Law Commons^™

Does Bidder Complexity Affect Market Reactions To M&A Decisions?, Rajib Chowdhury, John A. Doukas

Finance Faculty Publications

We examine whether and how bidder complexity influences investor reactions to merger and acquisition (M&A) announcements. Using an established measure of complexity, we find a significant positive relationship between acquiring firm complexity and cumulative abnormal returns (CAR). This suggests that investors perceive more complex firms as capable and value-enhancing participants in M&A activities. The association is particularly strong for bidders with high operating risk, greater R&D intensity, and larger firm size. We also find that complex bidders tend to offer higher takeover premiums. Overall, our study contributes to the literature by demonstrating that bidder complexity is an important determinant of …

Patent Law's Trade Remedy, Michael Doane

Akron Law Faculty Publications

Although a trade remedy, not an intellectual property rights statute, Section 337 of the Tariff Act of 1930 plays an important and controversial role in the enforcement of intellectual property rights in the United States. As a trade remedy, Section 337 is designed and intended to promote innovation and investment in the United States through support of statutorily defined domestic industries against unfair competition from infringing imported products. This Article analyzes Section 337 as a trade remedy from the perspective of intellectual property rights owners and innovators such as start-up companies, universities, individual inventors, and other research and development-focused entities. …

The Law Of Quitting, Andrew K. Jennings

Faculty Articles

Throughout life, people enter countless positions of authority and trust in relation to one another and the public. These positions include, among many others, being a public official, being a corporate director, and being an employee. Law announces prerequisites for starting such positions, as well as incumbents’ rights and obligations once in them. But no office holds forever. Indeed, incumbents often choose to exit positions before they would otherwise end by expiration, removal, or death. Yet law governs such voluntary relinquishment—often called “resignation” or, more generically, “quitting”—largely as afterthought. That is, law expansively attends how positions of authority and trust …

Against Doctrinal Siloing: Harmonizing Fiscal Federalism And The U.S. Constitution, David Gamage, Darien Shanske

Faculty Publications

This Essay argues that constitutional law’s treatment of fiscal federalism has fractured into a bewildering collection of doctrinal silos. Federal spending that pressures states, federal preemption of state taxes, the Dormant Commerce Clause, sovereign immunity, Section 5 of the Fourteenth Amendment, and the federal taxing power are all analyzed through distinct tests, even when they implicate the same basic conflict between federal authority and state fiscal autonomy. The result is not just theoretical confusion but inconsistent constitutional answers. Current doctrine can protect states from comparatively modest liabilities while leaving uncertain whether Congress may displace large swaths of state revenue authority. …

My Negotiation Chatbot Toby And Pedagogical Governance, Renee Henson

Faculty Publications

The use of artificial intelligence (AI) chatbots is exploding. Adolescents increasingly prefer interactions with AI companions over peers. Adults rely on these systems for health planning, therapy, administrative assistance, nutrition guidance, and even simulated “romantic relationships.” Individuals and institutions are adopting AI tools at a pace that far exceeds the development of governance frameworks.

I developed Toby for use in my first-year Lawyering: Problem-Solving and Dispute Resolution (“Lawyering”) course to expose students to the dynamics of negotiating against an opposing counsel with a difficult personality—a type of adversary all too common in legal practice, yet difficult to prepare for. Toby …

Boundaries Of Rules: Social Reactions To Legal Intervention, Francesco Parisi

Articles

This chapter examines what happens at the boundaries of rules: when social practices acquire legal recognition, when legal rules seek to reshape social expectations, and when formal and informal enforcement operate together. The conventional economic model treats the expected formal sanction as the principal source of compliance. Although this model provides a fundamental benchmark, it captures only part of the effects of legal intervention. The taxonomy developed here identifies the different ways in which legal, moral, and social incentives may interact. The kinds of public and private enforcement through which individuals express norms shape the additive, nonadditive, and countervailing effects …

Two Questions For School-Choice Funding After Carson, Nicole Stelle Garnett, John A. Meiser

Journal Articles

In a series of recent cases, the Supreme Court of the United States has made clear that the First Amendment's Free Exercise Clause prohibits religious discrimination in public benefit programs. That is, when the government creates a public benefit program, the Free Exercise Clause prohibits it from excluding private entities from participating because of their religious character or status or because they engage in religious conduct. This essay addresses two questions raised left unresolved by these cases and flags a third. The first question is, what is private? The religious nondiscrimination principle applies only when the government aids private conduct. …

Private Rights Of Action For Election Litigation In The Federal Courts, Derek T. Muller

Journal Articles

Election litigation is surging. But just as litigants pursue more election claims in federal courts than ever before, federal courts are growing more skeptical about their authority to hear them. This Essay, a contribution to the 2025 Arnold Lecture at the University of Arkansas Little Rock, William H. Bowen School of Law, examines the narrowing landscape of private rights of action in election law with a particular focus on claims brought ahead of the 2024 election. It traces the Supreme Court's shift toward formalism, the heavy emphasis on remedies found in federal statutes, and the diminishing avenues for private enforcement …

Slices And Lumps: Division And Aggregation In Law And Life, Lee Anne Fennell

Books

No abstract provided.

Sacred Or Sham? Strengthening Judicial Review Of Religious Sincerity Under The Free Exercise Clause Article Title, Montana Martinez

Faculty Scholarship

While the Court has expanded the scope of Free Exercise protections, it has conspicuously failed to articulate how courts should separate sincere religious claims from fraudulent ones. The result is a doctrinal void: any claimant can recast political or philosophical objections as "religious" and demand constitutional protection. The risk is that the Free Exercise Clause, if stripped of any sincerity filter, will collapse into a generalized right to exemption from law. This Article argues that courts can assess religious sincerity without evaluating the truth or validity of the religious belief, and it proposes a framework grounded in the constitutional text, …

Ain’T Nothing Like The Real Thing: How Legal Research Programs Can Provide The Needed Safety Rails For Pro Se Litigants Using Ai In Litigation, Nicole Belbin

Faculty Scholarship

An estimated 92% of legal needs go unmet in America, leaving a growing number of pro se litigants to “manage their own cause.” Between 2000 and 2019, 27% of all civil cases filed in U.S. District Courts, totaling 1,501,079 cases, had at least one party without attorney representation. The legal profession is abuzz about the potential for generative artificial intelligence (GenAI) tools to “smooth out any mismatch between available resources and urgent needs in our court system”; however, “hallucinations” have quickly proved a limitation to reaching this technology’s full potential. The complexity of legal research and analysis increases the chance …

Constitutional Colonialism And Decolonization: Moving Toward A Decolonial African Constitutional Future, Luwam Dirar

Faculty Scholarship

This Article is an attempt at theorizing Africa's colonial constitutional legacies and post-colonial constitutionalism. The central argument of this Article is that constitutional law in Africa is a colonial tool that was used to legalize the subjugation of Africans and Africa, and a post-colonial necessity for the "self-determination and statehood" of newly-minted African states, while at the same time, it remains a decolonial battlefield of epistemic colonization. This Article adopts a broader conception of colonialism that extends beyond the 19th-century understanding of European colonialism and interrogates constitutional law as both a colonial tool and an act of self-determination in the …

Kim Gyeong-Seok And The Origins Of Northeast Asia’S Corporate Accountability Movement For War And Colonialism, Timothy Webster

Faculty Scholarship

Campaigns to review Japan’s wartime legacy and legal liability have recurred throughout postwar Japan. While most of these efforts have targeted the Japanese government, an important subset of actors has also focused on the role of Japanese corporations. And perhaps no one played a larger role in directing attention towards Japan, Inc. than Kim Gyeong-seok, a Korean forced laborer in the 1940s turned redress activist in the 1990s. As described in this Article, Kim’s 1991 lawsuit against Nihon Kokan launched the corporate accountability piece of the reparations project, an endeavor that continues to create ripples even now. The Article briefly …

Data Rights For Workers, Pauline Kim, Rachel Leavitt

Scholarship@WashULaw

Workers are subject to immense amounts of data collection on the job, and the algorithmic management tools built with that data can produce negative effects, including deskilling jobs, unstable work hours, reduced wages, and dangerous and degrading working conditions. Workers thus have significant interests how their data are collected and used, and yet they have been excluded from nearly all the recently enacted or proposed data protection laws. Their exclusion stems from data protection’s roots in privacy law and theory, which primarily focused on consumers as data subjects. Current data protection laws, even if expanded to cover workers, would provide …

The Limits Of "Punishment", Benjamin Levin

Scholarship@WashULaw

“Punishment” is an all-important category in criminal legal thought. Conventional scholarship adopts a narrow definition and focuses on justifying penal sanctions. Much critical work, in contrast, seeks to expand the category—defining more practices and institutions as “punishment.” In this Article, I argue that the focus on purposes of punishment and on what constitutes punishment distracts from a larger theoretical and practical issue—much of what the criminal system does probably isn’t punishment as such. Certainly, a carceral sentence is punishment. But what about a curfew requirement for a defendant awaiting trial? What about a restriction on gun ownership post conviction? What …

Beyond Digital Pessimism: How A Focus On Trust Can Enhance Eu Digital Law, Neil M. Richards, Woodrow Hartzog, Claire Boine, Lea Despotis

Scholarship@WashULaw

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.

In this essay, we argue that while laudable, …

Apportioned Direct Taxes, Conor Clarke, Ari Glogower

Scholarship@WashULaw

The Constitution requires that Congress apportion any “direct” tax among the states by population. This once-dormant provision is now the most important constitutional limitation on Congress’s taxing power. Last year, in Moore v. United States, the Supreme Court seriously considered, for the first time in decades, whether to invalidate an Act of Congress as an unapportioned direct tax. While the law survived, Moore has opened a new era in which scholars and policymakers must again take apportionment seriously. Yet the apportionment requirement remains poorly understood.

This Article provides a new perspective on apportionment by examining how Congress and Treasury …

Space Enterprises As International Lawmakers: Nudges, Pledges, And Other Bottom-Up Modalities, Melissa (M.J.) Durkee

Scholarship@WashULaw

Private entities are influencing the development of international space law. Space enterprises need regulatory certainty and consistent standards to attract capital and develop their plans for space. Yet, states have lagged in their capacity to make multilateral international space law in traditional public fora. Private entities have responded to this legal lag by attempting to create, develop, and nudge international space law in commerce-friendly ways. This chapter surveys a variety of modalities by which commercial actors can affect the development of international law, offers several examples of how commercial lawmaking efforts

How International Organizations Regulate Lobbyist Access, Melissa (M.J.) Durkee

Scholarship@WashULaw

This chapter explores how international organizations (IOs) regulate lobbyist access through participation frameworks rather than traditional lobbying laws. While no unified international lobbying regime exists, IOs use rules on NGO 'consultation' and 'engagement' to structure access. These rules, rooted in historical practices like the UN's Economic and Social Council (ECOSOC) accreditation system, prioritize representativeness and legitimacy over transparency and accountability. As lobbying increasingly targets international forums, concerns about undue influence (the 'lobbying critique') and insufficient stakeholder inclusion (the 'access critique') have driven divergent reforms: some IOs, like the World Health Organization, have adopted stricter controls; others, such as the GAVI …

Taking Legality Seriously: What The Major Questions Doctrine Is — And Isn't, Andrea Scoseria Katz, Ofra Bloch

Scholarship@WashULaw

The Major Questions Doctrine (MQD), a controversial recent innovation of the Roberts Court that applies stricter scrutiny to “major” actions taken by federal agencies, has faced criticism for being atextual, unprincipled, and nakedly ideological. But this critique misses the fact that the doctrine has near-exact analogues in many other legal systems, where it is an established tool for reining in executive overreach. This Article argues that, while the MQD reflects valid rule-of-law concerns, as applied, it lacks theoretical clarity, consistency and limits. More importantly, the Court itself lacks a theory of what the MQD is. We provide an answer grounded …

Privatising International (Organizations) Law, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the increasing role of private commercial actors within international organizations (IOs) and the implications for international law. Once conceived as state-centred institutions, IOs now routinely involve corporations, trade associations, and philanthropic foundations in lawmaking, policy-setting, financing, and implementation. These actors participate through multiple channels: as observers, delegates, stakeholders, funders, and partners. While private involvement has historical precedents, its contemporary scale and formalization mark a significant transformation in global governance. International law, however, offers little guidance on the boundary between public and private authority, leaving legitimacy concerns unresolved. To evaluate privatization, the article identifies two competing logics: a …

Advanced Introduction To Family Law In The Us, Susan Frelich Appleton

Scholarship@WashULaw

This Elgar Advanced Introduction provides key insights into family law in the US. In the midst of consequential changes wrought by the US Supreme Court, this book traces the evolution of the field from its origins in the law of domestic relations to the more modern regime of family law.

Key features include:
● Integrates state law, federal law, legal scholarship, and literature from other disciplines.
● Identifies the regulation of sex and the policy of keeping dependency private as family law''s principal enduring features.
● Surveys different topics in family law including: marriage, nonmarriage, and dissolution; pregnancy; parentage; and …

Abolishing The Family, Susan Frelich Appleton, Albertina Antognini

Scholarship@WashULaw

Family law scholarship is replete with calls for reform. Yet gender-, race-, and class-based inequalities within and across families remain intractable. So what if, instead of reforming the family, we abolish it?

Abolishing the family might sound like a startling idea for a family-law analysis, especially after decades of efforts to expand the legal understanding of “family.” But the proposal is hardly new. In this Article, we lay the groundwork for integrating family abolitionist ideas, which have until now mostly taken place outside of law, into family law scholarship.

While family abolition is in many ways a radical departure from …

Justifying The Fourth Amendment, Daniel Epps

Scholarship@WashULaw

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment’s content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment’s constitutional protections are critically important—even if no one can agree exactly what those protections are.

This Article seeks a justification for the Fourth Amendment—the reason why search-and-seizure protections …

Teaching Constitutional Law: Politics, Democracy And History, Andrea Scoseria Katz

Scholarship@WashULaw

Teaching Constitutional Law in the present era presents unique pedagogical challenges. My students arrive skeptical of the field, doubtful of the Supreme Court’s authority, questioning the relevance of legal methods in determining case outcomes, and perceiving constitutional adjudication as irreducibly political. Rather than dismiss these concerns, I argue that constitutional law professors must acknowledge them directly. Our task is not to restore naïve faith in judicial neutrality (an impossible ideal), but to present students with a vision of constitutional meaning-making—one grounded in politics, history, and democratic politics—in which they can recognize themselves as engaged participants in the future of our …

Seeing International Organizations In A Shifting Landscape: Law, Practice, And Authority, Melissa (M.J.) Durkee

Scholarship@WashULaw

This book review symposium comes at a moment of visible strain in the postwar legal order. As of this writing, Canadian Prime Minister Mark Carney has described a "rupture" in the rules-based world order, warning that multilateral institutions and the architecture of collective problem-solving are under threat. Notably, Carney issued that warning at the World Economic Forum in Davos, before an audience of "companies and countries." The setting underscores a broader shift in global governance, in which states, firms, and philanthropic actors increasingly occupy shared institutional spaces, unsettling assumptions about law and power at the international level. The books under …

Specialization And The Permanence Of Federal Bankruptcy Law, Rafael I. Pardo

Scholarship@WashULaw

Traditional historical accounts posit that federal bankruptcy specialization in the United States first developed under the system established by the Bankruptcy Act of 1898. That view assumes that the structural and temporal conditions necessary to foster specialization did not exist under the nation’s earlier federal bankruptcy systems—those created by the Bankruptcy Acts of 1800, 1841, and 1867. This Article theorizes that federal bankruptcy specialization very likely occurred under the pre-1898 systems and marshals evidence to that effect, primarily focusing on the Bankruptcy Act of 1841 (the 1841 Act). That statute marked a critical turning point in federal bankruptcy law, shifting …

Sustainability Assurance, Andrew F. Tuch, Luca Enriques, Alessandro Romano

Scholarship@WashULaw

A robust literature examines sustainability disclosures by public corporations, but legal scholarship has largely overlooked the role of third-party assurance—or verification—of such disclosures. This is a notable omission given the extensive literature on the auditing of financial statements, a related form of assurance.

This article responds by examining the role of assurance in sustainability reporting. In keeping with the theme of this symposium volume, it draws on US and EU law. Our discussion begins in Part I with sustainability disclosures, focusing on the requirements and practices of public companies. In Part II, we introduce sustainability assurance as well as assurance …

Tariffs And The Taxing Power: Historical Lessons For Major Questions And Nondelegation, Conor Clarke, Ari Glogower

Scholarship@WashULaw

American law is grappling with basic questions about the President’s power to impose tariffs—questions concerning whether Congress can delegate this authority, and the degree to which it has. But the ongoing tariff controversy emerges against a backdrop of conflicting and shifting historical practice. Early Congresses drafted tariff statutes in painstaking detail, while some of the broadest delegations in the early Republic involved internal taxes. In the modern era, by contrast, Congress has delegated more expansive tariff powers to the President, while retaining closer control over internal taxes. How should we understand this seemingly conflicting history of practice, and its relevance …

Foreword: The Constitution And Public Finance—Why Now And Why Ever?, Conor Clarke, Eric Kubo

Scholarship@WashULaw

This paper introduces the Washington University Law Review’s 2026 symposium issue on “Taxing, Spending, and the Constitution.” We situate the symposium’s ten papers within three interconnected developments in public finance law: the Supreme Court’s recent decision on the Sixteenth Amendment in Moore v. United States; the Trump Administration’s assertions of executive control over appropriated funds; and the use of emergency and trade statutes to justify sweeping tariff authority.

We also step back to ask why constitutional issues in public finance—long treated as a technical backwater—have become such a central site of doctrinal and political conflict. We offer several explanations beyond …