This Article categorizes corporate speech along two distinct dimensions: (1) commercial versus non-commercial, and (2) political versus non-political. Using this terminology, this paper introduces a novel taxonomy of corporate speech that includes a definition of pure political speech. The central claim set forth here is that pure political speech should not be permitted as a matter of state corporate law. Embedded within state corporate law must be a steadfast commitment to the simple proposition that market-based business entities must not influence what is considered right and wrong either morally or as regards matters of public policy unrelated to its business operations. Recognizing the difficulties inherent in overcoming the business judgment rule protection enjoyed by corporate fiduciaries, the paper advances a different litigation theory to silence pure political speech grounded in the notion of shareholder oppression, contending that political speech by a business corporation ought to constitute prima facie evidence of oppressive conduct. Introducing the novel concept of an ideological dividend, this paper contends that pure political speech can be conceptualized as a form of unlawful shareholder oppression no different than a dividend paid to some shareholders of the corporation but not others.

In addition, this Article offers two concrete policy proposals to silence pure political speech: (1) modify shareholder oppression statutes to include pure political speech as a form of oppressive conduct, and (2) encourage courts to recognize political speech as prima facie evidence of oppressive conduct in a shareholder oppression claim. To support these policy proposals, the paper provides two justifications for why purely economic decisions should not be motivated by ideological considerations. First, permitting ideology to influence economic decision-making can result in a socially inefficient allocation of scare resources. Second, allowing economic actors to sort by political ideology can exacerbate existing ideological divisions in a society already deeply divided.

This Article uncovers the pervasive and significant impact of business law Amicus Lobbying, a strategic tactic whereby lobby groups have commandeered the amicus curiae filing process in state courts to shape business law according to their interests.

The Article makes three primary contributions to the literature. First, it presents the only comprehensive dataset of amicus curiae filings in business law cases. This hand-collected dataset encompasses nearly all business law amicus curiae filings from 2005 to 2022 in the key jurisdictions of New York, California, Delaware, Texas, and Nevada. Second, it reveals a striking empirical finding: lobby groups account for 67% of all amicus curiae filings in the dataset, with a high rate of success in persuading courts to adopt their positions. Finally, the Article provides a normative assessment of Amicus Lobbying in business law and proposes policy recommendations designed to ensure a more balanced representation of stakeholder interests.

By shedding light on this understudied phenomenon, this Article aims to stimulate critical discourse on the intersection of lobbying, judicial decision-making, and business law formation. It offers valuable insights for scholars, practitioners, and policymakers engaged in the ongoing debate over the appropriate role and influence of interest groups in shaping legal doctrine.

This Article contends that the scope of the Coase Theorem has been extended too far by those who have interpreted the Theorem as setting forth a powerful argument against public intervention in private markets. The Coase Theorem can be viewed as a decentralization result only if certain restrictive conditions hold true. First, the Coasean prediction that the private exchange of state-enforced private property rights will yield the optimal use of scarce resources in the absence of transaction costs is correct, conditional upon the assumption that a random grant of private property rights is the socially optimal resource allocation rule. This assumption might not hold true, however. This Article provides three economic reasons for why the political process might select a socially suboptimal allocation rule-what this paper terms political transaction costs. Second, the final allocation of scarce resources depends upon the initial wealth endowment of the transacting parties. These wealth endowments, however, might be the product of an inefficient labor market. This Article identifies three sources of market failure in labor markets and contends that these inefficiencies must be fully considered in any broader assessment of the Coase Theorem as a decentralization result.

This Article examines the question: How can a consumer hold a seller to account in an exchange relationship when expectations have not been met. The Article’s first contribution is to recognize that, in the case of small firms, an employer business can provide a higher level of conflict resolution compared to a non-employer business. Unlike a consumer, an employer has the level of control necessary to compel an employee to remedy a product or service failure. Rather than engage in a costly personal confrontation with an employee, a dissatisfied consumer can simply request that the employer make the employee perform as promised. In this way, the existence of an employer-employee relationship allows a dissatisfied consumer to transfer or otherwise delegate conflict resolution to a person with greater power to remedy a product or service failure.

The Article’s second contribution is to recognize that, in the case of large firms operating in markets with imperfect competition, a large firm is likely to provide a suboptimal level of conflict resolution. When consumers are locked into an exchange relationship because switching costs are sufficiently high due to a lack of available market alternatives, consumers often have limited voice and no other feasible dissatisfaction response—a state of powerlessness that this Article terms “consumer captivity.” This Article argues that antitrust authorities ought to include consumer captivity more consistently in the mix of non-price consumer harms cognizable under U.S. antitrust law. To increase the level of conflict resolution of large firms in imperfect markets, this Article identifies two potential regulatory strategies informed by the analytic framework: (1) indirectly reduce the cost of consumer voice, and (2) directly increase the probability that a dissatisfied consumer receives a compensatory remedy.

This Article presents two important results. First, depending upon the magnitude of ideological conflict in society, a flexible right, rather than an inflexible right, can produce the socially efficient outcome. In general, if social conflict decreases as a right becomes more flexible, then the right is described as “ductile,” and not weak. Conversely, if social conflict increases as the right becomes more inflexible, then the right is described as “brittle,” and not strong. Second, a negative correlation can exist between ideological conflict in society and personal freedom. That is, the more people are negatively impacted purely by what others do, the less people are free to do what they so choose. This Article terms this result the paradox of ideological incitement and considers the cable news channels as an illustrative example. In addition, this Article contends that the State has, under certain circumstances, an obligation to resolve direct conflict that can arise in the exercise of fundamental rights. As part of this obligation, the State must provide remedial mechanisms that create the separation necessary for the exercise of two otherwise conflicting fundamental rights to coexist, spending public funds to implement a ductile right as defined here.

In many cases, gambling is relatively easy to identify. You just know it when you see it. But sometimes you do not. In some cases, gambling is not so easy to identify. Over time, questions have arisen as to whether certain transactions, often of critical importance in the moment, constitute gambling. This confusion over what constitutes gambling matters because vastly different outcomes can obtain depending upon whether a transaction is classified as gambling or not. In general, if the law classifies a transaction as gambling, then the government tends to regulate the transaction much differently than other risk transactions, typically giving the transaction heightened regulatory scrutiny to address certain problems commonly linked to gambling, such as addition. Given the significance of a transaction being categorized as gambling, the continuing confusion over what constitutes gambling is surprising.

This Article suggests that this confusion stems, in large part, from the fact that gambling is not presently well-defined under state or federal law and fails to distinguish a risk transaction that transfers an existing risk of economic profit or loss, such as a securities investment or insurance contract, from a transaction that creates risk solely through the contractual exchange of bets. In response, this Article, as its main contribution, provides a much more formal and precise definition of gambling than presently exists in the legal literature. This Article proposes a model statutory definition of gambling that includes the concept of risk creation as a limiting principle to distinguish gambling from other bilateral risk transactions. As an illustrative application of the analytic framework, the Article applies this novel definition to the regulation of synthetic trading positions and makes the case that the increased use of derivative contracts has allowed investors to enter synthetic trading positions that constitute gambling no different than placing a wager on the outcome of a sporting contest. As a second application, this Article briefly demonstrates how the analytic framework can be employed to make the purely theoretical case that trading in cryptocurrency constitutes unregulated gambling.

The Article proceeds as follows: Part II examines how the law defines the following three risk transactions: (1) securities investments, (2) insurance, and (3) gambling. Part III introduces a theoretical model of bilateral risk transactions and applies this model to the three different types of risk transactions surveyed in Part II. Part III introduces three baseline models of bilateral risk transaction: (1) bilateral risk transfer, (2) bilateral risk creation, and (3) bilateral risk destruction and extends these models to include two additional variables: (1) endogenous risk, and (2) risk mitigation. The addition of these two variables narrows the broad definition of a bilateral risk transaction to include the three risk transactions examined in Part II. Other types of bilateral risk transactions are also considered, including derivative contracts. Highlighting two main regulatory concerns in connection with bilateral risk transactions, (1) moral hazard or fraud, and (2) risk mitigation, Part IV summarizes how the current regulatory environment addresses these two concerns and explores possible regulatory gaps suggested by the baseline models.

This Article examines how the law can help reduce retail vacancy rates in volatile urban real estate markets. Two potential drivers of high vacancy rates along retail corridors in otherwise healthy real estate markets are identified: (1) location risk, and (2) positive feedback effects. This Article suggests that local governments can pursue a nudge-based approach to encourage landlords and retail tenants, especially small business owners, to adopt percentage rent or some other form of profit-sharing to more efficiently allocate location risk. To address positive feedback effects in which each storefront vacancy increases the likelihood of an additional storefront vacancy, a case is made for slightly stronger government intervention. Current legislative responses to the problem of retail vacancy are also considered, including vacant property taxes, commercial rent control, and zoning reclassification, and the advantages and disadvantages of each are examined.

This Article offers a novel typography of expenditures on corporate social responsibility highlighting that such spending often requires a public business corporation to engage in corporate speech. When this speech pertains to social or political issues unrelated to the company’s business, this Article argues that such expenditures are generally not in the best interests of the firm’s stockholders, and terms this spending “corporate activism.” Corporate activism is described as the product of agency costs and ideological conflict that derive from an expansion of corporate speech rights under the First Amendment. To protect shareholders from corporate activism, courts have relied upon various disciplining mechanisms that are often not up to the task. This Article offers a different solution, placing the responsibility squarely upon the board of directors of public corporations to limit “expressive” expenditures on corporate social responsibility that do not directly advance the best interests of a company’s shareholders. As a tentative policy proposal, this Article suggests that the Securities and Exchange Commission (SEC) require all public companies that trade on stock exchanges in the United States to have a “Communications Committee” responsible for the oversight of all forms of corporate speech.