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Rethinking Roadblocks to Municipal Bankruptcy
Get PDFThis Comment argues that Congress should remove roadblocks that prevent municipalities from easily filing for bankruptcy. It shows that statutory and ad hoc roadblocks allow states and the federal government to exert excessive pressure on fiscally distressed municipalities. Further, while scholars claim that the Bankruptcy Code provides bankruptcy courts with too little power to adjudicate municipal bankruptcies and that municipal fiscal distress should be resolved by states, this Comment argues that federal bankruptcy courts are the proper venue to resolve municipal distress and that these courts have sufficient power. This power could be used more effectively by removing chapter 9’s insolvency requirement and inducing states to allow quicker access to bankruptcy courts
A Future of Mandatory Environment, Social, and Governance (ESG) Disclosures: A Review of Public Comments as a Case Study in the Impact of ESG
Get PDFErroneous Injunctions
Get PDFWhen a federal court concludes that a statute or regulation is unconstitutional or otherwise invalid, it will often enter an injunction prohibiting the government from enforcing that measure against the plaintiff in that case. But a court will dissolve a preliminary injunction after trial when it concludes that the plaintiff is not entitled to relief on the merits. It may likewise vacate a permanent injunction when subsequent developments in precedent reveal that it misconstrued the relevant legal provisions. And any type of injunction may be overturned on appeal.
Once an erroneously issued injunction has been reversed, vacated, or dissolved, the government may enforce the challenged legal provision against the plaintiff if it violates that provision in the future. It is less clear, however, whether the government may similarly prosecute that plaintiff or impose other punitive measures against it for violating the challenged provision while the injunction was in effect. Despite the centrality of injunctive relief in constitutional litigation, the Supreme Court expressly left this issue unresolved in Edgar v. MITE Corp., with various opinions defending different sides of the issue. Recent scholarship has vigorously advocated such retroactive prosecutions. The Supreme Court has exacerbated the confusion by construing many of the most seemingly applicable defenses—due process “fair notice” restrictions, prohibitions against ex post facto laws, and the mistake of law defense—too narrowly to completely bar retroactive punitive enforcement of previously enjoined legal provisions.
This Article offers a new approach. Drawing on traditional equitable practices, including the principles governing injunction bonds as well as criminal contempt proceedings under injunctions that have been overturned, this Article demonstrates that even injunctions that were issued erroneously and no longer remain in force can continue to affect litigants’ rights. It further explains that federal courts have authority—as a component of both the Article III judicial power as well as their equitable powers—to prevent the federal government and states from taking punitive measures against people for actions performed under the protection of a federal injunction. This Article goes on to examine various ways in which courts may implement this restriction. Injunctions are critical tools for protecting constitutional rights. Courts may shield litigants from the possibility of civil penalties, statutory damages, and criminal prosecution for acts taken under injunctions that were issued erroneously
Una Solució, Si Us Plau: Self-Determination and the Catalan Crisis
Get PDFNestled in the corner of Spain is the birthplace of a people and a political conflict as old as the history of the peninsula itself. Catalonia, long a bastion for independence movements around the world, is caught at the center of tensions between traditional regionalism and political centrality in Spain. As internal unrest continues to intensify, miring discussion and dialogue, the crisis creeps closer to a point of drastic political uncertainty. Exhausted with the enduring lethargy of domestic and European legal fora, the Catalans have often thought of turning to international law for a solution. This Comment draws upon decades of scholarship in the realm of self-determination to argue for a critical re-analysis of these now-dated concepts. Formulated in response to a post-colonial era, the mechanism of self-determination fails to ascertain and address the challenges faced by modern ethnopolitical minorities. A reassessment of the norms of self-determination could provide novel and politically stabilizing options for stateless groups in Europe and other parts of the world
When a Statute Comes With a User Manual: Reconciling Textualism and Uniform Acts
Get PDFThis Article develops an interpretive theory for statutes that originate as Uniform Acts promulgated by the Uniform Law Commission. Although overlooked in the literature on statutory interpretation, state-enacted Uniform Acts are ubiquitous. They shape our life cycles—governing marriage, parentage, divorce, and death—and structure trillions of dollars in daily commercial transactions.
Largely focusing on textualism, today’s dominant form of statutory interpretation, we analyze the interpretive consequences of two unusual features of state-enacted Uniform Acts. First, the text of every Uniform Act directs courts to interpret it to “promote uniformity.” Second, each provision is accompanied by an official explanatory comment, analogous to a user manual for interpreters. We argue that, in light of these features, foundational textualist principles obligate courts to consider legislative intent as expressed in the official comments—what textualists would otherwise dismiss as legislative history—when they interpret a statute originating as a Uniform Act.
More specifically, this Article explores what we call the “directives” and “signals” that state legislatures send when they enact a Uniform Act. As enacted statutory text, the promote-uniformity clause directs courts to treat the official comments as persuasive authority on the statute’s meaning. Moreover, even if a legislature enacts only a portion of a Uniform Act, the legislature signals that courts should treat the comments as persuasive authority by virtue of the choice to incorporate language from a Uniform Act rather than some alternative text.
Moving from theory to practice, we develop a canon of construction for interpreting this significant but under-studied species of positive law. We also present a series of puzzles and complications arising from “hybrid” enactments of bespoke and Uniform statutory language. More generally, by colliding textualist theory with the two-step political economy of state-enacted Uniform Acts, the Article broadens our understanding of textualism and adapts it to this critical but overlooked category of statute
The SEC’s Climate Disclosure Rule: Critiquing the Critics
Get PDFClimate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity and consistency. Instead of following standard practice and engaging with the specific policy judgments made by the SEC in an effort to improve the final rule through constructive notice-and-comment rulemaking, many critics chose to attack every aspect of the rule proposal and the SEC’s very decision to pursue a climate disclosure rule. The critics disputed the SEC’s statutory authority and motivations, questioned the materiality of information about the economic impacts of climate change, and advanced certain novel administrative and constitutional law theories that had gained traction in other, unrelated contexts. Unless the SEC yields to pressure and abandons the climate disclosure project, these same arguments will serve as the basis for the widely predicted litigation against the final rule.This Article presents an original analysis of some of the principal challenges to the SEC’s climate disclosure rule and, ultimately, finds them unpersuasive. A close review of the features of the traditional disclosure regime, many of them long forgotten, and of the features of the SEC’s rule, many of them distorted by the critics, suggests that the rule is in keeping with longstanding regulatory practice. In short, the SEC has the statutory authority to act, its motivations are neither improper nor novel, materiality, when properly understood, does not present an obstacle, and theories pertaining to “major questions” and “compelled speech” are misplaced in this context.The Article contributes to the debate on climate-related disclosure in two ways. First, it draws attention to the flawed legal and policy arguments against the SEC’s climate disclosure initiative and the distracting rhetoric that has accompanied them. And, second, it highlights the rule’s core function, which is to put in place an information-generating framework to help capital markets and capital market participants—the primary intended beneficiaries of SEC regulation—with the climate-related economic challenges that lie ahead
Three Countries, One Problem: How the United States, United Kingdom, and France Handle Sexual Assaults in Higher Education
Get PDFThirty-five percent of women worldwide will face physical or sexual violence. Female students within the United States, United Kingdom, and France are especially vulnerable to sexual assault and harassment due to a lack of protection from their governments. Failing to address the issue of sexual assault in higher education risks disrupting the education of student victims who are disproportionately women. Despite France and the United Kingdom signing the Istanbul Convention and the United States’ implementation of Title IX, these three nations have not done enough to prevent sexual misconduct among university-age students. All three nations have varying campus cultures and different methods of funding higher education institutions, but social norms that ignore violence against women and dissuade victims from reporting sexual assault exacerbates the problem.
All three nations have taken different approaches to address sexual misconduct in higher education. However, students remain at risk of becoming victims of sexual assault and sexual harassment. Each nation needs consistent, strict, and detailed legislation creating a standard for each higher education institution to protect and support victims of sexual assault, while also preventing such violence from occurring. The United States, United Kingdom, and France must educate students from a young age on the importance of gender equality and consent to begin alleviating the issue of sexual assault in higher education