Many mutual fund shareholders invest in funds with supracompetitive fees that reduce their expected return even though lower cost alternatives are available. While financial arbitrage can correct pricing problems for other types of securities, conventional arbitrage is difficult to implement in the mutual fund market. As a result, concerns about excessive fund fees have attracted the attention of policy makers, including the SEC. This Article proposes legal reform to our system of mutual fund regulation that responds to the problem of high-cost funds by providing the investors who are making the most substantial mistakes with salient and transparent market information about the existence of superior investment alternatives. We first consider ways that regulation could be reformed to facilitate what we call “short redemption,” the mutual fund analog to “short selling” of securities. A vibrant market for short redemptions would allow smart money to arbitrage fee differences by selling (redeeming) short high-fee funds while buying comparable low-fee funds. But because of predictable resistance from the shorted funds and the difficulty of obtaining shares to borrow, this Article concludes that short redemption is unlikely to provide sufficient arbitrage discipline of inefficient high-fee funds. Instead, this Article proposes regulatory reform that would encourage low-fee funds to offer “improved performance guarantees.” An improved performance guarantee promises that the consumer will achieve a better net financial outcome if she switches from a current provider to a competitor product. The core notion is to guarantee to the consumer an improvement in relative performance. The guarantee functions as an arbitrage of high-fee funds that would improve price competition in the mutual fund market. The Article’s central claim is that lawmakers and regulators can enhance competition in mutual funds by enabling sophisticated investors to arbitrage supracompetitive fees.

In more recent years the belief that private citizens can structure their economic and social affairs at least as efficiently and effectively as a central authority has gained broad acceptance from commentators and scholars across the political and ideological spectrum. Nowhere has this idea gained more enthusiastic acceptance than in the arena of property law. In particular, commentators have asserted that the use of private control mechanisms in the area of property rights not only produces more secure tenure in those rights, but also generates rules that are cheaper to administer, more efficient, more predictable, more just, and more welfare-maximizing for group members than those promulgated and enforced by central authorities.

In this Article, Professor Clowney sets out to qualify this rosy view of private ordering. He focuses on three canonical examples of successful private ordering regimes: the societies established by gold rush miners, lobster fishermen, and cattle ranchers. Examining each in turn, he shows that each has been plagued by staggering amounts of bloodshed and property destruction. Much of this violence and mayhem has been ignored or unreported in scholarly accounts and commentary on these private ordering regimes. As such, Clowney argues, our understanding of the true virtues and costs of such private ordering has been greatly skewed.

Professor Clowney then attempts to answer the important question of whether violence used by a central authority to impose norms and order society is more or less costly than the violence that attends private ordering. After examining a wide range of literature from across disciplines he concludes that the violence in informal property schemes is more costly, as it generates widespread human rights abuses, imposes psychic costs on innocents, disrupts the efficiency of labor markets, and impedes technological innovation.

Pension plans for state and local employees are, as a whole, significantly underfunded. This underfunding creates intense fiscal pressure on governments and often either crowds out other desired governmental spending or results in employees and retirees losing earned benefits. Political theorists explain that underfunded public pension plans are all but inevitable given the political realities that affect funding decisions. Politicians who desire to be reelected should rationally prefer to spend money on current constituents, rather than commit scarce funds to a pension plan to pay benefits due to workers decades in the future. These dynamics are exacerbated by existing state fiscal constitutions that require balanced budgets and often restrict the ability to raise taxes. Paying a pension plan less than the amount due provides an easy way to free up money in the state budget by creating a form of debt that is ignored for purposes of balanced budget requirements. This Article presents an original analysis of the effect that state fiscal constitutions—even those that contain explicit requirements to fund public pension plans—have on public pension funding dynamics. It finds that even where explicit constitutional funding requirements are in place, plans often continue to be underfunded both because of political and financial pressures and because of the distinct lack of an enforcement mechanism. The Article concludes by suggesting that these weaknesses in pension funding requirements can be addressed through the creation of clear and objective funding standards and, most importantly, through the creation of enforcement mechanisms that can, where appropriate, override legislative decisions to underfund public pension plans.

Ten years ago, in response to an epidemic of bullying and harassment of special education students in our nation’s schools, I put forward two new legal proposals based on legal protections that these students uniquely have under the Individuals with Disabilities in Education Act (“IDEA”). Although these proposals have gained some traction in the ensuing time period, most courts continue to analyze these cases under the same series of largely ineffectual constitutional and statutory laws. What many of these laws have in common with my previous proposals is reliance on a deliberate indifference standard, which requires schools and responsible school officials to essentially ignore the bullying behavior before being held legally accountable for their actions. Not surprisingly, there has been a remarkable lack of case success in even the most severe instances of special education student bullying.

To provide meaningful legal protections for bullied special education children, this Article seeks to overcome the deliberate indifference standard by relying on a combination of reasonable accommodation principles under federal disability law and legal protections that children with disabilities already have under the IDEA. More specifically, this Article argues for adoption of the gross mismanagement standard under section 504 of the Rehabilitation Act and an expansion of existing state anti-bullying laws to provide special education children with various forms of private rights of action to combat the most severe forms of bullying. These new legal proposals will add to the arsenal that bullied special education children have at their disposal to fight back against both their tormentors and their institutional and individual enablers.

Recently, the concept of crowdfunding has reignited a desire among both entrepreneurs and investors to harness technology to assist smaller issuers in the funding of their business ventures. Like the online auction IPO of the previous decade, equity crowdfunding promises both to disintermediate capital raising and democratize retail investing. In addition, crowdfunding could make capital raising more accessible to small issuers than any type of IPO or private offering. Until the passage of the Jumpstart Our Business Startups Act (“JOBS Act”) in 2012, however, crowdfunding sites operated in a netherworld of uncertain regulation. In this crowdfunding Wild West, various types of entrepreneurs raised monies in various ways, some in obvious violation of the Federal Securities Acts.

The passage of Title III of the JOBS Act, the Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act (“CROWDFUND” Act) seemed to bless the attempts of crowdfunding pioneers in the area of capital raising. The statutory language, however, does not exempt early entrants’ efforts; instead, it provides a mechanism for future attempts to qualify for an exemption. The proposed Regulation Crowdfunding leaves little doubt that crowdfunding will not be easy: disclosure requirements, portal registration, and capital limitations are just a few of the costly burdens added to this would-be alternative. Even if crowdfunding may not be the optimal path for startups with an ultimate goal of a successful IPO, though, crowdfunding may be useful for other types of for-profit ventures. Regardless of the future of the SEC regulations, the legal charitable crowdfunding of donations will be unaffected and will continue to increase in popularity and acceptance. With the growth of charitable crowdfunding, for-profit social entrepreneurship may find equity crowdfunding both appealing and available as an attractive alternative to private equity financing, which may be tempting but may also lead to mission drift and loss of founder control.

Currently, there is a disagreement among courts as to whether section 2703(d) of the Stored Communications Act, which governs the disclosure and use of historical cellular location information, violates the Fourth Amendment. Increasingly, the federal government is using cellular phone companies’ historical cellular location information––data communicated by a cellular phone to a cellular network, which identifies the location of a phone at a particular time––to investigate and prosecute crimes. This information can provide an accurate, historical record of a person’s general whereabouts during the time period for which the data applies. Though the Fifth Circuit has held that section 2703(d) court orders are constitutional, several courts have found that the provision’s “specific and articulable facts” requirement violates the Fourth Amendment. These courts prescribe that law enforcement secure a search warrant with the requisite showing of probable cause prior to obtaining the data.

This Note examines the controversy surrounding historical cellular location information and the Fourth Amendment. It begins by exploring the technology and law enforcement’s interest in the information. This Note then surveys pertinent Supreme Court precedent and analyzes the major approaches taken by courts in addressing the use of this data. In particular, there are three approaches taken by courts: (1) use of the third-party doctrine, (2) treatment of the issue as a tracking case, and (3) use of the “mosaic theory” articulated in United States v. Maynard.

This Note contends that while the Fourth Amendment is likely not implicated by historical cellular location information, legislatures and law enforcement alike must take steps to strike the appropriate balance between privacy and security. It proposes that Congress amend the Stored Communications Act to include a statutory suppression remedy. This will provide a way to exclude evidence collected pursuant to faulty, conclusory, or false court orders. Additionally, this Note suggests that federal and state legislatures remedy excesses in the acquisition of historical cellular location information. Moreover, it recommends that law enforcement impose its own standards and require warrants prior to accessing the information sought. While a constitutional bar to this evidence may not exist, our rapidly changing notion of a “reasonable expectation of privacy” demands proactive and introspective action by legislatures and law enforcement.

During Illinois’ 1970 Constitutional Convention, the debate regarding whether to collapse the constitutional offices of Comptroller and State Treasurer ended in inaction. During the convention, the separation of the offices was presented as necessary to prevent corruption and abuse of government spending. Since then, the debate has been repeatedly revisited, in both the legislative and executive branches, with many failed attempts at merger despite overwhelming support. This Note argues that the offices should be merged into one office: the Chief Financial Officer. Given technological advances, the existence of Executive Inspectors General, and the successful mergers in other states, worries of corruption are overstated. This Note both explains why proposed mergers have failed in the past and recommends how this merger could be successful.

A party’s decision to settle may be affected by the plausibility pleading standard required by Bell Atlantic Corp. v. Twombly. While previous empirical studies have focused on motions to dismiss, this study attempts to find a relationship between settlement rates and the pleading standard. Our data and analysis show that the probability of settling after Twombly has decreased while the rates of settlements themselves are increasing. In particular, IP and civil rights cases are especially likely to settle, and meritorious claims settle at a higher rate than nonmeritorious claims. These findings question the current arguments that the Twombly pleading standard may be inhibiting access to justice and/or improving efficiency. The goal of conserving judicial resources may have been circumvented by litigant behavior as more cases are going on to litigation rather than settling. The access-to-justice arguments may have also been challenged in that more cases are being adjudicated after Twombly instead of less.

By definition, vigilantes cannot be legally justified—if they satisfied a justification defense, for example, they would not be lawbreakers— but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules and procedures that regularly and intentionally produce gross failures of justice. These doctrines of disillusionment may provoke vigilante acts,

but not in numbers that make it a serious practical problem. More damaging is their tendency to provoke what might be called “shadow vigilantism,” in which civilians and officials feel morally justified in manipulating or subverting the criminal justice system to compel the system to deliver the justice that it appears reluctant to impose. Unfortunately, shadow vigilantism can be widespread and impossible to effectively prosecute, leaving the system’s justness seriously distorted. This, in turn, can provoke a damaging antisystem response, as in the “Stop Snitching” movement, that further degrades the system’s reputation

for doing justice, producing a downward spiral of lost credibility and deference. We would all be better off—citizens and offenders alike—if this dirty war had never started. What is needed is a reexamination of all of the doctrines of disillusionment, with an eye toward reformulating them to promote the interests they protect in ways that avoid gross failures of justice.

It is a frequently repeated dogma in corporate law that controlling shareholders have a general fiduciary duty of care towards the corporation. This Essay, however, argues that the case for such a duty is exceedingly weak. Given that controlling shareholders are heavily invested in the controlled corporation, they already have a strong financial incentive to make well-informed decisions. Accordingly, there is no need for a

general duty of care. In fact, the general duty of care for corporate controllers owes its existence to little more than poor doctrinal reasoning: courts have suggested that, in order to protect minority shareholders, corporate controllers who direct the actions of the corporation

must assume the fiduciary duties of corporate directors. This argument, however, is flawed for many reasons. In particular, it overlooks the fact that controlling shareholders and corporate directors face vastly different incentives.

It is time, therefore, to abandon this line of reasoning and, with it, the idea of a general duty of care for corporate controllers.

The Commission to Study the Reform of Chapter 11 and the University of Illinois College of Law co-sponsored an academic symposium held April 3–5, 2014 at the Chicago offices of Kirkland & Ellis LLP. That symposium brought together dozens of academics in conversation with Commissioners, members of the Commission’s advisory committees, and other interested observers and participants in the Commission’s work. We are pleased and proud to publish the articles presented at that academic conference in this symposium issue of the University of Illinois Law Review.

When a company is worth more as a going concern than on a liquidation basis, what creates that additional value? Is it the people, management decisions, the simple synergies of the operating business, or some combination of these types of soft variables? Perhaps more importantly, who owns or has an interest in these soft variables? This Article explores these questions under existing legal doctrine and practice norms. Specifically, it discusses the characterization of soft variables under applicable law and in financing documents, and it surveys related judicial decisions. It also considers the overarching public policy and Constitutional implications of the treatment of soft variables in and outside of the federal bankruptcy scheme. The Article concludes by considering the optimal treatment of soft variables in corporate reorganizations.

As the American Bankruptcy Institute’s Commission to Study the Reform of Chapter 11 considers the state of business bankruptcy in this country, the narrative on chapter 11 is well-established and oft repeated. According to this narrative, whereas in the past firms filing for chapter 11 came into the bankruptcy process with at least some unencumbered assets, modern firms tend to have capital structures that are entirely consumed by multiple layers of secured debt. Moreover, as secured creditors have come to dominate capital structures, conventional wisdom has it that they have “captured” chapter 11 to the detriment of unsecured creditors. This development has justifiably troubled many scholars on both efficiency and distributional grounds. However, it remains an open question whether the perceived downsides of secured creditor control can be satisfactorily addressed through bankruptcy law reform. In this Article, Professor Walters examines English attempts to use bankruptcy law to adjust the priority and control rights of secured creditors with the aim of improving the welfare of unsecured creditors. The Article starts from the premise that lenders that are powerful enough to bargain for superior control and priority rights inside or outside of bankruptcy will be equally capable of adjusting to legal changes that affect, or are perceived as affecting their interests. Four ways in which lenders will adjust to “adverse” bankruptcy reform are identified: (i) metabargaining; (ii) adjustments to prebankruptcy behavior; (iii) transactional innovation; and (iv) “shape shifting”. In Parts II and III, the Article then illustrates how English lenders have successfully adjusted to statutory erosion of their priority rights through transactional innovation and to statutory attempts to curb their control rights through “shape shifting”. Walters’ conclusion on the efficacy of bankruptcy law reform is cautionary and skeptical. He assesses English attempts to improve the position of unsecured creditors by dampening the rights of secured creditors as a failed conceit.

In this symposium dedicated to the American Bankruptcy Institute’s Commission on Chapter 11 Reform, whose proposals remain a secret at the time of this writing, Professor Jacoby argues that doctrinal reforms to corporate bankruptcy are incomplete without considering the role of institutional actors, particularly judges and courts. The judge’s role tends to receive too-limited attention. First, chapter 11 is often characterized as an extension of corporate transacting rather than as complex federal court litigation. In addition to overemphasizing the corporate law elements of chapter 11 to the exclusion of other intersections, this view overlooks the fact that many civil and even criminal actions before the district court have strong transactional elements, Second, the 1978 Bankruptcy Code drafters exhorted judges to be no more or less than umpires of discrete disputes, perhaps leading some reformers to believe the question to be already asked and answered. Yet, the modern bankruptcy system, as evolved, encourages bankruptcy judges to accomplish divergent objectives: promote quick resolution of disputes through party settlement, and exercise independent duties even in the absence of party objection—issues with which the federal district court also continues to wrestle.

Thomas Jackson, in his iconic book, The Logic and Limits of Bankruptcy Law, seeks to establish both a distributional baseline for bankruptcy reorganizations and a normative set of limits for bankruptcy policy. Nonbankruptcy entitlements should establish both the distributional priorities and the distributional floor in a bankruptcy case. A number of normative prescriptions follow. Equity should not seek reorganization on the backs of the unsecured creditors. Bankruptcy-specific priorities should be avoided, to the extent possible to avoid “forum shopping” into bankruptcy (unless, of course, bankruptcy is a more efficient forum). Most importantly, however, the rights of secured creditors should be respected. Professor Janger argues that, paradoxically, bankruptcy courts have become the preferred venue for realizing value on a secured creditors’ collateral, and that Jackson’s rhetoric has allowed secured creditors to capture bankruptcy created value that is not necessarily allocated to them by the statute. Specifically, undersecured creditors argue that they have a blanket lien on all of the debtor’s assets and should have the power to determine their disposition. This article first seeks to reestablish the Jacksonian balance by arguing that state law security schemes do not provide for the creation of blanket liens that capture enterprise value, but instead create asset specific security devices that are limited in scope, and are not calculated to maximize value. It then seeks to establish three key points, and develop their implications. The points are (1) an ownership rule, (2) a realization rule, and (3) an equitable tracing—or “no moving up”—rule. The ownership rule is that baseline entitlements of a secured creditor in bankruptcy are established by what could have actually been realized by that creditor outside of bankruptcy. The realization rule is that, unless the statute specifies otherwise, the baseline entitlement is valued as of the petition date. The equitable tracing rule recognizes the limits of the state law definition of proceeds and the limits of equitable tracing to freeze the relative position of creditors on the date of the bankruptcy filing, and limit the ability of secured creditors to use their property-based claims to “roll up” all of the bankruptcy-created value. These three rules, if applied consistently, should encourage efficient value-maximizing governance of the debtor firm and fair allocation of bankruptcy-created value among its creditors.

This Article shows that as Bankruptcy Code section 506(b) is currently written, postdefault interest rates are prohibited when the default is an “ipso facto event”—a filing for bankruptcy or insolvency as the event of a default. Yet some courts have insisted on postdefault interest in situations reinstating a loan agreement and have been ignoring restrictions on pendency interest to permit oversecured creditors from obtaining penalty rates of interest. This Article argues that those holdings violate section 506(b) and Supreme Court precedent. It begins with an analysis of ipso facto defaults, showing that the Bankruptcy Code prohibits ipso facto clauses even in nonexecutory contracts. The Article then examines regular monetary defaults. Noting that the Supreme Court only allows compensatory market rates to oversecured creditors, high default interest rates will never be a proxy for the market rate as they constitute penalties. Similarly, the Article argues that the “cure” of loan agreements allowed by reorganization chapters is a compensatory concept, also requiring the market rate of interest. Finally, the Article concludes by arguing that the Bankruptcy Code applies to solvent and insolvent debtors, and thus ipso facto clauses are prohibited and section 506(b) requires compensatory, not punitive, rates even in solvent bankruptcy cases.

Thousands of judges and scholars have relied on the statement in the 1979 Supreme Court opinion in Butner v. United States that “property interests are created and defined by state law . . . unless some federal interest requires a different result.” Often, they cite to the statement as a policy constraint that elevates state property law over federal bankruptcy law. This Article posits that the Butner rule is not as broadly applicable as commonly believed. To do so, the Article surveys some notable uses and misuses of the Butner rule in the thirty-five years since the case was decided and concludes that so long as Congress clearly states a federal purpose for modifying a party’s state law property rights at the moment a bankruptcy case is filed, such a modification is permissible.

This Article considers two related sets of questions that have recently taken center stage in the municipal bankruptcies of Detroit and other cities. First, what is the relationship between liens and lien substitutes, such as priorities and exceptions from bankruptcy’s automatic stay? As similar as liens and priorities are, the bankruptcy laws have long drawn a sharp distinction between state-created liens, which are honored in bankruptcy; and state-created priorities, which are not. The second question is the question in the Article’s title: what is a lien? Whether a purported lien actually is a lien is not always clear, especially if the lien is created by statute rather than by the parties themselves. The Article attempts to make sense of existing law, advocates a functional approach to liens and priorities, and questions whether courts should honor a statutory lien that lacks the key attributes of a lien.

U.S. bankruptcy law grants special rights and immunities to creditors in derivatives transactions, including virtually unlimited enforcement rights. This Article examines whether exempting those transactions from bankruptcy’s automatic stay, including the stay of foreclosure actions against collateral, is necessary or appropriate in order to minimize systemic risk.

Intercreditor agreements frequently restrict the extent to which subordinated creditors can participate in the bankruptcy process by, for example, contesting liens of senior lenders, objecting to a cash collateral motion, or even exercising the right to vote on a plan of reorganization. Because intercreditor agreements can reorder the bargaining environment in bankruptcy, some judges have been unsure about their enforceability. Other judges have not hesitated to enforce the agreements, at least when they do not restrict the voting rights of subordinated creditors. This essay argues that intercreditor agreements are controversial because they pose a trade-off: they reduce bargaining costs (by limiting the participatory rights of subordinated creditors), but can give senior lenders outsized influence over the bankruptcy process, to the detriment of investors who were not party to the intercreditor agreement. The essay proposes several rules of thumb that might help judges navigate this trade-off.

The desirability of secured creditor bankruptcies is undoubtedly a polarized issue. On one hand, some argue that secured creditor bankruptcies should be dismissed outright. On the other, others assert that secured creditor bankruptcies should not be automatically dismissed because they can be beneficial in certain circumstances. This Article explores this tension by initializing a dialog between the advocates and the critics of secured creditor bankruptcies. Through this dialectic approach, this Article concludes that, even though secured creditor bankruptcies may have the capacity for mischief, they should still be permitted so long as they are governed by carefully drawn limitations.

It is a commonly held belief that the Fifth Amendment’s Takings Clause limits the Bankruptcy Clause and that secured creditors have a constitutional right to receive the full value of their collateral when a debtor declares bankruptcy. This Article rejects this received wisdom: the Fifth Amendment does not—and should not—constrain Congress’s ability to define the contours of the Bankruptcy Clause. As revealed by a close examination of the historical evolution of bankruptcy

jurisprudence, the Fifth Amendment is not even helpful or relevant in considering the constitutional rights of secured creditors in bankruptcy. As such, the only meaningful limitation on Congress is the Bankruptcy Clause itself. This Article deconstructs this established paradigm and offers a nuanced account of Congress’s capacity for reform through its broad authority to modify secured creditors’ rights.

There is a debate about whether a corporate debtor’s going-concern surplus over liquidation value, preserved by the bankruptcy process, should be distributed entirely to senior claims that are not paid in full or should, instead, be shared to some extent with junior claims. To protect the advantages of priority credit for debtors, this debate should be resolved in favor of the senior claims unless the junior claims are nonconsensual.

It is widely believed that large chapter 11 cases are now routinely handled via a quick 363 sale, followed by a not so quick liquidation of the residue of the debtor, along with a distribution of the sale proceeds. Indeed, commentators widely bemoan the fact that debtors arrive in chapter 11 with no choice but to do a quick sale because their lenders will not permit anything else. In this paper, Professor Lubben argues that the root of the issue lies in corporate governance, and not bankruptcy. If leaving debtors in chapter 11 only with the option to engage in a quick sale process is decidedly a problem, then that problem has its roots in nonbankruptcy corporate law. He argues that ultimately this is a question of state law fiduciary duties; the foundation for this duty already exists in the Delaware Supreme Court’s oft-maligned Omnicare, Inc. v. NCS Healthcare, Inc. In short, state corporate law imposes a duty on the board to carefully consider any decision that will foreclose a future board’s choices. In times of financial distress, this duty includes an obligation

to carefully consider the effects of a particular decision on future restructuring options.

Since the early 2000s, the conventional view held by bankruptcy scholars is that the bulk of Chapter 11 cases are dominated by secured creditors, especially in large cases with more than $20 million of debt. It has been claimed that this creditor domination is so complete that it has been called “The End of Bankruptcy.” It is often claimed that this domination in turn has greatly increased sales of entire businesses under section 363 of the Bankruptcy Code in lieu of traditional reorganization. Analysis of a dataset from a cross section of 2006 Chapter 11 cases reveals that secured creditor control is important, but it is certainly not as pervasive as is commonly believed. This Article makes two major points: first, that the conventional picture of secured creditor control and section 363 sales is misleading and overstated; second, that the focus on very large cases instead of a cross section of Chapter 11 cases leaves a hole in the current research because our data suggest that dominant security interests are not strongly related to the size of the case. The data also make it clear that much more research will be necessary to understand the effects of secured credit on Chapter 11 cases and their outcomes.

This Article explores the extent of secured creditor’s rights in bankruptcy through an examination of In re Residential Capital. In

particular, ResCap is used to ask whether secured creditors should have a right to value that comes into being solely by virtue of the bankruptcy process. Ultimately, this question is intertwined with the inquiry of whether bankruptcy reorganization needs to be treated as a day of reckoning at all.

On June 9, 2014, the U.S. Supreme Court, in CTS Corp. v. Waldburger, held 7-2 that CERCLA Section 309 preempts only state statutes of limitations, not rules of repose. Previously, there was a split among federal courts of appeals as to whether CERCLA Section 309, a liberal discovery rule applying to certain toxic tort claims, preempted state statutes of repose. The Fifth Circuit had held that section 309 did not preempt state statutes of repose because the provision’s plain language, including the repeated use of “statute of limitations,” precluded a contrary interpretation. The Ninth and Fourth Circuits, however, held that CERCLA Section 309 preempted state statutes of repose in light of the Act’s legislative history and the ambiguity of the term “statute of limitations” at the time of CERCLA’s enactment. Federal courts have used these CERCLA Section 309 cases, as well as CTS Corp. v. Waldburger, to resolve the same question of statutory interpretation found in statutes relating to securities law, including the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and the Housing and Economic Recovery Act of 2008. This Note analyzes the circuit split regarding the proper interpretation of CERCLA Section 309, as well as the potentially far-reaching impact of CTS Corp. v. Waldburger outside of the environmental context. It begins by examining the legislative history of CERCLA Section 309 and the distinction between and meaning of “statutes of repose” and “statutes of limitations.” Next, this Note analyzes judicial interpretation of CERCLA Section 309, from the early cases to CTS Corp. v. Waldburger. It then evaluates the judicial use of the CERCLA Section 309 cases to resolve the same question of statutory construction presented in statutes relating to securities law and the recent housing crisis. This Note acknowledges that in considering whether the term “statute of limitations” encompasses rules of repose in various securities law extender provisions, the courts must consider the Supreme Court’s analytical approach to CERCLA Section 309 in CTS Corp. v. Waldburger. Nevertheless, this Note urges that courts should still conduct their own independent, rigorous analysis of the provision at issue. Such an approach will ensure the proper interpretation of unique extender provisions enacted by Congress at different times throughout history.

Despite federal appellate court attempts to provide clearer, though tentative, outlines of the Second Amendment’s scope in the public sphere, the states’ ability to regulate public carry remains ambiguous. Reflecting this ambiguity, state laws remain divergent; some states require that licenses be issued to those who qualify, while others grant issuing agencies discretion in deciding whether to issue a license to otherwise qualified applicants. Further contributing to this confusion are federal appellate court decisions holding disparate opinions of Second Amendment rights in the public realm. In the state of Illinois, gun policy must be structured with conscious regard for Chicago, a city plagued by gun violence. It is only within the last year that Illinois has extended the right to public carry to its citizens, the result of a Seventh Circuit decision declaring Illinois’ categorical ban on public carry unconstitutional. By examining the new Illinois Concealed Carry Act, and comparing it to other state laws in light of the constitutional analyses that Heller and McDonald require, this Note will assess the extent to which public safety issues can guide gun policy. In analyzing attempts to strike this balance, this Note will also examine the constitutionality of two types of concealed carry laws that states have enacted. This Note concludes that both the text and a historical analysis of the Second Amendment support the conclusion that the Amendment protects the right to bear arms in public. It also concludes that the Supreme Court will likely hold that the more restrictive concealed

carry laws are unconstitutional, as such laws grant issuing authorities the power to deny most law-abiding citizens of the right to carry a gun in public.

National Collegiate Athletic Association (“NCAA”) grant-in-aid athletes are not currently considered employees. As such, they are not presently afforded protection under worker’s compensation laws and cannot leverage their full bargaining power to protect their economic interests. However, the relationship between student-athletes and their universities clearly meets the requirements of both common law and statutory law tests for an employment relationship. Consequently, Congress should recognize student-athletes as employees under the Fair Labor Standards Act, and the NCAA should adopt a new model that includes an athlete compensation plan and optional educational activities. This model will result in athletes who are not only fairly compensated for the risks inherent in their participation in collegiate athletics but also better prepared for their chosen career paths. This model will also allow universities’ resources to be allocated more efficiently in pursuit of the institutions’ core educational purpose. The “cloak of amateurism” must be removed in order for both athletes and universities to most efficiently pursue their interests.

In his Article, Professor Tsesis examines the three dominant normative rationales for free speech in the United States. In turn, he critiques the theories that free speech furthers democratic institutions, that free speech furthers personal autonomy, and, lastly, that free speech advances knowledge by perpetuating a marketplace of ideas. While Professor Tsesis finds much to recommend in each theory, he also finds each lacking. He concludes that the present theories are too narrow to describe the range of concerns encompassed by the First Amendment’s Free Speech Clause. As such, Tsesis proposes that First Amendment doctrine should reflect a general theory of constitutional law that protects individual liberty and the common good of open society. To test his proposal, Tsesis applies it to the thorny free speech problems of defamation, intentional infliction of emotional distress, and incitement laws to demonstrate its normative superiority. In the end, Tsesis concludes that such a theory of free speech would better allow government actors to advance the underlying purpose of the Constitution, namely developing and enforcing policies conducive to the public good that safeguard individual liberties on an equal basis.

In this Article, we identify a fundamental contradiction in the law of fiduciary duty of corporate directors across jurisdictions, namely the tension between the uniformity of directors’ duties and the heterogeneity of directors themselves. American scholars tend to think of the board as a group of individuals elected by shareholders, even though it is widely acknowledged (and criticized) that the board is often a largely self-perpetuating body whose inside members dominate the selection of their future colleagues and eventual successors. This characterization, however, is far from a universal international truth, and it tends to be increasingly less true, even in the United States. Directors are often formally or informally selected by specific shareholders

(such as a venture capitalist or an important shareholder) or other stakeholders of the corporation (such as creditors or employees), or they are elected to represent specific types of shareholders (e.g., minority investors). The law thus sometimes facilitates the nomination of what has been called “constituency” directors. Once in office, legal rules tend to nevertheless treat directors as a homogeneous group that is expected to pursue a uniform goal. We explore this tension and suggest that it almost seems to rise to the level of hypocrisy: Why do some jurisdictions require employee representatives that are then seemingly not allowed to strongly advocate employee interests? Why can a director representing a specific shareholder not advance

that shareholder’s interests on the board? Behavioral research indicates that directors are likely beholden to those who appointed them and will seek to pursue their interests in order to maintain their position in office. We argue that for many decision making processes, it does not matter all that much what specific interest directors are expected to pursue by the law, given that across jurisdictions, enforcement of the corporate purpose is highly curtailed.

This Article explores the burgeoning practice of investing in people as if they were corporations. Sometimes pitched as a way to pay-off student loans or fund a business idea, people now have the

opportunity to sell shares of their future income to investors in exchange for cash today. Such transactions create a financial relationship closely analogous to that of a corporation and its shareholders. This Article considers how existing law applies to this new practice, and whether today’s rules are responsive to the unique challenges these arrangements present. I argue that, despite raising both constitutional and public policy concerns, these transactions should be permitted. Rather than outlaw such dealings, the nature of the financial relationships at issue means that they should be subject to securities regulation. Securities law alone, though, is insufficient; it is solely focused on protecting investors, leaving the broader social concerns raised by investing in people unaddressed and the more vulnerable parties to these transactions—those selling shares of themselves— without protection. To respond to these issues, I set forth a complementary regulatory template that would, among other things, require certain disclosures and set certain boundaries on these novel financial relationships.

This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government

statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in the overall volume and duration of federal civil litigation since 1986, suggests a proper methodology for measurement, and shows that the rate of increase of civil filings is less than the growth in the country’s population and the increase in judicial resources in civil cases, noting that any increase must be attributable to the criminal docket. Next, this Article studies the rates at which cases are terminated by various methods, noting today’s primary method is before pretrial with court action due to dispositive motions and judicial management. Third, this Article tracks and explains changes in the “Big Six” categories of civil litigation. Finally, this Article emphasizes the need to look at the government’s caseload statistics to note that the federal civil caseload has been relatively stable for twenty-five years.

Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the

Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade the United States; education, employment, housing, politics, and the population itself have irreversibly changed. Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a “majority minority” nation. In 1960, because U.S.

law restricted immigration by race, eighty-five percent of the population was non-Hispanic white. Since the enactment of the Immigration Act, the Hispanic and Asian American share of the population has more than quintupled, and by 2043 the Census Bureau projects that African Americans, Latinos, and Asian Americans together will comprise a majority of the population. Based on the legislative history, statements by government officials, and media reports, many scholars argue that Congress did not intend to change the racial demographics of the immigrant stream. Instead, these scholars argue that the diversification of the U.S. population was an enormous unintended consequence, one which Congress, had it appreciated what it was doing, might have thought better of. This Article introduces novel evidence to evaluate that claim: the roll

call votes of the House and Senate on these laws. The votes show that nearly identical coalitions of civil rights advocates supported all three laws while the same group of racially intolerant legislators opposed all three. This pattern suggests that all three laws had similar motivations and goals. We argue that the laws were inspired by sincere anti-racism and not cosmetic responses intended to have little practical effect.

Our civil liability system affords numerous defenses against every single violation of the law. Against every single claim raised by the plaintiff, the defendant can assert two or more defenses, each of which gives her an opportunity to win the case. As a result, when a court erroneously strikes out a meritorious defense, it might still keep the defendant out of harm’s way by granting her another defense. Rightful plaintiffs, on the other hand, must convince the court to deny each and every defense asserted by the defendant. Any rate of adjudicative errors—random and completely unbiased—consequently increases the prospect of losing the case for meritorious plaintiffs while decreasing it for defendants. This prodefendant bias forces plaintiffs to settle suits below their expected value. Worse yet, defendants can unilaterally reduce the suit’s expected value and extort a cheap settlement from the plaintiff through a strategic addition of defenses. We uncover and analyze this problem and its distortionary effect on settlements and primary behavior. Subsequently, we develop three alternative solutions to the problem and evaluate their pros and cons.

The attorney-client privilege and work-product doctrine recognize the indispensability of free and frank communications between clients and attorneys for zealous legal counsel in an adversarial justice system. With the rise of citizen journalists seeking to expose wrongdoing and render justice in the “court of public opinion,” zealous legal representation today necessarily requires consideration of public relations (“PR”) strategies. While courts have recognized the importance of PR strategies in the rendering of legal advice, they have not consistently afforded attorney-client privilege or work-product protection to communications with external litigation or crisis PR specialists. This uncertainty must be resolved with an easily administrable rule upon which attorneys, clients, and PR specialists can rely when responding quickly to crises. This Note first surveys and categorizes the varying approaches courts have taken to address the issue and recommends that courts consider the presence of PR specialists as an exception to waiver and expand application of the attorney-client privilege to include legal communications between lawyers, litigations, and PR consultants.

This Note argues that private game reserves can benefit the sport of hunting and conservation efforts simultaneously. Private game reserves benefit the sport of hunting by isolating animals on a large tract of land, while not capturing them, offering an alternative to decreasing public hunting lands while allowing the sport of hunting to continue. They may also stimulate conservation efforts by providing habitats in which animals can prosper. For these reasons, Illinois should amend its proposed hunting regulation bill to encourage private game reserves. In defending this conclusion, this Note analyzes the history of property rights in animals and the socio-political, economic, ethical, and environmental benefits of private game reserves.

This Note examines proposed changes to the Foreign Intelligence Surveillance Court following the NSA leaks by Edward Snowden. Specifically, it analyzes proposed procedural changes to the Foreign Intelligence Surveillance Act that attempt to provide a clear legal standard and effective oversight to ensure that intelligence activity does not undermine the democratic system or civil liberties. This Note argues that a public advocate should be added to FISC proceedings to represent the public’s privacy and civil liberty interests and allow FISC final orders granting surveillance to be appealed to the Foreign Intelligence Surveillance Court of Review by a public advocate. In addition, this Note recommends that changes be made to the FISCR so that it may handle a larger caseload and become a more permanent entity with full-time judges.

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause. Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production. The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over the proper scope and nature of the patent system, especially with regard to upstream patenting. I argue that this loss is leading to over- and underinclusive senses of patent eligible subject matter as well as amnesia as to the long-standing importance of method patents. I offer suggestions on how to reorient the patent system back to a focus on (useful) ‘‘art.’’

Conventional wisdom has long held that leadership decisions in corporate litigation are best left to the lawyers. Even as the world of corporate litigation has changed dramatically, courts have consistently relied on the lawyers themselves to decide who among them will

control litigation decisions. As a result, leadership decisions in corporate litigation are almost always made in private negotiations and back room deals. This Article pulls back the curtain on these decisions, using empirical data to conduct the first in-depth examination

into the market for leadership in corporate litigation. This examination reveals a market that bears little resemblance to the ideal imagined by courts and commentators. The reliance on private ordering forces lawyers to agree to overly complicated leadership structures. These structures in turn cause lawyers to underinvest in litigation, encouraging

holdouts and opportunism at the negotiating table. It need not be this way. Other types of complex litigation, from small-scale consumer class actions to multidistrict securities class actions, have successfully avoided such problems. The time has come for corporate law to draw on these insights and develop a new market for leadership in corporate litigation. In the end, leadership is far too important to be left to the lawyers.

Among more fundamental reforms, the JOBS Act of 2012 amended Section 12(g) of the Securities Exchange Act and sought to increase the number of shareholders (from 500 to 2000) that a firm must have before it must make public disclosures. Argument on the floor of Congress focused on the undue burden the provision placed on companies. This Article examines data that invalidates those anecdotal concerns. Indeed, the data reveal important insights: First, my handcollected

dataset shows that, contrary to public concerns about Section 12(g)’s onerous burdens, it only affects a few firms—(less than three percent of those going public). Second, my research relates to questions of the relative merits of Congress and the SEC with respect to fact-finding and the risk of capture. Finally, the Article answers the critical question the JOBS Act obscured: when, if ever, should we force private firms public?

Little is known about the economics of plaintiff-side law firms, which typically work on a contingency fee basis. We begin here to fill that gap. We report on the fees received by 124 plaintiff-side personal injury firms located in four states (Illinois, Texas, and two additional undisclosed states). At all of the firms, cases with modest fees may help to keep the lights on, but occasional ‘‘blockbuster’’ cases account for an overwhelming percentage of earned fees. A one-third contingency fee is the most common arrangement but is not always collected ex post; when recoveries are low, firms often reduce or waive their fee. We also estimate the impact of various statutory contingency fee caps on these firms; the effect varies, depending on cap design and casemix. But, many contingency fee caps dramatically affect the economics of plaintiff-side personal injury practice.

Federal Rule of Civil Procedure 37(e), detailing the consequences of the loss of electronically stored data to be produced in discovery, offers little guidance as to what constitutes sanctionable activity. This uncertainty directly translates into added costs and burdens in the ediscovery process. In response to these concerns, proposed amendments to Rule 37(e) were drafted in 2013 with the intent of decreasing the costs of discovery, in part by decreasing the prevalence of sanctions. This Note argues that the Proposed Rule 37(e)’s attempt to decrease sanctions will not be effective; furthermore, that such a result is not desirable. Proposed Rule 37(e) offers no improvements upon the current 2006 rule, and an effective Rule 37(e) must use sanctions as a tool to develop a unified culpability requirement and delineate and clarify sanctionable conduct and encourage cooperation in the discovery process. This Note recommends that Rule 37(e) must undergo a paradigm shift: it must embrace sanctions as a tool rather than as a liability. It is only then that the Rule can reduce E-discovery costs.

Given the increasing ubiquity of social media, school officials’ scrutiny of student communications has expanded into the online realm. In fact, news reports reveal that many school districts have punished students for their online actions and communications. Schools argue that monitoring online speech protects students from bullying, suicidal threats, and vulgarity. Contrarily, students and activist groups allege that these monitoring activities invade students’ First Amendment free speech rights. This Note asks whether school officials can punish students for their communications that take place beyond the traditional “schoolhouse gate.” As a result of the Supreme Court’s failure to address the constitutional boundaries of off-campus student speech, the U.S. Circuit Courts of Appeals have crafted myriad, often conflicting, approaches to apply the Supreme Court’s traditional First Amendment jurisprudence to this issue. This Note discusses the Supreme Court’s precedent regarding First Amendment protections for student speech, including the landmark Tinker decision that first established students’ First Amendment protections, and examines how federal courts have tackled off-campus student speech. This Note recommends that the Supreme Court analyze almost all student speech cases under a heightened version of a two-pronged Tinker test that focuses on the speech and the intent of the speaker rather than the physical location of the speaker. This “Tinker plus” test honors the philosophical role of the freedom of speech as a prerequisite to democracy, recognizes the evolving forms of interpersonal communication, and respects practical concerns of cyberbullying and electronic harassment.

In Batson v. Kentucky, the Supreme Court held that discriminatory use of peremptory challenges by a prosecutor to strike a black juror based solely on race violated the Equal Protection Clause. This Note argues that Batson should be extended to prohibit discriminatory use of peremptory challenges based on sexual orientation. TheNinth Circuit has adopted this approach, recently holding both that Batson extends to sexual orientation and that heightened scrutiny applies to such challenges. The Supreme Court should uphold the Ninth Circuit’s decision as an important step on the road to securing gay rights both in the courtroom and elsewhere.