Faculty Bibliography

The outpouring of empirical work on how and when human beings depart from perfect rationality has led to a wholesale rethinking of paternalism and its limits. Over the last decades, three camps have emerged: (1) coercive paternalists, who urge that behavioral findings undermine John Stuart Mill's Harm Principle and greatly strengthen arguments for paternalistic mandates and bans; (2) libertarian paternalists, who urge that behavioral findings justify a host of paternalistic but freedom-preserving interventions or "nudges," such as warnings, reminders, labels, and automatic enrollment; and (3) antipaternalists, who urge that behavioral findings do not justify paternalism and argue only, or at most, for efforts to strengthen or "boost" people's competences, or their capacities to make good choices. On welfare grounds, it is possible to identify the assumptions under which, and the policy domains in which, one or another approach would be best. Libertarian paternalism often has significant advantages over coercive paternalism, at least in circumstances in which choosers are heterogeneous. But when all or most choosers err, the welfarist argument for coercive paternalism is strengthened, and when choosers are not only heterogeneous but also adequately informed and free from behavioral biases, antipaternalism makes a great deal of sense.

Does Artificial Intelligence (AI) have rights? A plausible answer depends on the answer to another question: Is AI capable of experiencing emotions, such as sadness, pleasure, regret, anxiety, joy, and distress? A negative answer to that question means that AI lacks moral rights and that it is not entitled to legal rights (though such rights might be granted for instrumental reasons). It follows that if and when AI has emotions, it has moral rights, and it should be entitled to legal rights as well. The capacity to experience emotions can be seen as a necessary and sufficient condition for the recognition and conferral of rights. That conclusion might be rejected by those who emphasize (for example) a capacity for self-awareness or an ability to reason. A focus on emotions also leaves open the question of what rights AI has, supposing that it has rights, and the grounds on which its rights might be defeasible.

This Research Agenda indicates key directions for future investigation in tort law, with particular focus on the ways in which laws could and should assign responsibility for injury and regulate safety. Bringing together leading international experts, this book maps out key challenges of emerging developments in tort law and theory.

In the name of national security, the Trump administration has taken a stake in Intel, acquired a “golden share” in U.S. Steel, obtained equity stakes in critical minerals companies, and required semiconductor companies to pay the government a percentage of their profits from sales to China in exchange for export licenses. These actions mark a dramatic departure from the traditional U.S. capitalist system, which relies on the market, not the government, to pick winners and losers. Indeed, they carry overtones of a command economy. But as unusual and occasionally illegal as these developments are, they also build on a broader shift that has pushed U.S. companies into a central role in U.S. national security policy in the last decade. Recent administrations of both parties have invoked the mantra that “economic security is national security.” To implement that philosophy, they have relied heavily on economic tools, including sanctions, export controls, investment screening, and tariffs. While these tools provide important levers for the U.S. government to manage national security threats, their proliferation is also fostering deeper, more diverse, and riskier roles for companies in this new era. We identify five such roles. Companies are: 1) key to security supply chains, prompting government involvement in the companies; 2) front-line enforcers or self-enforcers of economic security; 3) national security proxies for the U.S. government; 4) sources of products that the government uses as negotiating leverage; and 5) sources of funds that the government can extract in exchange for national-security related approvals. These enhanced, often novel, and sometimes illegal roles for companies in the national security ecosystem pose disturbing costs to public law values, such as legality, rationality, accountability, and fairness. The government’s burgeoning reliance on companies to implement national security policy undercuts public law values by fostering incentives for companies and the government to act unlawfully, creating principal/agent problems, and undercutting transparency. The Trump administration’s latest moves go even further: by introducing profit motives into security-related decisions, they produce conflicts of interest, potential corruption, and decision-making distortions both for the government and for companies. This approach is especially pernicious in national security policy-making because the stakes are so high. The end result will be a United States that is both less safe and economically weaker. Because many of these corporate roles likely will continue in future administrations (whether Democratic or Republican), finding ways to minimize the risks to public law values is crucial. For each of the risks that we identify, we propose concrete measures that Congress, the Executive, companies, and even allied governments could undertake to mitigate the corrosive effects of corporate entanglement in U.S. national security policy going forward.

The surge of executive power unleashed by the Supreme Court has reached the Federal Reserve, provoking a crisis that the justices seem suddenly anxious to avoid. But the drama is long overdue. The central bank has a constitutional stature that poses a direct challenge to unitary executive theory, the principle animating the Court's recent case law. Congress established the Federal Reserve System to carry out a critical legislative prerogative-making the sovereign money supply. Congress used an institutional form-national banking- innovated precisely to secure sovereign money-making from executive (originally monarchical) interference. Congress in turn assigned a vital responsibility-the capacity to make money out of debt in the people's name-to the Fed. The constitutional conclusion follows: Congress's prerogative over money-making clearly secures the Fed's independence from presidential interference. That conclusion is lost in current scholarship that treats the Fed as fundamentally like other independent agencies. The Court has assumed, similarly, that the unitary executive presides over a relatively homogeneous regulatory field. The case of the Fed exposes the separation of powers as a more complicated project. Legislatures built democratic sovereignty by struggling for prerogatives that, like money-making, protected their lawmaking authority. The prerogatives claimed by Congress inform the work of each agency and official, including within the executive branch. The Court dismantles democratic sovereignty when it denies the reach of those prerogatives.

Traditional accounts of corporate governance focus on internal actors and largely neglect external governance: the ways in which actors outside the firm seek to embed broader objectives into corporate decision-making. This Article argues that nonprofits are now among the most important engines of external governance and taking their role into account sheds critical light on corporate governance developments in the past, present, and future. We make three primary contributions. First, we identify the range of nonprofits that engage in external governance, discuss their defining features, and explain why governance-related activism occurs through nonprofit vehicles. Second, we examine their strategic playbook, which includes legislative advocacy, litigation, shareholder proposals, and soft law and shaming campaigns. We analyze how these strategies have contributed to key corporate governance shifts, from global supply chain and benefit corporation legislation to the rise and backlash against CSR, ESG, DEI, and climate-related agendas. Third, we explore the broader implications of this phenomenon for reform proposals and the future of corporate governance. Nonprofits have consistently operated to expand the scope of corporate governance beyond shareholder-manager dynamics, thus challenging traditional conceptions of corporate governance, incorporating competing ideologies, and fueling unpredictable chain reactions. Their global reach and varied strategies create a hydraulic effect—when one avenue of influence is constrained, nonprofits redirect efforts through alternative mechanisms. Nonprofits also help explain why twenty-first-century corporate governance developments have diverged from predictions of an “end of history,” instead reflecting a global trend toward broader and more contested models of governance. Finally, shining a light on nonprofits as engines of external governance reveals a range of normative perspectives on both their constructive and concerning dimensions.

What is the connection between a lawsuit brought by a proxy adviser against the Securities and Exchange Commission (SEC) and Niccolò Machiavelli’s Discourses on Livy, a 16th-century Italian treatise on history and politics? It’s just a word – solicit – which is at the center of the lawsuit and appears in some English translations of the Discourses but not in others, thus creating a small linguistic mystery about its meaning. Does soliciting entail a preference, a desire, or a personal interest in the ultimate outcome of the solicited action, as the plaintiff argues in the lawsuit? Or does it merely denote a pursuit or a mechanical causation of that action, with no regard for intentions or preferences, as the SEC maintains? It turns out that translating Machiavelli requires thinking hard about this question. To be sure, neither the lawyers nor the court in the proxy advisers case made this connection with Machiavelli. But this lexicographic journey is, I believe, instructive. It shows how hard – and sometimes inane – it is to try to “crack the code” of a text without drowning in the philosophical and literary depths of words.

There is broad consensus that the law of conflict of trust laws is outdated. Both the American Law Institute and the Uniform Law Commission have initiated reform projects to address this obsolescence. But there is no consensus around what went wrong or how to fix it. This Chapter, prepared for the 2026 Heckerling Institute on Estate Planning and derived from our earlier paper, “The Twenty-First Century Revolution in Conflict of Trust Laws,” 79 Tulane Law Review 1013 (2023), responds to that gap by providing a historically, theoretically, and institutionally grounded account of the rise and fall of the old regime with an eye toward informing ongoing law reform efforts. We first show that the prevailing regime—that of the 1971 Restatement (Second) of Conflict of Laws—was purpose-built to encode then-common norms of trust law and practice. We then explain how and why modern trust law and practice has departed from those norms, upending the Restatement’s foundational assumptions. In the Restatement’s era, conflicts of trust laws rarely arose and were easily resolved through reliance on the locational anchors of land, probate, and court supervision. Today, by contrast, provoking a conflict of trust laws by drafting a trust to capture the benefits of interstate variation in law is a routine estate planning strategy, and the locational anchors of land, probate, and court supervision have become unmoored. Indeed, our account recasts nearly every significant development affecting trust law and practice over the past fifty years as a contributor to the revolution in conflict of trust laws. Informed by this understanding of the old regime’s obsolescence, we offer tentative suggestions for the law reform efforts currently underway.

The brutal conflict between Hamas and Israel convulsed higher education. Student protestors have demanded that university endowments "divest" from Israel. University leaders have largely resisted those demands on grounds of fiduciary obligation, institutional neutrality, or both. In response, protestors have pointed to prior instances of purported divestment. Confusion abounds over the applicable fiduciary principles and the scope of prior divestments. This paper synthesizes the law and finance of endowment divestment and applies that analysis to past divestments and present divestment demands. We show that under prevailing law endowment divestment for nonfinancial reasons is permissible only if: (1) the divestment is consistent with the university's charitable purpose of research and education, and (2) the divestment's effect on the portfolio is reasonable in light of that purpose. Applied to the current state of university endowment management, this is a highly restrictive standard. The charitable purpose of most secular universities is research and education, full stop. Moreover, contemporary endowment practice relies on external managers, making a divestment today more costly to implement than in the past. Under current endowment practice, therefore, even a de minimis divestment, whether from Israel or otherwise, would likely be a fiduciary breach, potentially exposing university trustees to out-of-pocket damages for any resulting loss to the endowment. We also examine current divestment policies and purported prior divestments, including South Africa under apartheid, tobacco, the Darfur war, and fossil fuels. Consistent with our legal analysis, but contrary to conventional wisdom, we find that universities have generally not engaged in broad divestments, not even from South Africa under apartheid. Instead, most large university endowments adhere to a narrow divestment policy for "moral abhorrence" that has rarely been invoked. We show that a divestment for moral abhorrence could pass fiduciary muster as consistent with the public benefit principle of charity law if supported by a clear public policy established by confirmatory governmental actions.

In free markets, countless goods may be bought and sold. What was once not traded on markets-for example, access to public parks or sexual and reproductive capacitiesmight be turned into a commodity. Time and again, allowing things to be bought and sold increases both autonomy and welfare. Still, there are pervasive objections to commodification. The first set of objections points to illicit preferences and values and the importance of delegitimating, or not legitimating, those preferences and values (for example, employers cannot "buy" the right to engage in sexual harassment). A second set of objections involves collective action problems: commodification might create such problems (consider the right to vote). A third set of objections invokes equality (as, for example, when people reject the idea that access to public parks should be allocated on the basis of willingness to pay). A fourth set of objections points to information failures and behavioral biases, potentially producing blocked exchanges. A fifth set of objections emphasizes what may be the corrosive effects of commodification on the goods in questions (consider prostitution). These objections sometimes depend on doubtful empirical assumptions, and are frequently overstated. They have different levels of force in different contexts.

This essay argues that universities should commit their endowments to a non-divestment policy, investing solely for risk and return. We acknowledge that there are narrow conditions under which divestment may be legally permissible. Instead, our argument is pragmatic and informed by our normative view of the university. Pragmatically, divestments do not pass a cost-benefit test. They are unlikely to produce the desired social benefits but are likely to complicate endowment management and create litigation risk. By contrast, investing solely for prudent risk and return minimizes management costs and is all but a fiduciary safe harbor. We consider the possibility that a divestment could be justified on reputational grounds but conclude that such a divestment would be legally problematic and is as likely to damage the university's reputation as to improve it. Normatively, we argue that a non-divestment policy is most consistent with higher education's long-standing ethos of open-ended inquiry and that universities will best serve society by focusing solely on their charitable purpose of research and education.

Pressure from the new, large, economically-powerful institutional shareholders, like BlackRock, for more corporate social responsibility-on issues like climate change, the environment, and justice-became a major feature of the corporate landscape in this century, with much hope for its success. That hope arose because incentives emanating from America's shareholding structure had shifted when firm-by-firm investments by large shareholding institutions evolved to market-wide, across-the-economy investments in very large portfolios. Institutional investors of this sort no longer picked stocks; they invested broadly across the stock market and the American economy. Investors with across-the-economy ownership had more reason to make their companies internalize externalities; if one firm in the portfolio profited at the expense of another firm, the new investor's profit in one would be offset by the loss in the other firm. And turning from government regulation to private pressure was needed, said many analysts and activists, because of our broken government. The new institutional investor class could door at least help to do what government had not. That new shareholder class indeed bought into the new corporate social responsibility playbook and pressed corporate America for more socially responsible action. That effort failed in the first half of this decade; here we analyze the effort's legal and political premises to see why its odds of success were daunting from the start, with the early hopes for success unrealistic. Its political failure was embedded in its foundational premise, namely the starting thought that dysfunctional government by itself left, and still leaves, a large opening for transformational, shareholder-induced CSR. That premise was as largely unquestioned thus far as it was incorrect-incorrect because the political forces that defeated direct governmental action constituted latent political forces that could, and did, galvanize political players into action to defeat and reverse the 2010s' private CSR successes-once they became prominent.

Patent applications indicate a trend toward completely integrating artificial intelligence (AI) with drugs, whereby AI applications will be so tightly linked to drugs that the drugs could be effectively unusable without the AI.

Politicians appear to be increasingly dependent upon a group of ultra-wealthy elites who not only fund their campaigns but are critical for the functioning of public governance. These ultrawealthy individuals provide the indispensable infrastructure, expertise, and communication that are critical to modern electoral politics. These ultra-wealthy individuals want more than influence, seeking instead to govern even though the voters do not elect them. This chapter describes this process and argues that the campaign finance literature, which is mired in a debate about corruption and equality, is not well-positioned to address this contemporary challenge to representative democracy. The piece refers to this challenge as "plutocratic democracy," and uses Elon Musk as a case study.

Democratic norms decay as strongmen leaders disable checks on their power; artificial intelligence permeates every sector of societies. Although reflecting different origins and dynamics, these two trends in the first decades of the 21st century reflect and escalate social distrust and diminish human capacities. Reclaiming our freedom requires active resistance and and actions honoring and deepening our humanity through protest, collaboration, and creativity. I am truly humbled to be associated with René Cassin, whose vision and persistence were rivaled only by his devotion to human dignity and his lawyerly precision and rigor. In his speech accepting the Nobel Peace Prize, René Cassin stressed that the then 20-year old Universal Declaration of Human Rights marked "the permanent accession of every human being to the rank of member of human society," transcending the power of nation states.

This brief essay, forthcoming in the NLU Delhi Journal of Legal Studies, describes several versions of transformative constitutionalism., all of which are aimed at transforming a deeply unsatisfying status quo. Most scholarship on the topic has focused on material deprivation and inequality, with some attention to cultural conditions. After describing some of the well-known institutional implications of materially transformative constitutionalism, the essay turns to cultural transformations, which are in general anti-cosmopolitan, and distinguishes between anti-colonial and reactionary cultural transformative constitutionalism.

It is rational to care about proximity; closer is often better. Proximity bias can be found when people overweight proximity and are willing (for example) to suffer serious welfare losses in terms of health or wealth in return for modest welfare gains as a result of proximity. In extreme cases, proximity bias leads people to stay where they are, at significant cost to their own welfare. Proximity bias is paralleled by proximity neglect, which can be found when people underweight the welfare benefits of proximity. Proximity bias can be seen as a product of present bias, though it often has additional or distinctive characteristics (including overestimation of the welfare costs of getting from one place to another). Extreme forms of proximity bias can be counted as pathological (“hodophobia”). There is clear evidence of the importance of proximity, and suggestive evidence of proximity bias, in diverse contexts, including medical care; vaccination; eviction; voting; and public assistance. Proximity bias has significant implications for policy and law. It suggests that there may be large effects from increasing (or reducing) proximity or making proximity less (or more) salient, perhaps through the use of debiasing, online alternatives, or various forms of choice architecture.

This is an analysis of how Title VI of the Civil Rights Act of 1964 applies to claims of campus antisemitism, prepared for a public hearing of the U.S. Commission on Civil Rights held on February 19, 2026.

Can AI be liberal? In what sense? One answer points to the liberal insistence on freedom of choice, understood as a product of the commitment to personal autonomy and individual dignity. Mill and Hayek are of course defining figures here, emphasizing the epistemic foundations for freedom of choice. "Choice Engines," powered by AI and authorized or required by law, might promote liberal goals (and in the process, produce significant increases in human welfare). A key reason is that they can simultaneously (1) preserve autonomy, (2) respect dignity, and (3) help people to overcome inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves, and also externalities, understood as costs that people impose on others. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and externalities. AI-powered Choice Engines can respect that freedom, not least through personalization. Nonetheless, AI-powered Choice Engines might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus co5mpromise liberal goals. AI-powered Choice Engines might also be deceptive or manipulative, again compromising liberal goals, and legal safeguards are necessary to reduce the relevant risks. Illiberal or antiliberal AI is not merely imaginable; it is in place. Still, liberal AI is not an oxymoron. It could make life less nasty, less brutish, less short, and less hard - and more free.

Extremism is often made possible or fueled by group polarization: Like-minded people, engaged in discussions with one another, adopt a more extreme position in line with their prediscussion inclinations. Group polarization often promotes and influences norm entrepreneurs, who in turn help direct, unify, and energize those who listen to them, who in turn direct and energize norm enterpreneurs. The result can be a kind of spiral or tornado. Because of habituation, understood as diminishing sensitivity to stimuli, the energy provided by a transgressive or outre position is often less intense on Wednesday than it was on Monday, which means that norm entrepreneurs are often incentivized to up the ante. Spare as they are, these points suggest the importance of seeing extremism as a product of dynamic interactions among (1) group polarization; (2) norm entrepreneurship; and (3) habituation and thrill-seeking. These interactions might be formalized and subjected to empirical testing.

We examine how priority of workers’ claims vis-à-vis secured claims in insolvency varies across jurisdictions and over time as a window into the shifting treatment of distributional or social justice considerations in private law. Existing literature focuses on the extent to which laws in the Global South are either legal transplants from European countries belonging to the same legal family or have more recently adhered to “neoliberal” prescriptions from the United States or international organizations. Our findings highlight the limits of these theories by showing (i) Global South-driven legal innovation and diffusion, with Mexico’s 1917 constitution granting workers’ claims priority over secured claims nearly two decades before comparable French legislation was enacted, and (ii) significant persistence—and, in some cases, growing recognition—of priority for workers’ claims across jurisdictions, despite strong contrary pressures from international organizations such as the World Bank and UNCITRAL. We also discuss the role of state capacity in explaining legal heterodoxy in the Global South and describe the growth of sub rosa legal reforms that circumvent workers’ priority in bankruptcy through new categories of insolvency-proof security interests.

After performing an abortion in 1973, Dr. Kenneth Edelin was indicted and convicted of manslaughter. Dr. Edelin’s conviction was reversed 50 years ago. However, the conflict between the medical and legal systems, the use of abortion prosecution to control patients and providers, and the framing of a fetus as a person feel just as relevant to today’s abortion landscape.

Reported instances of AI-assisted, blanket denials of coverage have increased in recent years, particularly for Medicare Advantage plans, resulting in insurers facing criticism, class action lawsuits, investigations from Congress, and key providers leaving their networks. To ensure a fair healthcare system, action is needed to improve transparency in how AI tools approve or deny claims, and address provider burnout and patient burden due to navigating prior authorization requests and appeals.

Fresh out of college, we were a bunch of misfits, in a chaotic, run-down communal home, desperately trying to figure out who we were meant to be.

Although the obvious effect of settlement is to save litigants the costs of trial, settlement also influences deterrence—and for two reasons. First, because settlement is agreed upon by plaintiffs, it raises their expected return from litigation and thus the probability of suit. This augments deterrence. Second, because settlement is agreed upon by defendants, it lowers their expected costs of litigation and therefore dilutes deterrence. The primary objective of the article is to identify the net effect of settlement on deterrence and on social welfare in a model of accidents, liability, and litigation. The conditions for the bringing of suit in the model are not only that plaintiffs be willing to go to trial, but also that their anticipated settlements would exceed their pretrial costs.

In certain antitrust settings, it is sometimes claimed that otherwise cognizable benefits (efficiencies, procompetitive effects) do not count in the balance if they arise in a different "market" from the locus of harm. Such an omission would be pernicious. If broadly applied, it would condemn many movements of resources to their best uses, the lifeblood of a well-functioning economy. After all, when supply and demand shift or drastic innovations channel resources in new directions--whether by contracts, internal decisions of firms (including monopolists), or acquisitions--they necessarily move resources away from being deployed somewhere else. An immediate implication is that, at a fundamental level, healthy economic activity routinely leaves some suppliers and customers worse off, no matter how widespread and substantial are the benefits to others. Attempts to regulate an economy that ignore "out-of-market" benefits would undermine its basic operation. It would be dangerous to expand this type of limitation on sound analysis and decision-making; instead, any such restrictions should be expunged.

In our 2025 book, Algorithmic Harm, we contend that the use of algorithms can benefit consumers in many ways (largely because of greater personalization), but that it can also cause harm in the face of information deficits and behavioral biases (again, largely because of greater personalization). Unsophisticated consumers, as we call them, are especially vulnerable to algorithmic harm. In this short response to a set of excellent comments on our book, we explore some of the benefits of personalization; some of the costs of forbidding it; some challenges, in terms of feasibility, to our preferred approaches; and the intriguing question whether and in what sense algorithms might be said to have an unconscious.

Wolford v. Lopez presents the Supreme Court with a novel question: may states require property owners to affirmatively consent before armed persons enter private property that is held open to the public? Hawaii enacted such a default rule after New York State Rifle & Pistol Association v. Bruen instructed courts to assess modern gun regulations by analogy to historical restrictions that are “relevantly similar” in “how and why” they burden the right to armed self-defense. In Wolford, the parties have turned to colonial-era hunting statutes limiting armed entry onto private land, but they disagree fundamentally about what those laws represent. This Essay shows how Wolford crystallizes the level-of-generality problem embedded in Bruen’s historical framework. Outcomes often turn on the frame courts choose for “the relevant tradition”: defined too narrowly, no analogue fits; defined too broadly, almost anything does. Wolford poses that problem on both “why” and “how.” On “why,” the parties and lower courts dispute whether Founding-era hunting laws targeted “poaching” alone or broader concerns about armed trespass. On “how,” they dispute whether bans tied to “enclosed” or “improved” land map onto the modern category of “private property open to the public.” Reexamining the record through property history clarifies what the hunting laws can—and cannot—do in the analogical analysis. Even an “anti-poaching” frame does not resolve whether the laws addressed theft of game or a broader bundle of concerns including trespass, property damage, and violence associated with armed strangers. And “enclosure” and “improvement” functioned as publicly legible property signals—proxies for claim and notice—rather than precursors to contemporary zoning-era distinctions between residential and commercial space. The Essay closes by arguing that when history is genuinely ambiguous and competing constitutional values are in tension, courts should be transparent about the level-of-generality choices that drive outcomes and candid about the extent to which those choices inevitably reintroduce means-ends reasoning under another name.

Long before the federal onslaught, a Twin Cities museum showed what it meant to find a home in America.

Tort law is a dynamic body of doctrine that both shapes, and is shaped by, technological, institutional, and moral change. In their introduction to A Research Agenda for Tort Law, Editors Ellen M. Bublick, Foundation Professor of Law and Civil Justice at the Sandra Day O’Connor College of Law, and John C. P. Goldberg, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School, map the contributions of leading torts scholars to questions concerning future directions for tort law scholarship. The volume’s three parts—Doctrinal Frontiers, Tort Law in Action, and Tort Law and Technological and Theoretical Change—address issues ranging from how courts identify new injuries and new torts, to which types of institutions and actors should address wrongs and harm, to the ways in which legal doctrines and educational institutions should accommodate artificial intelligence. The Editors suggest that, as in times past, tort experts of the future will at once be attentive to longstanding core principles of tort law and attuned to evolving technology and norms.

In an attempt to protect its dominant position in the market for incorporations, Delaware recently relaxed the constraints on public company controllers. This article analyzes how the relaxation of controller constraints is expected to affect public investors and the economy. In particular, we show that this relaxation should be expected to: (i) provide controllers with substantial private benefits through six channels that we identify and discuss; (ii) impose even larger costs on public investors and thereby generate considerable efficiency costs and reductions in corporate value; (iii) transform ownership patterns over time-leading both to an increase in the prevalence of controlled companies and to a decline in the ownership stakes held by controllers; and (iv) lower the quality of investor protection in U.S. controlled companies to a level significantly below that observed in other advanced economies. We also demonstrate that market forces and private ordering cannot be relied on to adequately address the above concerns. The looming risks we identify for both public investors and the broader economy raise serious concerns for anyone interested in investor protection and economic performance.

Coercive, non-pro-rata debt restructurings, driven often by private equity sponsors, have become a major force for fixing distressed companies. The coercive recapitalization is promoted—by stressed companies, their owners, their advisors, and favored creditors—as avoiding bankruptcy and reducing the firm’s financial stress by extending the runway for its operations to recover and take off. If generally true, this would be reason to expect the upward trend in their frequency to persist. But the positive characteristics promoted cannot be pervasively found in the data and post-deal results of these new-style restructurings. First, a majority of the coercively restructured firms end up filing for bankruptcy anyway. For a coercive effort whose justification is largely to avoid bankruptcy, this bankruptcy-anyway trend is not a good sign. Second, the participants typically do not exchange their debt for stabilizing equity but instead take higher-priority debt that further destabilizes the weakened firm’s overly-indebted capital structure. The distressed firm’s unstable capital structure persists. As a consequence, low credit ratings and defaults follow many of the restructurings that do not end up bankrupt. A thinned-out equity layer remains in control, with distorted incentives. Those that go bankrupt anyway face a longer, more complicated than typical bankruptcy. Third, efficiency justifications commonly offered—like avoiding the expense of bankruptcy—are questionable and perhaps untrue. After all, coercive debt restructurings are themselves expensive; the relevant bankruptcy comparison should be to bankruptcy’s “prepackaged” variety, which is short, taking about as long as coercive debt restructuring. And saving bankruptcy expense does not work for most coercive LMEs, because a majority ends up bankrupt anyway. Fourth, while the contracting ecosystem has not instantly reacted and needs time to evolve, anti-coercion elements that undermine or even bar the new style restructurings are emerging. Fifth, underrecognized qualities of the coercive restructurings are as consistent with value grabs as with efficient restructuring. While inefficient rent-seeking deals can persist and repeat for some time, their costs render them less stable and less able to withstand pressure than more efficient structures. If most of these five features are important—we present evidence that all are plausible and potentially important—then the coercive recapitalization induces, in the finance vocabulary, overinvestment, locking capital in less-than-worthwhile investments for longer than is efficient. From a lawyer’s perspective, that could raise troubling fiduciary duty questions. From a market-wide perspective, regular overinvestment and inefficient recapitalizations will tend to favor terms and transactions that diminish the extent of inefficient recapitalizations going forward. It remains to be seen whether frictions in updating contracts and `whether resistance from those who benefit from not updating them will slow or even stop that evolution. But more of a contest seems to be brewing than conventional wisdom suggests.

This Article documents and examines Brazil’s pioneering imposition of joint and several liability for labor obligations on parent companies since 1937, complicating existing narratives about the German origins of group law. We uncover evidence that nationalism and resistance to foreign corporate groups contributed significantly to this legal development. Central to Brazil’s groundbreaking 1937 reform holding parent companies liable for subsidiaries’ labor obligations was the concern about protecting local workers from foreign groups attempting to evade legal responsibilities through separate legal entities. This innovation has shown remarkable durability and contemporary relevance. A 2024 decision by the Brazilian Supreme Court applied the economic group doctrine to enforce its orders against X (formerly Twitter) by freezing the assets of the Brazilian subsidiaries of Starlink, also controlled by Elon Musk. Our comparative analysis reveals a gradual, if contested, trend toward eroding corporate separateness to protect workers across jurisdictions. Moreover, this development appears to be more common in the Global South, with Portugal standing as the sole Global North country examined to converge with Brazil’s comprehensive statutory approach—and only after a 70-year delay. These findings suggest that challenges in state capacity and the geographic divide between capital and labor, often pronounced along North-South lines, can shape the evolution of limited liability and corporate separateness doctrines in ways that challenge conventional narratives in corporate and comparative law.

This Viewpoint discusses new guidance on responsible use of artificial intelligence.

Early in his life, Sanders left the streets of Brooklyn for the woodlands of Vermont. What did the man bring to the state—and what did the state bring to the man?

Whatever the party of the new president, elected in 2028, it would be worthwhile for the incoming administration to consider eight ideas, to be explicitly embodied in executive orders or presidential memoranda: (1) a clear commitment to the independence of the Federal Reserve Board, certainly with respect to monetary policy; (2) a broad commitment to freedom of speech and the press, building on constitutional requirements; (3) a firm commitment not to interfere with the prosecutorial decisions of the Department of Justice; (4) an insistence on the centrality of cost-benefit analysis, designed to work against both overregulation and underregulation; (5) new restrictions on the pardon power, designed to regularize relevant processes; (6) reasonable (not excessive or expressive) restrictions on conflicts of interest and self-dealing, applicable to executive branch officials and the president personally; (7) a presumption against suits brought by the president in his personal capacity (a voluntary presidential disability, meant to parallel and accompany presidential immunity); (8) perhaps most controversially, a presumption (not a rule) against prosecution, by the current administration, of members of the previous administration. All of these ideas would have to be specified, but they are worthy of serious consideration, no matter the political party of the new administration.