this Article documents how the Floyd legal team integrated community participation and expertise into the trial to further broader organizing campaigns. And it identifies five critical power-shifting strategies in the litigation that were transformational: the power of testifying; the power of watching; the power of evidence; the power of judgment; and the power of winning. Finally, this Article is a cautionary tale about the fragility of legal judgments, and a fresh and hopeful narrative about the power of mobilized movements and conscientious lawyers to achieve and protect successful litigation outcomes. Impact litigation as movement law offers a reimagined and replicable model for future efforts to challenge dominant power structures.

The recent failures of Silicon Valley Bank and First Republic have drawn attention to how rare it is for uninsured depositors at a failed bank to bear losses. In this paper, I show that ubiquitous rescues of uninsured depositors represent a recent phenomenon dating only to 2008. For many years prior to that, uninsured depositor losses were the norm. I also show that the rise of uninsured depositor rescues has coincided with a dramatic increase in FDIC costs of resolving failed banks, which I estimate resulted in at least $45 billion in additional resolution expenses over the past fifteen years. I estimate that only $4 billion of this rise in costs is attributable to transfers to uninsured depositors, with $41 billion attributable to new inefficiencies in the resolution process.

The rise in uninsured depositor rescues has resulted from a shift by the FDIC to almost always resolve failed banks by selling them as a whole (including both insured and uninsured deposits) to an acquirer, generally with a generous subsidy provided by the FDIC. This Article also presents evidence to suggest that, despite the FDIC’s statutory mandate to use the least-cost means of protecting insured depositors of a failed bank, these whole-bank sales are frequently not the most efficient means of resolving failed banks. Next, I present evidence for two probable causes of this shift. First, during the 2008 crisis, the FDIC may have initially been forced to sell whole banks to acquirers because it lacked capacity to handle the influx of failures through other means. This may have established an institutional inertia that has maintained the practice long after the exigencies that necessitated it have cleared. Second, I suggest that the FDIC may have experienced mission creep, taking it upon itself to rescue uninsured depositors whenever possible, even though U.S. law requires the FDIC to seek authorization from the U.S. President whenever it deems it necessary to deviate from least-cost resolution methods. I show that such mission creep has occurred twice in the past, and that Congress has successfully intervened to stop it in 1951 and 1991.

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the physical copy.

This Article argues that the conventional wisdom is radically blinkered. It shows that, contrary to popular belief, courts increasingly struggle to separate the intangible work from its physical form. In reality, the supposed divide between the work and the copy is far less rigid, and decidedly more contested, than scholars have recognized. Judges and commentators often confuse the physical object—a biological substance, a written-down recipe, a computer program, a physical building, a living garden, a copy of a work of visual art—for the intangible work itself. The result is a thickly tangled, sometimes messy, and deeply incoherent body of law.

This Article synthesizes history, theory, and current doctrine to critically analyze these trends. It traces the roots of the intangible/physical dichotomy. It explores how twentieth-century courts navigated this distinction and demonstrates that modern courts remain sharply divided over how to define the intangible work. These disagreements reflect confusion about the kinds of objects that could be eligible for copyright protection. In the end, I argue that this confusion raises fundamental questions about the limits of our copyright system. By grappling with these questions, this Article seeks to advance a new analytical paradigm for thinking about the trajectory, coherence, and breadth of copyright law.

Despite an increasing number of critiques from many commentators—abolitionists, social scientists, and fiscal conservatives among them—mass incarceration remains an ongoing crisis. Dealing with the wreckage of carceral overreach requires not just changing policies about what gets criminalized and how offenses are punished prospectively, but also unwinding the long sentences imposed during the past half- century and still being served. Among the mechanisms for decarcerating are second look acts, which a growing number of jurisdictions have passed or are considering.

Often these resentencing tools depend heavily on decisionmakers’ exercise of discretion. In rare instances, however, that discretion is constrained. Comparing two recent New York sentencing reforms, the Domestic Violence Survivors Justice Act and the 2004–2009 Drug Law Reform Acts—the former highly discretionary and the latter with a strong presumption in favor of resentencing—this Article notes the relative success rates of each statutory scheme, finding the less discretionary regime apparently more decarceratory. Critically, the exercise of discretion imposes a significant dignitary harm on applicants, who are required to prove their believability and moral worthiness to judges deciding whether to free them. As epistemic justice theory shows, those who are incarcerated and disproportionately members of marginalized identity groups face untenably difficult odds of doing so, as they are systematically discredited. In the process of inviting a judge to exercise discretion in their favor, these petitioners are often disbelieved, and the knowledge system is subsequently impoverished by discounting of petitioners’ experiences. Thus, if resentencings are going to begin to decarcerate at the rates necessary to bring the United States into line with comparable countries, and do minimal damage in the process, resentencing reforms should be categorical or presumptive rather than discretionary.

Intellectual property law has long been the law of creation, not creators. The dominant utilitarian framework (and alternate ones like Lockean and personhood justifications) consider the creator almost exclusively by reference to their creative outputs. These innovation-first, output-maximization frameworks have increased concentration among IP firms and deepened inequality in how IP’s economic rewards are distributed among creators. The existing frameworks simply do not have much to say about such pressing issues as authorial bargaining power, wage and economic inequality in the marketplace for creative works, and intensifying corporate concentration amongst dominant IP holders. Furthermore, the existing frameworks’ almost single-minded focus on outputs no longer holds up in the age of artificial intelligence, which renders creative output instantaneous and near-infinite—while threatening to reshape the landscape of creative labor as we know it.

This Article advocates for a new, alternate framework, one that highlights how IP, much like labor law, has long acted as an allocator of rights in property and capital between individuals and firms. If IP, in practice, has acted like labor law in facilitating the transfer of work from creative laborers to dominant IP firms, then IP theory, too, should do more than focus singularly on outputs—it should also address these input-based, supply-side harms. To the extent that there have been strains of more creator-focused theories throughout the IP doctrine and literature, they have, variously, argued for creation as either a solitary act of genius or collective, democratic meaning-making. This Article purposefully uses the word “labor” in opposition to such romanticized notions: It argues instead for a framework of creation as wage labor, as both the means by which large IP firms extract their value and also, potentially, as capital’s most potent resisting force.

The last decade has seen renewed debate, much of it between feminists, about workplace and school regulation of sexual conduct. Those debates proceed on the assumption that institutions distinguish permissible sex from impermissible sex based on whether it is consensual or, in civil rights parlance, “welcome.” The person at greatest risk of punishment by an employer or school, it would then appear, is the heterosexual man who seeks sex with women and who, allegedly, transgresses the bounds of their consent. This story, though, is incomplete. Workplaces and schools have long punished workers and students for having sex that is indisputably consensual but nonetheless undesirable to the institution. This sanctioned conduct includes premarital sex, commercial sex, “kinky” sex, sex with colleagues, and sex on work or school premises. And case law and public accounts suggest those punished for at least some of these offenses disproportionately include women, girls, and queer people, some of whom have filed sex discrimination lawsuits.

This Article argues that both litigants and critics would benefit from situating these modes of punishment within the broader regime of gendered sexual regulation by workplaces and schools. For litigants, that context may open new doctrinal pathways to challenge sanctions for consensual sex under sex discrimination laws. It illuminates, for example, that the reasons defendants give to defend the punishments they levy—essentially, that they object to plaintiffs’ conduct, in putative contrast to their protected characteristics—are sometimes themselves discriminatory. And for critics of institutional sexual regulation, consideration of these forms of punishment would serve a clarifying and corrective function, promoting a more accurate vision of gendered power and highlighting nuance in the relationship between sex equality and punishment.