Law Commons^™

Outside Counsel Guidelines: Power, Ideology, And The Evolution Of The Corporate Bar, Bruce A. Green, Eli Wald

Faculty Scholarship

Outside Counsel Guidelines (“OCGs”), terms of the lawyer–client relationship imposed by corporations, are a significant development in the practice of law by large corporate law firms (“BigLaw”). Among the most controversial OCGs are those that expand on law firms’ fiduciary obligations, thereby restricting their future clientele. The organized bar maintains that rules of professional conduct should restrict lawyers’ acquiescence to these OCGs because they limit clients’ access to legal services and undermine lawyers’ independence without advancing corporate clients’ legitimate interests.

This Article shows why the bar’s effort has (very recently) deservedly failed: corporate clients have a legitimate interest in demanding …

Law's Shifting Circles, Ela A. Leshem

Faculty Scholarship

This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern, expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects.

The Article shows that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of …

Why Are Executions Becoming Crueler?, Deborah W. Denno

Faculty Scholarship

Since the modern death penalty era, this country’s six execution methods have become crueler over time. This article details the execution procedures adopted across death penalty states up to the end of 2025, analyzing their societal and cultural underpinnings and explaining how they were implemented, including their shared flaws, unscientific origins and protocols, and reliance on untrained, unqualified, or unknown executioners. While legislatures and courts claim that states move from one technique to the next to enhance greater humaneness, history shows that such switches are primarily propelled by constitutional challenges to a state’s particular technique. In theory, rendering a state’s …

Should Statutory Interpretation And Contract Interpretation Be Harmonized?, Ethan J. Leib

Faculty Scholarship

This paper develops four case studies about how states have harmonized or separated their statutory interpretation regimes and their contract interpretation regimes.  After exploring the choices of Texas, Alaska, New York, and Alabama—all of which take different approaches to their lumping or splitting—the paper seeks to make state courts more aware of what their options are; to help states think about whether their commitments to formalism or contextualism make sense to apply in both domains; and to help them evaluate their meta-choices about whether to bring their interpretive regimes closer together or further apart.

Risky Business, Atinuke O. Adediran

Faculty Scholarship

Corporate law scholarship and doctrine have largely operated on the assumption that corporate shareholders are interested in financial goals, while corporate stakeholders—such as employees, consumers, and local communities—are interested in social and environmental goals, like diversity and inclusion and climate change. Because of this assumption, the law largely requires a corporation to disclose information it considers to be “financially material” to shareholders—that is significant enough to impact the company’s financial position—including factors it considers to be financially risky.

Financial materiality is so embedded in corporate law doctrine that even if an issue is about social and environmental concerns, financial materiality …

The Regulation Of Technological Innovation In Financial Services: A Comparative Approach With Respect To Digital Assets And Artificial Intelligence, Howell E. Jackson, Katja Langenbucher

Faculty Scholarship

No abstract provided.

The International Order, International Law, And The Definition Of Security, Harlan G. Cohen

Faculty Scholarship

As economic security has seemingly moved to the center of American and European foreign policy, both the United States and the European Union have broadened their interpretation of international law rules governing security, coercion, and intervention. But these interpretations are not exactly new, echoing developing state interpretations of international law that developed states had long ago seemingly rejected. How are these once moribund interpretations of security, force, and coercion being brought back to life?

This article argues that these interpretative shifts highlight the role of the international order as an interpretative mechanism within international law. Borrowing from the work of …

Transparency As A Regulatory Duty, Olivier Sylvain

Faculty Scholarship

This symposium piece offers a simple survey of transparency measures addressed to deepfakes and other related consumer harms, as well as the constitutional problems they present.

Book Review Of Political And Social Control In China: The Consolidation Of Single-Party Rule, Carl F. Minzner

Faculty Scholarship

No abstract provided.

Does Textualism Constrain Supreme Court Justices?, James J. Brudney, Lawrence Baum

Faculty Scholarship

A principal justification for textualism is the constraint hypothesis. Conservative Justices and leading textualist scholars contend that—in stark contrast to reliance on legislative history—focus on the ordinary meaning of enacted text leaves little room for the Justices to be policy-oriented or ideological in their interpretations. This Article represents the first systematic study probing the validity of the constraint hypothesis, one that employs both quantitative and qualitative analysis.

The Article examines the Justices’ reliance on interpretive resources in over 660 statutory decisions in the field of labor and employment, decided by the Burger Court, the Rehnquist Court, and the Roberts Court—during …

Corporations’ First Amendment Rights And Algorithmic Cocoons, Sol Murgui Orsucci

Fordham Journal of Corporate & Financial Law

This Note examines how corporate First Amendment doctrine applies to algorithmic systems that curate commercial information and public discourse across online platforms. Courts have increasingly treated ranking, recommendation, and moderation practices as exercises of protected editorial judgment. At the same time, the Court has justified protection for corporate speech in part by reference to listener-centered interests in access to information and competitive comparison. This Note argues that the interaction between these doctrinal strands and contemporary algorithmic intermediation reveals a structural tension. Data-driven optimization can generate individualized informational environments—what this Note terms “algorithmic cocoons”—in which users encounter content, offers, and prices …

The Law And Economics Of Resilience, Doni Bloomfield, Jeff Gordon

Faculty Scholarship

The field of law and economics has long studied externalities, the costs and benefits actors create and yet fail to internalize. But scholars have largely overlooked a set of externalities that lead firms across the economy to systematically underinvest in resilience, with macroeconomically harmful consequences. In this Article, we address this gap with a theory of the law and economics of resilience, by which we mean the ability of markets to reliably and optimally meet demand for goods and services without extreme price fluctuations. 

We argue that corporate resilience is determined by a conflict between two basic forces: the resilience …

The Surveillance Of System-Adjacent Individuals, Mariam A. Hinds

Faculty Scholarship

Although the Fourth Amendment protects against “unreasonable searches and seizures,” this right is not enjoyed by all people equally. Supreme Court jurisprudence has curtailed the Fourth Amendment privacy rights of individuals under probation or parole supervision. In this line of cases, the Court concluded that the government’s interest in monitoring supervisees, reducing recidivism, and promoting public safety outweighed their reasonable expectation of privacy.

However, surveillance mechanisms like probation and parole extend the criminal legal system’s carceral gaze beyond the supervisees and peer into the bedrooms and digital lives of their families, roommates, and communities, or who this Article calls system-adjacent …

Untangling Ai Openness, Parth Nobel, Alan Z. Rozenshtein, Chinmayi Sharma

Faculty Scholarship

The debate over AI openness—whether to make components of an artificial intelligence system available for public inspection and modification—forces policymakers to balance innovation, democratized access, safety and national security. By inviting startups and researchers into the fold, it enables independent oversight and inclusive collaboration. But technology giants can also use it to entrench their own power, while adversaries can use it to shortcut years and billions of dollars in building systems, like China’s Deepseek-R1, that rival our own. How we govern AI openness today will shape the future of AI and America’s role in it.   Policymakers and scholars grasp the …

The Black Hole Of Capital Gains: Etf Swap Funds, Jeffrey M. Colon

Faculty Scholarship

ETFs have begun to challenge mutual funds as the dominant U.S. public pooled asset vehicle.  Their constant liquidity, exposure to an ever widening range of investment strategies, and highly touted tax efficiency have driven the explosive growth in the assets under management of ETFs over the last 15 years.  The tax efficiency is due to section 852(b)(6), which permits ETFs to distribute appreciated property tax free and eliminate all fund-level taxable gains even while making portfolio adjustments, which mutual funds cannot do.

Fund sponsors have developed various strategies to exploit the benefits of section 852(b)(6), with the newest being the …

An Empirical Study Of Malingering In Insanity Cases Across Twelve Decades, Deborah W. Denno

Faculty Scholarship

The last 120 years have seen a surge in the use of neuroscientific evidence in American criminal law cases, fueled by discoveries in brain science that have challenged the legal system’s assumptions about human thinking and culpability. One key assumption is that many defendants “malinger,” that is, feign or fake insanity or mental illness, to garner an acquittal or mitigated punishment. Likewise, when potential evidence that a defendant is malingering is introduced in court, it can have a pronounced and powerful negative effect on the defendant’s insanity claim, especially when juries and criminal justice actors are already skeptical of insanity …

The One-Stop-Shop Is One Step In The Right Direction, Olivier Sylvain

Faculty Scholarship

In Brokering Safety, Sharma, Kadri, and Adler urge federal policymakers to impose on data brokers the greater duty of policing and stemming online stalking, harassment, and related abuse; that burden should not fall to victims, they argue. Their proposal would close the unevenness among state laws, shift the burden of oversight away from victims, and, importantly, ensure accountability at a systemic level, addressing gaps in enforcement that allow brokers to evade meaningful consequences. Yet, the one-stop-shop solution that Brokering Safety proposes also accedes to the core neoliberal presumption insofar as it individualizes harm. Online abuse, like dark patterns and …

Brokering Safety, Chinmayi Sharma, Thomas E. Kadri, Sam Adler

Faculty Scholarship

For victims of abuse, safety means hiding. Not just hiding themselves, but also their contact details, their address, their workplace, their roommates, and any other information that could enable their abuser to target them. Yet today, no number of name changes and relocations can prevent data brokers from sharing a victim’s personal information online. Thanks to brokers, abusers can find what they need with a single search, a few clicks, and a few dollars. For many victims, then, the best hope for safety lies in obscurity—that is, making themselves and their information harder to find.

This Article exposes privacy law’s …

Clean Hands, Dirty Money, And The Codification Of Sec Disgorgement, Stephanie Palma

Fordham Law Review

Disgorgement is the U.S. Securities and Exchange Commission’s (SEC) most powerful enforcement tool and among its most controversial. For decades, federal courts treated disgorgement in securities enforcement actions as an equitable remedy, a view that the U.S. Supreme Court confirmed in Liu v. SEC. Months after Liu, Congress passed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, which codified disgorgement in SEC enforcement actions. The codification of disgorgement sparked a circuit split between the U.S. Courts of Appeals for the Fifth and Second Circuits over whether Congress created a new statutory form of …

Silencing As Blackening, I. Bennett Capers

Faculty Scholarship

We are so accustomed to seeing defendants sit silently at criminal trials while their lawyers speak that we hardly question it. Or we tell ourselves this silence is for their own protection, part of their privilege against self-incrimination and the rules we have created for their own benefit. But what if we've gotten everything wrong? What if encouraging defendants to remain silent does not inure to their benefit at all, but to the State's? And what if this silencing is tied to race? "Silencing as Blackening" tells a fuller story about silent defendants. One, that this silence is rarely voluntary, …

Outbound Investment Restrictions And International Law’S Challenge, Harlan G. Cohen

Faculty Scholarship

The Outbound Investment Rule, restricting U.S. investment in certain Chinese advanced technology sectors, has largely been portrayed as an incremental measure, a modest extension to fill loopholes in the existing investment screening regime. But while perhaps the logical next step in the securitization of the economy, the Outbound Investment Rule actually reflects a momentous shift in the relationship between governments and business, one playing out in the United States and around the world and worth attention. Unlike traditional investment screening, the Outbound Investment Rule operates like a sanctions regime, designed not to protect the U.S. economy, but to hamper the …

Slaughter, The Symmetry Rule, And What The Decision Of 1789 Actually Decided, Jane Manners, Lev Menand

Faculty Scholarship

No abstract provided.

Trump V. Cook And The American Rule Of For-Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

No abstract provided.

The Law Of For Cause Removal, Jane Manners, Lev Menand

Faculty Scholarship

For the first time in American history, the Supreme Court is poised to decide what it means for the president to remove a principal officer “for cause.” The case — which arises from the attempted removal of Lisa Cook, a member of the Board of Governors of the Federal Reserve System — has major implications for central bank independence in the United States and, more broadly, for the U.S. administrative state. But given how long it has been since such offices were formally contested, courts and commentators have forgotten many aspects of the legal tradition governing “for cause” removal. In …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

Equality In Sentencing Mitigation, John B. Meixner Jr.

Fordham Law Review

As guilty-plea rates have skyrocketed, sentencing has become an increasingly important part of criminal procedure. With judges often wielding significant discretion at sentencing, a key question is how judges interpret mitigation: evidence about the defendant’s background or the case that supports a reduced sentence. Past empirical research—both experimental and in real-world cases—indicates that mitigation plays an important role in determining sentences. But does mitigation help everyone, or does it reinforce inequalities that frequently infect other areas of criminal procedure? Do low-income Black defendants with appointed counsel benefit from sentencing mitigation as much as wealthier White defendants with private attorneys? Do …

The Equal Pay Act’S Hidden Loophole: Eliminating Prior Compensation As A “Factor Other Than Sex”, Madeleine Bol

Fordham Law Review

The Equal Pay Act of 1963 (EPA or the “Act”) prohibits employers from engaging in sex-based wage discrimination. The Act includes four exceptions that allow an employer to circumvent liability, the last of which allows for pay disparities when the “differential [is] based on any other factor other than sex.” The language of this exceedingly broad exception raises questions among courts on what “other than sex” entails—specifically, whether a court can rely on an employee’s prior compensation to justify a pay disparity between employees of the opposite sex. This Note examines how federal circuit courts have interpreted this catchall exception. …

Federal Courts, Class Actions, And The Jurisdictional Void, Courtney T. Welch

Fordham Law Review

To invoke the jurisdiction of a federal court, a plaintiff must satisfy the requirements of Article III. Among other things, Article III requires a plaintiff to have and maintain personal stake throughout the lifespan of the litigation. Though a simple premise, this constitutional requirement has a complicated history. This is especially true as applied to class action lawsuits, where plaintiffs bring claims both on behalf of themselves and other harmed individuals.

The U.S. Supreme Court has applied flexible rules to some—but not all—of Article III’s requirements in class actions. The breadth of this flexibility, though, is uncertain. Accordingly, so too …

Ai Procurement As Regulatory Reconnaissance, Sam Adler

Fordham Law Review

Artificial intelligence (AI) is a black box technology in a black box industry. Some view AI as a life-changing technology capable of advancing society and perhaps even saving the world, while others fear its capacity to harm. Like Dr. Frankenstein, developers fear the unpredictability of their own creations; deployers fear the unknown risks of third-party AI tools that market pressures drive them to assume; members of civil society fear AI’s capacity to oppress the already oppressed and degrade trust in institutions; and everyday users fear the undisclosed potential of AI to cause harm by means they cannot readily comprehend. These …

Not So Firmly Settled: How The Inconsistent Jurisprudence Of The Firm Resettlement Bar Serves As A Tool For Asylum Seeker Exclusion, Caroline V. Garrido

Fordham Law Review

The firm resettlement bar to asylum, designed to limit protections to those without refuge elsewhere, has become a source of inconsistency, confusion, and exclusion in U.S. asylum law. Circuit courts have adopted two different approaches for determining whether an asylum seeker has firmly resettled in a third country. Despite the Board of Immigration Appeals’ attempt to unify these approaches through the introduction of a burden-shifting framework, courts remain divided, and there is no clear guidance on what constitutes firm resettlement. This Note argues that this lack of guidance has led to inconsistent court holdings and interpretations that conflict with the …