By Adam J. Hirsch. Full text here. The Article argues that lawmakers ought to recategorize inheritance law and contract law as cognate bodies of doctrine within a larger genus of transfers law. The Article examines comparatively the justifications for freedom of contract and freedom of testation, and concludes that their underlying ration­ales are largely, although not…

By Anne C. Dailey. Full text here. The long history of denying children the full range of constitutional rights has its roots in a choice theory of rights that understands rights as deriving from the decisionmaking autonomy of the individual. From the perspective of choice theory, children do not enjoy most constitutional rights because they lack…

By L. Song Richardson. Full text here. In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do…

By Julie A. Roin. Full text here. While the privatization of governmental activities may have begun as an effort to obtain efficiency gains, increasingly privatization transactions have become a mechanism for surreptitiously borrowing money. One city’s 2008 decision to “sell” its parking meters for $1.56 billion provides a perfect example of this sort of revenue-driven “privatization.”…

By Usha Rodrigues. Full text here. The shareholder empowerment provisions enacted as part of the recent bailout legislation are internally incoherent because they fail to address the short-termist realities of shareholder ownership today. Ownership has separated from ownership in modern corporate America: individual investors now largely hold stock through mutual funds, pension funds, and hedge funds.…

By Nicole Elsasser Watson. Full text here.

By Jeffrey M. Lipshaw. Full text here. The first panel’s topic within the symposium on the financial meltdown of 2008–2009 is the deliciously broad question: “Did capitalism fail?” I have taken it as an invitation to ponder not the merits and demerits of modern global financial systems, but instead to continue my assessment of how…

By Jonathan G. Katz. Full text here. The Troubled Asset Relief Program (TARP) was created to respond to a financial panic. Some might say that it was created in panic. Congress appropriated a huge sum of money, gave the Secretary of the Treasury enormous latitude to spend the money, and provided ambiguous, and, some might say,…

By Kathleen Clark. Full text here. Congress authorized the Treasury Department to use outside entities (contractors and financial agents) to implement the TARP bailout program. Treasury embraced this authority, engaging in the wholesale delegation of the administration of TARP to these outsiders. While outsourcing government work is common, one aspect of Treasury’s outsourcing is not: its…

By Claire Hill & Richard Painter. Full text here. In both business and government, we can distinguish between two types of conflicts. One type traditionally and more effectively dealt with by law is a direct conflict, involving self-interest narrowly construed. Two common examples are the government official who is negotiating for a private sector job with…