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Death of a Bail Bondsman: The Implementation and Successes of Nonmonetary, Risk-Based Bail Systems
Get PDFThe Eighth Amendment to the United States Constitution provides that bail, when afforded to a criminal defendant, not be excessive. However, there is no provision as to what form bail must take or how it is to be determined. Starting in the twilight of the nineteenth century, monetary conditions of bail became increasingly prevalent throughout the United States. Yet, in recent years, there has been a movement to eliminate the requirement that defendants pay their way to pretrial freedom. States have taken measures to move away from cash bail, ranging from significantly limiting its use to outright prohibitions against monetary conditions on bail. The impetus behind such reform measures is that monetary conditions on bail discriminate against lower income defendants by disparately leading to pretrial detention of individuals who cannot afford to pay the required sum. This Comment analyzes the relative success of the risk-based, nonmonetary bail systems that several states have implemented. This Comment begins by analyzing the history of the right to bail in the United States, starting with how such a right was understood at the time of the founding. Next, the evolution of the application of bail and the considerations behind pretrial release or detention determinations, are discussed. This Comment then proceeds to analyze how risk-based, nonmonetary bail systems have been codified and applied. Last, this Comment evaluates the impact that these schemes have had on the states of implementation and potential alterations that would allow for better administration of such legislation
Impeachable Speech
Get PDFRhetoric is both an important source of presidential power and a key tool of presidential governance. For at least a century, the bully pulpit has amplified presidential power and authority, with significant consequences for the separation of powers and the constitutional order more broadly. Although the power of presidential rhetoric is a familiar feature of the contemporary legal and political landscape, far less understood are the constraints upon presidential rhetoric that exist within our system. Impeachment, of course, is one of the most important constitutional constraints on the president. And so, in the wake of the fourth major presidential impeachment effort in our history, it is worth pausing to examine the relationship between presidential rhetoric and Congress’s power of impeachment. Although presidential rhetoric was largely sidelined in the 2019–2020 impeachment of President Donald Trump, presidential speech actually played a significant role in every other major presidential impeachment effort in our history. Prior to President Trump, three presidents had faced serious impeachment threats: Andrew Johnson, in 1868; Richard Nixon, in 1974; and Bill Clinton, in 1998 and early 1999. In each of these episodes, the debate around impeachment encompassed, among other things, public presidential rhetoric—lies and misrepresentations; statements that took aim at Congress or undermined the rule of law. In the case of Andrew Johnson, presidential rhetoric formed the basis of one of the articles of impeachment approved by the House of Representatives. In the case of Richard Nixon, the first article of impeachment approved by the House Judiciary Committee—though never considered by the full House—made extensive reference to the president’s public statements. And one of the possible offenses identified in Independent Counsel Ken Starr’s impeachment referral focused on Bill Clinton’s lies to the American people; an impeachment article tracking that recommendation was initially debated by the House Judiciary Committee, but the language regarding public speech was removed before the committee vote. These aspects of impeachment history have largely escaped scholarly notice, and they may prove instructive as both Congress and the public debate impeachment, as well as other possible constraints on presidential rhetoric and presidential power, in 2020 and beyond
Acceptance of the Distinguished Service Award for Lifetime Achievement
Get PDFI am honored to be chosen for the Distinguished Service Award. I’m proud to say that I’ve been working in this honorable industry for over forty years. Indeed, I’m proud to say that I’ve worked with, or taught with, over 75% of your past twenty-one honorees. So, this award, and all it represents, is very meaningful to me. I also want to thank Matt Lindgren and his team for their tremendous leadership in putting this program together. I also want to recognize Keith Shapiro, who reminds me that we worked together on many matters “back in the day.” He is a distinguished leader in the restructuring industry, and I applaud all of his leadership contributions to both Emory Law School and the restructuring industry. Over the course of many months of careful study, I came to see that McKinsey RTS was engaged in a stunning and coordinated attempt to conceal its bankruptcy connections on a massive scale, not revealing its client and investment connections, while playing a game of cat and mouse with its bankruptcy disclosures. My first impulse and reaction was to contact McKinsey’s CEO and advise him as I was convinced he couldn’t possibly know this, and that he’d want to correct it. I wanted to help him. We met and spoke on eleven occasions over fourteen months. He never stopped it or corrected it, even though he promised to do so. Watching it continue into three more bankruptcy case over those 14 months told me I had no choice but to report it all to the U.S. Trustee. I’ve learned a lot more since then
The Limited Lifespan of the Bankruptcy Estate: Managing Consumer and Small Business Reorganizations
Get PDFCongress has a great affinity for debt adjustment bankruptcies. These are bankruptcies in which a debtor keeps rather than liquidates her assets and instead repays creditors out of future income. Chapter 13, which allows individual consumer debtors to reorganize in this way, was supplemented in 1986 by chapter 12 for farm bankruptcies. In 2019, in the largest expansion of debt adjustment bankruptcies since the Bankruptcy Code was enacted, Congress made debt adjustment bankruptcy available to small businesses. The reality is, however, that most debt adjustment bankruptcies fail. For that reason, the relative rights of debtors and creditors when tensions arise are of great importance. The bankruptcy court must know what protections a debtor may resort to if she is struggling to make payments under her plan, and whether new, unpaid creditors may undertake their own collection efforts if doing so will jeopardize the bankruptcy case. Although these questions are basic, they are unresolved. A deep split among bankruptcy courts and courts of appeals has persisted in the law of chapter 13 since the early years of the Code. This disunity threatens the bankruptcy courts’ ability to coherently implement Congress’s new small business bankruptcy provisions. This Article proposes a solution to this Gordian Knot, and then attempts to situate that solution within a broader normative conception of debt adjustment bankruptcy law. Doctrinally, the key division among courts concerns the lifespan of the bankruptcy estate. Property within the estate is subject to court supervision and protected by the automatic stay. This Article defends a theory of the bankruptcy estate in debt adjustment bankruptcies known as the estate termination theory. This theory holds that the bankruptcy estate is of a limited lifespan. Once the debtor has secured court approval for a repayment plan and the case is underway, she is both free from bankruptcy court supervision and without special bankruptcy court protection. Moreover, although a default rule, the early termination of the bankruptcy estate is sticky. Preserving property within the estate is possible, but the power to do so is limited. Some valid bankruptcy law purpose is necessary before property can be retained within the estate. On a broader level, this Article attempts to situate the limited lifespan of the bankruptcy estate within a model of bankruptcy it dubs “light-touch” bankruptcy. This model emphasizes the advantages of simple, streamlined, and cheaply administrable procedures, and suggests that debtors may benefit most by being able to enjoy a financial fresh start, free from entanglement with the bankruptcy court, at the earliest possible moment during their bankruptcy cases
Are Undocumented Workers Entitled to a Fresh Start? An Analysis of the Ellis Standard and Potential Criminal Consequences under 18 U.S.C. § 152
Get PDFThere are over eight million undocumented immigrants in the United States who obtain employment by using false social security numbers. Although undocumented persons are eligible to file for bankruptcy under the Bankruptcy Code, undocumented immigrants file for bankruptcy at much lower rates than documented citizens. This is partly out of a fear that the use of a false social security number to obtain employment constitutes bankruptcy fraud under 18 U.S.C. § 152 and exposes the debtor to criminal liability. The author draws inspiration and builds on the work of Chrystin Ondersma and tells the story of a hypothetical undocumented debtor, “Christina,” to ultimately make the argument that the debtor’s use of a false social security number for employment purposes does not meet the elements needed for bankruptcy fraud. The author then closes by looking at the practical issues in encouraging undocumented immigrants to seek the benefits afforded to them under the Bankruptcy Code and how policy may be changed to better accommodate undocumented debtors
Mass Shootings, Legislative Responses, and Public Policy: An Endless Cycle of Inaction
Get PDFAlthough mass shootings give rise to particularly visceral reactions and demands for action within the public sector, the corresponding response from legislators has failed to produce any meaningful change. With much of the discourse in the aftermath of these events centering on the polarized gun control-gun rights debate, two proposed solutions—assault weapons bans and universal background checks—often are at the forefront. Although varying by group and often higher immediately following a shooting, public support for these two proposals has yet to translate into legislative action. In this Article, we explore previous attempts by the federal government to regulate assault weapons and implement background checks for all firearm purchases, particularly in response to high-profile (and highly lethal) mass shootings. We situate these efforts in the context of corresponding public support as well as examples of how such regulations may have been effective at creating impediments for the perpetrators. We also explore state legislative efforts, which have been far more successful in enacting legislation related to assault weapons and background checks. Finally, we consider the role of lobbying and interest groups in overshadowing bipartisan support for these proposals, as well as what may be needed to break the perpetual stalemate in Congress and end the cycle of legislative inaction stemming from mass shootings
Gun Owners Support the Right Not to Bear Arms
Get PDFDonna’s Law would allow individuals who fear suicide to prevent their own impulsive gun purchases. Research shows that many people would sign up, and versions of Donna’s Law have passed in Washington State and Virginia. This study is the first to assess public support for enacting Donna’s Law. We find broad support overall, including majority support among Republicans and gun owners. There is room for consensus around this voluntary measure to reduce gun suicide
If You\u27re Reading This, It\u27s Too Late: The Unconstitutionality of Notice Effectuating Implied Consent
Get PDFReasonableness is the touchstone of the Fourth Amendment; a search is per se unreasonable absent a warrant, but if the state has garnered consent from an individual, the subsequent search is deemed reasonable and not to have violated the Fourth Amendment. Because consent is a powerful exception, governments looking to establish valid search schemes are attempting to garner consent, specifically implied consent, by notifying individuals that specific actions will serve as consent to search. Such attempts are not rare. This Comment focuses on three examples: the Denver Police Department’s use of signs notifying individuals in particular areas that their biometric data is being gathered, the City of Bristol’s street signs notifying individuals that parking in public spots serves as consent to search their vehicles for parking enforcement purposes, and, most famously, implied consent laws claiming that the issuance of a driver’s license serves as consent to a breathalyzer test. These examples all illustrate government attempts to use notice to effectuate implied consent to search. This Comment argues that this approach to garnering implied consent to search is largely dishonest, despite the ubiquity of such laws in American society. The vast majority of attempts to use this approach do not comport with any definition of consent, especially not implied consent. Further, the Fourth Amendment’s consent exception requires a number of elements be met before consent can be satisfied. However, turning to the pervasively regulated industries exception for inspiration, this Comment proposes a four-element dispositive test to determine when notice can effectuate implied consent to search: tradition of search, consistency of search, revocability of consent, and most importantly, furthering of public safety
The Ministerial Exception: Seeking Clarity and Precision Amid Inconsistent Application of the Hosanna-Tabor Framework
Get PDFSupported by statute and the Constitution, the ministerial exception bars employees who are deemed “ministers” from bringing discrimination claims against their religious employer. Religious employers—whether a religious association, corporation, educational institution, or society—are exempted from Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of religion. The ministerial exception is no longer limited to religious discrimination and has been expanded to apply in cases of gender, race, age, and disability discrimination. In 2012, the Supreme Court affirmed that a constitutional ministerial exception existed and was supported by the Free Exercise and Establishment Clauses of the First Amendment. The Court set forth a four-factor test by which an employee’s “ministerial status” was to be assessed: (1) whether the religious institution held the employee out as a minister; (2) whether the employee’s title reflected a certain degree of religious training; (3) whether the employee used that title and held herself out to be a minister; and (4) whether the employee’s duties reflected a role in conveying and carrying out the mission of the church. The Court declined to adopt a rigid formula, leaving lower courts to interpret for themselves how these factors should be applied. Thus, lower courts were not only inconsistent in their analyses of subsequent cases, but also demonstrated a tendency toward favoring the religious employer. In 2020, the Supreme Court again addressed the ministerial exception, emphasizing function as key and broadening the exception’s potential application. This Comment proposes a solution for the inconsistencies and ambiguities that have resulted from the Court’s four-factor test for classifying “ministers” who then fall within the “ministerial exception,” and thereby suggests that the Court’s most recent holding failed to properly contain the exception. First, the proposed solution requires a balance of function and title based upon a reasonable construction of the surrounding factual circumstances. Function should be given the greatest weight if satisfied, but factors relating to title should not be ignored. Second, the proposed solution requires an analysis into the religious importance of the employee and the circumstances proffered to support or refute that importance. The analysis must be conducted with an eye toward the purpose of the exception: avoiding government interference with employment decisions relating to those employees whose functions are essential to the employer’s religious mission