In private mergers and acquisitions deals, parties enter into non-binding preliminary agreements, such as term sheets and letters of intent. These agreements are not contracts—rather, they are signposts for when enough momentum has accumulated that a deal is likely to go forward. Using interviews with deal lawyers, this article provides a rich and layered account of how sophisticated parties use...
Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery
This article presents the first comprehensive treatment of the basic and officially “open” question whether Section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. Members of the Thirty-Ninth Congress agreed that Section 1 banned at least some of the badges and incidents; they parted company over which ones. The article argues for embracing the Republican broad...
Prohibiting Guns at Public Demonstrations: Debunking First and Second Amendment Myths After Charlottesville
Prompted by the violent events at the August 2017 white supremacist protest in Charlottesville, Virginia, this article argues that state and local officials have significant latitude to enact and enforce laws that restrict the intimidating display of firearms at public demonstrations and protect people’s rights to speak freely and to peaceably assemble.
The Applicability of the Federal Rules of Evidence at Class Certification
In Wal-Mart Stores, Inc. v. Dukes, the U.S. Supreme Court made clear that class certification requires evidentiary proof of prerequisites required by Rule 23 of the Federal Rules of Civil Procedure. Yet the Court has not clarified whether the evidence offered must be admissible. This Comment addresses the split of lower courts on the issue and argues that the Federal Rules of Evidence need not...
How To Lose A Constitutional Democracy
Is the United States at risk of democratic backsliding? And would the Constitution prevent such decay? To many, the 2016 election campaign and the conduct of President Donald Trump may be the immediate catalyst for these questions. But structural changes to the socio-economic environment and geopolitical shifts are what make the question a truly pressing one. This article develops a taxonomy of...
Standing, Litigable Interests, and Article III’s Case-or-Controversy Requirement
The U.S. Supreme Court has based requirements of standing and party adverseness on the “case-or-controversy” language of Article III and the history of judicial practice in England, but neither text nor history can bear the weight of justification. New research reveals that the term “case” extends more broadly to encompass what Roman and civilian jurists referred to as noncontentious jurisdiction...
Making Innovation More Competitive: The Case of Fintech
Unlike in other digital arenas in which American companies are global leaders, the United States lags in consumer financial technology. The article argues that this effect can largely be attributed to the institutional design of federal regulators. Competition authority—including antitrust and the extension of business licenses—is spread across at least five agencies, none of which has the...
The Excessive Fines Clause: Challenging the Modern Debtors’ Prison
In recent years, the use of economic sanctions—statutory fines, surcharges, administrative fees, and restitution—has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide. Inability to pay the sanctions often leads to perpetual debt. This article posits that the Eighth Amendment’s Excessive Fines Clause may help...