Issue 2

On “Self” Care

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Suzanne A. Kim

The dominant answer to popular calls for self care in everyday discourse is a thriving eleven billion dollar industry. The self care economy encompasses workplace wellness programs, consumer goods and services, and entrepreneurship. This infrastructure revolves around commercial consumers and providers and advances through conceptions of health and well-being centered on individuals.
Despite their prevalence, the concept and provision of self care have gone underexamined in legal critiques of societal underinvestment in care. This Article fills this gap by exploring the social construction of the dominant contemporary conception of self care in the United States, one that continues to be construed within a solely individualized framework. Within this model, individuals’ encounters with care appear to arise in a vacuum— both in how care needs emerge and how care needs are addressed. Continue reading →

Un-fathering the Constitution

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Lorianne Updike Toler

Constitutional law turns on Madison’s vision. This because Madison is universally acclaimed by the Supreme Court and legal academe as the Constitution’s father. However, Madison’s constitutional parentage sounds more in lore than logic.
A careful review of recent historiography, Madison’s own writings, and new analytics tools available on the Quill Project reveal Madison as much less important to the Constitution than previously thought. He did not bring about the Convention, did not write the Virginia Plan, and was not that influential at the Constitutional Convention. Continue reading →

Scènes à Faire: Cliché as Legislative Fact

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Sarah Louise Bishop

In the last ten years, federal courts have quietly begun to apply copyright’s scènes à faire doctrine to dismiss infringement claims before party discovery has occurred. This move theoretically should not be possible, because applying the doctrine requires evidence of the conventions and tropes of the artistic genres at issue—something unlikely to be reflected in the parties’ pleadings.
This Article identifies this trend and explores the workarounds district courts use to achieve these dismissals without a factual record before them. The most common methods courts use are inconsistent with both the Federal Rules of Civil Procedure and Evidence and risk bias and baseless decisions. Continue reading →

Activist Directors: The Evolution of Hedge Fund Activism in the S&P 500

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Anna Christie

The prevailing rhetoric associated with hedge fund activism is almost universally negative. This Article provides new evidence of activist hedge fund behavior that contradicts this dominant narrative. The principal argument of the Article is that the conventional picture of hedge fund activism requires updating to account for the phenomenon of activist board representation. Continue reading →

A Restorative Justice Alternative for Trafficking Survivors: The Need for a Collaborative Approach in Establishing a Pilot Program Addressing Survivor-Articulated Needs

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Stephanie Richard & Suzanne S. La Pierre

Human trafficking survivors not only suffer physical and psychological harm during the commission of the crimes against them, but also are often further harmed through forced involvement in the criminal justice system. With the current focus on apprehending and punishing perpetrators as the primary tool promoted in the United States to prevent trafficking, survivors forced to be witnesses against their perpetrators lose their self-determination in ways replicating the abusive patterns of their traffickers. To aid investigation and prosecution of traffickers, they are required to provide testimony reliving their experiences. Forced testimony is also often the only option available for avoiding prosecution for crimes they were coerced to commit by their traffickers. Tragically, evidence-based research and interviews with survivors and those involved in combatting trafficking conclusively demonstrate that this carceral approach has failed. Continue reading →

The Efficient Default Rule for Sandbagging in Mergers and Acquisitions: A Limited Pro-Sandbagging Default

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Alexis Klimaszewski

In the area of mergers and acquisitions (“M&A”), a buyer “sandbags” a seller when, knowing the seller has breached—intentionally or unintentionally—a representation or warranty prior to closing, the buyer nonetheless closes the sale and subsequently brings a post-closing indemnification claim. Parties to a merger or acquisition can negotiate a pro- or anti-sandbagging provision; however, the recent trend has been rising instances of silence in M&A agreements. Given the modern majority default rule, the result is that most buyers in the United States hold a sandbagging right; however, default rules are ambiguous, uncertain, and inconsistent across jurisdictions. While sandbagging at first glance appears unfair to the seller, the situation is far more nuanced, and there is potential for perverse disclosure incentives for both buyer and seller. The recent trend towards silence reflects not an acquiescence by sellers to the default rule of the governing jurisdiction, as scholars have previously suggested, but rather prohibitively high transaction costs and valuation issues faced by both parties that make negotiating over sandbagging language in the M&A agreement inherently inefficient. Continue reading →