Recent uclalaw items

Indirect Liability for Copyright Infringement: An Economic Perspective

Thu, 17 Sep 2026 00:00:00 +0000

When individuals infringe copyright, they often use tools, services, and venues provided by other parties. An enduring legal question asks to what extent those other parties should be held liable for the resulting infringement. For example, should a firm that produces photocopiers be required to compensate authors for any unauthorized copies made on that firm's machines? What about firms that manufacture personal computers or offer Internet access; should they be liable, at least in part, for online music piracy? Modern copyright law addresses these issues through a variety of common law doctrines and statutory provisions. In this essay, we introduce those rules and evaluate them from an economic perspective. In the process, we emphasize that every mechanism for rewarding authors inevitably introduces some form of inefficiency, and thus the only way to determine the proper scope for indirect liability is to weigh its costs and benefits against those associated with other plausible...

Defusing Drm

Thu, 17 Sep 2026 00:00:00 +0000

Copyright holders today increasingly find their rights and responsibilities dictated not by the explicit words of the copyright statute, but instead by the powers and limitations of what has come to be known as "digital rights management" technology. In this ten-page magazine-style piece, I consider how copyright law should respond. My argument proceeds in two basic steps. First, I argue that, while DRM might represent a powerful restriction, the constraint will never be Orwellian. Consumers, after all, will use their dollars to vote against encryption techniques that are too limiting; and, besides, DRM suffers an Achilles heel: in every system designed to control content, at some point consumers must be able to read, hear, or otherwise experience the purchased information. Whenever that happens, the information is necessarily exposed. Second, if all this is true, then DRM simply makes copyright law look a lot like every other area of legal endeavor. There is a formal set of rules...

Rethinking Patent Law's Presumption of Validity

Thu, 17 Sep 2026 00:00:00 +0000

The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a Herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's decisions regarding patent validity. In this Article, we argue for reform. Deference to previous decision-makers is appropriate in instances where those previous decisions have a high likelihood of accuracy, and the patent system should endeavor to create processes that fit this mold. But granting significant deference to the initial process of patent review is indefensible and counter-productive. Patents should be vulnerable to challenge until and unless they are significantly evaluated in an information-rich environment. At that point, they will have earned and therefore should be accorded a presumption of validity. Such an...

Property Rights in Emerging Platform Technologies

Thu, 17 Sep 2026 00:00:00 +0000

This article considers an externality that affects a broad range of markets, specifically markets where one set of firms sells some platform technology like a computer, video game console, or operating system, while another possibly overlapping set of firms sells peripherals compatible with that platform, for example computer software or video game cartridges. The externality causes certain peripheral sellers to charge prices that are unprofitably high. That is, these firms could earn greater profits if only they could coordinate to charge lower prices. In many markets, such coordination is possible; firms can contract, for example, or integrate. In markets based on relatively new platform technologies, however, coordination will typically be difficult. The article explains why, and argues that intellectual property law can and should facilitate price coordination in these "emerging technology" settings.

Shared Information Goods

Thu, 17 Sep 2026 00:00:00 +0000

Once purchased, information goods are often shared among groups of consumers. Computer software, for example, can be duplicated and passed from one user to the next. Journal articles can be copied. Music can be dubbed. In this paper, we ask whether these various forms of sharing undermine seller profit. We compare profitability under the assumption that information goods are used only by their direct purchasers, with profitability under the more realistic assumption that information goods are sometimes shared within small social communities. We reach several surprising conclusions. We find, for example, that under certain circumstances sharing will markedly increase profit even if sharing is inefficient in the sense that it is more expensive for consumers to distribute the good via sharing than it would be for the producer to simply produce additional units. Conversely, we find that sharing can markedly decrease profit even where sharing reduces net distribution costs. These results...

Strategic Disclosure in the Patent System

Thu, 17 Sep 2026 00:00:00 +0000

Patent applications are evaluated in light of the prior art. What this means is that patent examiners evaluate a claimed invention by comparing it with what in a rough sense corresponds to the set of ideas and inventions already known to the public. This is done for three reasons. First, the comparison helps to ensure that patents issue only in cases where an inventor has made a non-trivial contribution to the public's store of knowledge. Second, it protects a possible reliance interest on the part of the public since, once an invention is widely known, members of the public might reasonably assume that the invention is free for all to use. And third, it pressures inventors to file their patent applications promptly lest some other inventor disclose a related invention or the applicant himself inadvertently let slip some fraction of his own research result.

The prior art inquiry has a fourth policy implication, however, and while this one might not have been one of the...

Patent Holdouts and the Standard-Setting Process

Thu, 17 Sep 2026 00:00:00 +0000

A patent holder whose patent is made public only after the relevant technology has been widely adopted can demand not only a royalty that reflects the intrinsic value of that technology but also a royalty that reflects the value of each infringing firm's technology-specific investments. This is the familiar patent holdout problem, and it particularly plagues the standard-setting process. Importantly, and the insight missed both in practice and in the literature today, the greater the number of patent holders in this holdout position, the less each can expect to earn from this tactic. That is, if fifteen patent holders can credibly threaten to shut an infringer for six months while that firm redesigns its products and services, the value associated with avoiding six months of disruption must be split fifteen ways. If three hundred patent holders can credibly make that threat, the pro rata share drops by a factor of twenty. More patents means less money per patent holder. Less money,...

Holding Internet Service Providers Accountable

Thu, 17 Sep 2026 00:00:00 +0000

Internet service providers are today largely immune from liability for their role in the creation and propagation of worms, viruses, and other forms of malicious computer code. In this Essay, we question that state of affairs. Our purpose is not to weigh in on the details - for example, whether liability should sound in negligence or strict liability, or whether liability is in this instance best implemented by statute or via gradual common law development. Rather, our aim is to challenge the recent trend in the courts and Congress away from liability and toward complete immunity for Internet service providers. In our view, such immunity is difficult to defend on policy grounds, and sharply inconsistent with conventional tort law principles. Internet service providers control the gateway through which Internet pests enter and reenter the public computer system. They should therefore bear some responsibility for stopping these pests before they spread and for helping to identify...

Insider Trading as Private Corruption

Wed, 16 Sep 2026 00:00:00 +0000

Deep confusion reigns over federal insider trading law, even over the essential elements of an insider trading violation. On the one hand, this uncertainty seems to have encouraged the Securities and Exchange Commission (SEC) and some lower courts to push the boundaries well beyond the limits previously established by the U.S. Supreme Court. On the other hand, influential academics continue to express normative skepticism as to why there is even a ban on insider trading at all. Without a satisfying theory of what constitutes insider trading and why it is wrong, doctrinal development in the lower courts has reached a crisis, with the economic stakes only getting higher. This Article offers a new theory of insider trading law. It maintains that insider trading is a form of private corruption, defined as “the use of an entrusted position for self-regarding gain.” The corruption theory not only provides answers to the normative skeptics but, as compared to the two leading alternatives,...

Prison Visitation Policies: A Fifty State Survey

Wed, 16 Sep 2026 00:00:00 +0000

his paper presents a summary of the findings from the first fifty-state survey of prison visitation policies. Our research explores the contours of how prison administrators exercise their discretion to prescribe when and how prisoners may have contact with friends and family.Visitation policies impact recidivism, inmates’ and their families’ quality of life, public safety, and prison security, transparency and accountability. Yet many policies are inaccessible to visitors and researchers. Given the wide-ranging effects of visitation, it is important to understand the landscape of visitation policies and then, where possible, identify best practices and uncover policies that may be counterproductive or constitutionally infirm. Comparative analysis of the sort we have undertaken will, we hope, not only inform academics but empower regulators and administrators of prisons to implement thoughtful reforms.Our paper and data set allow for state-by-state comparison across a group of...

Best Practices for Evidentiary Hearings Outside the Administrative Procedure Act

Wed, 16 Sep 2026 00:00:00 +0000

Federal administrative agencies conduct a vast number of evidentiary hearings outside the Administrative Procedure Act (APA). These non-APA evidentiary hearings have often been described as “informal adjudication” and assumed to be procedurally unprotected. This picture is false. Evidentiary hearings outside the APA are not “informal adjudication.” Indeed, many of them are quite as formal, and often more formal, than APA hearings. They are surrounded by ample procedural protections provided by regulations and differ from APA hearings only because they are presided over by administrative judges (AJs) rather than administrative law judges (ALJs). The three-fold mission of this article is to persuade the reader to stop calling non-APA evidentiary hearings “informal adjudication,” to bring into focus the rich network of protections for such hearings provided by procedural regulations, and to provide a catalog of best practices for such regulations.

What Governmental Insider Trading Teaches Us About Corporate Insider Trading

Wed, 16 Sep 2026 00:00:00 +0000

This book chapter explores a curious distinction that Henry G. Manne made in his influential 1966 book, Insider Trading and The Stock Market. On the one hand, Professor Manne defended corporate insider trading because of its potential to increase share price accuracy and its usefulness as a compensation tool for entrepreneurial innovations. On the other hand, Professor Manne denounced the practice of governmental insider trading, seeing no good reason to compensate government officials on the side and warning against “the ease with which inside information can be utilized as a payoff device.” This chapter argues that such a bifurcated position is unstable. It contends that just as governmental insider trading should be viewed as a form of public corruption, corporate insider trading should be viewed as a form of corruption in the private sector. Moreover, if one examines the reasons why public corruption in the form of governmental insider trading is normatively problematic, one...

When Harry Met Perry and Larry: Criminal Defense Lawyers on Television

Wed, 16 Sep 2026 00:00:00 +0000

Most of what people know (or think they know) about law, lawyers, and the legal system — as well as many other subjects of which they have little personal knowledge — is learned in television school. Two different theories explain the impact of pop cultural sources on consumers — the cultivation and viewer response approaches. Both theories have strong explanatory powers, but describe different conditions of consumption. This article describes the numerous television shows involving heroic criminal defense lawyer protagonists, starting with Perry Mason and The Defenders and continuing to the present with dramas like Harry’s Law. These shows probably affect the public perception of criminal defense lawyers in a favorable way (contrary to the distrust of lawyers held by the vast majority of the general public). It would be interesting to learn whether viewers take seriously the positive message about criminal defense conveyed by these shows, whether viewers reject this portrayal...

Ally McBeal and Subjective Narration

Wed, 16 Sep 2026 00:00:00 +0000

In discussing popular culture products, it is important to distinguish between story (or “narrative”) and storytelling (or “narration”). In the lawyer genre in film and television, the conventions call for objective narration. This means that relatively little is disclosed about the characters’ inner lives. Stories strive for verisimilitude and the emphasis is on what the characters do and their motivations for doing it, but without delving into their personal lives or emotions. Perry Mason, the prototypical television lawyer, had no personal life and no emotions other than wanting to find the real killer and free his always-innocent clients. Ally McBeal was a true genre buster because it involved subjective rather than objective narration. There was no effort to simulate verisimilitude. The stories foregrounded Ally’s personal feelings and her frustrated love life. The legal cases she worked on were silly and basically extensions of her personal problems. The subjective storytelling...

Structuring Skidmore After Loper Bright

Wed, 16 Sep 2026 00:00:00 +0000

The epochal Loper Bright decision overruled Chevron and established that courts must determine the best meaning of statutory text without being required to follow agency interpretations of ambiguous statutes. In determining the best meaning, courts must consider whether and how to apply Skidmore analysis. Skidmore calls for giving extra weight to agency interpretations of statutory text when it is appropriate to do so. This article addresses several issues involving Skidmore analysis that remain unresolved post-Loper Bright. So far, reviewing courts have often ignored Skidmore entirely, brushed it aside, or misapplied it. Court decisions before and after Loper Bright have not agreed upon a uniform structure for applying Skidmore. This article urges that courts must (rather than may) apply Skidmore analysis along with other familiar tools of statutory interpretation when seeking the best meaning of disputed statutory text. In addition, courts should engage with Skidmore without...

The Last Frontier: Fair Procedure in Informal Administrative Adjudication

Wed, 16 Sep 2026 00:00:00 +0000

The federal government engages in massive amounts of informal adjudication. Informal adjudication means a process that resolves a dispute between the government and a private party by making an individualized and legally binding decision without being required to conduct an evidentiary hearing if the dispute is not settled. The article sketches the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes. It proposes a set of best practices for conducting and improving informal adjudication that are rooted in those legal requirements. Agencies should adapt these practices to their individual circumstances and then adopt them as procedural regulations. The process by which federal agencies engage in informal adjudication should be accurate, efficient, and perceived by stakeholders to be fair.

Introduction to the Symposium on Visual Images and Popular Culture in Legal Education

Wed, 16 Sep 2026 00:00:00 +0000

Legal education historically was based entirely on written text. Traditional casebooks were just that — edited copies of appellate cases with textual notes. Pictures in casebooks were so rare that they deserved protection under the Endangered Species Act. In class, law teachers wrote words on the board. In recent years, many have used technologies such as PowerPoint to facilitate teaching, but the material projected on the screen was often more text. In our social world, however, the authority of the visual rivals that of written text. Today, all of us swim in a sea of images on television, on billboards, on computer screens, everywhere. Our students think visually. Legal education must keep pace.This symposium explores the possible uses of visual imagery in legal education. The fifteen relatively brief articles that follow take many different tacks, but all of them are intended to suggest new ideas and new methodologies to law teachers. We have divided them roughly into three...

Systems Failures in Policing

Wed, 16 Sep 2026 00:00:00 +0000

This Essay, an adaptation of my 2018 Donahue Lecture, argues that acts of police violence and overreach should be viewed as systems failures. Researchers who study error in aviation, medicine, and other complex organizations agree that errors are the product of human failings and poorly designed systems. When tragedies occur, human error almost always plays a role — people misperceive information, process it incorrectly, make careless mistakes, and sometimes act recklessly or maliciously. But faulty systems also play a role — technologies can be confusing, rigorous schedules can fatigue workers, organizational culture can stifle productive communication, and policies can put workers in situations where they have to make difficult decisions under conditions of high stress. A key insight of this body of research is that it is impossible to cure limitations of human perception, cognition, and decisionmaking. Instead of focusing exclusively on training people to change their behavior...

The Ethics of In-House Practice

Wed, 16 Sep 2026 00:00:00 +0000

This book chapter examines the complex role that inside counsel (also known as in-house or corporate counsel) play in corporate America. Once viewed as the quality-of-life refuge from private practice, the in-house position is now recognized as “among the most complex and difficult of those functions performed by lawyers” (Hazard 1997, 1011). One reason why the position is so complex and difficult is the ambiguity and internal contradiction in inside counsel’s job description. On the one hand, inside counsel are intentionally carved into the corporate decision-making process to constrain managerial discretion and safeguard the company from legal trouble. Accordingly, inside counsel often have direct responsibility over compliance and are expected to intervene when significant legal risks are at stake. On the other hand, inside counsel are often regarded as mere “advisers” and thus remain subordinate to managerial prerogatives – even with respect to serious legal risks. On this...

Monell's Untapped Potential

Wed, 16 Sep 2026 00:00:00 +0000

Among the most powerful barriers to relief under § 1983 is Monell—the Supreme Court decision recognizing municipalities can be responsible for constitutional violations by their officers but setting an exceedingly high standard for such claims. This Essay suggests a litigation strategy that sidesteps several challenges posed by Monell: Plaintiffs should pursue Monell claims based on police departments’ disregard of lawsuits brought against them and their officers.

Every Circuit recognizes a police department’s failure to investigate citizen complaints as a basis for municipal liability. Although lawsuits—like citizen complaints—allege officer wrongdoing, many departments do not investigate their allegations. If failing to investigate citizen complaints is sufficient basis for Monell liability, failing to investigate lawsuit allegations should be as well.

Police departments’ disregard of information unearthed during litigation should...

The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption

Wed, 16 Sep 2026 00:00:00 +0000

On April 4, 2012, Congress passed the STOCK Act, which officially banned the practice of insider trading by members of Congress and formally declared them to be fiduciaries for purposes of federal insider trading law. The impetus for the legislation was the perception, held by a majority of commentators, that insider trading by members of Congress did not violate federal securities law because they were not fiduciaries to anyone. In this Article, I make the case that the majority view was and continues to be wrong, and why that matters. Specifically, I argue that even if the STOCK Act had not passed and even if it were to be repealed, judges could build on existing precedents and employ unextraordinary judicial reasoning to impose the requisite fiduciary duties on legislators. In Part I, I provide a succinct summary of federal insider trading law, focusing on the controversial element as applied to legislators — the existence and breach of fiduciary duty. I then explore the standard...

Greenlighting Administrative Prosecution

Wed, 16 Sep 2026 00:00:00 +0000

“Greenlighting” is the process whereby the heads of a combined-function federal regulatory agency determine whether to accept the staff’s decision to charge or not charge a target with a violation of law. The charging decision is often the most consequential decision point in a regulatory prosecution and typically sets off a settlement negotiation. Yet the charging decision is unchecked by legislative, executive, or judicial mechanisms. Greenlighting is an important accountability tool with respect to the staff’s prosecutorial discretion. It is often used to correct misalignment between the priorities of the agency heads and their staff. Yet greenlighting is controversial because of concern about confirmation bias; having approved a prosecution, the agency heads may be unable to render an unbiased decision when the case returns to them for the final adjudicatory decision.

Inside Lawyers: Friends or Gatekeepers?

Wed, 16 Sep 2026 00:00:00 +0000

A decade ago, a wave of corporate scandals involving reprehensible behavior but stunning examples of lawyer passivity motivated me to write about the role of inside lawyers. In a series of articles, beginning in 2005 with The Banality of Fraud: Re-Situating the Inside Counsel As Gatekeeper, I suggested that it was improper for lawyers to be mere bystanders while their client representatives violated their legal obligations, especially when such violations were directly responsible for gross harm inflicted on shareholders, employees, or third parties. In The Banality of Fraud, I presented a diagnosis of the problem of inside lawyer acquiescence in corporate fraud, criticized the reforms ostensibly enacted to address the problem, and offered an alternative reform, which I believed squarely addressed the structural deficiencies identified in my diagnosis.

In making my arguments, I invoked the notion of a “gatekeeper,” which in the capital markets context...

Qualified Immunity and Federalism All the Way Down

Wed, 16 Sep 2026 00:00:00 +0000

In Qualified Immunity and Federalism, Aaron Nielson and Chris Walker argue that the federalism dimensions of qualified immunity counsel the Supreme Court against reconsidering the doctrine. They argue, in essence, that: the Court’s qualified immunity doctrine is an extremely strong shield against civil rights damages actions; state and local governments have essentially guaranteed officers indemnification in reliance on that shield; eliminating qualified immunity would increase filings and payouts in civil rights cases so substantially that it would cause real upheaval in state and local governments; and, therefore, any adjustment to qualified immunity’s protections should come from the States or Congress—not the Court. I agree with Nielson and Walker that insufficient attention has been given to the federalism dimensions of qualified immunity, and applaud their work mapping states’ indemnification statutes. But truly appreciating the federalism dimensions of qualified immunity—and...

Foreword to Robert Eli Rosen, Lawyers in Corporate Decision-Making

Wed, 16 Sep 2026 00:00:00 +0000

This Foreword describes the contributions made by Robert Eli Rosen in his classic, ground-breaking sociological study of inside counsel in business corporations, Lawyers in Corporation Decision-Making (Quid Pro Books, 2010).

Appendix to The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption

Wed, 16 Sep 2026 00:00:00 +0000

This Appendix answers two objections to the author's arguments in The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, 98 Cornell L. Rev. 845 (2013). The objections relate to separation of powers principles and the First Amendment. Readers should first access: Kim, Sung Hui, The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption, Cornell Law Review, Vol. 98, p. 845 (2013); UCLA School of Law Research Paper No. 12-08.

Pari Passu: The Nazi Gambit

Wed, 16 Sep 2026 00:00:00 +0000

As the ongoing court battle between the Republic of Argentina and NML Capital, Ltd. illustrates, the meaning of pari passu in sovereign debt contracts remains highly contested. This article presents what might be the clearest historical evidence of what the pari passu clause was understood to mean in the pre-war period. It examines Nazi Germany’s defaults of the Dawes and Young Loans during the 1930s. According to this historical evidence, the parties believed that the clause promised parity in payment across different creditor groups (in this context, the various tranches representing nationals of different countries) considered to be part of the same general undertaking. This article reports no evidence to support what may be the most commonly offered interpretation for the clause today — that the pari passu clause was intended to prohibit the sovereign from passing laws that would have the effect of involuntarily subordinating certain creditors. This article also finds no evidence...

The Myth of Personal Liability: Who Pays When Bivens Claims Succeed

Wed, 16 Sep 2026 00:00:00 +0000

In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. On introducing the Bivens action, the Court described the award of damages for the violation of constitutional rights as a central feature of a liability rule that focused on deterring misconduct by individual officers. But for the last three decades Bivens’ personal liability rule, presumed to directly burden individual officers, has played a central role in the Court’s growing hostility to the Bivens doctrine. During this time, the Court has emphasized the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress. In its decision two Terms ago in Ziglar v. Abbasi, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than as a bug. But, to...

The Diversity Double Standard

Wed, 16 Sep 2026 00:00:00 +0000

In Grutter and Gratz (2003), the twin cases that challenged the University of Michigan’s affirmative action programs, corporate America praised educational diversity as a compelling interest. But as is well known, it did so not on social justice grounds but on the empirical claim that “diversity is good for business.” In particular, education in a diverse environment would produce better workers for an increasingly global and competitive economy. This position has since been echoed in corporate pronouncements about diversity in corporate workplaces and boardrooms. Generally speaking, corporations have justified voluntary affirmative action within the firm only to the extent that it furthers their bottom line – i.e., only if there is a “business case” for diversity. On the surface, the corporate stances toward educational diversity on the one hand and corporate diversity on the other hand seem entirely consistent. Both emphasize a consequentialist logic and economic rationale....

An Even Better Way

Wed, 16 Sep 2026 00:00:00 +0000

The final session of the 2023 California Law Review Symposium, “Section 1983 and Police Use of Force: Building a Civil Justice Framework,” asked the persistent and profound question: “How Do We Reform the Law in Light of What We Know?” In various law review articles and most comprehensively in the final chapter of my book, Shielded, I have proposed some possible answers to that question—a set of reforms aimed at our system of legal accountability. But in this Essay I make clear that these answers are incomplete. Although these reforms would better enable people to vindicate their rights in court, they are not up to the task of preventing many of the harms people sue about, as well as the harms for which people never seek remedy. If a better system of accountability for constitutional violations is “A Better Way,” as I’ve titled the last chapter of Shielded, it would be “An Even Better Way” to avoid rights violations altogether. In this Essay, I consider...

Jails, Sheriffs, and Carceral Policymaking

Wed, 16 Sep 2026 00:00:00 +0000

The machinery of mass incarceration in America is huge, intricate, and destructive. To understand it and to tame it, scholars and activists look for its levers of power—where are they, who holds them, and what motivates them? This much we know: legislators criminalize, police arrest, prosecutors charge, judges sentence, prison officials confine, and probation and parole officials manage release.As this Article reveals, jailers, too, have their hands on the controls. The sheriffs who run jails—along with the county commissioners who fund them—have tremendous but unrecognized power over the size and shape of our criminal legal system, particularly in rural areas and for people accused or convicted of low-level crimes.Because they have the authority to build jails (or not) as well as the authority to release people (or not), they exercise significant control not merely over conditions but also over both the supply of and demand for jail bedspace: how large they should be, how many...

The Failure of Federal Incorporation Law: A Public Choice Perspective

Wed, 16 Sep 2026 00:00:00 +0000

Corporate law scholars have long debated whether state-to-state competition for charters created a race to the top or a race to the bottom. In 2003, Mark Roe entered this debate, arguing, “Whether or not the states are racing, and whether they are racing to the top or to the bottom, we live in a federal system where Washington can, and often does, take over economic issues of national importance.” Given Washington’s tendency to take corporate lawmaking power away from the states, Roe explained, “we have never had, and we never could have had, a full state-to-state race in corporate law.” Roe’s pivot to the Washington-Delaware relationship and his emphasis on the power of federal corporate law makers to trump Delaware are important moves in the debate over the determinants of American corporate law. Yet Roe’s analysis raises the obvious question: Why does Congress allow Delaware to grab the agenda-setting power, allocating for itself (and its affiliates) only the ex post decision...

Civil Rights Ecosystems

Wed, 16 Sep 2026 00:00:00 +0000

The Philadelphia and Houston Police Departments are similarly sized, but over a recent two-year period, ten times more civil rights suits were filed against Philadelphia and its officers than were filed against Houston and its officers. Plaintiffs in cases brought against Philadelphia and its officers were awarded 100 times more in settlements and judgments. What accounts for these differences? Although the frequency and severity of misconduct and injury may play some role, I contend that the volume and outcome of civil rights litigation against any given jurisdiction should be understood as a product of what I call its civil rights ecosystem.Scientists define ecosystems as communities of living and nonliving elements that are interconnected and interactive. I define civil rights ecosystems as collections of actors—including plaintiffs’ attorneys, state and federal judges, state and federal juries, and defense counsel—and legal rules and remedies—including state tort law, Section...

The Tenacious Power of Constitutional Torts

Wed, 16 Sep 2026 00:00:00 +0000

There is plenty of reason for frustration and disappointment in our system of constitutional remediation. The Supreme Court has created so many barriers to relief that people often do not get the remedy that they deserve—or get nothing at all—when their rights are violated. Even when people manage to win, laws, policies, and union agreements insulate local governments and their officers from the consequences of their actions. And the types of incremental victories litigation can provide do not approach the types of transformative changes we need.

Yet constitutional tort litigation remains a critically important tool for people who have been harmed by government and for those who seek long-lasting change. Despite significant doctrinal hurdles, civil rights cases can be won. Lawsuits offer compensation, a day in court, and commemorations of wrongdoing. Court orders or settlements can mandate that government officials change their practices. Lawsuits can announce new standards...

Administrative Adjudication in the United States

Wed, 16 Sep 2026 00:00:00 +0000

This is a chapter from the book “Administrative Tribunals in the Common Law World,” edited by Stephen Thomson, Matthew Groves, and Greg Meeks (Hart Publishing 2024). Most English-speaking countries rely on tribunals to conduct administrative adjudication. A tribunal is a body independent of the government agency that makes the initial decision in disputes between private parties and government that involve administrative regulation or benefit distribution. The US does not rely primarily on tribunals to provide administrative hearings. Instead, the default system for both federal and state governments is a combined-function design. Under that model, a government agency adopts regulations and distributes benefits or prosecutes violations of the governing statute and regulations. That agency then adjudicates the resulting disputes. Although the US default is the combined-function agency, its administrative adjudication system is quite varied and includes numerous...

The Spreading Umbrella: Extending the Apa's Adjudication Provisions to All Evidentiary Hearings Required by Statute