The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability...
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Nonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success...
We commonly call the last fifty years of federal Indian law and policy the “tribal self-determination era.” This Piece argues that this era is actually three conceptually distinct though temporally overlapping phases of federal Indian law and policy development. Each of these three distinct phases is a step further dismantling the structures of federal paternalism and replacing them with laws and policies that support tribal nations’ strength,...
Suspensions, expulsions, and school-based arrests: These exclusionary and overly punitive disciplinary responses disproportionately impact Black students and have become normalized throughout the nation. In reality, school pushout, or the disciplinary sanction of removing students from the classroom, contravenes the very purpose of public education to prepare children to engage as full citizens in our democratic republic.
This Article attributes...
This Note presents the first empirical study of the implications of the repeal of Civil Rights Law section 50-a (50-a), which made public New York Police Department (NYPD) personnel records, including disciplinary investigations. These data demonstrate the limited potential of transparency reforms, which are lauded as an important step toward increasing police accountability but do little to impact the actual behavior of police officers. Using...
A new specter is haunting job seekers in the post-COVID-19 economy: “ghost jobs,” which are job listings by real companies advertising positions that do not actually exist or for which there is no present intention to hire. Ghost jobs do not simply waste the time and money of job applicants. They also reflect a new evolution in the harvesting and misuse of sensitive personal data, which inflicts privacy wounds on individuals while breaching...
Following the Delaware Court of Chancery’s invalidation of Elon Musk’s fifty-six-billion-dollar compensation package, Tesla moved its incorporation from Delaware to Texas. Shortly thereafter, Delaware’s legislature, seeking to protect Delaware’s dominant incorporation position, passed the most sweeping corporate law amendments in fifty years.
Both supporters of Musk and defenders of Delaware’s judiciary have accused each other...
Antitrust scholars have virtually ignored the question of who controls corporations by sitting on their boards of directors. We show that the problem of who sits on boards of directors is considerably greater than previously believed. Drawing on a new dataset spanning both public and private companies across multiple industries, we find evidence that individual board members sit simultaneously on boards of competitors throughout the economy, despite...
New York City’s coastline is transforming. Its waterfront zoning requirements have drastically expanded public waterfront access by trading building permits and similar discretionary property benefits to developers in exchange for publicly accessible parks, paths, and plazas. This process is almost certainly unconstitutional: Under the searching review of the Supreme Court’s “exactions tetralogy,” these mutually beneficial transactions...
Over the past decade, dozens of state and local jurisdictions across the country and political spectrum have ended fines and fees in juvenile courts. One monetary sanction, however, is routinely left out of reform efforts: victim restitution. Unlike most fines and fees, youth restitution—paid to victims or harmed parties for economic loss or injury—continues to enjoy wide support, under the assumption that it promotes youth rehabilitation,...