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From Director Liability to Officer Liability to ESG Caremark Claims: A Natural Evolution?
Get PDFWith the McDonald’s decision, officers and directors could face Caremark liability for the first time, and this decision could also lead to an influx of ESG-based Caremark claims in Delaware Courts. This Comment explains that, while ESG Caremark claims would force corporations to adopt ESG oversight systems to avoid liability, the very political, social, and legal environment that created a growing call for ESG Caremark claims presents a beneficial opportunity for corporations to appeal to consumers and investors by proactively adopting ESG oversight systems. Corporations are at a nexus where they can either willingly adopt ESG oversight systems and reap the benefits or wait until the courts or the government force their hand, miss the opportunity, and simultaneously face fines
Awakening the Law: Unmasking Free Exercise Exceptionalism
Get PDFThe U.S. Constitution protects myriad, often intertwined, individual rights. Sometimes, protected fundamental rights collide, yet the Constitution lacks a methodology to resolve such clashes. Indeed, an internal tension exists even within the rights included in the First Amendment, as whenever the government acts to protect Free Exercise it advances religion. Rather than adopt a methodology that respects and considers all constitutional rights at issue in instances when constitutional rights are in collision, the Court has embraced Free Exercise Exceptionalism (“FEE”), a doctrine pursuant to which the Court elevates Free Exercise above all rights, including the prohibition expressed in the Establishment Clause. This FEE is evident in recent rulings.
In the 2020 Espinoza v. Montana Department of Revenue case, the Court ruled that the no-aid provision of tuition assistance programs for parents who enroll children in religious schools discriminated based on religious status rather than religious use. The Court, using a strict scrutiny standard, changed the question from whether a state may choose to fund religious activity to whether it must. A forceful dissent decried the majority opinion for holding, for the first time, that the Constitution requires the government to provide funds directly to a church. Two years later, Carson expanded Espinoza’s holding by mandating the funding of religious activities and institutions where such funding is available to nonsectarian institutions. Another forceful dissent emphasized that prohibiting a state from excluding religious schools from participating in a state tuition program made available to secular schools effects a violation of the Free Exercise Clause of the First Amendment and the breakdown of the separation of church and state. As evidenced in Carson, the consequence is hugely problematic in that the now-state-funded religious institutions, rather than be bound by general nondiscrimination laws, will be free to openly discriminate against students, staff, teachers, and parents alike.
This Article proposes a new paradigm to resolve tensions and conflicts in constitutional rights that takes account of and seeks to preserve all constitutional values. Awakening the law is a multilayered process that seeks to find justice in complex legal conflicts; it is an ongoing process that requires buy-in from all affected constituencies. The resolution of constitutional tensions requires consideration of all interests involved in a constitutional conflict. The embrace of the proposed awakened paradigm, informed by established human rights norms and the First Amendment’s own history, allows for the recognition, exposure, deliberation, and resolution of the injustices effected by FEE
Teaching Bankruptcy Valuations to Law Students and Other Unnatural Acts
Get PDFWe often measure that which we can as opposed to that in which we are most interested, and fail to appreciate the difference between the two. Experts may aid a trier of fact in measuring fair market value, fair value, investment value, or some other measure of value; however, courts make determinations with regard to a legal standard, not a financial standard. For example, “fair valuation” may be used for determinations of insolvency or the “fair and equitable” rule may be used for determinations of chapter 11 cramdown plan confirmation disputes. Other measures of value may be used in determining the amount of a claim or to satisfy other financial tests in bankruptcy. There is a difference between employing common valuation standards using traditional and well-accepted techniques and fashioning equitable relief demanded by bankruptcy law. Through the lenses of the “insolvency” and “fair and equitable” tests in the bankruptcy process, I suggest that principles of equity offer a competing vision in approaching valuation issues where an expert provides significant input in an overall assessment of the totality of circumstances, the bedrock principle of exercises of equitable remedies. In building the case, I challenge the body of criticisms directed at experts and courts in their construction of valuation models, susceptibility to hindsight bias, and manipulations of assumptions and inputs. I also modestly reject the notion that a market approach is less speculative than an income approach. Both approaches require considerable judgment—one more transparent and the other more opaque. Both approaches must be considered in the robust context of unique disputes, and their use may be driven by the application of specific statutory language. Throughout this Article, I identify various assumptions and inputs to classic valuation approaches and methods that have been rightly contested or unnecessarily confused. The process often requires an expert and a court to make tradeoffs between degrees of (i) relevance and reliability and (ii) opaqueness and transparency. In the end, valuations in bankruptcy disputes look less like lessons in finance, and more like classic fashionings of equitable relief in a court of equity, a needed reminder that finance is the handmaiden of the court and not its jailer
Public Health Law’s Digital Frontier: Addictive Design, Section 230, and the Freedom of Speech
Get PDFThis Article argues that, even if courts are unpersuaded by the broadest arguments in favor of a public health approach to regulation of addictive design, they should nonetheless reject the platforms’ efforts to make addictive design a public-health-law-free zone. The public health and internet paradigms can be reconciled as a policy matter because addictive design threatens both public health and innovation online. The public health and internet paradigms can also be reconciled as a legal matter be-cause even strong theories of section 230 and the First Amendment, properly understood, leave states a safe harbor in which to regulate much addictive design. Addictive design claims allege platforms engage in what psychologists call “operant conditioning” by using content-neutral intermittent reinforcement and variable reward techniques associated with slot machines to foster compulsion in users. These techniques need not entail content moderation or “editorial expression”; indeed, such techniques are ordinarily hidden from users, who may never realize they have been conditioned by a provider. State regulation of such content-neutral platform activity is not insulated from state public health regulation even under broad theories of the reach of section 230 and the First Amendment. To make maximal use of this safe harbor, public health researchers studying the harms of addictive design, legislators devising tailored regulatory responses, and courts adjudicating novel addictive design claims should remain mindful of the value of separating content-based addictive design claims from conditioning-based claims made in advancing public health law’s digital frontier
The Public Voice of the Defender
Get PDFFor decades police and prosecutors have controlled the public narrative about criminal law. The news landscape features salacious stories of violent crimes while ignoring the more mundane but far more prevalent minor cases that clog the court dockets. Defenders, faced with overwhelming caseloads and fear that speaking out may harm their clients, have largely ceded the opportunity to offer a counternarrative based on what they see every day. Defenders tell each other about overuse of pretrial detention, intensive pressure to plead guilty, overzealous prosecutors, cycles of violence, and rampant constitutional violations—all of which inflict severe harm on defendants and their loved ones. But defenders rarely show the public the world they inhabit.
That approach hasn’t stopped the carceral state from ballooning over the past fifty years; public defense budgets remain paltry, and clients suffer from too much law and too little justice in a system that disregards and dehumanizes them. This Article encourages defenders to go on the offensive, to seek transformative change toward a more just legal system. It builds on social media literature to analyze how defenders can strategically use social networking sites to add their expertise to ongoing public debates about crime and criminal justice policy. As the few existing efforts suggest, social media enables defenders to widely share the routine injustices they observe and to engage with local grassroots organizations to build coalitions. Defenders’ strategic use of social media won’t change policies overnight, but we are hopeful that it will augment public support for defenders and their clients and build power to transform the criminal legal landscape over decades
Voting Rights Federalism
Get PDFIt’s well-known that the federal Voting Rights Act is reeling. The Supreme Court nullified one of its two central provisions in 2013. The Court has also repeatedly weakened the bite of the statute’s other key section. Less familiar, though, is the recent rise of state voting rights acts (SVRAs): state-level enactments that provide more protection against racial discrimination in voting than does federal law. Eight states have passed SVRAs so far—five since 2018. Several more states are currently drafting SVRAs. Yet even though these measures are the most promising development in the voting rights field in decades, they have attracted little scholarly attention. They have been the subject of only a handful of political science studies and no sustained legal analysis at all.
In this Article, then, we provide the first descriptive, constitutional, and policy assessment of SVRAs. We first taxonomize SVRAs. That is, we catalogue how they diverge from, and build on, federal protections against racial vote denial, racial vote dilution, and retrogression. Second, we show that SVRAs are constitutional in that they don’t violate any branch of equal protection doctrine. They don’t constitute (or compel) racial gerrymandering, nor do they classify individuals on the basis of race, nor are they motivated by invidious racial purposes. Finally, while existing SVRAs are quite potent, we present an array of proposals that would make them even sharper swords against racial discrimination in voting. One suggestion is for SVRAs simply to mandate that localities switch to less discriminatory electoral laws—not to rely on costly, time-consuming, piecemeal litigation. Another idea is for SVRAs to allow each plaintiff to specify the benchmark relative to which racial vote dilution should be measured—not to stay mute on the critical issue of baselines
Alternative Facts: The Strategy of Judicial Rhetoric
Get PDFStudies have established the influence of ideology on the answers justices give to legal questions; this study shows that the questions themselves are often selected, framed, and phrased in a way that promotes ideologically-driven answers. By examining a variety of linguistic techniques used to describe just the facts of constitutional criminal procedure cases—separate from the legal analysis—we show the justices are engaging in highly strategic behavior. The facts included, omitted, or emphasized vary with the ideology of the justices and are predictable not just based on voting behavior in other criminal procedure cases but in all Supreme Court cases. We undertake this analysis both qualitatively and quantitatively. For the latter, we created a novel dataset consisting of the complete text of the fact portions of every Supreme Court opinion dealing with police investigation since the beginning of the Roberts Court, 2005–2022 terms. We also created six sets of linguistic variables to test the effect of different factors on judicial framing of case facts: hedges and intensifiers; extent of abstract and specific language; positive versus negative framing; inclusion of surplus facts and omission of relevant facts; stigmatization versus personalization of individuals; and use of active versus passive voice. Lastly, we created two new measures of judicial behavior in terms of outcomes—the “pro-prosecution score” in criminal procedure cases and the “pro-conservative score” in all non-criminal procedure cases. We show that the justices make use of strategic fact manipulation to bring about outcomes in line with their pro- or anti-prosecution tendencies, as well as their pro- or anti-conservative tendencies. Yet, not all justices partake in this strategy equally: the relative moderates of the Court make little use of strategic fact manipulation, whereas the extremists on both ends of the Court make far more use of the techniques we identify. Framing a characterization as a “fact” presents an impression of objectivity and reliability; but if even the starting place for a Supreme Court opinion is ideologically tilted, if each side is entitled to their “alternative facts,” then legal decision-making loses the promised legitimacy of being differentiable from the political process
“The Glorious Liberty of the Children of God”: Toward a Christian Defense of Human Rights
Get PDFIt will come as a surprise to some human rights lawyers to learn that Christianity was a deep and enduring source of human rights and liberties in the Western legal tradition. Our elementary textbooks have long taught us that the history of human rights began in the later seventeenth and eighteenth centuries. Human rights, many of us were taught, were products of the Western Enlightenment—creations of Grotius and Pufendorf, Locke and Rousseau, Montesquieu and Voltaire, Hume and Smith, Jefferson and Madison. Rights were the mighty new weapons forged by American and French revolutionaries who fought in the name of political democracy, personal autonomy, and religious freedom against outmoded Christian conceptions of absolute monarchy, aristocratic privilege, and religious establishment. Rights were the keys forged by Western liberals to unchain society from the shackles of a millennium of the church’s oppression of society and domination of the state, and centuries of religious warfare. Human rights were the core ingredients of the new democratic constitutional experiments of the later eighteenth century forward. The only Christians to have much influence on the development of human rights, the conventional story goes, were a few early Church Fathers who decried pagan Roman persecution, a few brave medieval writers who defied papal tyranny, and a few early modern Anabaptists who debunked Catholic and Protestant persecution. But these exceptions prove the rule, according to many human rights scholars: Christianity as a whole, they argue, was an impediment to the development and expansion of human rights—doubly so in our day when religious freedom and other fundamental rights are often counterposed
A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings
Get PDFSince the child welfare system’s inception, abuse and neglect laws have conflated poverty-related neglect with active parental violence and willful neglect. The ensuing state surveillance has disproportionately harmed poor children and children of color. Pursuant to the state’s expansive parens patriae authority, countless families are investigated, and thousands of children are separated from their caretakers each year—only to be returned within days or weeks after a finding that the reasons for removal were unsubstantiated. Other children risk drifting in foster care limbo until they experience the termination of parental rights—an adjudication so severe that some courts call it the “civil death penalty.” Mounting empirical evidence on the racial disparities and trauma caused by the child welfare system has resulted in increasing calls for its abolition.
Despite the prominence of family values in American discourse, the Constitution does not speak to the family, and the Supreme Court has shied away from addressing children’s rights in the family context—leaving children without a meaningful mechanism to assert their rights in dependency proceedings. Notwithstanding the Court’s silence, this Comment argues that Supreme Court jurisprudence implies children have a constitutional right to family relationships free from unwarranted state interference—in other words, a right to family integrity.
Recognizing a child’s right to family integrity has significant implications for the child welfare system. In the 1960s, the Supreme Court confronted how the juvenile justice system’s procedural informality harmed children’s liberty interests. As a result, the Court recognized a child’s right to counsel in delinquency proceedings. However, the Court has yet to afford children such protection in dependency proceedings despite similar harms inflicted by the child welfare system’s procedural informality. This Comment argues that to adequately safeguard a child’s right to family integrity, children must be guaranteed the due process right to counsel in dependency proceedings