Volume 99, Number 2

We introduce generative interpretation, a new approach to estimating contractual
meaning using large language models. As AI triumphalism is the order of the day,
we proceed by way of grounded case studies, each illustrating the capabilities of these
novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the
actual agreements that they adjudicated, we show that AI models can help factfinders
ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties’
agreements. We also illustrate how models can calculate the probative value of
individual pieces of extrinsic evidence.

After offering best practices for the use of these models given their limitations, we
consider their implications for judicial practice and contract theory. Using large
language models permits courts to estimate what the parties intended cheaply and
accurately, and as such generative interpretation unsettles the current interpretative
stalemate. Their use responds to efficiency-minded textualists and justice-oriented
contextualists, who argue about whether parties will prefer cost and certainty or
accuracy and fairness. Parties—and courts—would prefer a middle path, in which
adjudicators strive to predict what the contract really meant, admitting just enough
context to approximate reality while avoiding unguided and biased assimilation of
evidence. As generative interpretation offers this possibility, we argue it can become
the new workhorse of contractual interpretation.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows that Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship.

The most common form of vicarious liability subjects an employer (or principal) to liability for the torts an employee (agent) commits within the scope of employment. Under the motive test, an employee’s tortious misconduct is outside the scope of employment when wholly motivated by personal reasons—a rule that almost invariably prevents the victims of sexual assaults from recovering against the employer, regardless of whether the employment relationship created the conditions that enabled the employee’s wrongdoing. A few alternative approaches have reformulated vicarious liability to overcome the limitations of the motive test, which is based on agency law, but each one has largely foundered. The motive test rules the land.

Neither courts nor commentators have adequately considered whether vicarious liability can be reformulated in terms of basic tort doctrine independently of agency law. As a matter of established tort principles, the scope of vicarious liability is limited to the injuries caused by a tortious risk—one which the employment relationship foreseeably created. The tort formulation recognizes that the employment relationship creates a foreseeable risk that employees will be careless or overzealous and can commit torts while motivated to serve the employer, even if the employer did not authorize the tortious misconduct. When an employee’s unauthorized tortious behavior is motivated solely by personal reasons, it would still be foreseeable and within the employer’s scope of vicarious liability if the employment relationship elevated the foreseeable risk of such misconduct over the background level of risk that exists outside of the workplace. Sexual assaults can accordingly be foreseeable within certain types of employment settings, subjecting the employer to vicarious liability as a matter of basic tort doctrine.

The problem of sexual assaults in the workplace shows why the tort formulation
of vicarious liability relies on a more realistic account of employee behavior as
compared to its agency counterpart, which cannot persuasively explain why vicarious
liability applies to any form of employee behavior the employer did not authorize.
Vicarious liability is best formulated as a doctrine of tort law, not as a component of
agency law with its question-begging treatment of motive in the workplace.

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach, interbranch agreement, and interparty consensus. Legal-culturally, it has in places evinced a decline in legal rationality. Although these developments do not rival the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in times of conflict, and reflects on what comes next in the new global conflict, and how best to shape it.

The United States federal income tax contains a flaw: Because it reaches capital gains only after a “realization” event, it permits owners of highly appreciated assets to defer their tax liability by holding them and refusing to sell. Worse yet, easily available debt allows those owners to consume from their “unrealized” gains while continuing to defer tax. As Professor Edward McCaffery identified in 2012, consumption and deferral through secured borrowing, coupled with the stepped-up basis death benefit from section 1014 of the Internal Revenue Code, create an opportunity for individuals to avoid lifetime income tax and net estate tax. This strategy, known as “buy/borrow/ die,” contributes to consumption inequality and, by extension, America’s growing wealth inequality.

In the tax literature, buy/borrow/die has served as a helpful hook for supporters of wealth taxes, mark-to-market income taxes, and the repeal of section 1014’s stepped-up basis provision. But these three solutions merit some pragmatic concern, on the grounds that they are (to varying degrees) possibly unconstitutional, likely to be repealed, or publicly unpopular. Recognizing those practical obstacles should steer policymakers toward an incremental second-best solution: treating borrowing against appreciated collateral as a realization event. Embracing a “realization at borrowing” policy would reduce the availability of buy/borrow/die as a tax reduction strategy while sidestepping the hurdles that other proposed solutions must clear.

In the summer of 2021, a small, previously unknown hedge fund named Engine No. 1 did the unthinkable. Despite owning less than 0.0016% of the company’s stock, Engine No. 1 elected three independent directors to the board of ExxonMobil on a platform of lowering Exxon’s greenhouse gas emissions and investing in renewable energy. Engine No. 1’s successful proxy battle at the country’s largest oil and gas company came after years of efforts by some of its largest shareholders to push the company in this direction, and it succeeded only because of the support of these large institutional shareholders. This case study highlights the powerful role that activist campaigns play in corporate democracy: Motivated by the prospect of outsized returns, hedge funds like Engine No. 1 are among the few players capable of mounting effective challenges to incumbent management at publicly traded companies. Although commentators have written about this dynamic, no scholarship has yet focused on the significant second-order effects that hedge fund activism can have on issues like climate change.

In October 2023, the Securities and Exchange Commission (SEC) adopted a new rule to shorten the Schedule 13D filing window under the Williams Act from ten days to five. Although justified as necessary given the technological advances that have occurred since the Act’s passage in 1968, shortening the filing window makes it more difficult for activists to engage in campaigns at publicly traded companies, thereby diminishing the power of the only actors within the world of corporate democracy capable of pushing management to respond to shareholder preferences and tipping the balance of power towards management. Thankfully, the Commission is not without options to address this difficulty. This Note proposes that the SEC create a new filing—Schedule 13I—which would permit activists who are not seeking control, but merely influence over corporate policy, the full ten-day filing window. Doing so is well within the Commission’s statutory authority. Indeed, given the dramatic shifts in the corporate governance landscape that have occurred since the passage of the Williams Act, and the fact that the Act was explicitly envisioned as favoring neither management nor activists, creating this new filing Schedule would help regain the balance which Congress so carefully set when it passed the Act, thus achieving a regulatory structure more in line with its purpose. At a time when the functioning of corporate democracy implicates both value-creation and the satisfaction of shareholder preferences on the defining issues of our era, the Commission must consider changes to invigorate corporate democracy.