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Hyperpartisan Campaign Finance
Get PDFHyperpartisanship dominates modern American politics and government, but today’s politics are strikingly different from the preceding period of American history, a Cold War Era when bipartisanship and ideological moderation predominated. Hyperpartisanship was not the salient dynamic in American politics when campaign finance law began, and as a result, campaign finance law developed under strikingly different assumptions about American politics than the current prevailing circumstances. Today’s campaign finance law, inherited from this preceding era, is thus mismatched to the campaign finance of today. Campaign finance law focuses on individual candidates as the central actors in fundraising and misses the role of parties in organizing the campaign finance landscape. It therefore both systematically underestimates the risk that parties pose in collectivizing the potential for campaign finance corruption and overestimates the First Amendment values promoted by modern campaign finance when the parties today focus so heavily on mobilizing their base and preaching to the choir
The City\u27s Second Amendment
Get PDFCities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles that question. The Article contests the proposition that cities are bereft of constitutional rights in general, or against their states in particular. The Article challenges this notion by showing that the constitutional invisibility of municipal corporations is rooted in an outdated notion of the city as an artificial entity. The Article then turns to the Second Amendment, questioning the conventional wisdom that it provides solely a libertarian, individual bulwark against state restriction. The Article shows that in fact the right to keep and bear arms has an important collective dimension that promotes safety, and that the city is historically and institutionally situated to advance this Second Amendment feature. Finally, the Article examines how these two insights operate in practice, first by outlining the substantive contours of the city’s Second Amendment, and then by applying the model to contemporary controversies in firearm regulation such as guns in schools, concealed carry, Second Amendment sanctuaries, and the federal Law Enforcement Officers Safety Act. In addition to advancing the novel claim that cities themselves may assert rights to keep and bear arms, the Article also adds to the growing literature on municipal constitutional rights and the institutional framing of the Second Amendment in a post-Heller world
The Breakdown of the Public–Private Divide in Securities Law: Causes, Consequences, and Reforms
Get PDFAs a regulatory scheme, U.S. securities law has traditionally been designed around a set of lines—the “public–private divide”—which separate public companies, public capital, and public markets, from private companies, private capital, and private markets. Until the early 2000s, the lines were successful in establishing two largely coherent legal realms—a highly regulated public realm and a lightly regulated private realm. A series of bold and often-inconsistent reforms between 2002 and 2020, however, have transformed this longstanding regime into a low-friction system wherein public capital flows to both public and private companies, private capital is ever more abundant, and firms can effectively eschew public company status, which is both more costly and much less essential to firm success than ever before.
This Article contends that, taken together, regulatory developments from the past two decades have led to the breakdown of the public–private divide: in effect, the boundaries between the regulated and unregulated realms have been removed and the public–private distinction has lost its descriptive and explanatory power as an organizing principle of securities law. The Article contributes to the literature by (1) putting forward a novel and comprehensive analytical account of the breakdown of the public–private divide (up through the completion of the deregulatory cycle in late 2020), (2) identifying the consequences of these developments with respect to specific firm constituencies and on a systemic level, and (3) investigating possible reforms and their expected effectiveness in returning securities law to a state of conceptual coherence.
The breakdown of the public–private divide can be attributed to a deregulatory cascade in the name of capital formation, which occurred during the 2010s, and which, in turn, was set off by the perceived malaise of U.S. capital markets in the prior decade. As the Article shows, capital formation in 2021 is thriving—the number and aggregate valuation of so-called unicorn firms are setting records, as is the number of annual IPOs—but the new regulatory and market realities are characterized by a series of problems. These include the now-elective nature of public company regulation, the diminished regulatory capacity of securities law, the fragmentation of investor protection, and the increased vulnerability of employee–investors.
The scale of the problems suggests that the necessary reforms are likely to be foundational. Given past experience with hasty and crisis-driven legislation enacted by Congress, the Article urges the SEC to commence a broad deliberative process involving multiple stakeholders to rethink the appropriate structure of securities law. The outputs from this process will be particularly valuable whenever the next window of opportunity for change arises
Keynote Address
No full textKEYNOTE:
Danielle Citron, Jefferson Scholars Foundation Schenck Distinguished Professor in Law, University of Virginia School of Law
Introduction by Mary Anne Bobinski, Dean and Asa Griggs Candler Professor of Law, Emory University School of Law
Keynote video unavailabl
NEPA and Gentrification: Using Federal Environmental Review to Combat Urban Displacement
Get PDFCities are embracing green spaces and environmental amenities. But as government and private investment surges into urban neighborhoods, residents of historically disinvested communities are evicted and displaced to make room for a wealthier—and often whiter—demographic. The National Environmental Policy Act requires federal agencies to prepare an in-depth environmental impact statement for proposed actions significantly affecting the quality of the human environment. Federally funded redevelopment projects contribute directly to the powerfully displacing forces of gentrification, and environmental impact statements for such projects should affirmatively account for the indirect displacement effects caused by that investment. Articulating a clear legal obligation that federal agencies must consider the specific social and cultural harms associated with gentrification would provide communities with another avenue to address displacement concerns and to force agencies to consider alternative options and mitigation strategies that could alleviate the negative impacts of gentrification. This Comment demonstrates that agencies should be required to consider indirect urban displacement associated with gentrification in federally mandated environmental impact statements. It discusses the statutory framework of NEPA and its relevance to urban redevelopment projects. It then explores the treatment of urban displacement in NEPA case law and considers the causal relationship between urban reinvestment and indirect displacement. It then focuses on how cumulative impacts of past federal and private actions have contributed to the heightened susceptibility of many communities, especially African American communities, to displacement pressures and how the federal environmental review process can provide a tool to combat the inequities of the urban landscape
Where is the Strike Zone? Arguing for a Uniformly Narrow Interpretation of the Prison Litigation Reform Act’s “Three Strikes” Rule
Get PDFIn 1996, at the height of the prison boom and as mass incarceration began to take shape, Congress passed the Prison Litigation Reform Act (PLRA). The PLRA aimed to reduce the overloaded federal court docket, and it targeted inmate litigation as its cause célèbre. The result was immediate, and it caused inmate litigation to plummet in federal courts. One of the provisions that facilitated and continues to facilitate the drastic decline in inmate filings is § 1915(g). Section 1915(g) of the PLRA—also known as the “three strikes” rule—prohibits in forma pauperis status to indigent inmates who have had three frivolous actions or appeals dismissed in federal court. In denying in forma pauperis status to indigent inmates, the law effectively serves as a ban on accessing the courts unless inmates can afford to pay filing fees out of pocket. Since the PLRA’s passage in 1996, courts have wrestled with how to interpret § 1915(g), and it has led to a quagmire of patchwork interpretations. This quagmire has led to the erroneous dismissal of meritorious inmate claims, while also increasing litigation that seeks to answer the following questions: What type of dismissal constitutes a “strike?” What constitutes imminent danger of serious physical harm? Can an inmate appeal their third strike? This Comment argues for a narrow, text-based interpretation of § 1915(g). Interpreting this section narrowly will maintain the statute’s effectiveness while also ensuring that inmates are not unconstitutionally restricted from exercising their fundamental right to access the courts
The Automated Administrative State: A Crisis of Legitimacy
Get PDFThe legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions. In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial of benefits and rights—from travel to disability—have revealed a pernicious pattern of bizarre and unintelligible outcomes. Scholarship to date has explored the pitfalls of automation with a particular frame, asking how we might ensure that automation honors existing legal commitments such as due process. Missing from the conversation are broader, structural critiques of the legitimacy of agencies that automate. Automation abdicates the expertise and nimbleness that justify the administrative state, undermining the very case for the existence and authority of agencies. Yet the answer is not to deny agencies access to technology that other twenty-first century institutions rely upon. This Article points toward a positive vision of the administrative state that adopts tools only when they enhance, rather than undermine, the underpinnings of agency legitimacy
The Doctrine of Implied Honesty in Contract: Is Neither a Slippery Slope nor a New Vista of Contract Nullification That Should Concern Businesses or Franchisors
Get PDFIn the fourteen years since the New York Law Journal published Franchising: LJL Transportation, Contract Nullification by Franchisor, the sky has not fallen nor has the concept of honesty in contract slipped down any slope that threatens contract law generally or franchise systems, specifically. Time has proven the critic, the criticism, and any consternation for the franchise termination opinion in LJL Transportation, Inc. v. Pilot Air Freight Corp. and the implied honesty in contract doctrine to be wrong. One franchise contracts treatise embraces and cites the LJL case for the proposition that “[h]iding revenue from the franchisor in order to avoid paying royalties, which conduct is in breach of the franchise agreement, does not entitle a franchisee to an absolute right to cure its breach prior to termination of the agreement.” In other words, franchisors are permitted to immediately terminate—and are not otherwise required to adhere to cure periods in franchise agreements—when the franchisee commits acts of dishonesty that go to the heart of the business relationship, like paying royalties. Conceptually, there is no reason that this implied honesty in contract concept cannot be applied to permit immediate termination of non-franchise contracts containing cure periods where the breaches arise from severe acts of dishonesty by the breaching party. In LJL, an intermediate Pennsylvania appellate court held that “there are circumstances where the nature of the breach permits the aggrieved party to immediately terminate the contract despite a ‘cure’ provision” and affirmed a franchisor’s immediate termination of a franchise agreement for breach of an implied honesty obligation, even though the franchisor failed to abide by the franchise agreement’s cure provision. Thus, LJL and the decisions it cited imposed an implied honesty obligation in contract performance that superseded any “cure” right. Analyzing the LJL decision’s impact, this author suggested that the implied honesty obligation would be beneficial to franchisors, while a critic suggested that it represented a “new vista” of contract nullification that would be neither beneficial to contract law, generally, nor franchise systems, specifically
A Human Face to Instream Flow: Indigenous Rights to Water for Salmon and Fisheries
Get PDFIn the United States and throughout the world, there are many indigenous peoples whose culture and identity are closely connected to salmon and fisheries. Such salmon and fisheries are often dependent on maintaining adequate instream flows of water in rivers. Indigenous groups in the United States and in other countries have increasingly relied on indigenous human rights laws as a basis to keep water instream to maintain salmon and fisheries. This includes reliance on sources of international law such as the International Convention on Civil and Political Rights, the United Nations Declaration on the Rights of Indigenous Peoples, the International Labor Organization’s Convention on Indigenous and Tribal Peoples, the Declaration of Principles for the Defense of Indigenous Nations and Peoples in the Western Hemisphere and the Indigenous Peoples Water Declaration. This Article examines five case studies of how indigenous communities have attempted to use domestic and international law to ensure that there is adequate flowing water to sustain the fisheries upon which their tribal cultures depend. Three of these case studies come from the United States—the Columbia River Basin in the Pacific Northwest, the Nooksack River in Washington, and Stanshaw Creek in California—and the other two case studies come from the Saru River in Japan and the Whanganui River in New Zealand. Collectively, these case studies reveal that efforts to maintain instream flow are not only about preserving fish stocks and riverine ecosystems but can also be about preserving cultures