Online Features

The field of “animal law”—legal advocacy to improve the world for animals—is growing in the United States. To those unfamiliar with animal law, this growth may appear to result from a unified movement and, more fundamentally, to reflect a unified mindset that all developments in the field amount to progress for animals. For lawyers in the field, however, there is a very real and surprisingly sharp divide between animal welfare proponents, on the one hand, and animal rights proponents, on the other—a divide that influences legal strategy. This Article proposes that, with the rise of plant- and cell-based alternatives for animal products, the rights-welfare divide in animal law will start to collapse, and lawyering will play an even more central role in protecting animals. We do not, like “New Welfarists,” accept that advancements in animal welfare inevitably advance rights for animals. Rather, we believe that lawyers can, based on recent developments in the marketplace, advance animal rights through a careful selection of both abolition- and welfare-focused legal advocacy. This Article explores a combination of legal theory, economic theory, and doctrinal analysis to propose how lawyers can make the biggest difference for animals during this new age of animal law.

In the wild west of crypto, courts are slowly coming to realize that crypto assets present novel questions of law that challenge core assumptions of United States securities law. This online feature argues that a more comprehensive understanding of blockchain technology counsels courts to apply the antifraud provisions of the federal securities laws extraterritorially. Such a move will economize judicial capacity, deter fraud, and protect U.S. investors. Instead of relying on a nodular analysis, courts should look to the policy rationales of the Court’s Morrison decision, as well as the Second Circuit’s Absolute Activist opinion, to lead out of the jurisdictional morass of locating crypto transactions. In addition to relying on enumerated factual allegations laid out in Absolute Activist, courts should find that transactions occur where the parties are physically located rather than where the physical structure that underlies the crypto network is located. Further, they should utilize a plus factor of whether the company has marketed the product into a jurisdiction. As a result, courts can dispense with legal fiction and preserve the aims of the Morrison ruling. As private class actions only continue to increase in number, the time to develop a consistent and encompassing rationale is now.

The fashion industry is at an environmental crossroads. United States consumers are demanding increased transparency from fashion companies regarding their impact on the environment. While consumer interest in sustainable fashion is on the rise, there is a simultaneous increase in demand for more clothing at lower price points. Despite industry and consumer focus on sustainability, there is no uniform, standardized rating system or certification scheme that provides consumers with clarity or certainty regarding environmental claims. This leaves consumers swimming in a sea of competing claims based on differing methodologies, left to sort out for themselves which claims are true and which are misleading.

To solve this growing problem, the United States government should legislatively mandate fashion companies doing business in the United States to meet specific minimum standards in order to be able to make claims about the environmental impact of their operations.

This Act should draw from the Higg Index to create a standardized framework for gathering and processing environmental impact data. It should also draw from the OEKO-TEX labeling system to allow consumers to view sustainability data at the point of purchase. The FTC should be empowered to enforce the provisions of this Act.

In 2021, Texas adopted a powerful antiabortion statute—known as S.B.8—that bars anyone from performing abortions in the state of Texas after approximately six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, S.B.8 relies entirely on private lawsuits. In response, California enacted A.B. 1666, which prohibits its courts from serving as a venue for S.B.8 claims or enforcing S.B.8 judgments. California’s statutory response, however, faces tricky challenges under the Full Faith and Credit Clause (FFC) of the U.S. Constitution. And, more generally, the clash between S.B.8 and A.B. 1666 raises larger questions about conflict of laws, constitutional rights, and horizontal federalism.

Grappling with A.B. 1666’s constitutionality directly, this Essay argues that the statute probably complies with the Full Faith and Credit Clause. California has a strong argument for the constitutionality of A.B. 1666’s venue provision under the public policy exception to the FFC. And California has a weaker, but still colorable, argument in support of the statute’s judgment enforcement bar under the FFC’s penal judgment exception. The central question going forward is whether courts will interpret the Full Faith and Credit Clause in a flexible manner—allowing for capacious exceptions—or apply a tight leash to state legislative schemes. Indeed, state clashes like this one continue to matter even after Dobbs overturned Roe v. Wade because states will attempt to use private civil claims to go beyond criminal law on topics like abortion, guns, and LGBTQ rights.

The explosive growth of private markets and the proliferation of “unicorns,” private startups valued at $1 billion or more, has pushed the U.S. Securities and Exchange Commission (SEC) away from the center of the action and towards the periphery. In 2021, the SEC announced plans to reassert its jurisdiction by forcing unicorns to go public. But those plans fizzled. By the end of last year, the legality of the maneuver had been called into question and key proponents had left the Commission, leaving the unicorn crackdown seemingly on ice.

Now the regulator is back with a new plan to reclaim its throne. In January 2023, one Commissioner proposed inventing a new mandatory periodic disclosure regime just for unicorns. Under this plan, the agency would amend Regulation D, the rule that allows unicorns and many other private companies to raise capital without going public, to require unicorns to disclose audited financial statements and to provide independent attestations regarding the issuer’s internal controls over financial reporting, both at the time of offering and on an “ongoing” basis thereafter—just as public companies are required to do under the Securities Exchange Act of 1934.

This paper questions the legality of this proposal. I show that the SEC likely lacks legal authority to impose ongoing disclosure obligations on private companies not linked to any particular offering or transaction or to condition particular private offering-related disclosure obligations on issuer size. For the second time in two years, an SEC Commissioner has proposed a regulatory overhaul to fundamentally redraw the lines between public and private companies. And for the second time in two years, that proposal appears to fall outside of the agency’s legal authority.

Federal copyright law limits the copying of certain informational goods. But can state laws, and in particular state contract law, also do that? Until recently, the dominant approach was that they could. However, two recent Second Circuit decisions seem to suggest that only copyright law is allowed to do it. In other words, the Second Circuit assumes that copyright law is the only law that can regulate copying.

The Essay argues that the Second Circuit’s approach, while shared by several other courts, is wrong. It is in tension with the text and history of the Copyright Act and with the desirable relationship between federal IP law and state commercial law. This relationship is best described as symbiotic, but the Second Circuit has put those laws on a collision course. In doing so, the Second Circuit has ignored the practices of multiple industries and the ways in which copyright law and contract law work together. Indeed, state laws, in general, and contract law, in particular, have always regulated copying. Those rights and those contracts play a crucial role in our economy. Holding them unenforceable, as the Second Circuit did, might therefore disrupt well-established legal mechanisms without promoting identifiable federal policies.

Many aspects of the relationship between the United States and its territories are inherently undemocratic. This Essay draws attention to one: the continued and systematic discrimination against United States territories in the appointment of judges to the federal courts of appeals. This failure not only contributes to the well-known diversity crisis within the federal judiciary but also to the stagnation in the development of the law of the territories as well as the persistent second-class treatment of the territories and their people under the United States Constitution as interpreted by the federal courts.  Unlike larger and more difficult issues such as voting rights, territorial representation on the federal courts of appeals could be achieved through a simple amendment to 28 U.S.C. § 44(c) or by the president exercising his discretion to reject the unofficial custom of filling vacant circuit court judgeships with judges who hail from the same state as their prior occupants.