Caremark and Reputational Risk

Public and private businesses today face many decisions that do not arise from, and have consequences far beyond, solely financial performance. Rather, these decisions are primarily driven by, and implicate, important social, cultural and political concerns. They include harassment, pay equity and other issues raised by the #MeToo movement; immigration and labor markets; trade policy;...

Problem with Zombie Constitutional Amendments

Spurred by a reenergized feminist movement in the wake of Hillary Clinton’s surprising loss in the 2016 presidential election and the #MeToo movement against sexual harassment, the Illinois state legislature reached into the past and attempted to revivify the Equal Rights Amendment (ERA). Observers were quick to declare that a ratification vote by only one...

How Private Insurers Regulate Public Police

A string of deadly police-citizen encounters, made public on an unprecedented scale, has thrust American policing into the crucible of political conflict. New social movements have taken to the streets, while legislators have introduced a wide array of reform proposals. Optimism is elusive, however, as the police are notoriously resistant to change. Yet one powerful...

On the Relevance of Market Power

Market power is the most important determinant of liability in competition law cases throughout the world. Yet fundamental questions on the relevance of market power are underanalyzed, if examined at all: When and why should we inquire into market power? How much should we require? Should market power be viewed as one thing, regardless of...

Registering Disagreement: Registration in Modern American Trademark Law

  Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar) marks is broken. Courts too readily find too many acts to be infringing even when they’re harmless or actually useful to consumers. Trademark practitioners, meanwhile, while often quite approving of...

The Law of Interpretation

The full text of this Article may be found by clicking on the PDF link to the left. How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover...

Music as a Matter of Law

What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site...

Abstention in the Time of Ferguson

Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days...

Global Governance Standards and Practices

Global board practices have changed significantly in recent years. Regulatory developments, the introductions and revisions of corporate governance codes, and company-shareholder engagement have all contributed towards the improvement of standards in both developed and developing economies. In an effort to assess the landscape of global governance, we look at the current state of board governance...