When a federal judge encounters a statutory gap too wide to fill through ordinary statutory interpretation, should she borrow state law or make her own rule? The Supreme Court instructs judges to err on the former side, weighing the preservation of otherwise-applicable state law against federal needs that might compel a common-law (i.e., judge-made) rule. […]
Nonprofit control of operating businesses has long been a feature of European corporations such as Novo Nordisk, Ikea, Carlsberg, and Rolex, which are governed by enterprise foundations—nonprofits with charitable missions explicitly permitted to hold controlling stakes in businesses. In the United States, nonprofit control is becoming more prominent due to recent legal developments, with companies […]
This Article reveals how a core principle of U.S. banking law unintentionally increases concentration, instability, and inequality in the financial system. Since the 1990s, Congress has instructed regulators to resolve a failed bank using the strategy—be it a merger or liquidation—that incurs the “least cost” to the federal Deposit Insurance Fund (DIF). The ensuing three […]
In recent years, economists working in public finance and related fields have applied a new set of models and methodologies to the problems of inequality and economic insecurity. This innovative approach—often known as “the new dynamic public finance”—emphasizes the challenges posed by productivity changes across the life cycle and policy changes over time. The new […]
The relationship between state and local governments stands at a crossroads. In recent years, state legislatures across the country have intervened aggressively in local affairs, part of a broader wave of preemption that has upended traditional norms of local autonomy. At the same time, legislatures have disregarded other areas of local regulation—including areas where state […]
In 2024, the landmark Moelis opinion invalidated certain types of contractual control provisions that allow an insider stockholder to supplant a board’s statutory role. The Moelis opinion sparked a corporate-law civil war, with proponents of Moelis arguing that insider control rights harmfully undermine Delaware’s historic board-centric model. Critics claimed the decision upended long-established market practices […]
As corporate defendants charged with unspeakable harms increasingly find their way to the bankruptcy courts, bankruptcy scholars and practitioners are debating the merits and misgivings of the mass-tort bankruptcy. This Note contributes to this conversation a crucial advantage of mass-tort bankruptcies: the ability to give tort creditors more meaningful resolution of their injuries through nonmonetary […]
We are pleased to introduce this Symposium on the twentieth anniversary of the United States Supreme Court’s ruling in Kelo v. City of New London. Kelo is an extremely important ruling, significant both for its doctrinal effects and also for the strong political reaction it generated. Both the doctrinal debate and the political reverberations persist […]
Kelo v. City of New London was the quintessential public-interest case, featuring a cutting-edge legal issue, determined plaintiffs, and clear abuses of government power. Twenty years later, some of its most important lessons remain underexplored. We see the importance of political power in private-development takings through the fact that the government spared a well-connected property […]
Kelo v. City of New London was an immensely important case about the clash between the powers of government and the right to own private property. Yet the actual decision as much reflects the specific goals of the litigants and the tactical decisions of their appellate lawyers to attain those goals as it does the […]
Historians and legal scholars alike have previously noted that the meaning of “public use” began to change in the nineteenth century, continuing into the twentieth. In the hands of some state courts, “public use” expanded from an approach dependent on “use by the public” to one that at least occasionally tolerated “use for the public […]
The home enjoys special constitutional protections across multiple amendments in the Bill of Rights, yet the Takings Clause remains an anomaly, offering no unique safeguards for residential property. Justice Clarence Thomas’s dissent in Kelo v. City of New London underscored this inconsistency, questioning why the Court grants heightened protection to the home in contexts like […]
In Kelo v. City of New London (2005), the U.S. Supreme Court signaled that government-sponsored assemblies hardly ever create problems under the Public Use Clause in the Fifth Amendment to the U.S. Constitution. By a 5-4 majority, the Court held that a government takes property for public use when it condemns private property and transfers […]
For twenty years, the Supreme Court’s broad account of the public-use requirement of the Fifth Amendment under Kelo v. City of New London has been the target of constant criticism for its excessive deference to government acquisitions of land. The Court’s recent Loper Bright decision marks the rejection of a similar deferential approach in administrative […]
The power of eminent domain is an inherent attribute of sovereignty, not a power granted by the federal or any state constitution. There are significant constitutional constraints on exercises of the eminent-domain powers, however, most notably the requirement contained in the Takings Clause that private property shall not “be taken for public use, without just […]