By Steven L. Schwarcz. Full Text.  International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations.…

By Camille Gear Rich. Full Text. This Article asks a fundamental question: Why does a society ostensibly committed to racial equality allow players in the assisted reproductive technology (ART) market to buy and sell race? As consumers in the ART market well know, human gametes (both eggs and sperm) are packaged, marketed, and sometimes priced…

By Sunita Patel. Full Text.  The view that the Supreme Court has limited judicial review of unconstitutional government practices is evident in varied quarters of legal scholarship. With respect to structural reform litigation against the police there are good reasons for pessimism, particularly when considering three particular lines of Supreme Court case law. City of…

By G. Michael Parsons. Full Text.  The marketplace of ideas features prominently in First Amendment doctrine, with the Supreme Court invalidating laws that purportedly interfere with the free flow of information through society. Yet, the modern version of the market metaphor rests entirely upon contradictory conceptual assumptions, false empirical premises, and an unsupported historical narrative.…

By Justin Sevier. Full Text. Policymakers continue to grapple with the fundamental question of how to maximize the institutional legitimacy of legal conflict resolution. Recently, prominent scholars have begun advocating for a value-based approach to legal regulation, which seeks to maximize voluntary compliance with the law because members of the public believe that legal institutions…

By Bradley A. Areheart. Full Text. Despite eighty years of governmental interventions, the legal system has proven ill-equipped to address workplace discrimination. Potential plaintiffs are reluctant to file discrimination claims for a host of social and economic reasons, and the relatively few who do file face steep structural barriers. This Article argues that the most…

By Sean J. Griffith. Full Text. Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give…

By Rebecca M. Kysar. Full Text. Coordination among nations over the taxation of international transactions rests on a network of some 2000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances,…

By Peter Molk. Full Text. Insider trading restrictions rely on the existence of fiduciary duties. Developed at a time when company executives owed mandatory fiduciary duties to the company and its owners, the fiduciary duty requirement is routinely satisfied for a range of quintessential insider trading situations. However, new “uncorporate” entity forms—limited liability companies and…

By Ari Glogower and David Kamin. Full Text. This Article evaluates the consequences of the 2017 tax legislation for the future of progressive tax reform. The 2017 tax legislation introduced significant preferences for business income, including a cut in the corporate rate and the new Section 199A deduction for “pass-through” income. Many commentators criticized the…