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The Social Benefits of Control
Get PDFWhen firm founders want to increase access to capital, one traditional route has been to take the firm public. Most public firms allow equal voting rights for all shareholders, so by going public, founders and early insiders inevitably give up a certain amount of control over the firm. More recently, however, a governance structure known as multiclass shares has exploded in popularity. Multiclass share structures separate voting rights from economic rights, allowing insiders to retain control while still raising money on public markets. Because multiclass structures can allow insiders to extract private benefits at the expense of outside shareholders, they are frequently criticized by both scholars and commentators as threats to good governance. Yet this narrow focus on maximizing shareholder financial returns fails to consider a myriad of other factors motivating firm governance choices, especially for the growing number of firms pursuing objectives beyond profit.
This Article contributes to the scholarly literature on the efficacy of multiclass structures by adding more nuance and complexity to the traditional understanding. Specifically, it argues that multiclass structures can generate underappreciated and valuable social benefits of control. The social benefits of control accrue in two main ways. First, multiclass structures help solve a challenging private contracting problem among socially conscious firm insiders and outsiders. Second, they promote declining public markets by neutralizing a key reason why firms with objectives beyond profit may choose to stay private. These insights reveal that there are a range of benefits to multiclass structures that must be balanced with the costs traditionally highlighted by corporate law scholars
The Fundamental Voter: American Electoral Democracy, 1952-2020
No full textWhy is American politics so intense and emotionally competitive today, and how did we get here? In The Fundamental Voter, John H. Aldrich, Suhyen Bae, and Bailey K. Sanders explain why the notion that we are divided into tribal loyalties is, at best, only partially correct, and discuss how the divisions rest on much more substantive politics than they once did.In the 1950s and 1960s, the American public based voting primarily on partisan loyalties. Landslide presidential elections were once common, but over the last forty years, they have converged to very closely contested elections. Congressional elections were increasingly incumbent centered before 1984 and decreasingly so afterward. These changes reflect the changing nature of fundamental forces that shape the public\u27s electoral opinions and voting behavior. From a single such fundamental, partisan identification, the electorate now rests on five fundamental forces: party, ideology, issues, race, and economics. Since the 1980s, these fundamentals have grown increasingly important and increasingly aligned, such that voters are now sorted into two increasingly bitterly divided sides. Believing that the other side is on the wrong side of nearly everything of political relevance, voters, like officials, have come to deeply dislike the opposition, a state of affairs that threatens to undermine the stability of democratic institutions in the United States.https://scholarship.law.duke.edu/faculty_books/1033/thumbnail.jp
Children Are Different and Their Lawyers Should Be Too
Get PDFNearly sixty years ago, In re Gault guaranteed children in juvenile court the right to counsel. However, Gault fell short. While recognizing children’s distinct vulnerability, the Court created a right for children that is weaker than that of adults and failed to recognize how youth in fact require a more expansive right to counsel. Grounded in the stories of court-involved youth who received deficient representation, this Note illustrates the devastating consequences of Gault’s limitations. It argues that the differences between children and adults that compelled the Court to adopt additional protections for children in sentencing also justify an expanded right to counsel. The Note uses the characteristics of youth articulated in Eighth Amendment cases to recommend six changes to how children are represented. These changes are: first, requiring each jurisdiction to have a dedicated youth defender’s office, which provides specialized training and supervision; second, eliminating common conflicts of interest; third, making mitigation mandatory; fourth, guaranteeing the right to postdisposition advocacy; fifth, moving toward a holistic defense model; and sixth, adopting a youth-specific standard for ineffective-assistance-of-counsel claims
Next-Generation Data Governance
Get PDFThe proliferation of sensors, electronic payments, click-stream data, location-tracking, biometric feeds, and smart home devices, creates an incredibly profitable market for both personal and non-personal data. It is also leading to an amplification of harm to those from or about whom the data is collected. Because federal law provides inadequate protection for data subjects, there are growing calls for organizations to implement data governance solutions. Unfortunately, in the U.S., the concept of data governance has not progressed beyond the management and monetization of data. Many organizations operate under an outdated paradigm which fails to consider the impact of data use on data subjects due to the proliferation of third-party service providers hawking their “check-the-box” data governance systems. As a result, American companies suffer from a lack of trust and are hindered in their international operations due to the higher data protection requirements of foreign regulators. After discussing the pitfalls of the traditional view of data governance and the limitations of suggested models, we propose a set of ten principles based on the Medical Code of Ethics. This framework, first encompassed in the Hippocratic Oath, has been evolving for over one thousand years advancing to a code of conduct based on stewardship. Just as medical ethics had to evolve as society changed and technology advanced, so too must data governance. We propose that a new iteration of data governance (Next-Gen Data Governance) can mitigate the harms resulting from the lack of data protection law in the U.S. and rebuild trust in American organizations
Emerging Challenges in Space Law
No full textModerator: Col Ted Richard, USAF, Staff Judge Advocate, Space Operations Command at United States Space Force
Panelists:
Prof. Chris Borgen, Professor of Law and Co-Director of the Center for International and Comparative Law at St. John\u27s University School of Law
CDR Tracy L. Reynolds, USN, Force Judge Advocate to Commander, Naval Medical Forces Atlantic
Dr. Hitoshi Nasu, Professor of Law at the United States Military Academy, West Poin
Stare Decisis and Remedy
Get PDFMuch ink has been spilled on the Roberts Court’s approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape.
Some view the Court’s uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member conservative supermajority while jettisoning or narrowing those precedents that do not accord with those ideological priors.
This Essay takes a different tack. Specifically, it argues for reading the Roberts Court’s approach to precedent and stare decisis through the lens of remedy. That is, the Court’s treatment of precedent might be understood, whether in whole or in part, as animated by a desire to rectify an earlier error or injustice. To be sure, this impulse is not merely corrective—the Court’s approach to stare decisis goes beyond correcting what it views as jurisprudential errors. Instead, the Court’s approach seems marked by an interest in identifying and righting a past wrong. Recent cases like Dobbs v. Jackson Women’s Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Ramos v. Louisiana accord with this interpretive frame. In these cases, the Court departed from—or overruled—earlier decisions in part to remedy past racial injustices. Likewise, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court dismissed the extant precedent upholding the limited use of race-conscious admissions policies on the view that “[e]liminating racial discrimination means eliminating all of it.”
Viewing the Roberts Court’s approach to stare decisis through a remedial lens is clarifying. It helps us to understand—and better anticipate—the Court’s treatment of earlier decisions. Understanding the Court’s approach to stare decisis as a form of remedy renders more legible the Court’s conception of legal injuries—and, in particular, racialized injuries. As this Essay explains, the Roberts Court’s remedial approach to stare decisis is often deployed to correct what a majority of the Court views as a racial injustice. In some cases, like Ramos v. Louisiana, this remedial impulse focuses on correcting historic injustices wrought by white supremacy and historic acts of racism.
But critically, a remedial lens may also render visible a reparative logic that unites a series of recent cases involving religious freedom, gun rights, and affirmative action. Although these cases focus on distinct doctrinal questions, they share a unifying impulse: the Court’s apparent desire to remedy injuries done to Christian conservatives, working-class whites, and, more generally, white people. In this regard, viewing the Court’s decisions through a remedial lens may provide a more coherent account—across legal doctrines—of the Roberts Court’s understanding of discrimination, the injuries it produces, and its apparent victims