Articles Category
Understanding Causation in Private Securities Lawsuits: Building on Amgen
Nov. 24, 2013—Understanding Causation in Private Securities Lawsuits: Building on Amgen
Duty in the Litigation-Investment Agreement: The Choice Between Tort and Contract Norms when the Deal Breaks Down
Nov. 24, 2013—Duty in the Litigation-Investment Agreement: The Choice Between Tort and Contract Norms when the Deal Breaks Down
How Much Is That Lawsuit in the Window? Pricing Legal Claims
Nov. 24, 2013—How Much Is That Lawsuit in the Window? Pricing Legal Claims
What Should We Do About Multijurisdictional Litigation in M&A Deals?
Nov. 24, 2013—What Should We Do About Multijurisdictional Litigation in M&A Deals?
The Fourth Amendment’s National Security Exception: Its History and Limits
Oct. 29, 2013—The Fourth Amendment’s National Security Exception: Its History and Limits
The Chilling Effect and the Problem of Private Action
Oct. 29, 2013—The Chilling Effect and the Problem of Private Action
General Jurisdiction, “Corporate Separateness,” and the Rule of Law
Sep. 26, 2013—General Jurisdiction, “Corporate Separateness,” and the Rule of Law Burt Neuborne, Inez Milholland Professor of Civil Liberties, New York University School of Law; Legal Director, Brennan Center for Justice
Jurisdictional Imputation in DaimlerChrysler AG v. Bauman
Sep. 26, 2013—Jurisdictional Imputation in DaimlerChrysler AG v. Bauman: A Bridge Too Far Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
The Market for Preclusion in Merger Litigation
May. 23, 2013—The recent finding that corporate litigation involving Delaware companies very often takes place outside of Delaware disturbed the long-settled understanding of how merger litigation works. With many, even most, cases being filed and ultimately resolved outside of Delaware, commentators warn that the trend is a threat to shareholders, to Delaware, and to the integrity of...
Against Proportional Punishment
May. 23, 2013—The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished. Crediting time served conflicts with the commonly held view that punishment should...
Governing the Anticommons in Aggregate Litigation
May. 23, 2013—This Article argues that there is an “anticommons” problem in aggregate litigation. An anticommons occurs when the consent of too many owners is needed to use a resource at its most efficient scale. When many plaintiffs have similar claims against a common defendant, those claims are often worth more if they can be bundled up...
Foreign Affairs Federalism: A Revisionist Approach
Apr. 29, 2013—This Article analyzes how federal courts should resolve disputes implicating both federalism and foreign affairs concerns when no textual source of law provides dispositive direction. This challenge, which arises in what Justice Jackson once called the “zone of twilight,” occurs with surprising frequency. Most recently, it can be discerned in Justices Kennedy’s and Scalia’s dueling...
Resolving the ALJ Quandary
Apr. 29, 2013—Three competing constitutional and practical concerns surround federal administrative law judges (“ALJs”), who preside over all formal adjudications within the executive branch. First, if ALJs are “inferior Officers” (not mere employees), as five current Supreme Court Justices have suggested, the current method of selecting many ALJs likely violates the Appointments Clause. Second, a recent U.S....