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The article focuses on several U.S. Supreme Court decisions on proper judicial response to requests for permanent injunctions where necessary to abate violations of substantive environmental laws. Topics discussed include Tennessee Valley Authority v. Hill relied on separation of powers concerns in finding that the jeopardy prohibition of the Endangered Species Act, Weinberger v. Romero-Barcelo on legal remedies and injunctive relief in cases under the National Environmental Policy Act of 1969.

This Article breaks new ground with its proposal that litigators should consider the First Amendment to combat the avalanche of state legislation stripping transgender, gender nonconforming, intersex, and queer ("TGNCI") people of their rights. In the last year, opinions from the U.S. Federal Courts of Appeals for the Sixth and Eleventh Circuits have used lawsuits challenging anti-TGNCI legislation to roll back decades of progress made under the Equal Protection Clause for transgender people. This Article answers the question of where litigators should turn next and suggests that anti-TGNCI legislation is a form of First Amendment viewpoint discrimination. Specifi- cally, anti-TGNCI legislation erases protected expression while compelling people to abandon sincerely held beliefs about gender and sexuality in favor of the state's immutable perspective. This Article provides guidance to those interested in TGNCI justice by analyzing the use of this theory in the context of anti-TGNCI bathroom legislation. In particular, it focuses on Women in Struggle v. Bain, a recent as-applied challenge to Florida Statute Section 553.865, which criminalizes the use of affirming restrooms by TGNCI people. Finally, this Article identifies potential counterarguments that litigators must grapple with in order to advance the long battle for TGNCI liberation using the First Amendment as a tool. [ABSTRACT FROM AUTHOR]

The article offers information about commercial wars among pharmaceutical companies in the U.S. Topics discussed include the U.S. Supreme Court's decision in case "Weinberger v. Hynson, Westcott & Dunning Inc.; " and need of the U.S. Food & Drug Administration (FDA) to act against the aggressive hustling of an unapproved claim for a competing drug.

Companies and governments now use Artificial Intelligence ("AI") in a wide range of settings. But using AI leads to well-known risks that arguably present challenges for a traditional liability model. It is thus unsurprising that lawmakers in both the United States and the European Union ("EU") have turned to the tools of risk regulation in governing AI systems. This Article describes the growing convergence around risk regulation in AI governance. It then addresses the question: what does it mean to use risk regulation to govern AI systems? The primary contribution of this Article is to offer an analytic framework for understanding the use of risk regulation as AI governance. It aims to surface the shortcomings of risk regulation as a legal approach, and to enable readers to identify which type of risk regulation is at play in a given law. The theoretical contribution of this Article is to encourage researchers to think about what is gained and what is lost by choosing a particular legal tool for constructing the meaning of AI systems in the law. Whatever the value of using risk regulation, constructing AI harms as risks is a choice with consequences. Risk regulation comes with its own policy baggage: a set of tools and troubles that have emerged in other fields. Risk regulation tends to try to fix problems with the technology so it may be used, rather than contemplating that it might sometimes not be appropriate to use it at all. Risk regulation works best on quantifiable problems and struggles with hard-toquantify harms. It can cloak what are really policy decisions as technical decisions. Risk regulation typically is not structured to make injured people whole. And the version of risk regulation typically deployed to govern AI systems lacks the feedback loops of tort liability. Thus the choice to use risk regulation in the first place channels the law towards a particular approach to AI governance that makes implicit tradeoffs and carries predictable shortcomings. The second, more granular observation this Article makes is that not all risk regulation is the same. That is, once regulators choose to deploy risk regulation, there are still significant variations in what type of risk regulation they might use. Risk regulation is a legal transplant with multiple possible origins. This Article identifies at least four models for AI risk regulation that meaningfully diverge in how they address accountability. [ABSTRACT FROM AUTHOR]

In Weinberger v. Romero-Barcelo, the United States Supreme Court allowed for an equitable resolution to a lawsuit seeking immediate enforcement, by injunction, of the Federal Water Pollution Control Act ("FWPCA"). In this case, the United States Navy violated the FWPCA by discharging munitions-a pollutant as defined by the statute-during training exercises into the waters surrounding the Island of Vieques. The Navy also failed to obtain a National Pollution Discharge Elimination System permit, which would have made the discharge lawful under the statute. The people of Puerto Rico sought to enjoin the training exercises through the FWPCA. The Navy's actions, however, had no adverse effects on the area's waters or the environment. Thus, the Court viewed the violation as only technical and allowed for an equitable resolution to an otherwise valid violation of a statute. This Comment argues that the Supreme Court's holding was correct in allowing an equitable resolution to a technical violation of a statute. [ABSTRACT FROM AUTHOR]

In this reply to Professor Bainbridge, I take the opportunity to present the American Law Institute’s Restatement of the Law of Corporate Governance to the readers of The Business Lawyer. In endeavoring to restate the law of corporate governance, we seek to provide a comprehensive and easily used synthesis primarily directed toward nonDelaware judges, lawyers, and legislators. In doing so, the project is a once-in-ageneration opportunity for the corporate law community to focus on core principles and applications. [ABSTRACT FROM AUTHOR]

Suppose a hotelier competes with the President of the United States, who has a side job in the hospitality business. The hotelier is upset because foreign governments are booking stays at the President's hotels. Might the hotelier successfully sue to enjoin this competition because the President's conduct violates the Foreign Emoluments Clause of the Constitution? To do so, the hotelier will need to run a gauntlet of threshold requirements, including demonstrating that they have a "cause of action." Congress has not created a statutory cause of action that our hotelier could invoke. In such cases, a plaintiff commonly can seek equitable relief for a constitutional claim via a nonstatutory cause of action-as Ex parte Young f1amously demonstrates. Recent judicial clashes in highprofile litigation involving the Emoluments Clauses, Appropriations Clause, and Congress's subpoena power have, however, highlighted that the doctrine governing whether structural constitutional provisions grant legal rights that can support nonstatutory review has become surprisingly unclear. This Article defends a simple resolution to this problem: Courts should use the same "zone-of-interests" test that they have developed to determine whether a plaintiff can invoke the Administrative Procedure Act's statutory cause of action to determine whether a plaintiff can invoke a nonstatutory cause of action for injunctive relief to enforce a constitutional provision. Adoption of this standard would cohere with the Supreme Court's past practice of generously allowing this form of review, respect the policy judgments underlying this practice, and clarify a difficult and under-examined corner of the law. [ABSTRACT FROM AUTHOR]

In many critical industries, the Food and Drug Administration's (FDA's) marketing authorization decisions determine the range of products available in the United States. Because of the broad scope of the FDA's marketing authorization responsibilities, the existing scholarship focuses on individual product categories, or small groups of product categories, regulated by the Agency. This Article identifies how the existing literature overlooks important connections between the FDA's different marketing authorization programs. These connections suggest both explanations for existing programs and strategies for potential reforms. The Article sets forth a two-level framework for analyzing the FDA’s marketing authorization role. At the first level, the framework divides the FDA’s marketing authorization programs into three components: pathways, designations, and means of access before marketing authorization. At the second level, the framework distinguishes between two types of pathways, three types of designations, and four means of access before marketing authorization. This framework gives a coherent intellectual structure to a sprawling set of regulatory programs that are otherwise difficult to analyze. Based on this framework, the Article makes several analytical contributions specific to food and drug regulation. The Article’s final contribution highlights a newly identified phenomenon, interchangeable-part lawmaking (IPL), that should be of broader interest. IPL takes place when a government entity takes a portion of its law in one subject area and uses it as a model for its own law in another subject area. It is strikingly visible in the statutes administered by the FDA, but IPL likely exists in statutes more generally. IPL has substantial implications for statutory interpretation, as well as for numerous strands of academic literature. [ABSTRACT FROM AUTHOR]

U.S. academic discourse on director interlocks is not new. Yet, the increased attention to common ownership has also brought to light the increased tendency of interlocked directors to serve in the same industry. I termed these directors as horizontal directors in my earlier work—shining a light on the benefits they bring to investors and companies but also the risks they pose to governance and antitrust law. This article revisits the prevalence of horizontal directors armed with six additional years of data and shows that the prevalence of horizontal directors has remained steady, even as attention to common ownership has increased in recent years. These findings should serve as a clarion call to regulators—urging them to directly address horizontal directors. [ABSTRACT FROM AUTHOR]

The article presents information on Raconteuse Ruth Bader Ginsburg's writings, which reflect her efforts in establishing recognition of women constitutional rights to equal citizenship. It discusses the U.S. Supreme Court decision in Reed v. Reed, Frontiero v. Richardson, and Weinberger v. Wiesenfeld. In Frontiero case, Professor Ginsberg manifested sexual discrimination regarding allowances and benefits that a male officer would get. The Court rendered this discrimination unconstitutional.

The Supreme Court recently embarked on a path toward removing the only teeth the National Environmental Policy Act (NEPA) has—its procedural mandates. In Winter v. Natural Resources Defense Council, Inc. and, more recently, in the controversial case Monsanto Co. v. Geertson Seed Farms, the Court declined to issue an injunction against federal agency action despite the agency's failure to complete an Environmental Impact Statement (EIS) regarding the action, as required by NEPA. The Court, reasoned that environmental plaintiffs must show a "likelihood" of environmental harm to meet the irreparable-injury requirement of injunctive relief. Additionally, the Court held that an agency's failure to complete an EIS, with nothing more, does not establish a likelihood of environmental harm. By declining to issue an injunction, the Court failed to ensure that an EIS would be completed before the federal agency reached a decision or foreclosed less harmful alternatives. Because of Winter's and Geertson's unique facts, the holdings of these cases can be limited. That is, these cases should not be interpreted to espouse the typical approach to a NEPA case. This Comment explains how Winter and Geertson can be interpreted narrowly to harmonize with the well-established precedents of Weinberger v. Romerb-Barcelo and Amoco Production Co. v. Village of Gambell, which urge that the purpose of the relevant statute be considered when deciding whether to issue an injunction. The purpose of NEPA—facilitating informed agency decision making—can be effectuated only through the Act's procedural mandates because the Act has no substantive mandates. Therefore, irreparable injury should be presumed when an agency has violated the Act's procedural requirements. A showing of environmental harm should be unnecessary. Ultimately, this presumption would put environmental plaintiffs on equal footing with defendants and force agencies to take their obligations under NEPA seriously. [ABSTRACT FROM AUTHOR]

The article features U.S. Supreme Court Justice Ruth Bader Ginsburg. Topics discussed include her appointment to the U.S. Supreme Court, the career background of Ginsburg, her advocacy for women's rights and gender stereotypes in the law, a critique of Roe v. Wade by U.S. Court of Appeals Fourth Circuit Judge J. Harvie Wilkinson, and a message from law scholar and professor Gerald Gunther about Ginsburg as a judge.

For American citizens, one of the most important safeguards guaranteed by the Constitution of the United States is the equal protection of the law. The United States prides itself on the doctrine and jurisprudence of equal protection because of the social progression achieved since the end of the Civil War. The Reconstruction Amendments to the Constitution eliminated the institution of slavery and were supposed to guarantee equal civil and legal status to all citizens. The Constitution, however, has not been consistently interpreted in this way since the end of the Spanish-American War in 1898. The nation emerged from this conflict with a renewed colonial prerogative and with newly acquired territories overseas: Puerto Rico, Guam, and the Philippines. The acquisition of new territory, populated by peoples of wholly different cultures to those of the Anglo-Saxon, European-American political elites of Washington, D.C., necessitated an approach to government that was politically and legally rejected since the founding of the nation: colonialism. In Puerto Rico and later unincorporated territories--those not intended for eventual statehood--colonial governance meant political and social subjugation. The Supreme Court legitimized the federal government's colonial plans in a series of decisions beginning in the late 19th century, known as the Insular Cases. These decisions influence the legal status of American citizens residing in the unincorporated territories and allow the federal government to evade the constitutional mandate of equal protection of the law. This Note discusses the racist logic of the Insular Cases and the vestiges of colonial appropriation of the unincorporated territories, reflected in the exclusion of Puerto Ricans from the Supplemental Security Income program. In United States v. Vaello-Madero, the District Court for the District of Puerto Rico and the First Circuit Court of Appeals rejected the federal government's exclusion of Puerto Ricans from that program, arguing that equal protection of the law, embodied in the Fifth Amendment's Due Process Clause, does not allow the federal government to abuse its constitutional power under the Territory Clause to regulate the unincorporated territories. This Note concludes, however, that Vaello-Madero is not a vehement rejection of the Insular Cases and their jurisprudential progeny and that it remains unlikely for the Supreme Court to undo its labor from the late 19th and early 20th century, when its opinions treating the subject of the territories were heavily marked by notions of Social Darwinism and racism. Nonetheless, Vaello-Madero is a promising hint that the federal judiciary is sensitive to the inconsistent application of the guarantee of equal protection throughout the U.S. territories overseas and is willing to resist the Insular Cases doctrine. [ABSTRACT FROM AUTHOR]

The 2020 election season placed remarkable pressure on the U.S. election system. As the COVID-19 pandemic ravaged a politically polarized nation, American voters challenged a range of election regulations, looking to the courts for relief from laws that made voting particularly onerous during extraordinary circumstances. An examination of election law jurisprudence over this period reveals, among other things, the judiciary's repeated reliance on a single case: Purcell v. Gonzalez. While its holding is less than clear, the decision in Purcell, at its core, governs the appropriateness of judicial intervention in election disputes on the eve of a political contest. The Court could have elucidated Purcell's true meaning during this unique election cycle but, instead, it seems to have made matters worse. This Article argues that the Supreme Court's repeated invocation of Purcell during the 2020 election cycle introduced an empty vessel for unprincipled decisionmaking and inconsistent rulings that only served to aggrandize election-related concerns, ultimately harming the nation's most vulnerable voters. Part I describes the facts in Purcell, and what one might contend is its central holding. Part II highlights the chief deficiencies of the case, revealing a fundamental incoherence in its reasoning that augments the potential for government actors--including courts--to exploit Purcell in the lead up to an election. Part III examines more closely the judiciary's application of Purcell in the 2020 primaries and general election, revealing the dangers it poses to voting rights and the democratic process. [ABSTRACT FROM AUTHOR]

U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with Professor Philip Hamburger, assert that Chevron deference--under which courts defer to reasonable agency statutory interpretations--violates Article III. Chevron does so because, they argue, it either permits agencies, not courts, "to say what the law is" or requires judges to forgo independent judgment by favoring the government's position. If they are correct, Congress could not require courts to accept reasonable agency statutory interpretations under any circumstances. This Article does what these critics, perhaps surprisingly, do not do--situates challenges to Chevron within the broad landscape of the Court's current Article III jurisprudence. A thorough study of Article III jurisprudence hobbles these blunderbuss Article III challenges to Chevron but leaves room for narrow attacks. Derived from the plurality in Northern Pipeline v. Marathon Pipe Line Co., a fourquadrant matrix informs Congress's power to limit Article III adjudication or review. The quadrants concern public and private rights, each subdivided by claims Congress created and did not create. Chevron does not apply to the most contentious and perhaps most unsettled quadrant--private rights that Congress did not create--and it most often applies in the quadrant in which Congress almost certainly can limit de novo judicial review--public rights that Congress creates. That leaves two other quadrants--public rights that Congress did not create (including, for traditional reasons, criminal law) and congressionally created private rights--where Chevron sometimes applies. Chevron's application in these latter two quadrants should give pause because the Court has more jealously guarded Article III adjudication there from congressional interference than with public rights that Congress created. Yet even within these two quadrants, other strands of Article III doctrine suggest that Congress has some space to limit de novo judicial review. By considering the full Article III landscape, this Article demonstrates the folly of a wholesale attack on Chevron and its destabilizing effects. Its critics should instead focus their efforts on discrete skirmishes. [ABSTRACT FROM AUTHOR]

Corporate directors, like most people, are social creatures, and their social networks affect their decisions. But directors' social networks remain both understudied and undertheorized by scholars and inconsistently addressed by courts. This Article comprehensively examines the importance of director networks to corporate governance. Using qualitative and quantitative data, the Article uncovers the importance of director networks and the implications that network theory poses for the study of corporate law. In doing so, the Article tackles an understudied corner of corporate decision making at a critical time, when directors have an outsized influence over their companies and, in many cases, the United States economy as a whole. This Article builds on a robust literature in corporate governance and decision making. Much of the existing scholarship has focused on whether directors--especially "busy directors" who serve on multiple boards--are meeting investors' and regulators' expectations. The literature, however, overlooks an important aspect of busyness; that when directors serve on multiple boards, they also build a social network that extends beyond the companies they serve, spanning several degrees of separation. This Article shows how these broader connections affect corporate governance and discusses the legal implications of what it terms as "Social Corporate Governance." This Article makes three contributions to the existing literature. First, the Article identifies the significance of network theory to contemporary corporate governance discourse and develops a theoretical framework to better account for directors' service on multiple boards. Second, it empirically examines the direct impact that director networks have on the governance of public firms. It does so through an original data set that reveals some of the positive effects that director networks have on companies' governance, and further demonstrates how network analysis adds important insights to existing empirical studies regarding director service on multiple boards, at times significantly altering their results. Finally, the Article suggests that the current discourse by regulators, institutional investors, and academics may underestimate the importance that director networks have for companies. It then suggests several policy reforms to address these findings. [ABSTRACT FROM AUTHOR]

The article focuses on the Federal False Claims Act that potentially entitled their clients to a significant monetary recovery for the fraud as "private attorneys general" enforcing the FCA. Topics include considered the 2021–2022 National Health Law Moot Court Competition asked student advocates to debate legal questions associated with various issues.

As the administrative state expands, and disputes involving important rights are frequently decided within the administrative process, access to efficient administrative law litigation has become increasingly critical. One procedural aspect that has taken on greater importance is the exhaustion doctrine, which requires litigants to proceed through the often-lengthy administrative process prior to seeking judicial relief. Acknowledging that the exhaustion doctrine plays an important part in preserving the appropriate role for courts in the adjudication of these disputes, courts have long grappled with requests to bypass the exhaustion requirement in various legal contexts, often navigating the tension between the benefits of exhaustion and the harm caused by the procedural delay. While courts have made exceptions to the requirement in certain cases, the law on exhaustion remains unclear and one particularly vexing issue remains: whether courts should insist that litigants exhaust any administrative remedies prior to seeking relief when adherence to the exhaustion doctrine threatens irreparable harm. This Article examines the lack of clarity in the courts on the law of exhaustion and proposes a legal framework for interpreting the exhaustion requirement in cases where strict adherence to it causes irreparable harm through procedural delay. To highlight the ways in which compliance with the doctrine can lead to irreparable harm, and to explore a potential framework for addressing those cases, this Article focuses on the exhaustion requirement under the Individuals with Disabilities Education Act ("IDEA"), which provides children with disabilities the right to a free and appropriate education. The IDEA is the focus of this Article because it has the potential to impact millions of children enrolled in public schools who have a disability. It also illustrates the need for a path to prompt judicial relief to prevent the threat of irreparable educational harm. While the framework proposed in this Article addresses the exhaustion requirement under the IDEA, it can also serve as a model to interpret exhaustion requirements in other legal contexts where prompt relief is warranted based on irreparable harm caused by the administrative delay. [ABSTRACT FROM AUTHOR]

When the Securities and Exchange Commission (SEC) files an administrative enforcement action, the respondent is ordinarily entitled to present their case orally at an in-person hearing before one of the agency's Administrative Law Judges. But, in hundreds of administrative proceedings over the past twenty-five years, the agency has skipped over this inperson hearing, instead resolving actions on motions for "summary disposition." This is illegal. Most SEC administrative proceedings are governed by the Administrative Procedure Act's (APA) provisions governing "formal" adjudications. One of those provisions--long overlooked or misinterpreted by scholars and courts--can only be reasonably interpreted as granting respondents an absolute right to an oral hearing in cases where the agency is seeking to impose "sanctions" like those the SEC imposes in administrative proceedings. The 1946 Congress that enacted the APA declined to follow the trans-substantive summary judgment rule that had been recently adopted as part of the Federal Rules of Civil Procedure, and instead followed the alternative model of the many American states that permitted summary judgment only in specifically enumerated categories of cases. The legislative history and contemporaneous interpretations confirm that the APA prohibits summary process for formal adjudications leading to "sanctions." Administrative summary judgment is also questionable on policy grounds. Proponents argue that administrative summary judgment promotes administrative efficiency, but have overlooked how the procedure may distort agency enforcement priorities, undermine congressional control of administrative agencies, be subject to systematic abuse by agencies, and unfairly deprive some individuals of important procedural rights. This paper provides an empirical study of SEC summary disposition from its promulgation in 1995 through 2019, examines the text and history of the APA to demonstrate the illegality of this procedure, and challenges the conventional policy justifications for the procedure. [ABSTRACT FROM AUTHOR]

The article addresses the question of how to calculate out-of-pocket damages in securities fraud class actions in the U.S. Topics discussed include direct claims and derivative claims, advantages and disadvantages of derivative actions, and claim for price inflation. Also mentioned are implications of investor diversification, the deterrent effects of successful securities fraud class actions (SFCA), and the exclusion of index investors from a class.

In patent law, "unenforceability" can have immense consequences. At least five equitable doctrines make up the defense of "unenforceability" as it was codified into the Patent Act in 1952: laches; estoppel; unclean hands; patent misuse; and according to some, inequitable conduct. Yet in the seventy years since incorporation of equitable defenses into the patent statute, the Supreme Court has not clarified their reach. Indeed, twice in the last four years, the Supreme Court avoided giving complete guidance on the crucial questions of whether, and when, such equitable defenses are available to bar damages in cases brought at law. Several interpretive methods have been proposed for determining the reach of generally worded statutes like the Patent Act. Under a dynamic statutory interpretation, courts would be permitted to develop such statutes in accordance with what the law ought to be. Under a traditional faithful agent approach, in contrast, courts would try to determine the scope as set forth by the legislature, piecing together context and history to frame limited words. The scope of equitable defenses in patent law is an ideal proving ground between these methods, having both historical background for use in traditional approaches and high-stakes social questions that factor into a dynamic approach--what conduct do we allow patentees to engage in before we cut off remedies for infringement on innovations that support our health and modern lifestyle? Setting the stage of the statutory interpretive battle, this Article examines the historical and statutory bases of equitable limits on patent law, with a particular focus on the substantive equitable defenses of unclean hands and patent misuse. It contrasts the history of equitable defenses such as estoppel, which crossed fully into courts of law well before the merger of law and equity and the Patent Act, with equitable defenses such as laches, unclean hands, and misuse. This Article walks through these defenses' pre-codification roots and potential statutory interpretations and presents normative and constitutional considerations under the competing interpretive approaches. It also presents a surprising approach to inequitable conduct, arguing that it is not an equitable defense and should no longer result in infectious invalidity. This Article is the first to provide a comprehensive framework for the analysis of equitable defenses in patent law. [ABSTRACT FROM AUTHOR]

The article discusses evidence on whether Justice Ruth Bader Ginsburg can be considered as the greatest proceduralist in the U.S. Supreme Court. Topics mentioned include her ability to handle procedural disputes, her explanation on the jurisdiction of a federal court, and her opinion about the procedural requirement.

Since the 1970s, advocates have used the term gender neutral to press for legal change in contexts ranging from employment discrimination to marriage equality to public restroom access. Drawing on analyses of all Supreme Court cases, federal courts of appeals cases, and Supreme Court amicus briefs in which the terms gender neutral/neutrality, sex neutral/neutrality, or sexually neutral/sexual neutrality appear, this study examines how US courts have defined gender neutrality and what the scope and limits of its legal application have been. We find that the courts have defined gender neutrality narrowly as facial neutrality, but nonetheless that this limited understanding has transformed some areas of the law, even if it has had little impact on others. Our analysis confirms earlier feminist skepticism about the sufficiency of gender neutrality to guarantee equality but also points to areas in which the law has yet to exploit the idea's significant potential to address discrimination on the basis of sex, sexual orientation, and gender identity. [ABSTRACT FROM AUTHOR]

The article explores U.S. Supreme Court Justice Harry A. Blackmun's observations from oral argument about life, the law and the inner workings of the U.S. Supreme Court. Topics discussed are Blackmun's career and the ideological and legal transformation his witnessed during his tenure from 1970 to 1994, his judgment of his colleagues' oral argument behavior including their verbosity and votes in cases, and his thoughts about history, career and his place on the court.

The distinction between formal and substantive equality is theorized then illustrated by sexual harassment law in the United States and in international legal developments. The convergence of sexual harassment concepts with prostitution, hence of sex discrimination law with the Nordic/Equality Model, is explained and explored. [ABSTRACT FROM AUTHOR]

The article focuses on the decision of the U.S. Supreme Court in the case eBay Inc. v. MercExchange, L.L.C. wherein the Court established a new four-factor permanent injunction formulation that it declared was based on well-established equitable principles. It mentions evolution of permanent injunctions in Virginia, including applicable statutes and some Virginia trial courts on federal preliminary injunction jurisprudence. It also mentions multiple-factor analysis of permanent injunction.

The Sturgis Motorcycle Rally, though filled with excitement and fun, also comes with its share of legal issues. The focus of this article is on the City of Sturgis ' ordinance prohibiting men from insulting women in any public place. Since this ordinance draws a distinction between men and women, it faces equal protection concerns and would not survive Fourteenth Amendment scrutiny. Likewise, because the ordinance singles out insults and other forms of speech or expression, it faces First Amendment scrutiny and is likely unconstitutional under the free speech clause. Due to these concerns, the City of Sturgis should repeal this ordinance before it can be challenged in court. [ABSTRACT FROM AUTHOR]

Recent Delaware jurisprudence establishes a disinterested vote of shareholders as the pathway out of heightened judicial scrutiny. The stated rationale for this policy is that shareholders, the real party at interest, are better protected by the ballot box than by the courtroom. As long as informed, disinterested shareholders with an economic stake in the outcome of the vote can effectively express their preferences through voting--the court need not scrutinize the underlying transaction. Rather, it can defer to the outcome under the business judgment rule. But shareholder voting is not always as direct as this reasoning implies. Instead, voting outcomes increasingly are determined not by those holding the ultimate economic interest but rather by institutional intermediaries who buy, hold, and vote shares on behalf of someone else. In this setting, there are several predictable circumstances under which institutional voting interests will depart from those of the underlying investors. This Article develops a typology of institutional investor conflicts of interest. We focus on mutual fund intermediaries, which are the key deciders of corporate elections and represent the interests of millions of investors when voting. We describe and document instances of Cross-Ownership Conflict (situations in which funds have interests on both sides of a transaction), Corporate Client Conflict (situations in which funds have an interest in currying favor with the managers of portfolio companies), and Uniform Policy Conflict (situations in which fund sponsors enforce a uniform voting policy irrespective of individual fund objectives). Our account provides a basis to reevaluate corporate law's retreat from heightened judicial scrutiny. When mutual fund voting is subject to the conflicts we describe, the real parties in interest have not necessarily spoken in favor of the transaction. As such, courts should consider a broader set of conflicts when deciding whether the protection of the business judgment rule is warranted. [ABSTRACT FROM AUTHOR]

The article discusses the hindrances faced by torture plaintiffs in pursuing their cases in U.S. courts, particularly the political question doctrine (POD). The doctrine eliminates the power of federal courts in jurisdictions where it is applied. Other topics include the manifestly brutal treatment torture model as seen in the case 'Al Shimari v. CACI Premier Technology, Inc., and the subtly and scientifically dehumanizing treatment model as seen in 'Salim v. Mitchell.'

I analyze the legal rules governing the sale-of-corporate-control in the case of going private transactions and examine whether a controlling shareholder must share the premium associated with sale-of-control. I rely on the framework developed in (Bebchuk, L.A. 1994. "Efficient and Inefficient Sales of Corporate Control," 109 Quarterly Journal of Economics 957–993) regarding these transactions under the adjusted market rule (AMR) enabling different rights for the controlling and minority shareholders, and under the adjusted equal opportunity rule (AEOR) providing equal rights to the minorities and controller. My main findings are that both rules prevent inefficient transfers, since under both the new controller fully internalizes the externality imposed by extracting private benefits of control. However, the AMR is superior in facilitating efficient transfers. This is because the AEOR can prevent efficient transfers, due to the higher price demanded from the buyer in order to compensate both controller and minorities. In consequence, overall, the AMR dominates the AEOR for transactions in which a company is taken private. [ABSTRACT FROM AUTHOR]

Women gained the right to contract in the nineteenth century, but it nevertheless remains relevant to ask whether modern day contract law discriminates against women. In answering this question, this Article applies anti-stereotyping theory to contract law. This anti-discrimination theory is most commonly used in equal protection and Title VII cases, but its relevance is not limited to such applications. Analyzing contract law doctrines through the lens of anti-stereotyping theory reveals contract law's gender biases. Contract law endorses an "economic men" rule and a "domestic women" exception. Thus, economic concerns, which are generally associated with men, are at the core of contract law. Other values, which are generally associated with women, are at the margins. This hierarchy is based on gender stereotypes and is thus discriminatory. This Article suggests that contextual contract law should be used to transcend such stereotypical and binary thinking and to make contract law more inclusive and egalitarian. [ABSTRACT FROM AUTHOR]

The article discusses the legal rights of minorities in relation to the U.S. Supreme Court's ruling in the 2018 case Masterpience Cakeshop v. Colorado Human Rights Commission which deals with religious freedom, antidiscrimination law, and the rights of LGBTQ persons in America. The U.S. Constitution's First Amendment and the doctrine of unconstitutional animus are examined, along with the legal rights of business owner Jack Phillips who refused to make a same-sex wedding cake.

Management buyouts, which have played an important role in the recent wave of corporate restructurings, have been criticized from several directions. This article addresses the problems created by management's conflict of interest. As members of the buyout team, managers have strong incentives to act in their own self-interest, yet they have a fiduciary duty to promote shareholders' interests. The conflict of interest inherent in management buyouts can be dealt with through a system of disclosure and review provided that management, board members, shareholders, and judges apply an appropriate standard of fair price. The authors propose a standard of fairness, the "synthetic MBO standard," based on the implications of management's fiduciary duties in the buyout context. They recommend that the disclosure requirements of the federal securities laws be modified to include disclosure of a company's value under this standard. [ABSTRACT FROM AUTHOR]

The article argues that U.S. President Donald Trump's immigration laws and policies violated the equal protection rights of Latino men under the Fourteenth Amendment. It criticizes the laws for having a discriminatory motive because they unfairly target Latino males. The U.S. Immigration and Customs Enforcement (ICE) revealed the increasing numbers of Latino men who were detained and deported. Also discussed is the utilization of the traditional equal protection analysis and case law by courts.

The academic literature entails numerous anatomical studies on U.S. and comparative corporate law, mainly focused on dissections of the physical structures of corporate law. This Article makes a novel attempt to apply the ancient Greek metaphysical approach to a temporal, anatomical and functional study of Delaware, and in turn, with its findings of Delaware's innards, further addresses the longstanding debates on whether Delaware races to the top or bottom, and whether Delaware is unitary or divergent across space-time. With a functionally focused approach inspired by Greek metaphysics, this Article maps out natural correspondences between the legal entities of corporate firms and the biological entities of society, such as a real person versus a legal person, individually and collectively. Furthermore, the current study lays bare the operating bowels of Delaware when faced with the increasingly vaster corporate structures of American society, along three major axes, the vertical (management versus shareholders), the horizontal (controllers versus minority shareholders) and the external (internalities versus externalities). In an attempt to shine light on the academic debate about the nature of Delaware's consciousness, this Article conducts a historical analysis on key events across seven epochs of American history, showing the influential factors that either swayed or preserved Delaware's postures, which have been as constant as pliant, like any well adaptive biological organism in a large ecosystem. Through a temporal analysis as well as metaphysical study of the Delaware courts, the efficacy and efficiency of its judicial inner workings are quite apparent. There is sufficient evidence pointing toward a balanced structure of Delaware's jurisprudence, with a tenor of shareholder democracy and prosperity for all that races to the top, in other words, creating a win-win situation foi. different nodes of corporate firms yoked to the market like a colossal cobweb. Historical and functional evidence further show that despite the weathercock of the American economy and the ostensible state of flux with respect to Delaware's policies, the court has been consistently aiming at a fundamental unitary goal of establishing an economical equilibrium for the corporate market and society, as to be expected of the collective consciousness for a macrocosm compounded of equally mutualistic but antagonistic microcosms. Last but not least, 1 apply the approach of comparative law to a deeper and broader question about the universality versus relativity of corporate laws in different societies. Spatial and temporal comparisons of legal inftastructures were conducted between the East and the West, the US and the EU, as well as some intra-American states such as Delaware, the MBCA and California. Once again, the cross-cultural studies reveal an interplay between intrinsic and extrinsic factors of legal consciousness around the world, time-wise and space-wise, which resonates with the simultaneous monistic and dualistic natures of Delaware and beyond. [ABSTRACT FROM AUTHOR]

Allergens in restaurant food cause many allergic reactions and deaths. Yet no federal, state, or local law adequately protects people from these harms. Although federal law requires the labeling of "major food allergens" in packaged food, there are no allergen labeling requirements for restaurant-type food. In addition, existing food safety requirements for restaurants are inadequate to prevent allergen cross contact. The existing legal scholarship on food allergens in restaurants is limited. Much of the legal scholarship on labeling in restaurants focuses on menu labeling--the provision of calorie and other nutrition information to combat obesity. The requirements of Section 4205 of the Patient Protection and Affordable Care Act exemplify this type of labeling. Although the literature describes the problem of food allergens in restaurants, it has not fully explored potential regulatory solutions. This Article explores how, as a first step, menu labeling regulation can inform the development of food allergen regulation to reduce the risks that allergens pose in restaurants and similar retail establishments. It also discusses how menu labeling can help anticipate and respond to potential opposition and challenges to allergen requirements. Using menu labeling as a guide, this Article argues that certain chain restaurants and similar retail establishments should be required to furnish "major food allergen" labeling upon consumer request in order to advance public health. Labeling changes alone, however, are insufficient to protect people with food allergies. Restaurants should also be required to employ science-based practices to prevent allergen cross contact and ensure their workers are trained on food allergen management. Although state and local governments may play an important role addressing food allergen management in restaurants and advancing public health, ultimately federal action is needed. [ABSTRACT FROM AUTHOR]

The article presents the law governing corporate groups in the U.S., corporate laws protecting minority shareholders or creditors, and the evaluation of the independence of directors dealing with controlling shareholders.

The article offers information related to genetically modified organizations (GMOs) and explores the litigation around GMO-natural claims explores the new law. Topics discussed include intersection of natural labels and GMO use; need of the U.S. Food and Drug Administration (FDA) to mitigate the failings of the law in order to clarify consumer confusion; and provisions of the U.S. the Food, Drug, and Cosmetic Act (FDCA).

The article explores how the explicit adoption of proportionality analysis as a single analytical tool might lead to a more coherent approach to individual rights cases. Topics discussed include history of the creation and application of the various tiers of analysis used by the U.S. Supreme Court; proportionality analysis used by other nations' courts in a wide range of individual rights cases; and the 1905 Supreme Court case of "Lochner v. New York."

Scholarship on fiduciary law has long been divided into two camps: traditionalist and contractarian. Those two camps have largely been talking past each other, however, because each fails to appreciate that there are really two distinct, coherent bodies of fiduciary law. There are traditional fiduciary relationships rooted in equity and modern fiduciary relationships rooted in statute and contract. Much of the confusion in the case law can be attributed to judges attempting to apply assumptions developed for traditional, equitable fiduciary relationships to statutory and contractual fiduciary relationships better suited for a modern economy built on promises. Scholars and judges should appreciate that there are two bodies of fiduciary law and that they require different approaches. Rather than the top-down analysis that has typically been applied to traditional fiduciary obligations, judges should apply a bottom-up analysis to modern, statutory and contractual obligations. That is, judges should perform a data-driven analysis that closely examines the relative statutory and contractual language. This will better fit the needs of legislatures in providing for those fiduciary relationships and the needs of parties in entering into them. The modern, statutory and contractual form of fiduciary obligation is a rational response to a design problem stemming from changes in the law and in the economy. [ABSTRACT FROM AUTHOR]

The majority opinion of the Fourth Circuit US Court of Appeals in International Refugee Assistance Project v. Trump is one of the more important refugee transportation rulings in a number of years. It is likely to be a very important precedent regarding refugee travel transportation (Executive Orders (EOs) 13769 and 13780, "Protecting the Nation from Foreign Terrorist Entry into the United States"). At this writing it is not certain what the future direction of these bans will be, but it would appear that the Fourth Circuit ruling will hold considerable sway. This paper discusses these EOs'. Procedurally, Chief Judge Gregory and Judges Diaz, Floyd, Harris, King, and Wynn formed the majority. Judges Traxler, Keenan, and Thacker wrote concurring opinions. Judges Niemeyer, Shedd, and Agee composed dissenting opinions. [ABSTRACT FROM AUTHOR]

The article discusses the status of war powers litigation after the U.S. Supreme Court case Zivotofsky v. Clinton. Topics discussed include Zivotofsky court case addressing political question doctrine in lieu of foreign affairs and Constitution in separation of powers disputes; viability of war powers litigation; and courts constitutional role related to the same.

The author examines the legal concept of irreversibility within the U.S. Supreme Court, particularly concerning preliminary injunctions and environmental aspects such as violations of the National Environmental Policy Act (NEPA). The article also examines the concepts of option value and the incommensurable loss of goods, in addition to injunctive relief as decided by the Court.

The article discusses U.S. constitutional sex discrimination law and the various tests employed by the U.S. Supreme Court when deciding sex discrimination cases, particularly focusing on the concept of inherent differences between males and females. The article discusses the cases United States v Virginia, Pavan v Smith, and Obergefell v Hodges. It also examines the significance of the case Sessions v Morales-Santana

Claim preclusion bars parties from relitigating in a later action claims that were or should have been litigated in a prior action. How does this doctrine apply in constitutional challenges to state and federal statutes? When a plaintiff challenges one provision of a statute in one action, can she challenge a different provision of the same statute in a later action? And when, if ever, can she bring two successive challenges to the same provision?. Though the Supreme Court addressed these questions two terms ago in Whole Women's Health v. Hellerstedt, its answers were incomplete. This Article searches for general principles guiding the Court's decision and contextualizes them within broader theories of claim preclusion and constitutional adjudication. First, it proposes that Hellerstedt heralds a rejection of the "transactional" approach--a fact-based analysis that poorly approximates the relatedness of claims about the validity of statutory provisions. To determine what kind of rule should take its place, the Article turns to an analysis of the policies motivating claim preclusion and a theory posited by two scholars regarding the proper "phrasing" of its doctrine. Under this theory, the Article proposes, Hellerstedt establishes a narrow prima facie rule for claim preclusion in constitutional challenges to statutes: Only closely related provisions of a statute--i.e., those that impose interlocking requirements, serve similar functions, and take effect around the same time--need to be challenged together in a single action. The Article then asks whether courts' prevailing approach to claim-preclusion exceptions--which gives judges wide discretion to evaluate the equities in particular cases--is likewise inappropriate for constitutional challenges, where the issues are often both more abstract and more politically charged than in ordinary civil litigation. After concluding that it is, the Article proposes that courts fashion exceptions based instead on the structure of constitutional doctrine, which, the Article demonstrates, interacts with claim preclusion's underlying policies in predictable ways. Finally, the Article argues that intervening factual developments should always give rise to a new constitutional claim against the same statutory provision--regardless of whether the prior or subsequent challenge was facial or as-applied. [ABSTRACT FROM AUTHOR]