How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate meaning (it does not), but because lawyers, judges, and juries have established fixes or hacks—which in this Article we call foreseeability conventions—to settle what would otherwise be intractable foreseeability problems. Foreseeability conventions work because they give the concept meaning in particular fields and in discrete situations, furthering the law’s basic goals in especially thorny categories of recurring cases. We describe two types of conventions: storytelling or narrative conventions, on the one hand, and per se conventions, on the other. We offer salient illustrations, relying especially on the law of torts, showing how the law substitutes rough-hewn proxies for impenetrable foreseeability questions. In closing, we propose that the conventions strategy for resolving indeterminacy is widespread and even pervasive in the law. We observe, too, that the conventions strategy is being put to use today in solving controversial, high-profile legal problems in our age of political and cultural division—even as social fracture risks undermining the tacit agreements on which doctrinal conventions rest.

Revlon, the well-known cosmetics manufacturer, has labored under a massive debt load since the 1980s, when it was the subject of a classic hostile takeover battle. As with many recent distressed firms, it decided to address its debt not through the Bankruptcy Code and chapter 11, but rather in an “exchange offer.” That is, it offered to buy its old bonds back with an offer of new securities. One implication of its decision to proceed this way was that it was able to pay its retail bondholders much less than its institutional bondholders.
The Trust Indenture Act of 1939 was supposed to protect small bondholders from abuse by issuers and their fellow bondholders. Nevertheless, recent exchange offers have become more aggressive than ever. And academic scholarship has argued that the Trust Indenture Act should be repealed because, allegedly, there are very few individual bondholders anymore.
Leaning against this ancient and illustrious literature, I instead argue that today we need the Trust Indenture Act, and Section 316(b) thereof, more than ever. Indeed, I argue for an expansion of the Trust Indenture Act to provide more robust protection for small bondholders, the disappearance of which I submit has been seriously overstated.
I argue that the Trust Indenture Act should be viewed as a floor, from which Securities and Exchange Commission rulemaking can further develop to animate the spirt of the Trust Indenture Act. In particular, by adapting key concepts from equity tender offers—like the “best price” and “all holders” rules—exchange offers can be made more equitable. In addition, I propose a new two-stage process for exchange offers, which exposes tendering bondholders to some chance that their bonds will not be accepted in the tender, and thus they will have to live with a bond modified by the exit consents, which feature so prominently in modern offers.

In July 2021, a sweeping Executive Order committed the entire U.S. federal government to reining in big business. Dozens of proposed bills at the state level similarly target big business for stricter regulatory treatment. But unlike in past decades, today’s calls to break up and intensely regulate big business do not hinge on harms to consumers qua consumers. Instead, today’s anti-bigness sentiment rests to a large extent on the claim that big is bad because it is ungovernable. Giant corporations with market power treat legal requirements as mere recommendations, and routinely engage in behavior that harms our civil liberties and degrades the environment as long as it maximizes their own bottom line, or so the argument goes. But the “big is ungovernable” claim as currently construed is underdeveloped. In fact, many theoretical and empirical analyses suggest that big means better governability. If “big is ungovernable” is popular not because of the merits but strictly because of a strong anti-bigness sentiment, we could end up with bad policies negating economies of scale.

This Article addresses three AI-based hiring tools that rank and even reject applicants before they get to the interview stage—resume scanning, one-way video interviews, and the use of video games to screen applicants. It analyzes how the use of seemingly neutral AI in recruiting may discriminate against women and on what legal grounds a woman who is not hired might bring a legal claim challenging the use of these technologies. Part I summarizes the AI-based hiring technologies and analyzes the ways in which they might disadvantage women. Part II provides the overall framework for gender discrimination cases involving employment under Title VII of the Civil Rights Act. Part III applies the legal principles and precedents of Title VII law to the use of AI in hiring assessments, and Part IV proposes policy changes to ensure fairness in hiring in an era of algorithms.

As an exception to the longstanding constitutional commitment to keep government out of the business of child rearing, foster care is a site of grave danger of abuse of government power. No credible analysis of the constitutional interests at stake in the foster care system can be undertaken without considering the United States’ shameful history of violating the rights of marginalized families and illegally separating children from their parents and communities. This Article situates Fulton in that historical context and argues that, counterintuitively, conservatives seeking to protect religious minorities and progressives fighting structural racism in the child welfare system have a strong common interest in encouraging foster care placements that preserve family, community, and cultural bonds.