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Will Corporations Deliver Value to All Stakeholders?

May. 18, 2022—Lucian A. Bebchuk & Roberto Tallarita | 75 Vand. L. Rev. 1031 (2022) | Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance advocate relying on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics...

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The Inequity of Informal Guidance

May. 18, 2022—Joshua D. Blank & Leigh Osofsky | 75 Vand. L. Rev. 1093 (2022) | The coexistence of formal and informal law is a hallmark feature of the U.S. tax system. Congress and the Treasury enact formal law, such as statutes and regulations, while the Internal Revenue Service offers the public informal explanations and summaries, such as...

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Authoring Prior Art

May. 18, 2022—Joseph P. Fishman & Kristelia García | 75 Vand. L. Rev. 1159 (2022) | Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is...

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Nondelegation in the States

May. 18, 2022—Benjamin Silver | 75 Vand. L. Rev. 1211 (2022) | American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation....

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High-End Bargaining Problems

Apr. 21, 2022—William W. Clayton | 75 Vand. L. Rev. 703 (2022) | Many important areas of the law place great confidence in the ability of contracting parties to bargain effectively. In this Article, I question the wisdom of a formalistic faith in bargaining by identifying flaws in the bargaining process at the high end of the market,...

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The Ghost of John Hart Ely

Apr. 21, 2022—Ryan D. Doerfler & Samuel Moyn | 75 Vand. L. Rev. 769 (2022) | The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of...

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The Informed Jury

Apr. 21, 2022—Daniel Epps & William Ortman | 75 Vand. L. Rev. 823 (2022) | The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice...

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What Property Does

Apr. 21, 2022—Christopher Serkin | 75 Vand. L. Rev. 891 (2022) | For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of...

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Police Ignorance and (Un)Reasonable Fourth Amendment Exclusion

Mar. 22, 2022—Nadia Banteka | 75 Vand. L. Rev. 365 (2022) | The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it every day to decide Fourth Amendment violations as well as defendants’ motions to suppress evidence obtained through these violations, virtually every aspect of the doctrine is a subject of...

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The Consensus Rule: A New Approach to Scientific Evidence

Mar. 22, 2022—Edward K. Cheng | 75 Vand. L. Rev. 407 (2022) | Founded on good intentions but unrealistic expectations, the dominant Daubert framework for handling expert and scientific evidence should be scrapped. Daubert asks judges and jurors to make substantively expert determinations, a task they are epistemically incompetent to perform as laypersons. As an alternative, this Article...

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The Politics of Deference

Mar. 22, 2022—Gregory A. Elinson & Jonathan S. Gould | 75 Vand. L. Rev. 475 (2022) | Like so much else in our politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which...

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Stress Testing Governance

Mar. 22, 2022—Rory Van Loo | 75 Vand. L. Rev. 553 (2022) | In their efforts to guard against the world’s greatest threats, administrative agencies and businesses have in recent years increasingly used stress tests. Stress tests simulate doomsday scenarios to ensure that the organization is prepared to respond. For example, agencies role-played a deadly pandemic spreading from...

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Duty and Diversity

Jan. 24, 2022—Chris Brummer & Leo E. Strine, Jr. | 75 Vand. L. Rev. 1 (2022) | In the wake of the brutal deaths of George Floyd and Breonna Taylor, lawmakers and corporate boards from Wall Street to the West Coast have introduced a slew of reforms aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet...

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Local Power

Jan. 24, 2022—Alexandra B. Klass & Rebecca Wilton | 75 Vand. L. Rev. 93 (2022) | This Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of...

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Unauthorized and Unwise

Jan. 24, 2022—Robert A. Mikos | 75 Vand. L. Rev. 161 (2022) | For decades, the United States Patent and Trademark Office (“PTO”) has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this “lawful use requirement,” the Agency has refused or even cancelled registration of thousands...

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Preliminary Damages

Jan. 24, 2022—Gideon Parchomovsky & Alex Stein | 75 Vand. L. Rev. 239 (2022) | Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically...

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