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Designing Dual-Class Sunsets: The Case for a Transfer-Centered Approach
Get PDFDual-class stock (DCS) structures, and their implications for managerial accountability and corporate governance more broadly, have become prevalent concerns for corporate lawyers and policymakers. Recent academic and practitioner debates on DCS have tended to focus less on the general merits and drawbacks of DCS versus one share/one vote structures, and more on the specific common-ground concern as to whether and how such structures are subjected to contingent reversal or “sunset”. This Article compares the relative advantages and disadvantages of time-, ownership- and transfer-centered models of DCS sunset provisions. It argues in favor of the transfer-centered model on the grounds that: (a) its specific event-based trigger renders it less arbitrary in application than the time-centered model, and protects against the possibility of founders being prevented prematurely from realizing their long-term strategic vision (as is a risk with the time-centered sunset model); (b) it avoids the moral hazard and other perverse controller incentives that are prone to ensue from time-centered sunsets; and (c) unlike both the time- and ownership-centered models (which are motivated primarily by agency cost concerns), the transfer-centered model is sensitive to the powerful non-financial incentives that controllers typically have to safeguard and promote firm value, even where their corporate control rights significantly outweigh their corresponding cash flow rights. Accordingly, it suggests that the SEC and principal U.S. exchanges should resist recent calls from influential investor-related bodies to mandate time-based sunsets. Instead, domestic policymakers should look overseas to Hong Kong and Singapore, whose respective listing authorities have recently introduced transfer-based sunset requirements for DCS issuers, in considering the most appropriate blueprint for any future regulatory initiatives in this regard
Fiduciary Law and the Law of Public Office
Get PDFA law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties within the law of public office—even if not its enforcement structure—reflected something that looks similar to modern fiduciary duties of loyalty and care.
In this Article, we extend the historical record describing this law of public office and make several new historical and theoretical claims. First, there are reasons to suspect that what we identify as the law of public office and what are now generally considered private fiduciary duties developed together and influenced each other. During the critical centuries we explore, the duties of officeholders such as trustees, executors, and corporate directors were developing alongside the duties of public officials such as tax collectors and government commissioners. Parliament and other actors repeatedly used the language of trust, trusteeship, guardianship, and account to define the law of public offices. Additionally, public law concerns about abuse of power and the need for honesty, fidelity, and altruism in service of others may have seeped from public law into private fiduciary law. Influential political theory about the monarchy and lesser magistrates also used trust and related legal language to set forth a fiduciary conception of public officeholding; the theoretical developments in political theory not only drew from legal concepts but also may have helped shape them.
One Article cannot decisively establish whether the similarities in language, concepts, and timing were mere coincidence or rather evidence of some conscious codevelopment in the law of public offices and fiduciary law. Proving (or disproving) actual causal relationships will need to be the work of the future. We conclude with some potential implications for our research, should further work continue to confirm our findings here. In short, fiduciary political theorists should be less anxious about drawing from private law models, and private law fiduciary theorists might need to be less insistent on the purity of the private sphere. Our research agenda invites more mutual learning—both historically and for law and institutions today
Vectors: Immunity in Commercial Aviation
Get PDFCOVID-19 nearly wiped out demand for commercial air travel in 2020, driving down passenger traffic by a jaw-dropping 94.3% from the previous year. The airline industry thus understandably lobbied for a government bailout to manage what was nothing short of an existential crisis, with losses exceeding 25 billion in payroll grants together with a similar sum in low-interest loans. For example, carriers refused to provide refunds or liquidate travel credits in a straightforward way for those whose travel was impacted during the pandemic. These consumer practices spawned a number of class action “refund cases” around the nation—nearly all of which were doomed to fail at the earliest stages of litigation under the terms of the Airline Deregulation Act of 1978, which expressly requires courts to dismiss lawsuits related to airline prices, routes, and services.
But should the law recognize a pandemic exception and allow consumer tort claims to proceed against airlines arising from the transmission of infectious diseases? For that matter, could or should airlines be liable for crew-to-passenger or passenger-to-passenger transmission of infectious diseases? This Article argues no even if the risk of epidemics and pandemics are happening more regularly over the last few decades. Notwithstanding numerous examples of despicable and infuriating airline policies and practices related to the pandemic that would be remediable by operation of law if undertaken by other businesses, the exceptional legal immunity airlines have with respect to general consumer torts promote important and stabilizing economic policies that should not be undone by courts. What is more, courts should bar negligence suits against airlines arising from the alleged transmission of infectious diseases lest they become immersed in hopeless evidentiary and administrative problems.
In all, as a normative and practical matter, courts should have a minimal role in the enforcement of consumer protection issues under the explicit terms of the Airline Deregulation Act. And, when presented with controversies implicating airline deregulation, courts should construe existing national and international aviation service and safety laws as preempting lawsuits against airlines for consumer claims and torts connected to the transmission of infectious microorganisms on commercial aircraft. To be clear, while this Article bemoans undesirable consequences of the Airline Deregulation Act relative to passenger claims arising from public health crises now and in the future, it argues that any policy changes that should or might occur must do so by lawmakers alone
The Modest Impact of the Modern Confrontation Clause
Get PDFThe Sixth Amendment\u27s Confrontation Clause grants criminal defendants the right to be confronted with the witnesses against them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution\u27s use of hearsay at trial. But until recently, the Supreme Court\u27s interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court\u27s longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.
The Supreme Court\u27s 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the Sixth Amendment and the hearsay rules, Crawford ushered in a revolution in the world of evidence and criminal prosecutions. But the excitement did not last. Shifting majorities filled in the details of Crawford\u27s lofty rhetoric, muddying the distinction between the new jurisprudence and what had gone before.
This Article takes stock of the Crawford Revolution. First, it explores changes in confrontation doctrine since 2004 and examines, as a theoretical matter, how those changes map onto the state and federal hearsay exceptions that Crawford purportedly rendered irrelevant to constitutional analysis. This interplay between the hearsay rules and the Confrontation Clause is critical. The constitutional right would seem to have little significance if all it does is bar evidence that is already forbidden by nonconstitutional hearsay rules. Second, the Article reports the results of an empirical survey designed to test the theory by carefully cataloguing the hearsay pathways that generated Confrontation Clause challenges in hundreds of federal and state cases. The findings reveal an underappreciated role of the modern confrontation right, and changes to that role after 2004
Winning the Battle, Winning the War
Get PDFThis Article analyzes Derrick Bell\u27s interest-convergence theory and its utility for lawyers when litigating for the rights of nondominant groups. The first part of this Article studies four different cases in which plaintiffs or amicus curiae chose arguments that highlighted the ways their interests converged with potential allies. The Article uses these cases as examples of four different ways that a lawyer can engage in interest-convergence litigation. The strategies examined in this Article rest on two axes: dominant/nondominant narrative convergence and natural/unnatural ally convergence. An analysis of the effects of each of these techniques makes it clear that dominant narrative convergence is the most likely to harm nondominant groups in the long run (winning the battle, losing the war). Unnatural ally convergence is less likely to harm non-dominant groups in the long run, but this technique is less likely to win the case at hand (losing the battle, winning the war). Unnatural ally convergence can be an effective strategy, so long as the litigant does not have to compromise on the reasoning in a case to appeal to allies. Compromising on reasoning can make similar cases more difficult to win in the future. Therefore, non-dominant narrative convergence emerges as the best tool for both short-term wins and long-term successes (winning the battle, winning the war)
Geofence Warrants: Geolocating the Fourth Amendment
Get PDFThis Note begins by focusing on the technology and procedure of geofence warrants in Part I. Because an understanding of both the technology and procedure is ultimately required to make any headway in later legal analysis, this step is necessary. The heart of the legal analysis is undertaken in Parts II and III.
In Part II, this Note argues that law enforcement requests for location data require a warrant: either because of the expectation of privacy in location data proposed by cases such as Carpenter v. United States or because some courts have found that Carpenter\u27s holding must mean location data should be treated as content, which triggers a statutory warrant requirement under the Stored Communications Act.
In Part III, having established a warrant is necessary, this Note further argues geofence warrants can satisfy the probable cause and particularity requirements of the Fourth Amendment. For probable cause, the government must narrowly tailor the warrant to objective, established facts, avoiding the incidental capture of other users as much as possible. For particularity, in a similar sense, the government must use ex antelimitations on the warrant that restrict the capture of data to only those individual users for whom probable cause has been established, permitting as little officer discretion in the execution of the warrant as possible. Courts view the Fourth Amendment through the lens of what is reasonable: a narrow geofence warrant is better, all things considered. To effectively tackle these complex Fourth Amendment issues, this Note begins with technology and procedure of a geofence warrant itself.
This abstract has been adapted from the author\u27s introduction