Ruth Bader Ginsburg

IN MEMORIAM:
JUSTICE RUTH
BADER GINSBURG

A series of tributes honoring the life and legacy of
Justice Ruth Bader Ginsburg.

Vol. 123 No. 2

National Security Law
Essay

NATIONAL SECURITY CREEP IN CORPORATE TRANSACTIONS

Kristen E. Eichensehr* & Cathy Hwang**

National security review of corporate transactions has long been a relatively sleepy corner of regulatory policy. But as governments merge economic and national security, national security reviews are expanding in frequency and scope, causing numerous deals to be renegotiated or even blocked. This expansion of national security’s impact on corporate transactions—which this Essay calls “national security creep”—raises theoretical questions[...]

Constitutional Law
Note

RENT REGULATIONS AFTER CEDAR POINT

Abigail K. Flanigan*

In 2021, the Supreme Court decided Cedar Point Nursery v. Hassid, a landmark case that established a new categorical rule in takings law: When the government enacts a regulation authorizing a temporary invasion of a property owner’s land, it effects a per se taking under the Fifth Amendment for which it must pay just compensation. By examining the interaction between this holding and legal challenges to New York’s Housing Stability[...]

Civil Procedure
Note

JUDICIAL ASSISTANCE AS INTENDED: RECONCILING § 1782’S PRESENT PRACTICE WITH ITS PAST

David Rubinstein*

When litigation outside the United States needs discovery inside the United States, U.S. judges provide assistance to their foreign counterparts. 28 U.S.C. § 1782 was designed to provide the statutory mechanism for this form of judicial assistance. But a recent empirical study has shown that, nowadays, a majority of requests for discovery assistance under 28 U.S.C. § 1782 come from private parties rather than from tribunals. And the proportion[...]

Family Law
CLR Forum

REDUCING FAMILY SEPARATIONS IN NEW YORK CITY: THE COVID-19 EXPERIMENT AND A CALL FOR CHANGE

Melissa Friedman* & Daniella Rohr**

Child welfare agencies and family courts have long removed children from allegedly abusive or neglectful parents as an ultimate means of ensuring a child’s safety. The theory that high numbers of removals are necessary to keep children safe, however, had never been tested—there was no mechanism or political will to do so until the onset of the COVID-19 pandemic in March 2020. With the near-complete shutdown of New York City, the child welfare[...]

Corporate Law
Note

CONWAY, IN PARI DELICTO, AND THE ADVERSE INTEREST EXCEPTION: BORROWING FROM THE ENGLISH

Harish Sai Bhaskar*

Two recent scandals spotlighted corporate fraud: the recent Wirecard scandal, which revealed €1.9 billion of missing corporate cash, and FTX’s bankruptcy scandal. Those incidents raised questions about the blameworthiness of professional third parties—lawyers, auditors, and banks, among others—who repeatedly fail to protect large public corporations from corporate fraud and misconduct. Professional third parties often are not held accountable[...]

Legal History
Article

WE THE (NATIVE) PEOPLE?: HOW INDIGENOUS PEOPLES DEBATED THE U.S. CONSTITUTION

Gregory Ablavsky* & W. Tanner Allread**

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.

This Article uses the tools of legal[...]

Family Law
Article

HOW PARENTHOOD FUNCTIONS

Courtney G. Joslin* & Douglas NeJaime**

Approximately two-thirds of states have functional parent doctrines, which enable courts to extend parental rights based on the conduct of forming a parental relationship with a child. Different jurisdictions use different names—including de facto parentage, in loco parentis, psychological parenthood, or presumed parentage—and the doctrines arise from different sources of authority—common law, equitable, and statutory. While much has been[...]