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…

By Wendy Netter Epstein. Full Text. There is excitement on the left about a move to universal health care and on the right about returning more power to the states. Yet in a time of divided government, major health policy changes are not imminent. Meanwhile, millions of Americans are uninsured under the current system—a problem…

By Richard Schragger and Micah Schwartzman. Full Text. An emerging intellectual and ideological critique of liberalism is coinciding with a significant transformation of the American law of church and state. Contemporary religious antiliberalism rejects principles of church-state separation that have long informed the meaning of the Establishment and Free Exercise Clauses. This attack on liberal…

By Mary Holper. Full Text. Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some immigration judges describe themselves as “U.S. imitation judges.” This Article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment,…

By John Armour, Brandon Garrett, Jeffrey Gordon, and Geeyoung Min. Full Text. What role do corporate boards play in compliance? Compliance programs are internal enforcement programs, whereby firms train, monitor and discipline employees with respect to applicable laws and regulations. Corporate enforcement and compliance failures could not be more high-profile, and have placed boards in…

By Neel U. Sukhatme and M. Gregg Bloche. Full Text. Health care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We…