May 5, 2025 Adam N. SteinmanCourts Law
Nitisha Baronia, Jared Lucky, & Diego A. Zambrano,
Private Enforcement at the Founding and Article II, 114
Calif. L. Rev. __ (forthcoming, 2026), available at
SSRN (May 8, 2024).
If we were on Family Feud and the question was “Name a constitutional obstacle to private enforcement of federal substantive law,” the #1 answer on the board would probably be Article III standing—most notably its requirement that any plaintiff suing in federal court must have suffered a concrete, particularized “injury in fact” as a result of the alleged violation of federal law. After TransUnion v. Ramirez, however, a new answer is moving up the survey: Article II. Although most of TransUnion’s rationale was grounded in Article III, Justice Kavanaugh’s majority opinion also observed that private litigation by ostensibly “unharmed” plaintiffs “would infringe on the Executive Branch’s Article II authority.” TransUnion’s invocation of Article II has accelerated challenges to a host of federal private enforcement regimes, prompting one district court judge in Florida to declare the qui tam provisions of the False Claims Act unconstitutional.
In their excellent article, Nitisha Baronia, Jared Lucky, and Diego Zambrano interrogate this Article II challenge to private enforcement by taking us back in history. Long before Richard Dawson was hosting Family Feud. All the way back to Richard Harrison, the Auditor of the U.S. Treasury Department whose correspondence with Alexander Hamilton sheds light on Founding Era understandings of private enforcement regimes. Baronia, Lucky, and Zambrano marshal a host of historical sources to show that the new weaponization of Article II stands in stark contrast to a “tradition of private enforcement” that existed before, during, and immediately following the Founding. In an age when “history and tradition” dominate so much of the legal landscape, this is an invaluable contribution. Continue reading "What History Really Says About the New Article II Assault on Private Enforcement"
May 2, 2025 Brett McDonnellCorporate Law
Ann Lipton,
The Legitimation of Shareholder Primacy,
__ J. Corp. L. __ (forthcoming, 2025), available at
SSRN (Feb. 03, 2025).
The United States is going through a moment of extreme political strife and uncertainty. Delaware’s corporate law ecosystem is going through its own moment of strife and uncertainty, albeit with less stratospheric—but still high—stakes. Significant connections exist between the conflict occurring within these two systems, including but not limited to the techno-king himself, Elon Musk.
Ann Lipton explores some of those connections in The Legitimation of Shareholder Primacy. Lipton argues that the central corporate law norm of shareholder primacy was intended to shield Delaware law from political debate, but internal tensions within the concept combined with the political polarization of our times have battered that shield. The development of that argument features Lipton’s deep knowledge of corporate law and governance, which is tied here to an interesting political story. Continue reading "A Legitimation Crisis Strikes Delaware Corporate Law"
May 1, 2025 Orit GanContracts
A fascinating new article by Andrew Keane Woods examines contracts in the digital age. These contracts are society-wide in scope, and their scale surpasses other massive contracts we use. Moreover, they set the rules for digital society and govern the digital world. Furthermore, they determine constitutional rights such as privacy rights, speech rights and Fourth Amendment rights.
The internet, digital platforms, and social media are heavily governed by private law. However, courts generally apply contract law to enforce these contracts without due regard for their public aspects, as outlined above. Courts emphasize procedural fairness and assent rather than substantive justice and the contract’s social impact. Furthermore, courts usually allow parties to contract away their public rights, such as the right to sue in a court of law, and regularly enforce liability waivers. Moreover, courts commonly overlook the public interests, social costs, and harms these contracts entail, and only rarely invalidate contracts on grounds of public policy. Similarly, scholars and reformers mainly focus on procedural fairness and mutual assent, for example by promoting better disclosure, while neglecting the public aspects of these contracts. Continue reading "Contracts in The Digital Age"
