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Ten Commandments Cases: Learning from Reformation Coercion
No full textThe Supreme Court’s recent embrace of “historical practices and understandings” in interpreting the Establishment Clause has emboldened states to challenge forty-five years of precedent prohibiting Ten Commandments displays in public schools. Yet, these states advance a version of history that mistakenly ignores European religious persecution that shaped how the Founders understood the establishment of religion. This Essay remedies that error through a novel historical analogy: sixteenth-century Catholic processions that forced Protestants to choose between betraying their conscience or marking themselves for persecution. Like modern students confronting state-mandated religious texts, Reformation-era dissenters faced orchestrated tests of faith designed to identify and marginalize religious minorities. By recovering this history, this Essay demonstrates that classroom religious displays violate not just modern sensibilities but an historical understanding of religious freedom that refugees carried to American shores
Designing Contract Modification
No full textFor long-term commercial contracts, modification tends to be the norm rather than the exception. While modification often takes place in response to an arrival of new information, contracting parties frequently modify the terms in response to a shift in bargaining power. In this Article, we explain how the flexibility to renegotiate in response to a shift in bargaining power can facilitate long-term contracting and thereby beneficial reliance investments and risk allocation. The prospect of modification can induce contracting parties who expect their bargaining power to improve, such as from the emergence of outside opportunities, to enter into contracts earlier and realize the advantages of longer-term relationships. Otherwise, those parties might decline to contract or delay until those opportunities realize, thereby forgoing the benefits of long-term risk allocation or reliance investments. These parties’ private incentives to either forgo or delay a contractual relationship diverge from the joint interest in maximizing the contracting surplus. In examining this phenomenon, we address an important decision variable in the contract life cycle: The parties decide not only whether, but also when, to make legally binding commitments to each other. This timing question is, not surprisingly, a function of the path of information revelation and should be incorporated into the efficient balancing of commitment and flexibility in a transactional life cycle.
From the contract doctrine perspective, this Article argues that courts should be more lenient than they currently are in enforcing contract modifications that, prompted by a shift in bargaining power, may have only a redistributive effect. At the same time, the parties and courts should continue to be mindful that modifications can undermine the contracting objectives of protecting reliance investments and risk allocation. To pursue the balance between transactional efficiency and ex ante investment or risk allocation efficiency, we demonstrate how the parties can design under compensatory damages that would provide a credible threat of breach ex post to facilitate ex post modification. At the same time, a complementary mechanism of requiring good faith in modification (along with damages) can constrain possible holdup and protect reliance investments and risk allocation. This explains why long-term commercial contracts often contain under compensatory damages while requiring good faith in modification
Standard Textualism
No full textFor as long as legal scholars have been writing about the rules-versus-standards distinction, textualism has been understood to produce characteristically rule-like law. This Article argues for the opposite view. Far from generating the “law of rules” that Scalia famously envisioned, the rule of modern textualism produces a law of standards—much more so than anybody, proponent of textualism or critic, appears to have recognized.
Two aspects of today’s textualism produce this result. The first is its emphasis on ordinary language and communication. Modern textualism typically produces standards because ordinary language and communication are typically standard-like. The second is modern textualism’s drive to resolve as many cases as possible using only the text’s clear communicative content. In close cases, the search for something both case-dispositive and “clearly” communicated by the text leads to minimalist, fact-bound, standard-like interpretations.
This Article reviews every divided statutory interpretation decision from the Supreme Court’s 2020, 2021, and 2022 terms. The cases in the dataset rarely pose the kinds of conflict that decades of statutory interpretation literature might lead one to expect. Instead of pitting text-based, rule-producing interpretations against purpose-based, standard-producing ones, today’s split decisions typically concern the interpretation of standard-like statutory text; the more strictly text-based the interpretation, the more standard-like the resulting legal content.
That’s not to say that the Court’s self-proclaimed textualists abide by their theory in practice. Every member of the Court, textualist or not, routinely substitutes justice-made rules for legislature-made standards. But modern textualism is uniquely incapable of justifying that practice, let alone guiding or constraining those engaging in it. Modern textualism was not made for judicial rule creation, and it shows.
After criticizing textualist practice on this score, this Article argues that “standard textualism” (i.e., modern textualism, understood in light of its tendency to produce standards) may turn out to be a surprisingly attractive prescriptive theory of interpretation for traditional textualists and modern progressives alike. Granted, modern textualism might be no more constraining than its alternatives when it comes to determining who wins and who loses in a given case. But by limiting the justices’ freedom to create rules that will replace statutory standards going forward, the method forecloses what is often the more consequential, if less frequently discussed, exercise of discretionary power on today’s Court
Sustainable Mobility in International, European and National Law: A Perspective from Europe
No full textThis Article develops a European perspective on sustainable mobility, a concept still underexamined in legal scholarship, and argues that meeting today’s mobility needs while preserving ecological foundations for future generations will not occur without deliberate regulatory intervention. After clarifying the evolution of the core concepts of sustainability, mobility, and sustainable mobility, the Article shows how international, European, and Austrian law have progressively incorporated sustainability goals in the transport sector. It then proposes a taxonomy of financial incentives–from subsidies and tax breaks to behavioral nudges—and evaluates their effectiveness, emphasizing the need for flexible, context-specific regulatory instruments. Applying these insights to self-driving cars, the Article demonstrates that technological innovation alone cannot deliver sustainable mobility and that proactive, sustainability-oriented regulation remains essential. The Article concludes with several proposals for reform aimed at steering technological and behavioral change toward a genuinely sustainable mobility system
The Non-Binding Bind: Reframing Precatory Stockholder Proposals Under Delaware Law
No full textRule 14a-8 under the Securities Exchange Act of 1934 allows stockholders to submit proposals for inclusion in a company’s proxy materials. The rule assumes that Delaware law provides stockholders with the right to submit non-binding proposals for stockholder approval. But as many have observed, this assumption lacks a firm basis in state law, particularly in Delaware. If such a right exists, a stockholder conducting its own proxy solicitation could submit numerous precatory proposals, including those advancing narrow or special interests. This article concludes that, under Delaware law, stockholders do not have an inherent right to submit precatory proposals. Accordingly, a corporation may adopt bylaws to provide for, and regulate, the submission of such proposals. Although others have advocated for regulating precatory proposals through private ordering, they have generally done so on the assumption that stockholders possess a baseline right to submit them. That assumption creates uncertainty: if such a right exists, it is unclear how far a bylaw may go in restricting or conditioning its exercise.
This article examines the potential sources of an inherent precatory proposal right—specifically, the Delaware General Corporation Law and case law on fundamental and subsidiary stockholder rights—and concludes that Delaware law does not provide such a right. That conclusion supports broad flexibility to adopt bylaws governing precatory proposals. Such a bylaw would be meaningful to Delaware corporations, regardless of whether it applies only to stockholders soliciting their own proxies or also to Rule 14a-8 proponents, to the extent the Securities and Exchange Commission permits augmenting Rule 14a-8 by bylaw
Navigating the EU’s Corporate Sustainability Due Diligence Directive: Strategic Implications for US Companies
No full textThe European Union’s (“EU”) Corporate Sustainability Due Diligence Directive (“CSDDD” or the “Directive”) introduces new human rights and environmental obligations that reshape global corporate governance. This paper explores its impact on US companies, with a particular focus on compliance strategies under both direct and indirect applicability. It contrasts tactical compliance, which emphasizes risk mitigation while meeting minimum legal requirements, against strategic compliance, where companies use sustainability to gain a competitive edge in the market.
This paper highlights how varying enforcement levels across EU Member States may incentivize companies to “forum shop” or choose jurisdictions with more relaxed enforcement. It also explores the concept of “loyalty” in compliance, with companies adopting either minimal or substantive strategies based on enforcement dynamics.
This paper concludes with the argument that US companies adopting a strategic compliance approach are better positioned to lead in global sustainability, build stakeholder trust, and drive innovation
Conspiracy and Social Movements
No full textConspiracy prosecutions of social movements are on the rise. From anti-“Cop City” protesters in Atlanta to pro-Palestinian protesters in California, prosecutors are increasingly wielding conspiracy law to suppress social movements. This development is troubling. Social movements have long served as vital engines of democratic self-governance; they crystallize issues, foster public discourse, and mobilize citizens. Yet conspiracy law endangers these movements— and thus democracy—by targeting what makes them work: public expression and social ties between activists.
This Article makes three significant contributions to our understanding of this threat. First, it demonstrates that a charge of conspiracy requires remarkably little—just the appearance of concerted action and an opportunity to create or join a joint scheme. This loose definition of the conspiratorial agreement enables prosecutors to criminalize mere proximity to protest activity and mere sympathy with a movement’s aims. Second, this Article explains why contemporary social movements are especially vulnerable to conspiracy charges. Like their historical counterparts, contemporary movements fundamentally depend on strong social ties between activists. But unlike their predecessors, which built capacity slowly and methodically, today’s movements can use social media to quickly mobilize on a large scale without first building internal competencies. Today’s social movements also generate more public expression than ever before. Conspiracy law weaponizes these dynamics, targeting the strong social ties that sustain these already fragile movements while twisting activists’ public expressions into evidence of criminal intent. Third, drawing on several recent case studies, this Article demonstrates how conspiracy prosecutions exploit these vulnerabilities and undermine entire movements by chilling participation and eroding trust between activists.
Existing doctrinal safeguards fail to protect contemporary social movements from these dangers. Accordingly, this Article advocates a bold solution: effectively abolishing conspiracy charges for social movement conduct by removing certain predicate offenses from the scope of conspiracy. This reform would help preserve the vital role of social movements in American democracy without unduly sacrificing public order
Front Matter
No full textFront matter for Volume 15, Issue 1 of Michigan Business & Entrepreneurial Law Revie
Institutionalized Ostracism
Full text linkBelonging is a fundamental need, like food or water. Hundreds of social psychology studies find that people who are ostracized (excluded, rejected, or ignored) experience severe pain and suffering. Ostracism threatens basic needs, triggers the same neurocognitive processing system as physical pain, and impairs functioning. Furthermore, ostracized people may cope in ways that beget “deviant” labeling and further ostracism.
Belonging and ostracism are prevalent themes in social psychology research, but these constructs have received relatively little attention in law. This Article begins to explore the implications of this research for law. I make three contributions: First, I name and describe the phenomenon of “institutionalized ostracism”: When government institutions ostracize people in ways that threaten their sense of belonging. This institutionalized ostracism is mostly lawful under current anti-discrimination law. Second, I draw from social psychology literature to explain why institutionalized ostracism is so harmful—in some ways comparable to physical violence. Third, I identify and critique several ways in which current jurisprudence supports and facilitates institutionalized ostracism. In discussing these, I make some preliminary suggestions as to how our jurisprudence ought to attend to the harm of ostracism