The anticircumvention provisions of the Digital Millennium Copyright Act penalize both the circumvention of technical protection measures, and supplying the means for such circumvention. These prohibitions are entirely separate from the exclusive rights under copyright, causing some commentators to dub the anticircumvention right as "paracopyright." Such paracopyright effectively grants copyright...
Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus"
Lawmaking by direct democracy, whereby the public votes directly on initiatives and referenda, is an increasingly popular and frequent feature of American politics. But critics of direct democracy point out that voters do not know basic facts about ballot measures, seem confused about the issues, and appear unduly influenced by superficial advertising. I argue that the source of voter confusion...
Directors' Duties to Creditors: Power Imbalance and the Financially Distressed Corporation
This Article questions the widely held view that the fiduciary duties that corporate directors ordinarily owe to or for the benefit of shareholders should "shift" to creditors when the corporation is in financial distress. This view suffers from two important flaws. First, it mistakenly assumes a strong connection between duty and priority in right of payment. Thus, the thinking goes, as the...
Of Windfalls and Property Rights: Palazzolo and the Regulatory Takings Notice Debate
Claims for government compensation due to regulatory takings usually hinge on the reasonable investment-backed expectations of the claimant. The 2001 U.S. Supreme Court decision Palazzolo v. Rhode Island eliminated notice of existing regulations as a bar to such a takings claim. Left undecided was the extent to which notice affects the claimant's reasonable investment-backed expectations. In this...
Is the ADA Efficient?
The Americans with Disabilities Act (ADA) is a significant legal intervention designed to improve outcomes for people with disabilities. An informal model of worker-firm matching provides the organizing framework for this Article to explore the economic effects of disability discrimination law in the workplace. The framework shows how the presence of individuals with disabilities in the labor...
Locking up the Marketplace of Ideas and Locking out School Reform: Courts' Imprudent Treatment of Controversial Teaching in America's Public Schools
Courts have recognized two primary, oft-conflicting interests in teacher speech cases: (1) a societal interest in exposing students to a robust exchange of ideas, usually promoted by protecting teachers' academic freedom, and (2) a broad and unspecified, but not unconstrained, state interest in value inculcation, usually promoted by limiting teachers' academic freedom. In this Article, Professor...
Reimagining the Eleventh Amendment
Under current law, the Eleventh Amendment exemplifies, rather than fully expresses, a principle of immunity that shields unconsenting states from suit in federal court, although this immunity is functionally constrained to a degree by a limited power of congressional abrogation, Ex parte Young, and suits under 42 U.S.C. § 1983. This Comment suggests that the "fundamental postulates" underlying...
Dealing with Cryopreserved Embryos upon Divorce: A Contractual Approach Aimed at Preserving Party Expectations
The development of assisted reproductive technologies, including cryopreservation, or freezing, of embryos created through in vitro fertilization, has given rise to complex legal questions. Because cryopreservation permits indefinite storage of embryos, if couples fail to specify disposition directions, they may disagree regarding embryo treatment upon the occurrence of contingencies such as...