In the event of a buyer’s willful breach of a merger agreement, lost-premium provisions allow a target corporation to claim damages that include the lost premium or economic entitlements that its stockholders would have received had the deal closed. In the recent Crispo v. Musk decision the Delaware Chancery Court held these provisions to be unenforceable under the anti-penalty doctrine. In this Article we challenge the analysis in Crispo by arguing that lost-premium provisions are doctrinally defensible, economically sensible, and supported by policy considerations. Lost-premium provisions became enforceable in Delaware from August 1, 2024, following amendments to the Delaware General Corporation Law. But the issue may crop up again in other jurisdictions. This Article explains why courts in other states both can and should uphold lost-premium provisions.

Founders and other corporate insiders go to great lengths to control the companies they take public, and the mechanisms they use to maintain control have been a central theme of corporate law. Dual-class structures, which give insider shareholders voting rights that exceed their economic rights, are a common way for insiders to maintain post-IPO control. Scholars and policymakers have endlessly debated the costs and benefits of these structures, which have surged in popularity over the past 20 years. As one prominent scholar put it, dual-class structures are “[t]he most important issue in corporate governance today.”

Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but mostly curtailed protections for the nearly 165 million Americans who receive health insurance from employers. The tragedy is that health benefit plans are in dire need of regulatory scrutiny. The costs of health insurance have risen dramatically faster than inflation, cutting into worker take-home pay and inflicting disproportionate harm on middle- and lower-income workers, while the generosity of employer-provided plans has thinned. The sorry state of employer-sponsored health insurance is due, in part, to inattention and inadequate probity from the parties subject to ERISA’s fiduciary obligations. In sharp contrast, the efficiency and value of retirement benefits have improved over that same period. Because of what ERISA requires, and because of what managers of employee health benefits have failed to do, there is enormous opportunity to employ ERISA to enhance the value of health benefits for employees, which also means enhancing the value of the nation’s entire health sector. A handful of pioneering lawsuits have just started invoking ERISA to subject health benefits managers to fiduciary obligations, and more are certain to come. Now is the time for ERISA jurisprudence to confront the consequences of neglecting health insurance, for courts to consider what demands ERISA imposes on health benefits managers, and critically, for the Department of Labor to exercise its regulatory authority under ERISA and enforce fiduciary obligations that the statute imposes and the market sorely needs. This Article documents ERISA’s authority over health benefits managers, explains why ERISA litigation is on the upswing, and offers guidance on how the Department of Labor could establish regulatory safe harbors to bring accountability and predictability to the enormous health benefits marketplace.

A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would then shore up markets’ self-correcting tendencies without requiring moral judgment. In the past few years, by contrast, regulators have prioritized sector-wide regulation, enforcement sweeps, and strategic cases against market leaders. They have justified their actions not (exclusively) in terms of informed choice or efficiency but in terms of values like protecting the vulnerable, preventing harassment, preserving privacy, and correcting for unjust inequalities. Focusing doctrinally on uses of the unfair-practices authority shared by several agencies, this Article situates the shift both historically and theoretically. Historically, it argues that consumer sovereignty lost ground after the global financial crisis of 2007 and controversies over Big Tech. Theoretically, it argues that the consumer sovereignty framework relied on a too simple model of markets as deviations from “perfect competition” that needed only better information to get back in line and that the paradigm emerging in its place is properly committed to correcting for power asymmetries in irredeemably imperfect markets. I call the new paradigm an “antidomination framework” and defend it.

As debates about “digital democracy” remind us, democracy is one of our central political keywords, but its meaning is difficult to pin down. It can point to any one of a wide variety of political norms, act rhetorically to buttress a set of contradictory claims, or sometimes merely gesture vaguely toward the general political good. This essay looks at democracy not as a set of normative claims but as an idea that takes shape in the spatial-visual imaginary. Exploring democracy as a set of images, I argue that two persistent “models” have helped us to envision it, models I describe as “the performing polis” and “the dispersed demos.” These models often appear in idealized form, but they also appear as corrupt Doppelgängers of the idealized versions: in antitheatrical images of the “evil theatrocracy”; in paranoid renderings of invisible networks of marauding automatons and invisible agents. I offer a compressed history of these models, which show up in both their utopian and dystopian forms in a variety of texts: ancient Greek philosophy, Early Modern and Enlightenment political treatises, modern and postmodern political and media theory. I then turn to two cases recently decided by the Supreme Court: Twitter v. Taamneh and Gonzalez v. Google. While these cases are formally about the liability of internet platforms for their users’ incendiary posts, they are also about democracy in the digital age. I look at how the two models of democracy I have identified inform them, appearing in the cases in both their utopian and dystopian forms. At the heart of the visions of democracy these cases proffer are the figures of the video and the algorithm: vehicles of democracy and its nightmare antitheses; synecdoches for its promises and pathologies; the central forces of our digital future.

Birth and death are traditionally viewed as antithetical moments. They divide our relations in the world: from their instantaneous creation at the point of birth to their dissolution at the point of death. From partner to widow, from expectant to grieving parent, in confronting the life death threshold, we become someone other. This conventional view presupposes a clear demarcation between life and death, suggesting that beyond this threshold, our relationships experience a definitive change. Yet, while our relationship with the deceased is physically taken from us, could our affective bond with them not only hold firm but also be helped to flourish? If so, what might be the tradeoff of blurring the borderland between life and death? This Article considers these questions as a matter of law, particularly in the context of reproductive rights. It assesses and juxtaposes the jurisprudence surrounding two reproductive experiences where birth and death meet: stillbirth and posthumous assisted reproduction. Both delivering a stillborn child and conceiving a child posthumously using artificial reproductive technologies challenge accidentally or intentionally the life death borderland, posing a dilemma for policymakers regarding how to regulate such scenarios. Examining the question centered in this Article, I argue, could inform policymakers contemplating the regulation of these experiences.

Was Dorothy Short Black? And, more importantly, did she know it? These questions, odd-sounding and perhaps unsettling to the contemporary reader, were the ones raised by Leonard Harry Wood in the hopes of avoiding prison for the crime of seduction. This Article examines the story of Dorothy Short and Leonard Wood, their relationship, and the criminal case that followed it in order to explore the ways in which seduction laws worked to create ( and recreate) gendered categories of race. The Article's main contribution is shedding new light on the 1932 Virginia Supreme Court case Wood v. Commonwealth of Virginia, and more broadly on the ways in which seduction jurisprudence influenced racialized understandings of gender.

The Fourteenth Amendment's Citizenship Clause connected borders, birth, and egalitarian status to forge a new definition of U.S. citizenship, freed for the first time from constraints of race and lineage. This Article locates a forerunner to the Citizenship Clause in antebellum laws enacted by six northern states under which all persons born within their borders were deemed free, regardless of their parents' race or enslaved status. In subsequent freedom suits, courts in these states declared this rule applied even to children born to fugitive slaves, holding that the child's status turned solely on location of birth, not the mother's enslavement. The Article begins by analyzing the development of "birthright freedom" an antebellum doctrine that was well known at the time to lawyers, politicians, and at least some enslaved women, who freed their children by escaping to free states while pregnant. These six states not only declared the children of slaves born within their borders to be free albeit required to serve lengthy periods ofindenture to their mother's enslaver they also mandated that these children be educated, treated as "servants" (not slaves), and that their births be registered with the state to protect their free status. The Article then argues that this linkage of location of birth, legal status, and membership rights provided socio-legal context for the drafting and ratification of the Citizenship Clause. In conclusion, the Article describes how the doctrines of birthright freedom and birthright citizenship have shaped legal rules and social practices around borders, birth, and status throughout U.S. history.

China's lockdown during the COVID-19 pandemic was widely considered a stark demonstration of the unconstrained power of an authoritarian state. Yet this power may not be as limitless as it appears. This article, the result of extensive fieldwork encompassing over ninety interviews and on-site visits to Chinese cities, primarily focusing on Shanghai and Wuhan, where the most significant lockdowns occurred, delves into the intricacies of the Chinese partystate's response to the pandemic. It offers a unique perspective on the constraints that societal forces impose on the party-state's exercise of power and, in doing so, challenges conventional wisdom. While the Chinese Communist Party (" CCP") touted its COVID-19 response as a testament to the robustness of its institutions, critics pointed to the widespread infringement of individual rights and the suffering endured during China's pandemic lockdowns. However, one aspect has been largely overlooked: the role of society itself. This study uncovers the hitherto unexamined role of society in monitoring and resisting the party-state's encroachments on individual rights during the pandemic, a phenomenon I term" cooperating to resist." My research reveals the state's inherent limitations in enforcing neighborhood lockdowns and providing essential services to locked-down communities. Crucially, I demonstrate that the cooperation of citizens, particularly homeowners, was indispensable to the state's ability to maintain its COVID-19 control measures. Yet, this cooperation was not without its implications. When homeowners, who had been willing partners of the government, invoked legal narratives to voice their concerns, the government found itself compelled to respond. This interdependence between the government and homeowners unveils a dynamic where dependence begets power, complicating the prevailing narrative of China's" strong state, weak society." It also offers fresh insights into the dynamics of power and legality in authoritarian regimes and casts new light on the relationship between property rights and sovereignty. In an authoritarian regime, property law emerges as a sanctuary of resistance for citizens.

James Whitman observed more than once that historians of law should boldly set out to formulate 'grand theories,' long-term interpretive hypotheses that draw together the infinite number of details into an overall picture, rather than merely proposing detailed studies of individual sources or particular legal institutions. While specialists in legal history dwell on the details, these overviews are offered by others: economists, anthropologists, and now even social psychologists, who attribute a key role in the interpretation of the world to the transformations of legal institutions. 1 Some of us acknowledge these and other shortcomings in our own fields, yet we tend to advise others how to go about addressing these issues rather than personally engaging in the work. For more than three decades, however, Whitman has been offering 'grand theories,' ie, interpretations of major historical and social phenomena, demonstrating that the contribution of legal history can still be fundamental to understanding social transformations: on dignity, on the status of persons, on the responsibility of the judge, on the ambiguous relationship between libertarian and capitalist ideologies in twentieth-century America. Now he addresses the immense problem of property rights in Western legal consciousness in his latest book, which is being published as I write this article.