This Article seeks to provide an in-depth theoretical, empirical, and policy analysis of an underdeveloped topic in corporate law: director departure. We argue that outspoken director resignations are an integral aspect of effective corporate governance. Disgruntled corporate directors who disagree with the firm’s policies or practices alert shareholders to internal misconduct, encouraging market reactions that pressure the company to make necessary changes. Disclosure of conflict is particularly important in mitigating information asymmetry between shareholders and management, allowing investors to promptly react to relevant events within the firm.

Despite the governance benefits of resignations in protest, we show that outspoken director resignations are few in number. We undertake an intensive theoretical analysis of the vectors that limit the desire or ability of directors to resign in protest. We highlight that Delaware Court of Chancery decisions Puda Coal and Fuqi limit the ability of directors to resign in protest due to

fears of personal liability for breach of fiduciary duty. Similarly, we note that directors prefer to resign quietly to preserve their reputation in the director labor market. We illustrate structural biases in the boardroom that may impede directors from resigning in protest and from bringing public scrutiny and regulatory action on the firm’s remaining directors. Lastly, we describe the effect of director compensation on their decision whether to outspokenly depart. Beyond the departing director, we highlight potential limitations on firms to disclose resignations as “outspoken.”

In light of these potential limitations, we provide a hand-collected, empirical analysis of over 54,000 Form 8-K disclosures of S&P 500 firms between the years 2016 to 2024. Our findings coincide with our theoretical discussion: outspoken departures comprise only around 0.1% of disclosed director resignations in our sample. In the rare cases in which directors resign in protest, their departures follow public exposure to the relevant conflict. We complement our empirical study by examining several test cases which provide strong evidence regarding disagreements between departing directors or officers and the firm. Despite such disagreements, firm disclosures in these cases kept silent.

Based on our empirical findings and theoretical analysis, we discuss certain policy implications that may serve to increase the frequency of outspoken director resignations. We highlight possible changes to Form 8-K disclosure requirements and necessary SEC enforcement of disclosure violations. Likewise, we discuss creating a concrete legal framework of director resignations that minimizes the uncertainty arising from the Delaware decisions. To balance interests, we note the ability of corporations to file defamation suits to protect firms against bad-faith resignations.

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan was unlawful and have appealed. And they have been proven right: The Supreme Court recently found in its Purdue Pharma decision that bankruptcy courts lack the authority to approve the plan’s central legal device. Even so, those outraged creditors may receive nothing. The Boy Scouts argue that their appeal should be dismissed without reaching the merits because the plan is, in key respects, already implemented. And the existing case law surrounding bankruptcy appeal barriers offers considerable support for this outcome.

This Article attempts both to assess the significance of bankruptcy appeal barriers and to evaluate potential justifications for them. These barriers matter deeply to affected litigants but also have systemic consequences. The constitutional legitimacy of the bankruptcy courts is predicated on their supervision by Article III judges. This supervision is substantially eroded by bankruptcy appeal barriers. Nor are these concerns wholly abstract. Bankruptcy judges are powerful. Appeal subjects the insular world of bankruptcy to outside scrutiny from generalist judges who do not necessarily buy into the precepts of bankruptcy culture and are not presented with the same in-the-moment incentives as bankruptcy judges. This Article additionally finds troubling the degree to which some appellate courts seem ready to resort to appeal barriers as an escape hatch to avoid deciding appeals even in quite simple cases, often involving unsophisticated parties. The justifications for bankruptcy appeal barriers, therefore, require a careful look.

Normatively, this Article suggests that bankruptcy appeal barriers are on shaky ground. To make the case that bankruptcy appeal barriers could be sharply constrained or even abolished, this Article draws analogies both to the more general federal law of remedies, and to instances under state law—such as Delaware corporate law—where appellate courts must grapple with how to engage in an after-the-fact evaluation of an already consummated transaction.

America is drowning in student loan debt. About 45 million Americans owe the astounding sum of $1.75 trillion in outstanding student debt, and many of them default on their payments. While most agree that something must be done, attempts to alleviate the problem have met political backlash and legal challenges. In June of 2023, the Supreme Court struck down the Biden administration’s comprehensive student loan debt forgiveness plan, and recently the administration initiated the politically contested “Saving on a Valuable Education” plan (“SAVE”). Amidst this political tug of war, this Article aims to offer a critical and nuanced analysis of the student loan debt crisis. We discuss the crisis’s root causes and critically evaluate the plans currently on the table, arguing they cannot provide a fair and sustainable solution to the problem.

In an attempt to reach the root of the student loan debt problem, this Article introduces the phenomenon of the higher education arms race. The educational arms race involves a process through which individuals are pushed to acquire higher education, not because of the intrinsic value of education, but merely because they need a diploma to compete in the labor market. Employers increasingly require college diplomas as a signal for the quality of prospective employees, even in jobs that do not objectively require higher education. For those without higher education, little options remain except for low-paying and menial jobs. These hiring demands force individuals to obtain a degree at all costs, including incurring debilitating debt.

This Article stipulates that any long-lasting solution to the student debt crisis must involve measures to alleviate the higher education arms race, and it proposes two such solutions. The first seeks to broaden the scope of post-secondary education through lifelong learning, especially through on-the-job training. We show that on-the-job training can enhance productivity, but that the enhanced productivity is not reflected in the workers’ salaries. We maintain that formalizing on-the-job training can correct this discrepancy and enable employees to receive a wage premium (akin to the premium received for a college diploma) for their training. This, we believe, will mitigate the compulsion to obtain unnecessary and expensive degrees, while broadening access to lifelong education. The second solution involves imposing a fee when employers hire over-educated employees. Hiring over-educated employees implies employers use college credentials solely as a signal for quality, and in these cases, it is efficient and just that employers will pay for the benefit (information) they received—or else stop using it. By adopting employer-focused solutions and promoting lifelong learning, we argue, policy makers can address the root causes of the crisis and diminish the accumulation of debt.

“Massive Resistance” to equal access to good quality public education is resurging across the nation. First employed by segregationists in Virginia, Massive Resistance was a strategy first employed by segregationists in Virginia that spread across the South to oppose school desegregation. This extreme push to suppress equitable education occurred most notably post-Brown. Although 2024 marked Brown’s seventieth anniversary, Massive Resistance is again surging. In fact, the last few years have witnessed increasing resistance to publicly funded education. Some areas where anti-public education resistance strategies have manifested include political rhetoric around Critical Race Theory, library censorship, and renewed parental rights debates.

To devise the most effective response to this “anti-public education” movement, it is crucial to recognize that these strategies are not new. This Article illuminates how both limiting access and denying a right to publicly funded education have long been tools of racial and socio-economic caste subjugation. Today, strategists of resistance to public education in the United States, many of whom are policymakers, use an anti-public education agenda to distract members of the general public from the necessity for, as well as opportunities to, advanced education equity. Progress in achieving education equity can lead to constructive social change. In other words, some less enlightened members of public policy-making elites are massively resisting a shifting status quo. Often, modern resisters to good quality public education for all draw their strategies from segregationist tactics. Some of those tactics trace their origins to Virginia.

To situate what is happening with today’s broader anti-public education movement, this Article provides an original historical account and discusses what is at stake and how to “counter-resist.” Further, this Article provides perspective regarding how Virginia has periodically been a national leader in the broader anti-public education movement in the United States. It offers Virginia as a case study to contextualize the various resistance strategies of this larger anti-public education movement and identify historical protocols that have resurfaced anew today.

Only by knowing where we have been can we see clearly where we are in this historical moment and understand where we must go.

The encroachment of social media into the daily lives of society reflects a major shift in consumer behavior. As social media moves from providing platforms of narrow connectivity among friends and family to social connection beyond one’s personal network, novel channels are being formed for consumers to absorb and share information. It opens opportunity for corporations to market their products beyond traditional methods and establishes the “influencer” sharing personal thoughts and recommendations on such products.

Social media’s immense purchasing power has a direct effect on the decision-making processes of individuals and the profit margins of corporations, and thus, the capacity for harm to the consumers and the corporate landscape is significant. This Note argues that the current regulatory scheme is doing little to effectively enforce social media advertising. Because of this, there is an increased need for social responsibility and due diligence on the part of social media influencers to filter the content and messages consumed by impressionable audiences.

Drawing on corporate law theory, tort theory, and advertising regulations, this Note explores what social media influencers’ social responsibility ought to be, including what legal mechanisms can be implemented on social media influencers to hold them accountable for their messaging and influence.

Social media influencers wield astonishing marketing power. While influencing may be innocuous in some respects, scholars have argued that influencer marketing—which is uniquely high-touch, individualized, and intimate—raises novel consumer safety concerns. These concerns, in turn, beg crucial questions of risk allocation. In her excellent Note, Under the Influence: Duties, Deception, Disclosures, and Due Diligence of Social Media Influencers, Arianna Kiaei describes the psychological and economic impacts of social media influencing and makes a compelling case for influencer accountability. Kiaei argues that current regulations focus too narrowly on the companies promoting their products through influencers; instead, Kiaei suggests that the robust accountability required to protect influenced consumers cannot adequately be achieved without focusing on influencers themselves. To encourage influencer accountability, Under the Influence proposes a diligence solution: Influencers should assess products through personal use and independent research before posting about their experiences on social media platforms. Kiaei borrows from Delaware corporate law to submit that influencers who comply with established due diligence processes might satisfy a duty of oversight reminiscent of that owed by directors and officers as part of the fiduciary duty of loyalty. In theory, in the event of a regulatory crackdown, an influencer’s good faith implementation of investigative systems and monitoring of risks in their social media activities (i.e., diligence) could satisfy any oversight duties courts might impose on them.

Kiaei’s ex ante approach to influencer accountability convincingly weaves together observations of influencer credibility, audience trust, and consumer safety to make a case for a strengthened regulatory regime and duty-based compliance. This Comment builds upon Kiaei’s novel contributions. More can be done to incentivize influencer accountability, as Kiaei demonstrates. More can also be done to incentivize companies and third parties to require such accountability. Drawing on contract law, contract theory, and a flourishing body of research on influencer marketing, this Comment contemplates the role of private ordering in social media influencing and considers how companies’ influencer policies might impact major corporate transactions such as mergers and acquisitions (“M&A”).

Part I of this Comment considers the use and efficacy of morality clauses in social media influencer contracts. Part II zooms out, using M&A as a framing device to spotlight the signaling functions of private ordering in social media influencing and arguing that this signaling is consequential to companies’ business prospects and financial success. This Comment concludes by revisiting Kiaei’s proposal and joining the call for diligent influence.

Division of retired pay is one of the most emotionally fraught elements of military divorce. For the servicemember, retired pay compensates decades of service to his country. For the civilian spouse, it remunerates the same decades of domestic labor that enabled such service. Federal restrictions on division of military retirement have spawned confusion and litigation for more than thirty years. Today, former spouses remain extremely vulnerable to this unique and “dire plight.”

In civilian divorce, state courts apply state law to fairly distribute marital assets. Military retirement and disability benefits, however, fall within the scope of the Uniformed Services Former Spouses’ Protection Act (“USFSPA”). This federal statute hedges the power of state courts by exempting military disability benefits from division upon divorce, thereby limiting property awards to retired pay alone. For example, a former spouse may enter into a property settlement agreement that entitles her to half of the servicemember’s retired pay. But because an eligible servicemember must waive from retired pay amounts equal to his disability benefits, the former spouse might later discover that the value of her property settlement award has been drastically reduced, or even eliminated, as a result of a unilateral decision by her ex-husband to opt for waiver.

In 2017, the Supreme Court of the United States prohibited state courts from ordering a servicemember to reimburse his former spouse in the event of a reduction in her agreed upon property award due to waiver. However, neither the Court nor Congress has considered whether a servicemember may consent to reimbursement as a term of his divorce agreement. The continuing lack of uniformity in subsequent state decisions has exacerbated the very inequity that Congress sought to cure by enacting the USFSPA. Although this Note argues that the USFSPA permits contractual indemnification, further inroads must be made to protect the property interests of the former spouse to the same extent that her civilian counterpart’s interests are safeguarded. The federal government must restore to state courts the power to cure the “dire plight” imposed upon the former spouse of military marriage as a result of the USFSPA.

For forty years, military spouses have sacrificed their economic security and personal well-being to support their servicemember spouse’s military career, only to be thrust into a “dire plight” if their marriage ends in a community property state. The legislative policy that put them in this untenable position has not served federal interests: the military currently faces a recruiting crisis and military spouses’ economic security has not improved since the USFSPA. It is time for Congress and the DoD to reexamine the incentives and benefits provided to servicemembers and their families. Congress and the Court must end the USFSPA’s groundless, inequitable, and inconsistently applied legacy by focusing on making it easier and more appealing to live as a military family. Doing so will serve the “clear and substantial” interests of the military to recruit, retain, and retire a strong military while also improving outcomes for military families. This is a rare opportunity for Congress to be pro-military, pro-women, and pro-family.