University of California Hastings College of the Law
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The (Re)new(ed) Corporation: Foundation For a Stakeholder Regulatory Agenda
No full textAmidst an emerging bipartisan consensus on greater corporate social accountability, America First has joined longstanding solicitude about the racial wealth gap. This Article offers yet another take on corporate purpose. As a project of recovering legal memory like Adrian Vermeule’s common good constitutionalism, it examines scholarship on the history of corporate purpose toward answering whether stakeholder capitalism should inform corporate regulation and, if so, how. It concludes from this history that the Anglo-American legal tradition clearly justifies regulators to hold business corporations accountable to the common good. But it also finds in this history a requirement that stakeholder capitalism be advanced through a renewed corporation rather than a revived original corporation. It explains the renewed corporation as the implementation of stakeholder capitalism through legislative and administrative regulation seeking interest convergence. To concretize the vision, it also proposes two regulatory mechanisms at the macro and microeconomic levels to advance stakeholder capitalism: the amendment of the securities regulatory scheme to require the recognition and protection of sweat equity in capital markets and the amendment of economic development schemes to promote the organization of businesses as worker cooperatives
A Critical Analysis of Alternative Section 1031 Proximate-Exchange Structures
No full textTaxpayers have six wins and zero losses in cases that grant nonrecognition to exchanges that occur in proximity to tax-free business transactions (contributions to and distributions from entities) of the exchanged property. Those six cases (the proximate-exchange cases) were decided between 1983 and 1989. From those cases emerged the proximate-exchange principle: “[a] trade of Property A for Property B, both of like kind, may be preceded by the tax-free acquisition of Property A at the front end, or succeeded by a tax-free transfer of Property B at the back end.”1 Despite the explicit declaration of the proximate-exchange principle and the almost four decades since the last proximate-exchange case was decided, lawyers and other tax advisors continue to caution property owners against doing the transactions that have explicitly been sanctioned by the courts and lead them to alternative structures.
One reason advisors may caution against doing proximate exchanges is that proximate-exchange cases and their resulting transactions have been heavily scrutinized over the years. Such analyses appear to disregard the proximate-exchange principle. An equally problematic result of advising against court-sanctioned structures is the advice to engage in one of several pre-packaged alternative structures. Despite their popularity, these alternative structures appear to have escaped scrutiny over years. This Article fills that gap by recounting the overwhelming authority supporting proximate exchanges and turns a critical eye to the alternative structures. Not surprisingly, those alternative structures do not hold up under such scrutiny.
The foundation supporting proximate exchanges is the overlapping purposes for granting nonrecognition of gain provided under section 1031 and the partnership tax contribution and distribution rules. When considering structured exchanges, courts and the Internal Revenue Service deviate from traditional tax principles that elevate substance over form and apply a form-driven analysis that is a unique part of section 1031 jurisprudence. No authority applies the form-driven analysis to alternative structures. Alternative structures, which are beyond the form-driven analysis of section 1031 jurisprudence, do not stand up under judicial and other principles. This Article applies substance-over-form principles to the alternative structures and shows that such structures add complexity, transaction costs, and non-tax risks but do not reduce tax risks
Racial Reckoning and the Police-Free Schools Movement
No full textAcross the country, students of color face daily threats of arrest, exclusion, and violence at the hands of school police officers. Whether deemed threatening, defiant, or hypersexualized, Black students, in particular, pay a heavy price to access their right to free public education. Despite victories in dismantling educational carcerality since the mid-2000s, efforts to formally remove police from public schools has been limited. However, during the 2020 racial reckonings, political opportunity catalyzed social movement campaigns, resulting in the passage of sixty-nine police-free policies. This represented an inflection point for civil rights, education justice, and police abolition scholars and activists. This Essay is the first to introduce a national accounting of the implementation of these policies, providing an essential contribution to scholarship and serving as a touchstone for future sociolegal analysis of the relationship between contestation and structural reforms
Education Equity and Brown: Reform, Retrenchment, and Exclusionary School Discipline
No full textPublic schools have served as sites of social, political, and legal contestation since their inception in the United States. And, while the pathways of racialized inequalities have arguably waxed and waned, threats of exclusion and segregation—constituted and governed by anti-Blackness—have cast a long shadow on the promise of educational equity. In response to the central provocation of the 2024 Georgetown Journal of Law & Modern Critical Race Perspectives symposium—revisiting Brown v. Board of Education and the struggle for racial equity in education—this Essay seeks to (re)connect the past and present. More directly, through the Critical Race Theory reform and retrenchment dialectic, it attends to the often-overlooked relationship between Brown (violent resistance to integration) and the persistence of physical racial segregation in K-12 classrooms across the country today. By inviting deeper reflection on the oppositional and hierarchical relationship of integration and segregation, this Essay draws on evidence from the historical record in three areas (framing of Blackness, legislation, and empirical data) to centralize how this interlocking dynamic wove an unbreakable fabric of exclusionary school discipline. In approaching Brown in this manner, we aim to elevate two claims. First, the criticalness of identifying exclusionary school discipline as what it truly is and has always been: state-sanctioned legal mechanisms of physical racial segregation functioning under the race-neutral guise of order and safety. As is true in other critiques of Brown, the race-neutral façade cloaking discipline perpetuates narratives of white innocence in the enactment of policies and practices that oppress schoolchildren of color. Second, that exclusionary school discipline legislation–– whether deployed in the years following Brown or advanced in the present day––is education retrenchment legislation that dispossesses children of their right to learn. In provoking a reflective conversation of racial equity and Brown, the praxis of Critical Race Theory challenges us to ask, “now what?” and act collectively against renewed forces that seek to further cement norms of exclusion in public education