Coerced Corporate Consent

Corporations are not human beings, but they have rights, including the constitutional right of due process. The United States Supreme Court recently held in Mallory v. Norfolk Southern Railway Co. that due process is satisfied when a state requires that a corporation consent to personal jurisdiction before it can conduct business in that state. The Court did not analyze, however, whether such business registration statutes can be coercive and, if so, when. These unanswered questions expose corporations to previously unexplored risks. Involuntary consent is an oxymoron. Consent must be knowing and voluntary, and consent extracted by threat is coerced and invalid. These concepts seem intuitive when applied to people but less so when applied to corporations. How can a corporation feel threatened? When do coercion principles apply to corporate actions? To answer these questions, this Article first discusses the philosophical underpinnings of consent and coercion, the relevant historical background for jurisdiction by consent, and the animating constitutional principles. On these bases, it concludes that coercion can apply in state-to-corporation relationships, that jurisprudence and scholarship support this application, and that the Constitution protects corporations from unfair conditions imposed by states. The Article then argues that a state violates a corporation’s due process rights when the corporation would experience a threat if it loses the privilege of conducting business in such state because the corporation needs to do business there or would cease to exist as established. Put differently, when a state wields more market power than a corporation can voluntarily resist, it coerces the corporation’s consent, rendering such consent invalid. That said, not all state registration statutes are coercive because not all states threaten all corporations. The voluntariness of a corporation’s decision to do business in a state depends on the particular state and the particular corporation—the bargaining power of some (but not all) states can coerce some (but not all) foreign corporations. Thus, whether a statute violates due process should be considered on a case-by-case basis, with certain industries and company sizes at greater risk of coercion than others. This Article concludes by offering a proposed mechanism to make that assessment

Litigating the Forever Chemical Problem Through the Endangered Species Act

Per- and polyfluoroalkyl substances (PFAS), a class of man-made, resiliently bonded chemicals, cause harm to both humans and animals. These “forever chemicals” can compromise immunity, increase cancer risks, and cause reproductive harm. Addressing the harms caused by PFAS variants is crucial to protect public health, environmental health, and biological diversity. However, the United States’ current regulatory scheme takes a disjointed approach to PFAS regulation. This is complicated by the frequent development of new PFAS variants, whose effects and environmental presence are largely unknown and understudied. While even the protections provided for humans under the current regulatory scheme fall short of the ideal, there is an even greater absence of meaningful regulation or guidance concerning harms to wildlife. This Comment proposes that Endangered Species Act (ESA) litigation can assist in closing the regulatory gap to protect endangered and threatened species. This approach is inspired by a history of using tort litigation to recover for human harms caused by PFAS variants. Rather than using tort litigation, this Comment proposes bringing citizen suits for violations to Sections Seven and Nine of ESA. Additionally, it argues that a multifaceted approach is necessary to address PFAS’s harms. Therefore, this Comment also recommends two other approaches to protecting wildlife from PFAS variants: legislative action and agency interpretation. Of the three suggested avenues, the most likely to occur and the most effective solution is ultimately judicial interpretation of ESA through litigation. Additionally, even though Section Nine has more barriers to successful litigation, an interpretation based on its “taking” prohibition would be more powerful compared to an interpretation of Section Seven’s consultation requirement. The issue of forever chemicals is complex yet pressing. It is constantly developing and affects almost every person and animal. Yet, there has been no comprehensive solution to the problem. This Comment concludes that a primary component of the solution, which would attempt to address harm at a broader, ecosystemic scale, should be litigation and subsequent judicial interpretation

Justice on Trial: Integrating Ethics in Law School Advocacy Courses

The rule of law depends not only on legal doctrine and institutional design, but on the daily ethical choices of the lawyers who operate within the adversarial system. Trial lawyers, in particular, wield extraordinary power courtroom outcomes, yet law schools too often train future advocates to perform persuasive techniques without meaningful engagement with the ethical obligations that constrain those techniques and the lawyers who wield them. This article argues that the persistent separation between trial advocacy education and legal ethics instruction leaves law students ill-prepared for the moral complexities of litigation and threatens public confidence in the justice system. Tracing the historical rise of trial advocacy courses and their performance-centered pedagogical roots, the article demonstrates how advocacy training has become divorced from ethical reflection, reinforcing a win-at-all-costs mentality that undermines the rule of law. It then examines the unique role of trial lawyers as both zealous advocates and officers of the court, highlighting how everyday litigation decisions, from witness examination to evidentiary objections, carry profound ethical consequences. Drawing on examples from modern courtroom practice, the article identifies common ethical dilemmas that arise under the pressures of adversarial advocacy and explains why traditional stand-alone professional responsibility courses inadequately prepare students to confront these dilemmas in real time. The article ultimately contends that ethics and advocacy are inseparable and must be taught together. It proposes concrete, practical models for integrating ethical reflection directly into trial advocacy instruction, including ethics-infused simulations, reflective exercises, co-teaching models, ethical assessment criteria, and practitioner engagement. By embedding ethics at the core of advocacy education rather than treating it as an ancillary subject, law schools can better prepare students for practice, strengthen professional identity formation, and foster a generation of trial lawyers equipped to protect, not erode, the rule of law

Desperation Finance: Merchant Cash Advances in Bankruptcy and Beyond

Over the last several years, Merchant Cash Advances (“MCAs”) have risen in prominence as a form of short-term financing for distressed small businesses. MCA transactions are distinct from most small-business lending because they are not structured as loans at all. Rather, in exchange for a lump sum of cash, the merchant purports to sell to the funder an unidentified percentage of its future receipts or receivables. This structure allows funders to sidestep the application of lending regulations and usury protections, but it strains the foundations of commercial law and generates a host of interpretive challenges. Bankruptcy, district, and circuit courts across the nation are grappling with the true nature of MCA transactions to determine what rights in the underlying receivables are transferred and when that transfer occurs. These issues rise in prominence if a merchant seeks bankruptcy protection, as the extent of the estate’s interest in property—and by extension the application of any number of bankruptcy provisions—hangs in the balance. This essay provides a comprehensive analysis of MCA agreements and other forms of revenue-based financing. Drawing from a robust literature involving recharacterization of financial transactions, this essay advances an analytical framework for evaluating the nature of MCA transactions. It explores how recharacterization affects both bankruptcy and non-bankruptcy entitlements and offers commentary on related issues faced by courts

How IP Ends

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and offers a set of concrete proposals for reforming IP through expanding and adapting its terminal rules. Finally, the Article considers what lessons, if any, traditional property law might learn from how IP ends

ESG is Not Libertarian: A Response to Jonathan Macey

Investing, like any market activity, is voluntary. Investors may invest however they wish, whether to maximize returns, minimize risk, or support what they view as good causes. Is the current Environmental, Social and Governance (ESG) movement a libertarian embrace of socially responsible investing, as Jonathan Macey has argued? We answer with a definite no for several reasons. Government policies impel much ESG investment, most prominently through clean energy transition and financial regulations. Most ESG investment dollars stem not from investor decisions but from potential opportunism by managers of public pensions and sovereign wealth funds. Much investor activism for ESG results from shares owned indirectly by passive investors and may also reflect opportunism. Even the modest goal of harmonizing the dozens of different private ESG metrics through regulation violates market autonomy. We conclude, contra Macey, that ESG is not libertarian

Lunch Shaming and the Right to Privacy

Lunch shaming is the practice of penalizing students who cannot afford to pay for their meals, resulting in them being denied food, served alternative meals, or publicly identified. The origins of lunch shaming can be traced to the financial pressures faced by school districts that struggle to balance tight budgets with the mandate to provide free or reduced-price meals to eligible students. Despite legislative efforts and advocacy campaigns aimed at mitigating the problems associated with lunch shaming, the practice persists, exacerbated by rising food costs and the expiration of pandemic-era food programs. Many law journal and other articles have correctly argued that lunch shaming is bad as a matter of policy. This Article goes further: It is the first one to tie lunch shaming to the violation of a specific federal right—the right to privacy. The Family Educational Rights and Privacy Act (FERPA) is designed to protect the privacy of student education records and to restrict the disclosure of personally identifiable information without consent. Publicly identifying students who have unpaid meal debts—whether by giving them a distinct meal (sometimes called “shame sandwiches”), marking their hands or arms (an administrator at one school stamped “I need lunch money” on an eight-year-old child’s arm), or subjecting them to other forms of public disclosure—violates these protections by effectively broadcasting their financial status to classmates, their parents or guardians, and school staff. These actions not only undermine the student’s right to privacy but also contribute to an environment of stigma and humiliation akin to bullying, notably at the hands of school administrators. This Article surveys the separate landscapes of school lunch shaming and FERPA, explores how lunch shaming practices contravene FERPA’s provisions, addresses the potential legal ramifications for school districts that fail to safeguard student privacy in their meal program administration, and recommends comprehensive federal anti-lunch shaming legislation as well as targeted actions to be taken by the Department of Education

Super-Efficient Breach in Bankruptcy: Recalibrating Remedies for Contract Rejection Damages

Contract law rests on a simple but powerful premise: when a party breaches, the law protects the injured party’s expectation interest, placing them, as nearly as possible, in the position they would have occupied had the contract been performed. This principle underlies the theory of efficient breach, which tolerates economically rational breaches so long as the non-breaching party is fully compensated. But in bankruptcy, this foundation often collapses. Under section 365 of the Bankruptcy Code, a debtor may reject an executory contract, with the law treating that rejection as a prepetition breach and relegating the counterparty’s claim to general unsecured status, typically worth just pennies on the dollar. This Article introduces the term super-efficient breach to describe this unique dynamic: a system in which debtors can escape contractual liability with only minimal economic consequence, even when the breach is strategic and opportunistic. The result is a doctrinal and distributive distortion that undermines reliance, weakens contractual stability, and rewards opportunistic behavior. To restore balance, the Article proposes a modest but novel reform: the creation of a capped priority claim under section 507(a) for counterparties who suffer reliance-based losses from contract rejection. Grounded in existing bankruptcy priorities and equitable principles, this targeted remedy would preserve debtor flexibility while reinforcing the integrity of contractual commitments

Scrappy or Strategic? Law Firm Decision-Making in Light of Executive Orders

Some of President Donald J. Trump’s early 2025 Executive Orders targeted specific law firms.  These Executive Orders have created a stir within our legal community.  Why did some firms fight those Executive Orders and other firms agree to quick settlements with the Trump administration?  In this article, I use some rudimentary concepts taken from game theory (as in, “I won’t use numbers or mathematical proofs,” so I expect actual game theorists to roll their eyes at my analysis) to analyze two games:  the game of “who within the firm will decide whether to fight or settle” and the game of “whether our firm should fight or settle.”  I conclude that Paul, Weiss’s decision to settle with the Trump administration was predictable, given the structure and values of BigLaw, and that the other firms that settled were factoring in that a united front was a pipe dream. William Roper: So, now you give the Devil the benefit of law! Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil? William Roper: Yes, I’d cut down every law in England to do that! Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!        —A Man For All Seasons Starting on Inauguration Day—January 20, 2025—President Trump began issuing a flurry of Executive Orders covering everything from diversity, equity, and inclusion (DEI) programs to renaming landmarks to higher education to ending the “weaponization of the Federal Government.” I’ll discuss the law firm Executive Orders (and the EEOC letters targeting twenty law firms), but I’m not going to turn this article into a commentary about the first several months of the Trump administration. Instead, I want to focus on the administration’s targeting of law firms via Executive Orders. In particular, I want to explore why some law firms chose to fight those orders and others chose to settle with the administration.  And I’m going to discuss those decisions by using a rudimentary understanding of game theory to help explain the decisions that transpired

Ambiguity\u27s Final Auer: Insisting on Consistency After Loper Bright Enterprises

Can one lose something they still have? Apart from this potential brainteaser, a common sense understanding of loss requires an item to actually be removed from its owner. Nevertheless, under the United States Sentencing Commission Guidelines, an interpretive rule automatically punishes convicted defendants for money they never took by including “intended loss” in the definition of loss. This interpretive rule multiplies the number of years a defendant spends in prison due to the doctrine of Auer deference, even though such a rule is not supposed to have the weight of law. Auer deference requires courts to defer to agency interpretations of ambiguous agency regulations—ignoring that the very same agency failed to promulgate a clear regulation. Furthermore, the rule of lenity, an ancient doctrine privileging a criminal defendant if the government fails to be clear in writing rules that affect their liberty, gets consigned to oblivion when a court relies on Auer to resolve an ambiguity. This binding deference harms politically powerless groups, such as criminal defendants, to the greatest degree as they are not likely to mount criticisms to ambiguous rule promulgations at the notice-and-comment phase. When agencies create defining interpretive rules, no outside voices enter the decision-making process, exacerbating these power imbalances. The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo emphasized how doctrines of binding deference that rely on a finding of ambiguity lead to unpredictability and result in an abandonment of judicial authority to decide matters of law. Auer deference suffers from these ills. After the overturning of Chevron deference, this lingering deference is inconsistent with courts returning as the interpreters of ambiguity. Judicial predictability and fairness require courts to reclaim their proper place as the deciders of the fates of criminal defendants, without disregarding key interpretive tools. This Comment argues that the Court’s reasoning in Loper Bright necessitates overturning Auer deference to restore fairness to the sentencing system and rebalance the separation of powers