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A History of Corporate Law Federalism in the Twentieth Century
No full textThis Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an artifact of history rather than an instantiation or reflection of a theory of government; (3) competition for charters at the state level resulted in a stable, as opposed to a volatile legal regime; (4) just as economic contractions lead to new regulatory constraints on the conduct of business, so do economic expansions lead to increased regulatory slack; (5) even though regulation on the ground never fully adhered to the subject matter division, the division became increasingly salient over time, taking on positive normative implications; and (6) federal lawmakers came to adhere to a norm of noninterference in state regulation of internal affairs
Alsaede v. Elkount
No full textIn this owner\u27s use holdover proceeding against a rent-stabilized tenant, the court granted the tenant\u27s motion for a directed verdict dismissing the petition. The court found the predicate notice defective under the principles of Siegel v. Kentucky Fried Chicken, as the petitioner Nabeel Alsaede, who claimed to be an owner seeking the apartment for personal use, was entirely unknown to the tenant. The notice provided no indication of Alsaede\u27s relationship to the premises or management company that signed the tenant\u27s lease. As such, the tenant could not act upon the notice with safety in knowing it emanated from someone with authority to terminate the tenancy. While not determining if Alsaede could maintain the proceeding as an owner, the defective notice alone required dismissal
Matter of Bergen Realty & Mgt., LLC v. New York State Div. of Hous. & Community Renewal
No full textPetitioner challenged a decision by the New York State Division of Housing and Community Renewal (DHCR) to issue an order reopening a case solely to correct the owner\u27s name and address. Petitioner contended that DHCR acted arbitrarily and deprived it of due process rights by failing to notify of the reopening and provide an opportunity to respond. However, the court found that DHCR\u27s action was within its authority as a ministerial act to correct administrative errors. Despite the petitioner\u27s arguments, the court determined that DHCR\u27s decision had a rational basis and dismissed the petition
Wynn v. The Associated Press, 140 Nev. Adv. Op. 6 (Feb. 8, 2024)
No full textFor the first time, the Nevada Supreme Court directly discussed a plaintiff’s burden of proof, under the second prong of NRS 41.660(3). Specifically, the Court held that the second prong’s burden on the plaintiff to produce prima facie evidence of a probability of prevailing on the respective public figure defamation claim was only met if the plaintiff proffers evidence sufficient for a jury to find, by clear and convincing evidence, in favor of the plaintiff on the actual malice element. A failure by the plaintiff to meet the clear and convincing standard requires the court to dismiss a public figure defamation claim pursuant to NRS 41.650 and NRS 41.660(1)(a), as to limit the chilling effect of civil litigation on First Amendment free speech
Charging Abortion
No full textAs long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.
Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases in which abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of antiabortion law are constitutionally suspect and are unlikely to further the public interest. Abortion is one of the most contentious issues in American life. In a morally pluralistic society, prosecutors must strive for neutrality in the abortion wars by relying on professional standards to guide their charging discretion rather than following public opinion and the dictates of individual conscience
Ending Exemption 5 Expansion: Toward a Narrower Interpretation of FOIA’s Exemption for Inter- and Intra-agency Memorandums
No full textThe Freedom of Information Act (FOIA) creates a judicially enforceable right to access almost any record that a federal agency creates or obtains. Its crafters aimed to strike a careful balance in promoting disclosure of government records to increase transparency while still protecting the confidentiality of certain information. Although any person can request an agency record, FOIA’s nine exemptions allow agencies to withhold records if certain conditions are met. 5 U.S.C. § 552(b)(5) permits agencies to withhold “inter-agency or intra-agency memorandums or letters” that would normally be privileged in civil discovery. Through this exemption, Congress sought to prevent FOIA from circumventing discovery and to protect the quality of agency decisions by keeping internal policy discussions confidential. Much of Exemption 5’s precedent has focused on the privileges that it incorporates. But, as the U.S. Supreme Court held in U.S. Department of the Interior v. Klamath Water Users Protective Ass’n, to be properly withheld, a record must still meet the independent, “threshold” requirement of being inter- or intra-agency.
Although FOIA defines “agency,” it does not define what records are “inter-agency or intra-agency,” causing diverging interpretations in lower courts. This Note examines that precedent and advocates for a narrower interpretation of inter- or intra-agency than most circuits have adopted. Instead of allowing communications and records from outside consultants or private litigants shared with agencies to qualify for Exemption 5 via judicially created tests, this Note argues that FOIA’s text and purpose are better served by generally limiting the exemption to the Executive Branch. Such a result accords with recent Supreme Court FOIA precedent and the existing regime of administrative transparency laws overseeing outside influence on federal agencies
Against Bankruptcy: Public Litigation Values versus the Endless Quest for Global Peace in Mass Litigation
No full textCan bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find the “behemoth” litigation system unable to bring mass disputes to a close, when they charge multidistrict litigation as a “failure,” and when defendants contend that sprawling lawsuits across national courts have thrown them into unresolvable crisis that only bankruptcy can solve. The case is just one of many recent examples of extraordinarily unorthodox and creative civil procedure maneuvers—in both the bankruptcy and district courts—that push cases further away from the federal rules and the trial paradigm in the name of settlement. Unlike ordinary state and federal trial courts, bankruptcy courts don’t generally lay blame for millions of deaths; they efficiently distribute resources. Petitioners in bankruptcy aren’t called “victims” or “plaintiffs”; they are “creditors” with limited voting rights over the distribution of an estate. Bankruptcy courts don’t develop state tort doctrines. They don’t engage in broad discovery designed to reveal accountability and spur policy reform. They rarely utilize juries or hear testimony from tort victims anxious to have their day in court; instead, testimony tends to focus on the debtor’s financial health. Yet diverse defendants—many of whom, notably, are not even in financial distress—from Catholic Diocese and Boy Scout abuse cases, to Johnson & Johnson talc, 3M’s earplugs, Revlon hair straighteners, and many more, have now looked to the bankruptcy court to use its inherent authority to invent new forms of procedure to find a path to global peace. Bankruptcy courts are attractive in part because they possess some powers that, ironically, state and Article III federal courts do not—they are the only American courts that can overcome federalism’s jurisdictional boundaries; they are only courts with the power to commandeer both state and federal litigants into a single forum and halt all other civil litigation no matter what court it is in. They also have stretched their own equitable powers to allow innovative corporate maneuvers, as in Purdue, that cabin liability and preclude future litigation even for entities not in financial trouble. But bankruptcy court is not supposed to be a superpower of a court that trumps all others in public litigation; it is instead, an Article I court designed for efficient, private resolution of claims, centered on capturing private value for private actors–not the elaboration and development of law and public norms.There is a long history of creative procedures in service of global settlement. As each fails to deliver what parties want, attorneys innovate anew. If the sole goal is money, perhaps bankruptcy is an answer. But money is often one of only several goals in litigation. From discovery and limited trials in opioids and tobacco, for example, evidence about the manufacturers’ behavior emerged that not only made companies accountable, but also helped spur legislative policy change. Such evidence likely never would have come to light in a bankruptcy proceeding. There’s a reason that when Purdue filed for bankruptcy, victims of the opioid crisis cried that the company was avoiding “punishment.” Victims of the Catholic Diocese have recently charged that the Diocese’s chapter 11 filing deprived them their chance to tell their story and hold wrongdoers to account. Forty years ago, in Against Settlement, Owen Fiss famously that civil lawsuits should be understood in light of the public good they serve, rather than the mere private ends of private dispute resolution and money changing hands. Unorthodox bankruptcies are just the latest chapter in a decades-long saga of unorthodox civil procedure development in the name of global peace—one that has largely escaped appellate review until now
The Author-Ity of AI: Navigating the Legal Landscape of Artificial Intelligence Authorship
No full textThis Article discusses the problems that arise when trying to protect works that involve generative AI. It will detail how authorship currently is interpreted under U.S. law and how the courts and the U.S. Copyright Office interpret the authorship requirement. This Article will also present some practical tips on how to navigate current U.S. law and obtain a copyright registration
Four Futures of Chevron Deference
No full textIn two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s policymaking utility over the long haul, given certain institutional constraints that the Supreme Court justices must operate under. The model produces four possible futures of Chevron deference, with each possible future’s probability depending on how certain the Court is about the future allyship or opposition of the executive branch.The essay unfolds as follows. Part I provides a brief political history of Chevron deference. Recent work in this vein has helped us to appreciate much better that the rise and decline of Chevron deference was politically contingent. Part II builds on this insight, formalizing a simple model thatcan tell us under what political conditions something like Chevron deference is likely to arise, as well as when it is likely to fade or disappear completely. The model I offer differs from other accounts that proclaim Chevron’s “inevitability” in its parsimonious focus on political circumstance andpreference maximization, as well as in its forthright acknowledgment that Chevron may very well not be inevitable in any given moment if the right political circumstances for its erosion exist. Part III then engages with political science literature to argue that, while political conditions do not favor Chevron deference currently, in the long run they are almost certain to. Indeed, I will argue that regime theory teaches us that the conditions favoring Chevron deference are a natural default for our political system. Thus, if the model bears any relationship to the reality of what is really driving the Court’s construction of deference doctrines, we likely have not seen the last of Chevron deference
