A law school job talk for an entry-level candidate is an opportunity for the presenter to put his or her ideas before a faculty in the best possible light. A bit of give-and-take is part of the drill, but the candidate can usually expect the talk to stay more or less on course. My own first job talk, though, given at George Mason University more years ago than I’d like to admit, was attended by the thoroughly exceptional Larry Ribstein and so did not unfold in the usual way.

A few minutes after I began to speak, the questions began. Most were of the kind I expected, asked to determine whether I had thought carefully about my topic, whether I had properly considered alternative arguments, whether, in general, I knew what I was talking about and could express myself competently. But then Larry, whom I had not before met, spoke. Unlike the others, Larry didn’t ask about the paper, which was on insolvency risk, or my defense of its themes. Instead he honed in on a comment that I had made in passing, one only indirectly related to my thesis. If I remember correctly, the remark that caught Larry’s attention was about corporate capital structure. Larry asked me one question about the comment and then, after contemplating my response, followed up with a series of others. He was, it seemed, trying to work out something in his own mind rather than connect his thoughts to my paper. I wasn’t sure what was happening but I remember the feeling of relief when the questioning moved on to others.

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but congressional intent regarding preemption is unclear, we propose that courts consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such “horizontal coordination,” Congress often has little need to usurp the states’ role as laboratories for experimenting with potentially diverse substantive laws. Our approach would help to promote a “healthy federalism” by encouraging courts to preserve the benefits of local and state sovereignty while simultaneously enabling federal statutes to coordinate U.S. law where necessary. To show how our approach might improve preemption decisions, we apply it to several areas in which the courts have struggled. Although our approach provides a conceptually obvious, and therefore elegant, solution to many preemption problems, to date it has been entirely unexplored.

The large, modern business corporation is frequently organized as a complex cluster of hundreds of corporate subsidiaries under the common control of a single corporate parent. Our Article provides new theory and supportive evidence to help explain this structure. We focus, in particular, on the advantages of subsidiary entities in providing the option to transfer some or all of the firm’s contractual rights and obligations in the future. The theory not only sheds light on corporate subsidiaries but also illuminates a basic function of all types of legal entities, from partnerships to nonprofit corporations.

We show that when, as is common, some of a firm’s key assets are contractual, both the firm’s owner(s) and its contractual counterparties are exposed to the risk of opportunism relating to the assignment of the contracts. The owner faces opportunistic holdup by counterparties if counterparty consent is required to assign contracts in a sale of the entire firm. The firm’s counterparties, in turn, are exposed to opportunistic assignment if the owner can freely assign contracts without consent. This bilateral opportunism problem can be mitigated through bundled assignability: the owner is permitted to assign her contracts freely but only as a bundle. The components of the bundle of contracts (which constitute much of the firm itself) provide assurance of performance to counterparties. And free transferability, in turn, gives the owner liquidity without risk of holdup. Most importantly—and least appreciated in the literature and the case law—bundled assignability increases the owner's incentive to make valuable investments in the firm.

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee’s speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke “pursuant to her official duties,” her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely “as a citizen” and not at all “as an employee.” But this is a false dichotomy—especially because the value of the employee’s speech to the public is no less if she is speaking pursuant to mixed motivations.

A recent Second Circuit case, Jackler v. Byrne, suggests an exception to Garcetti’s categorical bar. Because the public employee’s speech in Jackler had a civilian analogue—that is, because an ordinary citizen could speak in the same manner and to the same audience—the court allowed the employee’s claim to proceed. The Second Circuit’s exception contradicts Garcetti, but it furthers significant First Amendment values while adequately protecting public employers’ interest in controlling employee speech. As such, the Supreme Court should adopt the civilian analogue exception to ameliorate Garcetti’s problematic rule.

Since its inception in the late 1990s, Google has done as much as anyone to create an “open internet.” Thanks to Google’s unparalleled search algorithms, anyone’s ideas can be heard, and all kinds of information are easier than ever to find. As Google has extended its ambition beyond its core function, however, it has conducted itself in a manner that now threatens the openness and diversity of the same internet ecosystem that it once championed. By promoting its own content and vertical search services above all others, Google places a significant obstacle in the path of its competitors. This handicap will only be magnified as search engines become increasingly important and the internet continues to expand.

In order to mitigate the potential damage to competition, we must prevent Google from leveraging its power in core search to steal market share for its downstream vertical search services. Requiring Google core search to integrate its competitors’ vertical offerings would promote competition without intrusive administrative interference. But action must come soon. Search is taking shape very quickly. Once the next generation of online search emerges, the dominant players will have already cemented their positions. Let us hope that when the dust settles it isn’t too late.