Unless the plaintiff has a personal stake in the outcome, Article III of the United States Constitution requires federal courts to dismiss a plaintiff’s claim for lack of standing.  That much is clearly established by decades of precedent.  Less understood, however, is the degree to which Article III also requires defendants to possess a personal stake.  The significance of defendant standing often goes unnoticed in case law and scholarship, because the standing of the defendant in most lawsuits is readily apparent:  any defendant against whom the plaintiff seeks a remedy has a personal interest in defending against the plaintiff’s claim.

     But the issue of standing to defend takes on outsized importance when third parties who are not targeted by the plaintiff’s requested remedy seek leave to intervene in order to oppose the plaintiff’s claim for relief.  In cases featuring intervenor-defendants—often cases that concern important issues of public law—the personal-stake requirement becomes a real and not merely theoretical concern for the defendant.  The problem is well illustrated by pending cases that address the constitutionality of California’s Proposition 8 and the federal Defense of Marriage Act.  In each case, the executive branch officials named as defendants declined to defend the challenged law, prompting a nonparty with a questionable personal stake to seek to intervene to defend against a plaintiff’s claim.  The prevailing plaintiff-centered model of standing does not lend itself readily to assessing whether such volunteer defendants have an interest sufficient to create a case or controversy.

     This Article develops a model of defendant standing based on the functions that standing doctrine is intended to serve, and derived from the cases in which the U.S. Supreme Court has considered the personal stake of defendants under Article III.  Under this model, absent a traditional injury in fact, intervenor standing to defend in public law litigation is appropriate only where state or federal law confers on the intervenor the authority to represent the government’s interest.  This Article then illustrates the application of that model in the Proposition 8 and DOMA cases, and concludes that the intervenors in the Proposition 8 litigation do have standing to defend, while the intervenors in the DOMA litigation do not.

     If brevity is the soul of wit, what is verbosity the soul of?  Of overweening, inefficient, even tyrannical government—at least according to the critics who, for years, have bewailed the fact that federal laws and regulations are growing by the minute, by the mile, and by the metric ton.  These critics argue that America suffers from “hyperlexis,” or the existence of too much law, and their calls for remedies to that malady are now finding a receptive ear in the highest echelons of the federal government.  The idea that there is too much federal law has been embraced by all three branches of government and by members of both major political parties.

     In order to analyze these claims, this Article taxonomizes and evaluates the most common claims of hyperlexis in federal law, including the claims that federal laws and regulations are too numerous, too complex, too costly, and too invasive of state and local prerogatives.  Once these arguments are untangled, their individual flaws become evident.  Almost each account of federal hyperlexis faces serious conceptual obstacles in either its technique for measuring hyperlexis or in its method for remedying it.

     This Article then notes one argument that has not been convincingly made:  the argument that the proliferation of federal law results from a democratic failure.  No public choice account plausibly explains the persistent and widespread overgrowth of law.  But the absence of such an account cannot, of course, put a stake through the heart of the hyperlexis critique, which implicates deeply embedded philosophical beliefs concerning the nature of individual liberty and the proper role of government.  The critique represents a challenge to the legitimacy of law that current theories of law’s legitimacy are not oriented to deflect.  We are left, then, in the worst of both worlds.  The hyperlexis critique does not map out a means to achieve the goal of reducing the amount of federal law, but the currency of the critique has corrosive effects upon the sociological legitimacy of federal law and institutions.

     The Great Recession has provoked calls for more vigorous regulation in all sectors, including antitrust enforcement.  After President Obama took office, the Antitrust Division of the Department of Justice abandoned the Bush Administration’s standard of liability under section 2 of the Sherman Act, which forbids unlawful monopolization, as insufficiently interventionist.  Based on the premise that similarly lax antitrust enforcement caused and deepened the Great Depression, the Obama Administration outlined a more intrusive and consumer-focused approach to section 2 enforcement as part of a larger national strategy to combat the “extreme” economic crisis the nation was then facing.

     This Essay draws on macroeconomic theory and the New Deal experience to examine the relationship between section 2 standards and macroeconomic stability.  In particular, this Essay evaluates the claim that more aggressive section 2 enforcement focused on maximizing the welfare of consumers who purchase from monopolists would help forestall and ameliorate economic downturns.  While empirical evidence confirms the Obama Administration’s claims that New Deal efforts to cartelize prices and wages exacerbated the Depression, this Essay argues that substitution of this novel and more intrusive “consumer welfare effects” test for the Bush Administration’s “disproportionality” standard would not stimulate aggregate demand, and may even reduce national output at the margins.  Given the ambiguity in the aggregate impact of such enforcement, this Essay concludes that antitrust regulation should abandon any pretensions of being a tool for macroeconomic stabilization, and focus solely on identifying and condemning conduct that on balance results in a misallocation of resources and a reduction in total economic surplus.  By keeping its microeconomic focus, antitrust regulation can help maximize the potential value of the gross domestic product, while monetary and fiscal policy produce sufficient aggregate demand to ensure full employment of society’s resources and to achieve that potential value.

     Online commerce has fundamentally changed how consumers shop and how products are distributed.  As a result, manufacturers impose Internet Minimum Advertised Price (IMAP) policies, prohibiting internet retailers from advertising prices below a fixed amount.  Consumers often encounter these policies through website instructions such as “see price in cart,” “to view price, add to your shopping cart,” and “price unavailable—click to see more.”  Manufacturers argue that IMAP policies are non-price vertical restraints that do not run afoul of antitrust laws because they regulate only advertising.  However, IMAP policies can and do impact resale pricing, resulting in higher prices and unjustifiable limitations on consumer choice.

     Recent jurisprudence regarding price fixing, general uncertainty around the legality of resale price maintenance (RPM) under state and federal antitrust statutes, and high pleading standards have led to nearly insurmountable barriers for plaintiffs who raise antitrust challenges  to IMAP policies.  The Supreme Court held in 2007 that RPM may have procompetitive justifications, and should thus be analyzed using the rule of reason when challenged under federal antitrust law.  This Note examines the analysis of IMAP policies in the context of recent antitrust jurisprudence.  After a discussion of the relevant antitrust law and an analysis of recent IMAP litigation, this Note concludes that IMAP policies are sufficiently anticompetitive to justify per se prohibition and should be treated as such in state and federal courts.

     In March 2011, the Ninth Circuit ruled that the Death on the High Seas Act provides the exclusive remedy for deaths occurring both within the United States’ territorial sea and without the states’ traditional three-mile territorial boundaries.  This ruling created a split with the Second Circuit, which had handed down a different interpretation of the Act eleven years earlier.

     Prior to President Ronald Reagan’s extension of the territorial sea of the United States in 1988, there was no issue regarding the operation of the Death on the High Seas Act because the statute’s three-mile scope and the nation’s boundaries were coextensive.  The extension, coupled with U.S. Supreme Court deliberation over maritime wrongful death actions, created a “perfect storm” around the Act’s territorial purview, raising issues of statutory construction, preemption, and federal-state comity.

     This Note examines the significant issues relevant to the Act’s application.  It reviews the chief arguments proffered by the Ninth and Second Circuits, including then-Judge Sonia Sotomayor’s dissent in the latter case.  The Note next considers the Second Circuit’s problematic holding and parses the opinion’s persistent contradictions and inconsistencies.  It then explores recent congressional action that further bolsters the arguments against the Second Circuit’s position.  The Note concludes that, absent congressional action, the Second Circuit must reconsider its holding when it next hears the issue.

     Fiduciary duties bind a board of directors to manage a corporation in the best interests of its shareholders at all times.  The prominence of fiduciary duties under Delaware corporate law has led Delaware courts to invalidate corporate contracts that would prevent directors from exercising their fiduciary duties.  The Delaware Supreme Court extended this doctrine to bylaws in CA, Inc. v. AFSCME Employees Pension Plan by invalidating a proposed bylaw that would mandate board action in violation of the board’s fiduciary duties.

     At the same time, the CA, Inc. decision called into question the continued validity of mandatory advancement bylaws.  It is well established in Delaware corporate law that corporations may advance the legal expenses of directors defending lawsuits related to their service on a corporate board.  Moreover, Delaware courts have broadly upheld directors’ advancement rights where a corporation has adopted a bylaw mandating advancement to the full extent of Delaware law.

     This Note examines the contours of fiduciary duty and advancement jurisprudence in Delaware corporate law.  Next, it discusses the perceived impact the CA, Inc. decision has had on the enforceability of mandatory advancement bylaws.  It then proposes that the Delaware General Assembly and stakeholders in Delaware corporations should independently take action to protect advancement rights following CA, Inc.  Finally, this Note concludes that the CA, Inc. decision will not disturb mandatory advancement bylaws in light of the particular standard of review employed by the CA, Inc. court and cases relating to advancement bylaws.

     The H-2B guestworker program enables U.S. employers to recruit and employ foreign workers on a temporary basis when domestic workers are unavailable.  The program provides much needed assistance to small and seasonal businesses that are unable to recruit sufficient workers to meet their employment needs, while offering protections to domestic workers who have declined those employment opportunities.  Though the benefits that the program provides to employers are obvious, the program also confers substantial advantages on the foreign workers who choose to participate.

     H-2B employees typically come from impoverished countries with limited access to economic opportunity, and the H-2B program is often the only avenue these workers have to achieve gainful employment.  Nevertheless, the Department of Labor (DOL) has concluded that these workers’ pre-employment expenses—those which enable them to access the U.S. labor market, such as visa application fees and transportation costs—are primarily for the benefit of their U.S. employers and therefore must be reimbursed to meet the minimum wage under the Fair Labor Standards Act (FLSA).  Though a number of district courts have agreed with the DOL’s interpretation, the Fifth Circuit and at least one district court have concluded that H-2B employees’ pre-employment expenses are not primarily for the benefit of their employer and thus need not be reimbursed.

     The DOL responded to these decisions in 2012 by instituting a number of rule changes to the H-2B program designed to better protect H-2B workers.  One such change requires H-2B employers to provide, pay for, or reimburse their employees’ pre-employment costs.  This Note argues that the DOL incorrectly interprets the FLSA as requiring reimbursement of these expenses.  It contends that visa portability, not government-mandated benefits, is a more efficient approach to protecting H-2B employees.  This Note ultimately concludes that both H-2B participants and U.S. workers would be better off if payment of these expenses was left to market forces.

     Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities.  In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), in part to combat such exclusionary land use practices.  RLUIPA’s Equal Terms Provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions.  Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases.  Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants.  The allocation of burdens is important because it is generally more difficult for the party charged with the burden of persuasion to succeed at trial.  This Note approaches the circuit split by examining RLUIPA’s legislative history and public policy goals, as well as comparing Equal Terms cases with federal exclusionary zoning cases, and with Free Exercise Clause jurisprudence.  Ultimately, this Note argues that in light of the above comparisons, as well as RLUIPA’s clear statutory text, the government, not the religious plaintiff, should have the burden of persuasion in Equal Terms cases.