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Education from Condemnations: Learning from State and Federal Reforms for a More Efficient and Just Eminent Domain
Get PDFUnder current takings doctrine, governments can identify entire neighborhoods as “blighted,” condemn the private property within, and transfer it to another private owner who will use the land in a more economically advantageous way. This causes injustice by incentivizing governments and developers to target poor and vulnerable neighborhoods. And by letting governments and developers evade market forces, buy land at a bargain, and afford to take on more projects than they can manage effectively, it causes inefficiency. Economic development takings, when not abused, can help revitalize downtrodden neighborhoods, so an outright ban is not the answer. Neither is relying on state legislation to address the problem: since property cannot move, federalism’s exit option does not help someone whose home has been condemned. Federal legislation that encourages revitalization, while discouraging abuse, would strike the right balance. Accordingly, this Note proposes a federal conditional spending bill that disincentivizes economic development takings while incentivizing and equipping local government actors to address community-revitalization needs
Public Reporting of Monitorship Outcomes
Get PDFWhen a corporation engages in misconduct that is widespread or pervasive, courts, regulators, or prosecutors often insist that the firm obtain assistance from an independent third party — a monitor — to oversee the firm’s remediation effort. The largest firms in the world — from Deutsche Bank, to Volkswagen, to Carnival Cruise Lines — have found themselves having to retain a monitor for corporate misconduct, despite attempts to avoid a monitorship entirely. Traditionally, monitors, or their special master forebearers, were utilized by courts to assist in overseeing compliance with court orders, and their work was both accessible and transparent. As corporate monitorships have evolved over the past fifteen to twenty years, however, the transparency norm has receded, even when the success or failure of the underlying remediation effort invokes issues of public concern.
This lack of transparency would, potentially, be of little concern if the courts, regulators, and prosecutors that are party to monitorships were fully able and willing to ensure the monitorship achieved its goals. The reality, however, is that these governmental actors have demonstrated their own susceptibility to concerns related to cronyism, capture, and, perhaps, competence. Because the governmental actors involved in monitorships have proven to, understandably, lack perfection in their supervision capabilities, the lack of transparency and oversight over monitors and monitorships has prompted public critique, academic debate, and litigation. And yet, it has proven next to impossible to identify a comprehensive manner in which to regulate monitorships.
This Article suggests a novel path forward through a mix of federal interventions. The Article argues that at the conclusion of all monitorships, the public should receive an accounting that details whether the firm has or has not engaged in a successful remediation effort. This Article suggests two paths for the public to receive this information: (i) a securities disclosure and (ii) the adoption of a new policy regarding the use of monitors via the Office of Management and Budget. The result of these interventions will be greatly increased public access to information about the conclusion of a firm’s monitorship. All monitors, regardless of type, gather, assess, analyze, and disseminate information, yet this information is often kept outside of the public sphere. This Article presents a piecemeal set of interventions that would help generate the move toward greater public reporting of monitorship outcomes
Moore v. Harper: The Independent State Legislature Theory and the Court at the Brink
Get PDFMoore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court\u27s authority in federal elections. Scholars have recognized the theory\u27s threat to American democracy and have accordingly produced a detailed record debunking the ISLT. Despite its unseriousness as a legal theory, the Court appears poised to sincerely consider the ISLT as sound doctrine.
Although scholars have forcefully refuted ISLT, its logic is enticingly simple, and at first glance the theory might even seem downright plausible. Thus, it is worth taking a deeper dive into the theory and examining the arguments on either side. This Commentary aims to do that. Moore v. Harper and ISLT also present a substantial threat to free and fair elections in the United States. This Commentary will examine the questions the Court is likely to answer and consider the effects its answers will have on American elections and democracy. The Commentary concludes with a simple suggestion the Court is unlikely to adopt
Dignity and Respect at All Times: How Federal Agencies Can Measure Up in Complying With NAGPRA and Related Statutes
Get PDFCorruption, Tax Evasion, and the Distortion of Justice: Global Challenges and International Responses
Get PDFCorrupt Corporations and the Facilitation of Tax Crimes: A Review of the United Kingdom\u27s Enforcement Mechanisms
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Misreading Campbell: Lessons from Warhol
Get PDFIn Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a transformative use. Purporting to rely on the Court’s adoption of transformative use as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous transformativeness inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might be considered as part of the fair use doctrine and rendered compatible with copyright’s right to prepare derivative works. In this Essay, we argue that the answers to these questions lay in Campbell’s logic and careful analysis, where Justice Souter methodically and meticulously incorporated the idea of transformativeness into a rich understanding of the first fair use factor and the overall four-factor framework as a whole. As we show, Campbell paid special attention to concerns with the workability of this idea and its integration with the copyright scheme developed by Congress in the Copyright Act of 1976. The Court in AWF would benefit from a close reading of Campbell, which presciently foreshadowed and thoughtfully addressed the very questions before it today
