Skidaway Institute of Oceanography
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Let the Punishment Fit the Crime: Interpreting Application of Joint and Several Liability to Criminal Asset Forfeiture Post-Honeycutt
Full text linkThis Note analyzes the intricacies surrounding the application of joint and several liability to criminal asset forfeiture, particularly following the U.S. Supreme Court’s decision in Honeycutt v. United States. Starting with a historical analysis of asset forfeiture’s early use in civil contexts to the application of forfeiture in the criminal context under statutes like RICO, this Note addresses the tension between the Eighth Amendment right to receive punishment proportional to the crime and the government’s incentives to pursue forfeitable assets. This Note then recounts a previous circuit split over the permissibility of joint and several liability in criminal asset forfeiture, which the Supreme Court attempted to resolve through Honeycutt by prohibiting the application of joint and several liability in the criminal context to narcotics violations under 21 U.S.C. § 853. Yet, in doing so, the Court created another circuit split on whether the Honeycutt prohibition is limited to § 853 violations or extends to other criminal violations with statutory language resembling that of § 853. Finally, this Note analyzes a lack of clear congressional intent supporting a broad application of joint and several liability to criminal contexts, compares the language of § 853 with that of RICO to illustrate significant parallels, and argues that joint and several liability in the criminal context undermines the policy goals of criminal asset forfeiture. Ultimately, this Note advocates for a broader application of the Honeycutt prohibition to ensure consistency among the circuits and to uphold the principle that punishment should fit the crime
The Confined Life: Restrictions on Post-Conviction Sex Offenders Meets Habeas Corpus\u27s In Custody Requirement
Full text linkClements v. Florida is a recent Eleventh Circuit decision holding that the court could not hear the habeas petition of a post-conviction sex offender in Florida since he failed to meet the “in custody” requirement for filing a habeas petition. However, the Eleventh Circuit did not consider the land restrictions in place against the petitioner and other sex offenders in Florida. This decision may leave sex offenders without an avenue to challenge the restrictions in place against them. Such restrictions have led to homelessness and poverty leaving sex offenders with no place to work or live, in poverty, as outcasts of society. This Note proposes that had the Eleventh Circuit considered the land restrictions in place against post-conviction sex offenders in Florida, it would have held that sex offenders in Florida, like the petitioner, are “in custody” for purposes of a habeas petition. Such a decision would be following Supreme Court precedent from Jones v. Cunningham, in which it was held that a petitioner is “in custody” when they have great restraints on their liberty in ways that free persons in this country do not face and, would be following the equitable principles which guide the purposes of habeas corpus as the “Great Writ.” This Note offers a unique framework for applying the Jones standard, and argues that the court should apply the following test to determine whether the standard is met: whether a person of average ability, under the conditions in place against the petitioner, could do that which the ordinary person can do in daily life without great hinderance. Under such a test, sex offenders would be “in custody” when faced with the restrictions seen in states such as Florida and Georgia. This is an issue of great importance due to the significant restraints on the liberty of this marginalized group and due to the nature of this issue as an open question yet to be resolved by the courts. This Note contributes to the conversation by offering a framework in which some, but not necessarily all, post-conviction sex offenders may be considered “in custody” for purposes of habeas corpus
The Merging of Ownership and Control
Full text linkWhat if shareholders controlled every decision their company made? This seemingly simple idea threatens to upend the modern corporation.
Shareholders own the corporation and directors and officers manage the corporation—a “separation of ownership and control” that has become a defining characteristic of our modern economy. Per conventional wisdom, the law enables separation of ownership and control by not prohibiting owners and employees from exercising their contractual freedom to hire and work for one another. But this article demonstrates that this widely held view is incomplete and detrimental to the economy. Much of the economic activity that utilizes the corporate form has relied on a legal mandate, rather than permission, to establish the separation between ownership and control.
While ordinary employer–employee contracts, such as an agreement between a store owner and store clerk, rely on the parties’ ability to contract for and alter fiduciary arrangements on an ongoing basis, many shareholders pool their money to hire directors for the exact opposite reason. They rely on the mandatory separation of ownership and control to effectively combine their assets under the direction of a fiduciary who answers only to the firm, and not any individual investor. Absent the ability to rely on a legally mandated independent director, such shareholders would not be able to coordinate and combine their assets. The shareholders’ various competing interests and rights would be too conflicting and complex to organize contractually.
Yet, an amendment signed into law in July 2024 is set to unravel this economically essential legal mechanism—it promises to merge ownership and control. This legislation was able to pass at least partly because extant scholarship lacks a theory to explain why a mandatory separation of ownership and control is an indispensable mechanism. This article fills the gap and calls for the repeal of this watershed amendment
Weakening Command Responsibility Doctrine? The Bemba Appeals Judgment
No full textThe acceptance of commander’s responsibility is, in effect, acceptance of authority over persons permitted to kill. With that acceptance comes a heavy burden, grown out of practical and moral concerns and reflected in longstanding legal doctrine. At odds with this burden was the judgment of acquittal that the International Criminal Court Appeals Chamber entered in Bemba in 2018. An edited version of an essay originally appearing online as In Bemba, Command Responsibility Doctrine Ordered to Stand Down, this chapter argues for a statutory construction that would better serve the purposes of the ICC and the command responsibility doctrine
Delegated Contract Formation
Full text linkIt is well established that an agent’s act binds the principal only if the agent has actual or apparent authority, or if the principal ratifies the unauthorized act. But the legal status of the unauthorized agreement between the agent (purporting to act for the principal) and the third party remains unclear. Courts confusingly refer to it almost interchangeably as a “void” contract, as a “voidable” contract, and as a nonexistent or unformed contract. All three categories appear to fit uneasily, though: voidable contracts are presumptively valid and enforceable, void contracts cannot be ratified, and assent through ratification relates back to the time of the unauthorized agreement. One recent court decision even staked out a nonbinding fourth category—the font of new legal interests enforceable by fourth parties.
This article answers how to consider these agreements by looking beyond the language the courts use and instead to the legal effect they afford such agreements in light of the underlying contract and agency principles at play. This fresh look reveals that, as a doctrinal matter, a lack of authority prevents a contract from forming at all: If the agent acts without actual or apparent authority and the principal does not ratify the act, the principal has not manifested the necessary assent, and so the agreement fails to satisfy the prerequisites of a contract. The third party’s assent to be bound by the agreement has the same legal effect as an offer: nontransferable, nonenforceable, and only temporarily open.
This conclusion helps explain the effect of and limits on the principal’s ratification power. It provides grounding for how courts have handled questions of authority in the context of the Federal Arbitration Act. And it reveals that the FDIC’s handling of failed banks threatens to violate the Takings Clause should courts allow the FDIC to take non-assenting principals’ property as if the unauthorized agreement were a contract
The Complete Periodical Literature of Law Librarianship: An Annotated Bibliography
No full textThe Complete Periodical Literature of Law Librarianship is designed to tackle the unique challenges of researching the law librarianship profession, this bibliography, now available as both a two volume print book and a searchable HeinOnline database, provides detailed guidance to help researchers better understand the subject matter of each article.
Each article features editor-crafted abstracts designed to provide researchers with a clear understanding of its contents. These detailed annotations highlight key themes and topics, offering valuable insight at a glance and helping researchers determine whether an article is relevant to their needs. Developed through a thorough review of the professional literature, these abstracts bridge the gap in traditional indexing tools by offering comprehensive, meaningful guidance for more effective research
The Local Impact of the International Standardization of Transitional Justice: Lessons from the Ugandan Case
Full text linkThis Article examines how international transitional justice (TJ) standardization has influenced Uganda\u27s TJ processes, exploring stakeholder perceptions, local implementation, and its implications for academics, policymakers, and practitioners
Global Tax Wars in the Digital Era
No full textThe digital economy fundamentally disrupts international tax principles that rely on physical presence. When a business earns income abroad, the country of residence (where the taxpayer resides) and the country of source (where income is generated) both have legitimate, competing claims to tax that income. The international tax system tends to favor residence-based taxation. The source country has the right to tax business profits only if the enterprise carries on a permanent establishment within its borders, which typically requires physical presence. The permanent establishment standard becomes flawed in a digital economy where profit shifting practices are abundant and businesses no longer need a physical presence in the location of their online consumer markets.
An upcoming United Nations Framework Convention on International Tax Cooperation recognizes these challenges and is overwhelmingly supported by Global South economies. However, the Global North has historically dominated the international tax regime through the Organization for Economic Co-operation and Development (OECD), informally known as the “World Tax Organization.” A U.N. framework convention creates potential conflict in international tax policymaking and would need to bridge the underlying North-South divide.
This Article explores the “tax wars” surrounding the leadership for global tax governance, contrasting the taxing powers and interests of the OECD-led Global North with those of the U.N.-backed Global South. It argues for a shift toward source-based taxation by revisiting the permanent establishment standard. To achieve this, the Article promotes a significant economic presence doctrine that would expand the permanent establishment criteria to include online businesses. This proposal addresses longstanding inequities and is increasingly warranted in a digital economy that does not depend on physical presence