Equity ownership in the United States no longer reflects the dispersed share ownership of the canonical Berle-Means firm. Instead, weobserve the reconcentration of ownership in the hands of institutional investment intermediaries, which gives rise to “the agency costs of agency capitalism.” This ownership change has occurred because of (i) political decisions to privatize the provision of retirement savings and to require funding of such...
Issue Archives
Scholars have long treated the Exceptions Clause of Article III as a serious threat to the Supreme Court’s central constitutional function: establishing definitive and uniform rules of federal law. This Article argues that scholars have overlooked an important function of the Clause. Congress has repeatedly used its broad “exceptions power” to facilitate, not to undermine, the Supreme Court’s constitutional role. Drawing on insights...
In August 2011, President Barack Obama signed the Budget Control Act, allowing the United States to continue borrowing money to fulfill its legal obligations. The Act includes a provision that raises the debt ceiling by an additional $1.5 trillion if both houses of Congress pass a Balanced Budget Amendment.
This Note argues that the use of the Article V amendment process to achieve a legislative result is constitutionally suspect, and...
A relatively unheralded aspect of the Supreme Court’s controversial decision in Citizens United v. FEC is its strong affirmation of the constitutionality and utility of disclosure requirements for individuals and groups engaged in political advocacy. In both Citizens United and Doe v. Reed, decided a few months later, the Court issued prodisclosure holdings indicating its support for such laws. Nevertheless, the...
Conventional understanding in legal reform communities is that time and resources are best directed toward legal disputes that have the highest chance of success and that litigation is to be avoided if it is likelyto establish or strengthen unfavorable precedent. Contrary to this accepted wisdom, this Essay analyzes the strategic decisions of litigation entrepreneurs who pursue litigation with the awareness that losing the case can provide...
When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property’s owners receive “just compensation,” which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates...
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregu-lated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual...
It seems almost beyond dispute that if the Federal Establishment Clause prohibits anything, it prohibits religious institutions from wielding governmental power. So thought the U.S. Supreme Court in Larkin v. Grendel’s Den, Inc. when it announced that the delegation of governmental power to churches amounted to an impermissible “fusion” of government and religion. Subsequent applications of the nondelegation rule have been...