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The Individuals with Disabilities Education Act contains provisions that ostensibly guard against disproportionate suspending and expelling school students with disabilities. This article demonstrates that these provisions are woefully inadequate to achieve their goal. It argues that current flaws can be mitigated by altering the burden of proof and expanding the type of data that schools must...

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. This article examines the important benefits and risks of tax leaks and provides suggestions and cautions for leak-driven lawmaking.

In an earlier work entitled Regulating Cybersecurity, Sales argued that cyber defense should be understood not just as a matter for law enforcement and the armed forces, but as a regulatory problem in need of regulatory solutions. This companion article proposes a series of market-based responses to complement those governmental responses.

In defining Fourth Amendment rights, the Supreme Court has repeatedly turned to the archetype of an idealized citizen—the “rugged individual” who will unflinchingly stand up to government authority. This article examines the Court’s use of the archetype, demonstrating how instead of promoting dignity and autonomy, it created an unrealistic threshold for exercising one’s Fourth Amendment rights.

The National Collegiate Athletic Association (NCAA) prohibits schools from providing financial aid to student-athletes beyond the costs of attending school and forbids student-athletes to receive compensation related to their athletic ability from third parties. This comment argues courts have failed to properly scrutinize this rule and it should be rejected because such compensation restrictions...

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. This article argues that formalistic wills doctrines should be reformed because they harm those who attempt to engage in estate...

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...

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...

This comment identifies the ways in which female lawyers continue to face discrimination even after they make partner and highlights a serious gap in current antidiscrimination law that perpetuates discrimination against female partners: Courts have interpreted Title VII of the Civil Rights Act of 1964 to protect employees but not partners. The comment offers a solution that would bring female...

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...

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 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...

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...

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...