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Standing Up to the Treasury: Applying the Procedural Standing Analysis to Post-Mayo, Pre-Enforcement APA Treasury Challenges, by Casey N. Epstein here.
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Symposium Foreword: Glass Ceilings, Glass Walls: Intersections in Legal Gender Equality and Voting Rights One Hundred Years After the Nineteenth Amendment, by Jessica Szuminski here.
Get PDFThe Corrosion Critique of Benefit Corporations
Get PDFThis Article evaluates what it labels the corrosion critique of benefit corporation statutes. These statutes have emerged as the leading new statutory alternative to enable and encourage social enterprises, businesses which seek both to generate financial returns for their investors while also pursuing social missions. Some persons who strongly support social enterprises have criticized benefit corporation statutes, arguing that they create a mistaken impression that companies organized under ordinary corporation statutes cannot consider the interests of non-shareholder stakeholders except insofar as doing so benefits shareholders in the long run. This corrosive effect on the understanding of most corporations may impede the adoption of socially responsible behavior.The Article distinguishes three conceptions of the legal purpose of corporations and whose interests officers and directors should consider: shareholder-only, stakeholder-optional, and stakeholder mandatory. It also identifies two leading justifications of benefit corporation statutes. The enabling justification asserts that corporate law constrains the ability of directors and officers to consider the interests of stakeholders other than shareholders because it imposes the shareholder-only conception of corporate purpose. The branding justification asserts that benefit corporations help companies attract investors, customers, and employees by giving them a way to credibly commit to considering the interests of other stakeholders through adopting the stakeholder-mandatory conception.Having established these categorizations, the Article offers a mixed verdict as to the validity of the corrosion critique. The critique does not apply to the branding justification. For the enabling justification, the critique is mostly valid in states with corporate constituency statutes, since such states have adopted the stakeholder-optional conception for ordinary corporations, and thus it is false to imply (as the enabling justification does) that ordinary corporations are constrained in considering the interests of various stakeholders. The corrosion critique does not, however, apply in Delaware and probably other non-constituency statute states, which have adopted the shareholder-only conception for ordinary corporations. The Article concludes that advocates of benefit corporations should stop using the enabling justification, which is subject to the corrosion critique in over half of all states (those with constituency statutes), and which justification is weak on other grounds as well. Focusing on the branding justification will direct transactional lawyers and businesses to the right reasons for considering becoming a benefit corporation, and will focus policymakers and scholars on the right questions to ask in evaluating the usefulness of benefit corporation statutes
Making the Best Better: Transferring Best Interests Determinations to Tribes as a Solution to the Ongoing Post-colonial Indigenous Child Welfare Crisis
Get PDFBoilerplate Collusion: Clause Aggregation, Antitrust Law, & Contract Governance
Get PDFContract clauses should be assessed in relation to each other when examining their meaning, validity, and enforcement. In contemporary markets, drafters create impenetrable bundles of clauses and sets of interrelated contracts operating together. This Article exposes the ways that a contract is larger than the sum of its separate clauses and a set of interrelated contracts is more harmful than the aggregation of each contract on its own. The Article further shows that contract adjudication embeds these insights intuitively, but both contract law and antitrust law have yet to develop a principled and consistent analysis of how contract clauses collude in action. These understandings have implications for nearly every contract doctrine and in every policy field. Recognizing how contractual clauses produce a different effect than a simple summation of each clause enriches regulatory fields ranging from employment law to consumer law, insurance law to intellectual property law, and speech law to arbitration law. This Article analyzes several key contexts to demonstrate the significance of aggregation: contract clauses that substantively restrict rights such as speech and mobility and clauses that procedurally restrict rights and access to litigation, including predispute arbitration clauses and class action waivers. I argue that courts have instinctively employed notions of aggregation in their decisions, albeit without consistent analysis and without the wealth of contemporary behavioral research on the psychological effects of aggregation. The Article is the first to analyze how behavioral studies on the human tendency to judge probabilities and risks differently when events are compiled versus unpacked are critical to understanding the effects generated by boilerplate collusion. The Article concludes with policy implications for both contract interpretation and regulation. I argue that recognizing aggregation supports reforms in adjudicative defaults, including the rejection of reformation and blue-penciling and the treatment of redundancy as a feature, not a bug, in contract adjudication. Second, a better understanding of the phenomenon of boilerplate collusion points to the need for a more proactive approach to contract policy. As contract thickets abound, antitrust law must reject its sharp divides between vertical and horizontal constraints; and agencies, including the Federal Trade Commission, the Equal Employment Opportunity Commission, and the United States Department of Labor, should use their regulatory powers to address the harms of boilerplate collusion
Changing the Student Loan Dischargeability Framework: How the Department of Education Can Ease the Path for Borrowers in Bankruptcy
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