American contract law includes a duty of good faith and fair dealing in the performance of every contract. The duty appears, on first reading, to authorize judges to attach sanctions whenever one party to a contract acts unreasonably towards another. But judicial practice very often falls short of such an expansive standard. This article proposes […]
This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because it believes that agency subject […]
Climate change litigation has influenced regulation substantially in the United States. Most notably, the Supreme Court’s decision in Massachusetts v. EPA serves as the basis for federal Clean Air Act regulation of greenhouse gas emissions from motor vehicles and power plants. However, most U.S. litigation thus far has focused on mitigation, i.e., how to limit […]
This Article addresses the importance of uniform state laws in maintaining and strengthening federalism in the United States. The federal system of government established by the Constitution depends on an appropriate balance of federal and state law. Under the Tenth Amendment to the Constitution, powers not delegated to the federal government and not prohibited by […]
This Article responds to an argument made recently by Elizabeth Pollman that corporations should not be deemed to have “constitutional privacy rights” in “most circumstances.” Setting forth an alternative conception of organizational rights and examining different meanings of “privacy,” the Article contends that courts should tread more carefully and that it may often be sensible […]
Clarifying the Standards for Personal Jurisdiction in Light of Growing Transactions on the Internet: The Zippo Test and Pleading of Personal Jurisdiction
Currently, despite the vast and attractive Internet market, the Supreme Court has not ruled definitively on which test should govern personal jurisdiction in cases involving transactions on the Internet. As a result, different tests and diverging results have developed concerning the constitutionality of specific jurisdiction on the Internet, and cases range from those finding that […]
The LGBT community has made great strides in attaining legal rights, beginning largely with Lawrence v. Texas and, to date, culminating with Windsor v. United States. These decisions have granted a broad array of rights, and many argue that the right of same-sex couples to marry nationwide is inevitable. However, this is not to say […]
- Note: Providing Clarity for Standard of Conduct for Directors Within Benefit Corporations: Requiring Priority of a Specific Public Benefit
- Note: Economic Protectionism and Occupational Licensing Reform
- The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation
- The Geography of Equal Protection
- What Legal Authority Does the Fed Need During a Financial Crisis?
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