Published on Democracy: A Journal of Ideas in Winter 2016

Few Americans would recognize 1209 North Orange Street in Wilmington, Delaware, as a site of American power rivaling the White House or Capitol Hill. But thousands of American businesses—including giants such as Wal-Mart, Coca-Cola, and General Motors—claim North Orange Street as their registered address for the purpose of securing a Delaware corporate charter. All but a handful of these companies have no real connection to the state. But no matter. Delaware provides corporate foundational papers to all comers, and earns as much as a quarter of its state budget from the ensuing fees. Though Delaware has a population of less than one-third of 1 percent of the nation, more than half of Fortune 500 businesses claim a filing cabinet in Wilmington as home.

Published on The CLS Blue Sky Blog on December 9, 2015

Corporate personhood is getting a bad name.

After Citizens United v Federal Election Decision in 2010, protecting the First Amendment rights of corporations to spend money in elections, the nation has seen the development of a broad-gauged movement to overturn the decision by way of constitutional amendment. These proposals range from relatively limited and contained grants of Congressional authority to regulate campaign finance to broad attacks on what proponents call corporate “personhood.” This attack on corporate personhood is a mistake.

Published on The CLS Blue Sky Blog on October 19, 2015

For a generation, the ideological lines within corporate law have been fairly well defined. On the one side, progressives have argued for a weakening of the shareholder primacy norm as a normative matter or that it does not exist as a positive matter. Corporations should have responsibilities that extend beyond the bottom line — that they should see themselves, and be seen as, being subject to a robust social contract. Corporate citizenship should be taken seriously.

Published in The Boston Globe on July 1, 2015

“Poor Joshua!”

So wrote Supreme Court Justice Harry Blackmun in dissent in 1989. A 4-year-old Wisconsin boy, Joshua suffered severe injuries from his father’s beatings. Though state social services officials knew he was in danger, they did nothing. When Joshua’s guardian later claimed their inaction violated his constitutional right of liberty, the court ruled in favor of the negligent officials.

Published in The Atlantic on June 24, 2015

The liberal justices expanded the rights of corporations, without considering the limits of that doctrine.

Published in The Boston Globe on June 10, 2015

After Red Sox fan Tonya Carpenter was seriously hurt by a piece from a broken bat at Fenway Park, there were immediate expressions of concern by team management, players, Major League Baseball, and other fans.

Members of Red Sox Nation might assume the club will also pay Carpenter’s medical expenses. But under the law, it is unlikely the organization will have to do anything. The Sox won a lawsuit after a similar incident in 1998 in which Jane Costa, who was sitting behind the home dugout, was hit by a foul ball traveling at nearly 90 miles an hour. Costa’s face was crushed by the impact and her medical bills totaled nearly a half million dollars. She sued the Sox, but a court eventually ruled the organization had no obligation to warn or protect her, saying the risks of injury were “obvious.”

Published in the BC Law Magazine in Summer 2015

Every few months it seems we hear yet another example of hate speech on campus. This past winter a viral video showed members of a fraternity at the University of Oklahoma chanting that they’d rather see a black student lynched than as a member of their clan. Last year, fraternity members at Ole Miss placed a noose around the statue of James Meredith, the courageous student who desegregated the campus in 1962.

Both acts were roundly condemned as abhorrent. But legal scholars came to the defense of the students in both cases, saying that public universities could not punish them because doing so would violate the First Amendment’s commitment to “uninhibited, robust, and wide-open” discourse.

Published in The Atlantic on March 13, 2015

The Supreme Court's interpretation of the First Amendment would protect even the racist chant at the University of Oklahoma—but it shouldn't.

Published in The Atlantic on Jan 30, 2015

Companies deserve many of the same rights as citizens, but must also shoulder the same responsibilities.

Published in The Washington Monthly in January/February 2015

Citizens United was a bad decision; but the cry of “Corporations are not people!” isn’t helping fix the problem—in fact, it’s making it worse.