16885 research outputs found
Sort by
Beating Justice: Corporal Punishment in American Schools and the Evolving Moral Constitution
Get PDFThis Note will discuss the Supreme Court’s holding in Ingraham v. Wright, and the subsequent developments in public school corporal punishment practices. Rather than focus exclusively on the case law, this Note will dive into the statistical data outlining which students are most often subjected to corporal punishment. Often, it is Black students and Autistic students who are subject to the harshest treatment.
This Note will outline the different avenues that courts could and should take to overrule Ingraham. Because a circuit split exists—on the issue of how to resolve these claims—overturning Ingraham and declaring corporal punishment per se unconstitutional would provide much needed relief to public school students across the country. There are viable Eighth, Fourteenth, and Fourth Amendment challenges. Each will be discussed in turn. In a time where public education is dealing with residual issues related to the coronavirus pandemic, teacher shortages, and severe underfunding, corporal punishment needs to be removed from the disciplinary toolkits of teachers and administrators. Fundamental fairness demands that Ingraham be seen as what it is—a sign of times long past. Our evolving standards of decency demand a rejection of public-school corporal punishment
The Article III Party and the Originalist Case Against Corporate Diversity Jurisdiction
Get PDFFederal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.
In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.
Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And so corporate litigants might preserve their access to diversity jurisdiction if that jurisdiction can vest through diverse shareholder citizenship.
In this Article, we consider whether corporations can indeed preserve access to diversity jurisdiction through this route. We conclude they cannot. From an originalist perspective, shareholders are not parties to Article III “controversies” that proceed in the corporate name. In such controversies, shareholder citizenship cannot establish diversity jurisdiction.
The result of our analysis is that corporations are not citizens, and they normally can’t use shareholder citizenship to access diversity jurisdiction either. It follows that general corporate diversity jurisdiction is not authorized by the constitutional text
Comparing & Contrasting Economic and Natural Law Approaches to Policymaking
Get PDFEric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap in Claeys’s book is its failure to acknowledge and analyze the modern law of nuisance with its enriched set of remedies capable of making everyone a winner. At a macro level, Claeys (like most other natural law theorists) offers no substantive case against redistribution as an optimal method for addressing the fact that charity is a public good. The book, again in keeping with the natural law tradition, eschews any serious empiricism—indeed not a single argument it makes contains any empirical support. This is a fatal flaw for anyone with the ambition to offer practical advice on tougher property law issues for which the right answers depend on myriad social parameters whose values lie beyond the reach of deduction
The Tesla Meets the Fourth Amendment
Get PDFCan police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly extract data stored in a vehicle’s infotainment system.
This Article’s contribution is important and timely. Police in multiple states have already extracted basic digital data from cars without a warrant. As Tesla and other smart cars become ubiquitous, police departments will be tempted to use more sophisticated data extraction tools to examine private cell phone data without first obtaining a warrant. Because the Supreme Court moves extremely slowly in addressing the legality of high-tech searches, this article argues that Congress and state legislatures should amend outdated privacy statutes to require police to obtain search warrants before extracting private cell phone data from a vehicle’s computer system
Mining and the Protection of Aboriginal Heritage in South Australia
Get PDFIn 2020, the multinational mining company Rio Tinto destroyed 46,000-year-old Aboriginal rock paintings in Juukan Gorge, Western Australia, to national and international outrage. The incident led to an explosion of concern in Australia regarding the adequacy of domestic laws that aim to protect Aboriginal cultural heritage from the impacts of resource exploitation. This Article explains and critically analyzes the legislative and regulatory framework for the protection of Aboriginal heritage in relation to mining in South Australia. It demonstrates the complexity of the legal and regulatory regime, identifies a number of significant flaws in the key act designed to protect Aboriginal cultural heritage—the Aboriginal Heritage Act 1988 (SA)—and discusses options for, and barriers to, legal reform
Blockchain Real Estate and NFTs
Get PDFNon-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.
In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized ownership and local land records that still, in many jurisdictions, rely on paper. We explain the history of real property title protection and then identify the problems with the existing system. We then compare the extant system (and its problems) with what blockchain could offer, concluding that a blockchain system would provide few, if any, benefits.
That said, we concede that tracking and transferring ownership of certain rights—specifically, purely intangible rights—is a longstanding legal problem that begs for resolution. We focus on ownership signals and contrast ownership of physical assets—which is broadcast in part by manual possession in addition to, in the real estate realm, recording—with ownership of intangible assets, which cannot be possessed in a way that easily gives a signal to the entire world that the possessor is the owner. Because of that difference, we conclude that the true use case for NFTs and distributed ledgers is in tracking and verifying ownership of intangibles
Digital Asset Regulation: Peering into the Past, Peering into the Future
Get PDFBlockchain is often compared to the internet as a disruptive technology that will realign economic structures across the world. This analogy extends to law and regulation. Similar to internet-based services, digital assets raise a host of challenges for policymakers. They also pose general questions regarding the desirability and practicality of regulating decentralized systems. Such debates play out against a backdrop of concerns that regulatory action will chill innovation or push market activity to more tolerant jurisdictions. The story of internet policy in the late 1990s and early 2000s therefore provides important lessons for policymakers today when confronting digital assets. Two incidents are of particular significance: the Clinton administration’s 1997 Framework for Global Electronic Commerce and the judicial effort to address peer-to-peer (P2P) file sharing.
The early internet regulatory debates demonstrated that action by all three branches of government was important to resolve uncertainties and distinguish legitimate from illegitimate market activity. The history illustrates that policymakers have many tools at their disposal beyond direct prohibitions or exclusions from requirements. Claims that regulation is inherently impossible or damaging to market development are generally overblown. Focusing on policy objectives, rather than starting from traditional categories that were historically developed based on those objectives, will help policymakers develop appropriate rules for novel digital asset markets such as decentralized finance (DeFi)
Death of a Corporation: How a Seemingly Innocuous Probate Provision Can Fundamentally Undermine the Corporate Form
Get PDFImagine that you are assisting the surviving shareholders and officers of a corporation in settling affairs with the estate of a deceased shareholder. In a corporate governance dispute that ensues, the estate representative uses a seemingly innocuous probate provision allowing him to “continue any business” of the deceased to petition the probate court for direct control of the corporation. You find that there is little statutory or jurisprudential guidance on coordinating that probate provision with longstanding corporate governance requirements that directors, not shareholders, directly manage corporate affairs. This Article explores the unintended consequences of allowing a misplaced but literal reading of probate codes to provide the above-referenced estate representative power to “continue any business” of the decedent but failing to clarify the meaning of that provision in coordination with the fundamentals of American corporate law. Core corporate governance principles require that shareholders elect directors who then manage corporate affairs, not the shareholders themselves. Allowing the estate representative to “continue any business” of the deceased, even a corporation, undermines core corporate governance principles and risks, inter alia, corporate veil-piercing exposure. This flawed default probate provision poses specific risks to small, unsophisticated businesses that lack the resources to engage in costly litigious efforts to clarify the relationship between the corporate and probate codes. These small businesses are also most susceptible to the referenced liability exposure associated with corporate veil piercing for failure to follow corporate governance requirements. This problem can be remedied statutorily by clarifying the probate provision’s subordination to the respective state’s corporate law. The Article highlights approaches employed by Delaware, New York, California, and other leading business jurisdictions whose probate provisions wholly or partially provide better clarity regarding the coordination of probate and corporate law, remedying the described problem
The Tide\u27s Coming In: A New Case for Beachfront Property Rights in South Carolina
Get PDFPart I of this Note explores the scientific data as it relates to the impending consequences of climate change on South Carolina’s coast and will introduce the disastrous scenarios that are predicted to arise as a result of rising sea levels and the accelerating strength and severity of extreme weather events. Part II compares the effectiveness of various coastal resiliency tools and highlights the regulatory framework that prohibits their use by beachfront property owners. Part III explores the topic of regulatory takings and their indirect prophylactic nature of protecting citizens from regulatory overreach and offers a case for a South Carolina court to find that the state’s regulations create an unconstitutional taking of private property without just compensation. Lastly, Part IV recommends a policy change designed to mitigate the consequences of the CTWA [Coastal Tidelands and Wetlands Act] on South Carolinians in the absence of a judicial finding that the CTWA constitutes a regulatory taking.
This abstract has been taken from the author\u27s introduction
A Prophylactic Approach to Compact Constitutionality
Get PDFFrom COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.
The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read the Compact Clause out of existence. Scholars have offered substitute standards. But those efforts serve to corroborate the analytical point on which current caselaw rests: that the infinite variety of ways in which states can collaborate makes separating constitutionally suspect from safe agreements impossible.
This Article presents a prophylactic path forward focused not on what “any Agreement or Compact” means, but on how “the Consent of Congress” works. It argues that Congress should encourage possible-compact reporting by establishing a system where submission plus silence can equal consent. This approach is prophylactic because it avoids difficult constitutional questions by preventing debatable constitutional violations. And it does so while preserving much of the state-favoring functionality of the current system. The Article contends that this approach makes theoretical sense given situations supporting regulatory safe harbors and juridical and political sense given court and congressional precedent. It also argues that the proposed approach facilitates balancing the efficiency, democracy, and community values underlying regional-governance mechanisms better than the current system does