Volume 2010, No. 3


The Death of Big Law

By Larry E. Ribstein

Large law firms face unprecedented stress. Many have dissolved, gone bankrupt, or significantly downsized in recent years. This Article provides an economic analysis of the forces driving the downsizing of Big Law. It shows that this downsizing reflects a basically precarious business model rather than just a shrinking economy. Because large law firms do not own durable, firm-specific property, a set of strict conditions must exist to bind the firm together. Several pressures have pushed the unraveling of these conditions, including increased global competition and the rise of in-house counsel. The large law firm’s business model therefore requires fundamental restructuring. Combining insights from the theory of the firm, intellectual property, and the economics of legal services, this Article discusses new models that might replace Big Law, how these new models might push through regulatory barriers, and the broader implications of Big Law’s demise for legal education, the creation of law, and lawyers’ role in society.

Fractured Membership: Deconstructing Territoriality to Secure Rights and Remedies for the Undocumented Worker

By D. Carolina Núñez

Relied upon but unwelcome, among us but uninvited, undocumented workers in the United States—now numbering over 8 million—labor on the border of inclusion and exclusion, between a status-based conception of membership and a territorial approach to membership. Although mere presence in the U.S. secures undocumented workers many of the same labor protections afforded to authorized workers, undocumented status often forecloses certain remedies otherwise available for employer breaches of those protections. Many commentators have criticized this effective status-based denial of rights to undocumented workers as inimical to the goals underlying labor and immigration law. While this Article echoes some of those sentiments, its purpose is broader.

This Article bases its critique of the slow encroachment of a status-based conception of membership into the employment sphere on its failure to recognize fundamental indicators of membership, including an individual’s ties to the surrounding community, that have historically shaped notions of membership. However, this Article does not advocate the use of the historically dominant territorial model, which distributes rights based on mere territorial presence. It suggests that territoriality, applied in an increasingly globalized world in which relationships and obligations are not dictated by physical borders, can no longer adequately answer questions of membership. Rather, this Article offers a more principled, nuanced approach—one that arguably is already emerging outside the employment context—derived from territoriality’s underlying rationales but stripped of that approach’s fixation on geography, to secure the rights of undocumented workers.


Protecting Our Water Compacts: The Looming Threat of Unilateral Congressional Interaction

By Nathan C. Johnson

The United States is entering a period in which the combination of increasing population, rising temperatures, and growing resource scarcity will seriously threaten human survival. In a warmer world, water basins will be highly coveted. This demand will require steadfast attention to water-resource management. Currently, interstate compacts are the primary mechanism for multistate basin management. Increasing scarcity places pressure on Congress to reevaluate and potentially revoke consent from these compacts. The alternative methods for allocating water are unstable at best. This Comment argues that Congress does not have the power unilaterally to revoke consent from an interstate compact. The interstate compact is one of the Founding Fathers’ lasting mechanisms designed to protect the people from federal overreaching. Three of the nation’s largest freshwater basins and their compacts provide illustrations of the interstate compact’s resilience, adaptability, and importance in a changing world. Further, an examination of how the nation chooses to manage its most important resource provides valuable insight in to our future—when it is a question of survival, is it “We the People” or “We the Nation”?

A Presumption Without Prudence: Replacing Moench v. Robertson with a Prudent “When in Doubt, Don’t” Standard for ESOP and 401(k) Company Stock Fund Fiduciaries

By Meredith L. Gray

This Comment addresses the duty of prudence fiduciaries owe employees who invest in company stock under the Employee Retirement Income Security Act (ERISA). It suggests that the fiduciary-friendly presumption of prudence announced by Moench v. Robertson is ineffective because it cannot be reconciled with Congress’s intent that ERISA protect and grow employees’ retirement savings, which have been devastated by fiduciary imprudence. This Comment concludes that Moench should be replaced by a standard that returns to the prudent person standard Congress outlined in ERISA.