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.
Is Strict Scrutiny Too Strict? Remediating Racial Disparities in Environmental Hazard Exposure
Katie Metzger 93 Geo. Wash. L. Rev. 189 As environmental justice issues garner national attention, legislatures have considered ways to address unequal... Read More
Get in, Litigants: We’re Going Judge Shopping!
Shloke Singh Nair 93 Geo. Wash. L. Rev. 159 Judge shopping, which is distinct from forum shopping, refers to the practice of... Read More
The Unconscionably Short Warranty
Marie T. Reilly 93 Geo. Wash. L. Rev. 105 A typical consumer product warranty covers products for defects that appear before the... Read More
The Scope of the Prior Art
John R. Thomas 93 Geo. Wash. L. Rev. 54 The courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an... Read More
Abortion Ally or Abettor: Accomplice and Conspiracy Liability After Dobbs
The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. This Article is the first to ground defenses to liability for helping people pursue reproductive and gender freedoms after Dobbs in anti-totalitarian theory and in light of how courts have curbed the criminalization of compassion to migrants.