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Does Revlon Matter? An Empirical and Theoretical Study

We empirically examine whether and how the doctrine of enhanced judicial scrutiny that emerged from Revlon and its progeny actually affects M&A transactions. Combining hand-coding and machine-learning techniques, we assemble data from the proxy statements of publicly announced mergers between 2003 and 2017 into a dataset of 1,913 unique transactions. Of these, 1,167 transactions were […]

Paper Terrorists: Independence Movements and the Terrorism Bar

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the […]

An Abolitionist Horizon for (Police) Reform

Since the Ferguson and Baltimore uprisings, legal scholarship has undergone a profound reckoning with police violence. The emerging structural account of police violence recognizes that it is routine, legal, takes many shapes, and targets people based on their race, class, and gender. But legal scholarship remains fixated on investing in the police to repair and […]

The Racial Composition of Forensic DNA Databases

Forensic DNA databases have received an inordinate amount of academic and judicial attention. From their inception, numerous scholars, advocates, and judges have wrestled with the proper reach of DNA collection, retention, and search policies. Central to these debates are concerns about racial equity in forensic genetic practices. Yet when such questions arise, critics typically just […]

Constitution by Convention

We are told that we live in the era of textualism. Inspired by the commanding presence of Justice Antonin Scalia, many accounts of American constitutional law focus on, and stress the preeminence of, the written word. On this view, the contractual sense of the constitution as a defined pact means that the intentionality of the original […]

Conventions in the Trenches

In this Essay, I identify several shifts in focus that might further illuminate the intersection of constitutional conventions and judicial review: first, attending to the role of internal executive-branch conventions, which are distinct in important ways from settlements between the political branches that are Issacharoff and Morrison’s primary focus; second, widening the lens to include […]

Against Constitution by Convention

The Constitution emerged from a convention—a convention of the states. State popular conventions, by ratifying it, made it law. Though it was meant to “form a more perfect union,” no one could have supposed the Philadelphia Convention’s proposal was anything close to perfect. Indeed, the Constitution’s terms refute any blithe confidence in its flawlessness. Article […]

“Institutional Settlement” in a Provisional Constitutional Order

I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the provisionality of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems […]

The Long Road to Hyatt III: What Happened to Full Faith and Credit?

In Franchise Tax Board v. Hyatt (Hyatt III), the Supreme Court overruled forty-year-old precedent that allowed a citizen to sue a state in another state’s courts.[1] The Court’s 5-4 decision creates another barrier for plaintiffs who seek to hold states accountable. Hyatt III expands the doctrine of sovereign immunity to provide states additional protection against […]

Health, Law, And Ethnicity: The Disability Administrative Law Judge And Health Disparities For Disadvantaged Populations

Social determinants play into who gets to die prematurely while others get to have healthy productive lives—these are loosely called health disparities. Health disparities are typically understood socially, economically, and politically, but rarely analyzed within the legal system. The Social Security Administration (SSA)—the federal program for providing Americans with disabilities benefits and resources—recorded that in […]

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Now is the Time to Repeal the Global Gag Rule, Once and for All

The United States, through its international development agency USAID, is the largest donor in international family planning in the world, with an annual programmatic budget exceeding $600 million.[1] However, since 1984, USAID’s funding for essential reproductive and sexual health services has come with strings attached in the form of the Global Gag Rule. At its […]

Due Discretion: On the Need for Multidistrict Litigation Transferee Judge Discretion in Interpreting the Federal Rules of Civil Procedure

With multidistrict litigation, innovation is the name of the game. Congress recognized and addressed this crux when, in the face of the soon-to-be crumbling federal judiciary caused by an exponentially increasing federal docket, it passed the Multidistrict Litigation (MDL) Statute, codified at 23 U.S.C. § 1407. The MDL Statute authorizes the consolidation and coordination of […]

If a Lone Pine Falls in the Sixth Circuit And No One Hears it, Does it Make a Sound?

Multidistrict litigation (MDL) has been described both as a “just and efficient” method of consolidating lawsuits and a judicial hell-hole akin to “the third level of Dante’s inferno.” While its normative value likely falls somewhere in the middle, it is no secret that multidistrict litigation involves “unorthodox” civil procedure. Judges attempting to wrangle the “Wild […]

The Corporate Commonwealth: Reconceiving Our Metaphors for Business in Society

MarketWatch made a startling error when it reported last year that Amazon’s Climate Pledge, created as a corporate commitment to carbon neutrality, had secured signatories like Microsoft and Unilever. Amazon’s Climate Pledge is measured against (and competes with) the timeline of the Paris Climate Agreement, a treaty from which the United States notably began its […]

Are Secret Juries Bad for Black People?

The Dalai Lama said that “a lack of transparency results in distrust and a deep sense of insecurity.” If that’s right, Black people should have immense distrust in our jury system and should feel insecure in the notion that it can deliver justice. Transparency is a necessary cornerstone of a well-functioning democracy. In the words […]

Reasonably Outrageous? Tort Standards for a Polarized Body Politic

Despite the grave injuries suffered by individuals during the Capitol Hill riot, the context in which the riot originated may actually render IIED an inviable cause of action under extant case law. Against the backdrop of weeks—if not years—of polemic political discourse and alt-right protests, was the violence of January 6th actually outrageous? It certainly wasn’t unexpected, at least to those who had been paying attention. […]

The Pitfalls of Food and Nutrition Block Grants

Block grants can provide states with flexibility over SNAP requirements. However, keeping SNAP as an entitlement program will better provide benefits to individuals in need. Instead of reviving politically contentious debates each time Congress discusses SNAP block grants’ budget, Congress should maintain SNAP’s current entitlement program to better to prioritize anti-hunger goals. […]

Class as Protected

The impact of slipping into poverty is all-encompassing; I mean that in the way that poverty will impact every step and crevice of your financial health, physical health, and mental health for the rest of your life. So why aren’t there more legal protections for poor Americans? As it stands, socioeconomic status is not a protected class under anti-discrimination laws. But it should be—and here’s why. […]