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We analyze whether non-shareholder constituencies are better protected with internal corporate law reform or with external regulation. We reply to Professor Aneil Kovvali’s article, Stark Choices for Corporate Reform, that criticizes some of our previous output, in which we warned that a stakeholderist corporate law reform would stymie efforts to achieve effective stakeholder protections with external regulation. In his article, Kovvali attacks our work for imposing a “stark choice” on policymakers (that is, that reformers would face a mutually exclusive choice between two types of reform, internal and external), and for our view that stakeholderism should not be embraced because it would give directors renewed powers to lobby more forcefully for reforms they like and against reforms they dislike. Kovvali argues that while internal and external reforms are not incompatible, internal reform is more realistic and might pave the way to external reform. Contrary to Kovvali’s characterization, we do not object to voluntary corporate actions that improve stakeholder welfare and that can happen without statutory corporate law changes. Moreover, we do not think internal and external reforms are inherently incompatible; rather, reformers would prioritize internal reform, give the opportunity for executives to cherry-pick the changes they want, and jeopardize reform attempts that would truly benefit weaker constituencies. While Kovvali’s support for stakeholderism revolves around its feasibility, he does not show how an internal corporate law reform capable of shifting power and resources to stakeholders (one that is mandatory, specific, and enforceable) would be any more feasible than external regulation.

Compelled interoperability can be a useful judicial or statutory remedy for dominant firms, including digital platforms with significant market power in a product or service. They can address competition concerns without interfering unnecessarily with the structures that make digital platforms attractive and that have contributed so much to economic growth. Given the wide variety of structures and business models for big tech, “interoperability” must be defined flexibly. Approaches to interoperability begin with the premise that anything that can be organized within a firm can also be organized in a market, and vice versa. The key to a good interoperability solution is to permit individual assets to function competitively where that is preferable but collaboratively when collaboration produces better results. Interoperability can include everything from “dynamic” interoperability, which requires real-time sharing of data and operations, to “static” interoperability which requires portability but not necessarily real-time interactions. Interoperability is not the best remedy in all situations, nor even for all of those that involve digital platforms. For example, it is rarely the best remedy for nondominant assets, even those that are sold on two-sided digital markets. Tested by these criteria, the proposed American Innovation and Choice Online Act falls short. Without assessing a market power requirement, it would compel interoperability of ordinary competitive products, and in ways that are likely to produce significant private and enforcement costs and to encourage substantial free riding without offering any competitive benefit.

This Piece responds to The New Abortion by Dov Fox and Mary Ziegler by critically examining their legal history of in vitro fertilization (IVF) regulation and their proposals for federal regulation to stave off regressive regulation. First, while admiring the value of their historical analysis, this Piece challenges the authors to delve more deeply into the internal dynamics of reproductive rights advocacy during the twentieth century to better understand the implications of race and class divisions in the mainstream reproductive rights movement’s leadership. Second, it rejects the authors’ legislative recommendations as politically naïve and insufficiently attentive to the race, class, and gender dynamics that have long shaped reproductive regulation in the United States. Drawing on the history of stratified reproduction and the emergence of the reproductive justice movement, this Piece argues that IVF is unlikely to face the same legal fate as abortion due to its association with privileged, predominantly white, presumed heterosexual, and married users. It critiques the authors’ call for federal regulation as both impractical and potentially harmful, especially under a political regime hostile to reproductive autonomy. Instead, this Piece advocates for a more nuanced, justice-centered approach that resists exceptionalism in regulating assisted reproduction and centers the needs of marginalized communities. It warns against repeating the mistakes of mainstream abortion advocacy, which often prioritized legal access over equitable outcomes. Ultimately, this Piece calls for bold, inclusive leadership and state-based strategies that reflect the lived realities of those most affected by reproductive injustice.

This Comment examines the collateral order doctrine, a narrow exception to the otherwise general rule that appeals from interlocutory orders are generally disallowed in the federal court system. It does so in the context of fugitive disentitlement orders. This Comment focuses on a recent Second Circuit decision, United States v. Bescond, analyzing its consequences for interlocutory challenges by foreign defendants who live and conducted their violative conduct abroad and have not stepped foot into the United States to surrender to jurisdiction. Bescond created a new circuit split with the Sixth and Eleventh Circuits. The Comment proceeds in three parts. It begins by describing the origins of the collateral order doctrine and traces its uneven application throughout the history of Supreme Court jurisprudence. It next discusses the main points of contention arising from the circuit split created by the Sixth and Eleventh Circuits’ analyses of the collateral order doctrine, and the Second Circuit’s recent decision in Bescond. Finally, it proposes that the Supreme Court should resolve the circuit split by exercising its rulemaking powers. It should do so by granting interlocutory appeal to fugitive disentitlement orders involving extraterritorial applications of U.S. law to foreign defendants remaining at home abroad.

What do the Justices think they’re doing? They seem to act like appeals judges, who address questions of law as needed to reach a decision—and yet also like curators, who single out only certain questions as worthy of the Supreme Court’s attention. Most of the time, the Court’s “appellate mind” and its “curator mind” are aligned because the Justices choose to hear cases where a curated question of interest is also central to the outcome. But not always. In some cases, the Court discovers that it cannot reach—or no longer wishes to reach—the originally curated question. Looking at what the Justices say and do in such instances offers a revealing glimpse into the interplay between their appellate and curator roles. These cases illustrate how the norms of appellate judging can enhance, rather than constrain, the Court’s discretion in choosing which issues to address and which to avoid. Using this discretion, however, entails the risk of distorting legal doctrines beyond those curated for review.

Gig workers constitute an ever-increasing share of the American workforce, yet they are not afforded the rights to strike and bargain collectively under the National Labor Relations Act (NLRA) due to their independent contractor status. Independent contractors who attempt to act collectively face antitrust liability, whereas employees who are covered by the NLRA enjoy an antitrust exemption for the same collective action, known as the “labor exemption.” Observers have speculated that the First Circuit, in the recent case Confederación Hípica de Puerto Rico, Inc. v. Confederación de Jinetes Puertorriqueños, Inc. (Jinetes), 30 F.4th 306 (1st Cir. 2022), has begun to remedy the exclusion of gig workers from the labor exemption by holding that workers engaged in a labor dispute may benefit from the exemption regardless of their employment status. This Comment argues that courts following the First Circuit’s lead may afford the Jinetes reasoning either a narrow or a broad interpretation and that the latter should be adopted because it would promote gig worker collective action. Under the narrow interpretation, most gig workers are still excluded from the labor exemption and face many of the same challenges as before. Under the broad interpretation, gig workers may enjoy new organizing avenues through striking, which has been successful for gig workers internationally, and through state and local regulatory frameworks, which have succumbed to antitrust scrutiny in the past. The contrasting interpretations reflect competing approaches to the antitrust laws. As the modalities of work change, so too should the understanding of the antitrust labor exemption.

The most elite and scarce of all U.S. legal credentials is serving as a Justice on the U.S. Supreme Court. A close second is clerking for a Justice. A Court clerkship is a prize as well as a ticket to future success. Rich accounts of the experience fill bookshelves and journal pages. Yet the public lacks a clear story about who wins this clerkship lottery. Original analysis of forty years of clerkships tells that story. New datasets detail clerks’ paths from college to the Court to careers. Research shows that Court clerkships favor educational pedigree and status over pure achievement. Post-Court, clerks enjoy a bounty of opportunities that amplify their influence on society writ large. In the elite legal labor market, some people are, in fact, more equal than others.

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportionate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece offers an account of the theoretical frameworks that underpin the personal responsibility approach to public health and argues that it is necessary to foreground the social determinants of health in the response to the pandemic.