As an intellectual property infringer, the federal government occupies a unique position as both the entity that approved the infringed patent or trademark and an entity capable of arguing for its invalidity. By arguing for invalidity, the federal government assumes that it should be exempt from the traditional rules of procedural estoppel. Indeed, the government believes that even though it granted intellectual property rights (after careful research and deliberation and following the express review of an officer appointed with the advice and consent of the Senate), it should have a second bite at the apple to invalidate a patent or trademark when it risks liability. Ultimately, permitting the government to argue for inconsistent positions risks making intellectual property litigation—and the government itself—unpredictable and untrustworthy. To remedy this imbalance, this Article advocates for a rethinking of estoppel through Justice Jackson’s Youngstown Sheet concurrence when an examining attorney acts pursuant to unambiguous authority granted by Congress. In doing so, this position equalizes the playing field during litigation that heavily favors the federal government.

This Article sheds new light on the link between sustainability disclosure and institutional investors’ stewardship activities aimed at promoting improvements in the ESG performance of investee companies. On the one hand, sustainability disclosure is one of the information elements that may be relevant to institutional investors’ stewardship activities. On the other hand, improving the quality of sustainability reports provided by investee companies is often the ultimate goal of investor engagement initiatives. The role of climate and social disclosure is problematic from both perspectives. First, institutional investors, especially those with broadly diversified portfolios, are unable to use sustainability information directly and rely on ESG ratings and indices for their investment and stewardship strategies due to the very high costs involved. Therefore, in addition to the fact that the regulatory framework still appears to be fragmented and that there are differences between different sets of sustainability disclosures, European legislation shows that it is not enough to provide for climate and social disclosure requirements and that regulation of ESG ratings and indices is essential to make them more transparent and reliable. Second, the decision by non‑activist institutional investors to focus part of their engagement initiatives on sustainability disclosure, for example by requiring a higher degree of transparency or the adoption of a particular reporting framework, appears to be dictated by a desire to avoid more intrusive (and perceived as more aggressive) initiatives aimed directly at encouraging changes in the environmental strategies or policies of the companies concerned.

This essay is directly responsive to one of the most pressing issues currently before the courts of the United States: the question of whether former Presidents enjoy immunity from criminal prosecution for acts they committed in office. Building upon the recent ruling of the United States Court of Appeals for the D.C. Circuit in United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024) this essay argues that the clear answer to that question is a resounding “no”.

Former President Trump, who has now appealed the D.C. Circuit’s ruling to the Supreme Court, contends that post-presidential criminal immunity is implicit in the Constitution of the United States. Embracing the principle that the Constitution “cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed”, Ex Parte Grossman, 267 U.S. 87, 108–109 (1925), this essay analyzes that claim in the light of the pre-revolutionary common law and the writings of the Framers and their contemporaries. Drawing from these sources, this essay demonstrates that the Constitution reflects a clear intent on the part of its Framers to cleanly break with the historic tradition of the sacred and inviolable executive. On these bases, this essay concludes that a doctrine of post-presidential immunity from criminal prosecution is not merely—as the Court of Appeals properly held—unsupported by positive law, but, moreover, both contrary to the Framers’ intent and fundamentally incompatible with the Constitution of the United States. It therefore urges the Supreme Court, when deciding the issue for the final time, to consider the thousand-year-old history underlying Mr. Trump’s claims to immunity and to reject those claims as incompatible with the republican government established by this country’s founders.

The Independent State Legislature (ISL) Theory has been one of the hottest topics in election law, with conservative thinkers championing a strong version of the theory. In Moore v. Harper, the Supreme Court had the opportunity to turn this controversial theory into actual doctrine. The Court, though, declined to adopt a maximalist version of the theory and declined to reject it outright. Instead, it offered a vague standard that gives close to zero guidance as to where, between these two poles, the doctrine sits. Several scholars and commentators have responded to the opinion with a mix of relief, because the conservative Court rejected the most extreme version, and wariness, because the Court left room for federal courts to use the theory to undermine voting rights. This commentary challenges and adds to this narrative in a couple of ways. First, it shows that the political and policy implications of the ISL Theory are more complex and uncertain than often assumed. For example, in addition to other complicating scenarios, future cases could see liberals invoking the theory in federal court to rectify conservative state court decisions on fraudulent vote dilution. This commentary offers an explanatory theory that shows the Court may have opted for a vague doctrine in part to preserve flexibility in this uncertain decision-making environment. Second, this commentary highlights one cost of a vague ISL doctrine – an increased risk of outcomes that confuse and disenfranchise voters. Both claims are descriptive. They discuss benefits and risks that have been overlooked or insufficiently analyzed in the literature on the ISL Theory.

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand.

Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title.

Recovery of title, however, involves costs and delays that are difficult to bear, especially for victims without significant resources—often the favorite targets of scammers. Legislators have proposed a variety of reforms to make unauthorized transfers more difficult. Most of the proposed reforms, however, would do little to ease the financial burden on victims. Victims cannot generally rely on title insurance because the standard title insurance policy does not protect the insured against title defects that arise after issuance of the policy. Requiring title insurers to cover post-policy forgery and fraud would ease the burden on victims without significantly increasing costs to title insurers.