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Numerus Clausus No More: A Fundamental Shift in Delaware Corporate Law
No full textThis Essay applies Thomas Merrill and Henry Smith’s theory of numerus clausus—the idea that a limited menu of legal forms reduces transaction costs—to the world of business entities. Historically, investors had a straightforward choice: the decentralized general partnership or the centralized corporation, each with predictable governance and liability rules. Even innovations like the LLC, benefit corporation, and L3C merely expanded the list of standard options, preserving a clear, finite set of organizational forms.
But recent changes in Delaware corporate law have shattered this standardization norm. The addition of Section 122(18) to the Delaware General Corporation Law, combined with increasing reliance on shareholder agreements to constrain board authority, means that investors can no longer rely solely on a corporation’s certificate of incorporation to understand its governance. Instead, they must scour separate filings and investigate bespoke shareholder agreements to uncover hidden restrictions on board discretion. The result: greater complexity, higher search costs, and less certainty about what corporate governance entails.
This shift, away from standardized forms, sacrifices the efficiency that business entity numerus clausus provided. While the market might eventually respond by standardizing shareholder agreements, as it did with venture capital deal documents, the loss of a clearly identifiable, stable corporate form managed by an independent board represents a major and underappreciated shift. Investors, especially in private markets, must now navigate a world where corporate control may be sliced, diced, and obscured in ways that even sophisticated due diligence might miss.
This Essay sounds a warning: customization has its price. Delaware’s embrace of infinite contractual variation in corporate governance—however well-intentioned to serve shareholder flexibility—ultimately imposes new costs on investors and on the market as a whole
Balancing Comity and Sovereignty: The Diplomatic Dance of Antisuit Injunctions Against Foreign Sovereigns
Full text linkWith the advent of globalization, sovereign nations both facilitate and participate in international transactions with public and private entities. As disputes inevitably arise, foreign sovereigns have increasingly found themselves as parties in U.S. courts, and in so doing, have raised fundamental questions as to the extent of a U.S. court’s power over a foreign sovereign.
For almost as long as the United States has been in existence, the doctrines of international comity and foreign sovereign immunity have served as guiding principles for U.S. foreign policy. Additionally, U.S. courts have long exercised their power to issue foreign antisuit injunctions—a vital tool for a court to protect against threats to its jurisdiction. However, where these principles have inevitably clashed and U.S. courts have been asked to enjoin foreign sovereigns from litigating abroad, the courts have reached contradictory conclusions based on insufficient precedent, even though subjecting foreign sovereigns to judicial inconsistencies on uncertain legal grounds threatens U.S. international relations.
This Note argues that categorizing the basis of a domestic court’s jurisdiction over a foreign sovereign as either intrinsic or extrinsic—relative to a concrete U.S. interest—establishes a heightened threshold requirement for courts to enjoin foreign sovereign parties while observing principles of comity and sovereignty. Issuing antisuit injunctions only when a categorical U.S. interest is at stake would lead to more predictable and equitable exercise of domestic jurisdiction over foreign sovereigns, and avoid unnecessarily infringing on the sovereignty of other nations to the detriment of U.S. foreign relations
UN Tax Negotiations: North-South Tensions and the Challenge of Institutional Legitimacy
Full text linkThe drafting process for a United Nations Framework Convention on International Tax Cooperation, along with two early protocols, is now underway. A UN framework convention represents a Global South effort to shift international tax policymaking from the OECD to the UN. For developing countries, the UN has long been viewed as a more inclusive space for tax policy negotiations, producing more favorable but historically less influential standards compared to the OECD.
Support for the UN framework convention, including its terms of reference, has been sharply divided across traditional Global North-South lines. The backlash following the OECD’s recent two-pillar reform triggered the UN initiative, as Global South countries quickly turned to the UN to begin a new chapter in cross-border taxation. Nonetheless, the UN framework convention faces an uphill battle as the Global North and South fundamentally diverge on questions of choice of forum, tax principles, and the desired scope of the convention. The U.S.’s recent withdrawal from the UN negotiation process casts further doubt on the institution’s capacity to achieve universality and compete with the OECD for the informal title of “World Tax Organization.”
This article examines the ongoing UN tax negotiations, focusing on the Global North-South tensions and the historical context of the UN forum shift. It argues that the North-South divide remains a barrier to garnering institutional legitimacy, potentially undermining the framework convention’s viability
You Are What You Eat: Using Trademark Law to Address Consumer Confusion in Food Labeling
Full text linkAmerica is experiencing a health crisis. Our grocery store promulgates illusions of endless food choices; however, this abundance is sustained by only a handful of dominating food conglomerates. With the increased centralization of power in the food supply system, foods have generally become ultra-processed and unhealthier. Companies often use strategic marketing through packaging design, labeling, and food names to capture additional consumers through health claims that often do not reflect these foods\u27 contents. As American citizens\u27 average health continues to decline, large food conglomerates have increasingly pushed the boundaries of what they can claim, creating vast confusion and mislabeling in the marketplace. This Note explores how trademark law in the United States can be modified to better protect consumers against confusion and misleading food labeling practices. The Note analyzes the current legal approach to false advertising claims on food packaging under a trademark regime and considers how other countries approach trademarking health-related food labels
Establishing Criminal Justice Safety Teams: Theoretical Foundations, Practical Implementation, and State Leadership
Full text linkIn hazardous areas, the need for safety measures is self-evident and substantial efforts are dedicated to their implementation. In the criminal justice system, significant hazards exist, notably the wrongful conviction of innocent individuals, but the need for safety mechanisms has not been internalized. One explanation for this oversight is the mistaken belief that the criminal justice system is nearly error-free. Yet, research has consistently demonstrated that wrongful convictions are not uncommon, representing one of the most significant injustices a liberal state can impose on its citizens and residents. Therefore, it is the duty of the state to introduce robust safety measures in criminal law. Advanced safety methodologies must be adopted from other high-risk sectors, such as aviation, transportation, engineering, labor, and medicine. A key approach in these fields is the thorough analysis of accidents and incidents (near-accidents) to derive professional lessons from them. This article introduces the Criminal Justice Safety Team (CJST) model, developed and implemented in Israel, drawing inspiration from the American Sentinel Event Review (SER) model. The article outlines a theoretical framework that combines safety insights from aviation and engineering with research on the criminal justice system. It then presents and analyzes the CJST model, which includes a diverse membership of police investigators, forensic science experts, prosecutors, defense attorneys, academics, and retired judges. The team analyzes real-life incidents, particularly those on the brink of resulting in wrongful convictions. The objective is not to assign blame but to derive lessons and recommend strategies to enhance the safety of the criminal justice system. Building on the legal safety theory introduced in the article and drawing on practical experience in both the US and Israel, the article proposes the establishment of a National Institute for Safety in the Criminal Justice System
Georgia’s Failure to Accommodate Its Disabled Citizens
Full text linkWorkplace discrimination against individuals with disabilities is, unfortunately, not unheard of in modern America. At the federal level, Title I of the Americans with Disabilities Act (the ADA) takes special aim at alleviating workplace disability discrimination. At the state level, most states have adopted statutory regimes heavily influenced by, if not identical to, Title I. Yet a small minority of states, including Georgia, have not.
This Note examines the implications of this decision. First, this Note briefly describes the ADA’s substantive workplace disability discrimination provisions and illustrates how Georgia stands with the distinct minority of states in refusing to adopt these key components of the ADA. Next, this Note explains how a recent Eleventh Circuit decision has made it more difficult for Georgians to receive relief under the ADA, thus showing the need for a more robust state-level disability code. This Note further shows how the policy goals inherent in the text of the Georgia Assembly’s disability discrimination laws imply approval for a stronger code in alignment with the key ADA components not codified in Georgia. Finally, given Georgia’s pro-business image, this Note surveys the economic benefits a stronger disability code would generate as a material incentive to adopt a more modern disability code
Peach State to Global Debate: Election Technology and Voter Faith
Full text linkThe Coffee County voting data breach highlights vulnerabilities in U.S. election technology—prompting a comparison with global voting systems to identify best practices for restoring public trust in democratic processes
Child-Taking Justice and the Federal Indian Boarding School Initiative
No full textThe focus of this article is the 2022–2024 Federal Indian Boarding School Initiative undertaken the U.S. Executive Branch. The article chronicles this three-year process, which included sessions with survivors and their descendants, and which resulted in a two-volume report, in an apology by President Joe Biden, and in designation of a national memorial at one of the most notorious school sites. This article examines the initiative as an example of “child-taking justice”; that is, as a process of what is called “transitional justice”, done in an effort to redress the takings of children from their community, followed by efforts to alter, erase, or remake the children’s identities. The initiative shed glaring light on the past history and present effects of a centuries-old practice by which the United States took Indigenous children from their families and forced them to attend residential schools where they were compelled to submit to Westernized and Christianized notions of “civilization.”
Unfolding within the internal constitutional framework of the United States, the U.S. initiative benefited from meaningful engagement with affected communities. This article nonetheless argues for a framing that also addresses external frameworks; to be specific, one that engages fully with applicable international law and lessons learned elsewhere. The argument runs counter to the United States’ longstanding practice of holding international human rights law at arm’s length, while pressing other countries to conform to that law’s strictures. Efforts of a U.S. human-rights-at-home movement have not reversed that trend. Thus the U.S. initiative made only a hesitant overture to international issues and to three countries, Canada, Australia, and New Zealand, with which it claimed kinship. The 2025 inauguration of a President hostile to rights-based justice pointed to limitations of this approach
