Conventional wisdom in tort law maintains that the prevention of undesirable risks mandates restriction of harmful conduct. Against this widely held conviction, this Article shows that undesirable risks often stem from insufficient, rather than excessive, activity. Because negligence requires investments in only cost-justified care, parties might deliberately limit their activity so that the size of the ensuing risk would be lower than the cost of welfare-enhancing precautions. Parties’ incentives to strategically restrict their activity levels have striking implications for the inducement of efficient harm prevention. The overlooked paradigm of insufficient activity calls for the imposition of a new form of tort liability, justifies the application of controversial regulatory rules recently challenged before the Supreme Court, and supports overturning the standard guidelines concerning the choice between negligence and strict liability.

This Article questions the prevailing view that securities-fraud actions suffer from a circularity problem. Because shareholder plaintiffs are owners of the defendant corporation, it is commonly argued that shareholder compensation is a payment from shareholders to themselves with substantial transaction costs in the form of attorney fees. But shareholder compensation is no more circular than a dividend, which is a cash payment to shareholders from the company they own with substantial transaction costs in the form of taxes. In fact, shareholder compensation is less circular than a dividend because it is a transfer to shareholders who purchased stock when the price was inflated by fraud from those who did not. Shareholder compensation serves an important loss-spreading function that is facilitated by the insurance market. Shareholder compensation may also capture some of the benefits of paying dividends, such as signaling and reducing agency costs, though it may do so more effectively if companies could resolve securities-fraud actions by paying a preemptive dividend.

The online harassment of women exemplifies twenty-first century behavior that profoundly harms women yet too often remains overlooked and even trivialized. This harassment includes rape threats, doctored photographs portraying women being strangled, postings of women’s home addresses alongside suggestions that they are interested in anonymous sex, and technological attacks that shut down blogs and websites. It impedes women’s full participation in online life, often driving them offline, and undermines their autonomy, identity, dignity, and well-being. But the public and law enforcement routinely marginalize women’s experiences, deeming the harassment harmless teasing that women should expect, and tolerate, given the internet’s Wild West norms of behavior.

The Due Process Clause prohibits all “punishment” of pretrial detainees—individuals that are held by the Government, but not adjudged guilty of any crime. The Eighth Amendment only prohibits the infliction of “cruel and unusual punishments” upon convicted individuals. Despite the Supreme Court’s insistence that the Due Process Clause, and not the Eighth Amendment, protects pretrial detainees from deplorable and harmful conditions of confinement, most federal circuits now assess pretrial detainees’ claims under Eighth Amendment standards. Under the Eighth Amendment framework, pretrial detainees must establish that conditions subjected them to a substantial risk of serious harm, and that jailers were aware of the harm and deliberately indifferent to their needs. The Eighth Amendment approach puts pretrial detainees on equivalent footing with convicted prisoners: detainees are only entitled to the same objective treatment as convicted prisoners, and they must overcome the same burdensome hurdle to state a claim—establishing the subjective deliberate indifference of jail officials.

Until recently, courts disagreed over whether individuals who were compensated by a third party such as a bank or insurance company ought to count as victims for purposes of the multiple-victim sentencing enhancement in the Federal Sentencing Guidelines on Fraud. The most recent Amendments to the Guidelines resolve this split, permitting compensated individuals to be counted as victims where their identity was used in the commission of the fraud. However, the new Guidelines do not resolve a separate split, likely to become more divisive under the new Guidelines, over whether both compensated individuals and their compensators can simultaneously be treated as victims for enhancement purposes. This Comment argues that the retributive purpose of sentencing suggests that the new Guidelines properly treat compensated individuals as victims, but that they should be further amended to clarify that treating both compensated individuals and their compensators as victims causes impermissible double counting. Resolving this issue is crucial to achieving the dominant purpose of the Guidelines: consistent and fair punishments throughout the federal courts.