Equitable Remedies and Inequitable Deductions: Constructive Dividends and Disgorgement After Liu
Sean Hullihan 93 Geo. Wash. L. Rev. 445 Disgorgement has been a powerful tool for the Securities and Exchange Commission (“SEC”) to... Read More
Higher Education’s Great Divide: Tuition Discrimination and the Dormant Commerce Clause
Stephanie Faye Sauer 93 Geo. Wash. L. Rev. 410 The pursuit of higher education has long been ingrained in the fabric of... Read More
The Judicial Administrative Power
Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders. This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and considers the role the activities play for the modern federal judiciary. We argue that the judicial administrative power has profound consequences that carry us far beyond baseline questions of whether or to what extent judicial administration facilitates or improves federal adjudication. We conclude with a set of proposed reforms that would respond to these challenges by treating the judicial administrative power as administrative first and judicial second—and not the other way around.
The Distinction Between Direct and Derivative Shareholder Claims
One of the primary methods for shareholders to seek redress for corporate misconduct is the shareholder suit, in which shareholders may assert either “direct” or “derivative” claims. Although the distinction between direct and derivative claims is often outcome-determinative, the specific rules governing that distinction have long been flawed, with courts and commentators calling those rules “subjective,” “opaque,” and “muddled.” Moreover, the predominant Tooley test prevents courts from addressing numerous management misdeeds, thus harming shareholders and impairing justice. This Article explains how the Tooley test is fundamentally intractable and leads to gaming by transactional planners. This Article proposes another test based on (1) the availability of alternative governance solutions, and (2) relative judicial competency.
“I Am Free but Without a Cent”: Economic Justice as Equal Citizenship
The Fourteenth Amendment is one of the most-studied parts of the Constitution, but one of its central concerns has been long ignored by courts and scholars: economic justice. The rights of the poor and powerless to enjoy fundamental freedoms and meaningful equality lie at the very core of the Fourteenth Amendment’s text and history. The Supreme Court has failed to give these fundamental promises their due, producing a jurisprudence that turns a blind eye to the rights of poor people and reads the constitutional promise of economic justice out of our national charter. Recovering the true meaning of the Thirteenth and Fourteenth Amendments, as reflected in their text and history, would open the door to meaningful doctrinal changes that would help protect the rights of poor people and advance the effort to redress economic inequality.