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Articles
Cause for Concern: Causation and Federal Securities Fraud
The Supreme Court's decisión in Dura Pharmaceuticals dramatically changed federal securities fraud litigation. The Dura decision itself said little, but counseled lower courts to fashion new requirements of causation and harm modeled upon common law tort principles. These instructions have led lower courts to craft a series of confusing and inconsistent decisions that incorporate little of the reasoning upon which the common law principles are based. This Article accepts the Dura challenge a...
Twombly, Pleading Rules, and the Regulation of Court Access
In Bell Atlantic Corp. v. Twombly, the Supreme Court reconsidered Conley v. Gibson 's very liberal notice pleading standard and held that the plaintiff must allege enough to support a plausibility of wrongdoing. This Article considers the Twombly decision within the broader framework of court access regulation and sketches a normative roadmap for designing optimal pleading and merits-based case-screening rules. The Article begins with an analysis of Twombly itself. It argues, contrary to much...
Values and Value Creation in Public-Private Transactions
Scholars have developed a significant body ofliterature exploring the work of deal lawyers with the essential insight that attorneys acting as transaction-cost engineers have unique potential to add to the overall value of deals. This value-creation literature has traditionally made two foundational assumptions about the role of the state in transactional law. First, scholars have assumed that regulation is essentially irrelevant to transacting-that from the deal lawyer's perspective, the gov...
Green Is Good: Sustainability, Profitability, and a New Paradigm for Corporate Governance
This Article relates the concept of sustainability-that society must meet its present needs without infringing on future generations' ability to do the same-to corporate governance and seeks to reconcile any confias between the two. The largest of these conflicts is the commonly held view that companies must strive to maximize shareholderwealth and thus affirmatively neglect all other constituencies and considerations. The Article debunks this myth, both as a matter of law and as a function o...
Notes
A Newsworthiness Privilege for Republished Defamation of Public Figures
When the media knowingly republish defamation of public figures, the media are subject to possible libel actions by the defamed parties to the same extent as the original defamingparties, even when the defamatory statements are themselves newsworthy in context. This is the dilemma created by the Supreme Court's decision in New York Times Co. v. Sullivan, in which the Court went to great lengths to protect the media 's ability to report the news-even news that is false-so long as the republica...
In May of 2007, the National Labor Relations Board ("NLRB" or "Board") radically changed remedies for union salting in the case Oil Capítol Sheet Metal, Inc. In the case, the Board determined that salts, rather than discriminating businesses, must prove what qualified as an adequate remedy for the business 's violation of labor law. This ruling also created a special exception from the general presumption that an employee would stay at a job indefinitely and thus would deserve backpay from th...
In the last twenty years, mandatory binding arbitration has become ubiquitous in consumer contracts. The rise of mandatory binding arbitration represents a deliberate strategy on the part of businesses. The widespread adoption of mandatory binding arbitration in the consumer context has significant negative consequences for consumers and society. However, the Supreme Court's interpretation of the Federal Arbitration Act has, in essence, limited effective policy options for addressing mandator...
The growing effects of climate change and global warming créate a need for protection of environmentally displaced persons. While governments could use current international and domestic definitions of refugee to protect environmentally displaced persons, it is unlikely that any government will do so. Even if governments did extend existing refugee and asylum laws to include environmentally displaced persons, it would provide insufficient protection. In addition, it would consume judicial res...
