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Revolutionizing Regionalism: From Special-Purpose to Multipurpose Governance
Full text linkIn the United States, states create general-purpose governments, such as cities, towns, and counties, to provide a multiplicity of public services. States also rely upon special-purpose governments, also called districts and public authorities, to undertake a specific governmental function when local general-purpose governments lack the geographical flexibility, the legal authority, or the financial resources to provide it. The 2022 United States Census of Governments reports that the 39,555 special-purpose governments, excluding the 12,546 school districts, now outnumber the 35,705 general-purpose governments. After discussing the characteristics and drawbacks of special-purpose governments, this Article argues that states should replace them in favor of multipurpose regional governments. Unlike a single-function, special-purpose government, a public body empowered to undertake multiple functions throughout a regionally scaled area would integrate planning and alleviate the difficulty of coordinating with all local governmental entities operating within it. A combined, regional body with fiscal powers and attendant political capital greatly improves the country’s environmental protection, economic growth, and equitable delivery of services. Only a regional government, hydrologically based and covering both urban and rural areas, possesses the capacity to manage the natural and built environments in a sustainable manner. The Article foresees several pathways for a more robust regionalism through regional agencies’ multifunctional planning, special-purpose government consolidations, joint power authorities with strong multifunctional performances, and the response to cataclysmic events
Debt Tokens
Full text linkThe worlds of crypto and bankruptcy have collided. Once-prominent, fastgrowing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-tocollect claims against these defunct platforms.
Amid the chill of the crypto winter, bankruptcy has unexpectedly emerged as a crucible for innovation, giving rise to a new digital asset: debt tokens. Entrepreneurs have responded to the tidal wave of trade debts arising from the insolvencies of crypto platforms by embarking on a mission to create blockchain-based digital assets that represent bankruptcy claims. They present debt tokens as cutting-edge devices for swiftly and advantageously liquidating these distressed assets. Yet, the pressing question is this: are these debt tokens actually useful innovations or yet another hollow promise?
This Article offers the first comprehensive analysis of debt tokens, making three seminal contributions. First, we scrutinize existing debt token offerings, laying bare their inherent flaws and casting doubt on their legitimacy. Second, we explore the potential for genuine debt tokens within the framework of the recently adopted 2022 amendments to the Uniform Commercial Code. Lastly, we delve into the broader socio-economic implications of widespread debt token adoption. Specifically, we anticipate debt tokens fostering more effective collective action and improved exit opportunities, particularly for those creditors who traditionally fare the worst in bankruptcy due to having fewer resources and pressing financial needs. However, we also caution against the looming risks of irrational speculation and the exploitation of inexperienced retail investors blinded by the bright lights of innovation
Consumers\u27 Unreasonable Textual Expectations
No full textThe Restatement of Consumer Contracts, at § 4(d), states that standard contract terms are interpreted in a manner that effectuates the reasonable expectations of the consumer. As the Reporters note, this language derives from the Restatement (Second) of Contracts § 211, itself largely pulled from the insurance context. As § 211 was until recently thought to be nearly dead-letter, the Consumer Restatement\u27s interest in revitalizing the reasonable expectations rule (for interpretation and elsewhere in the document) is of particular interest. The Reporters offer a helpfully capacious definition of what consumers reasonably expect: a totality of the circumstances, test in consideration of the ordinary behavior and perspective of consumers engaged in the type of transaction at issue and their interaction with the business, including the representations made to them, the typical purpose of such transactions, and the preservation of value of the nonstandard or core terms of the deal. But it\u27s fair to worry that judges will be unable to reliably make this kind of holistic determination in individual cases, as they lack information about consumers\u27 ordinary practices. In this Essay I summarize the available evidence of what consumers have in mind when they interpret contracts, and the methodological options judges have before them in making reasoned determinations. Contrary to advocates\u27 hopes, § 4(d)\u27s interpretation principle will be-even if adopted-unlikely to produce uniformly pro-consumer outcomes
Corporate Rulers and Their Councils: Are Directors Becket or Cromwell when Dealing with Controlling Shareholders
No full textA core function of corporate law is to prevent those controlling the company from enriching themselves at the expense of the investing public. This presents a particular challenge when the party potentially controlling the company is a shareholder with the votes to elect or remove the directors. Because the law gives directors, not shareholders, official control over the corporation, courts must decide when they can trust directors to stand against overreaching by such a shareholder, and when they should instead scrutinize board decisions involving the shareholder to prevent abuse. Unfortunately, corporate law in the leading state of Delaware is utterly schizophrenic in dealing with this question—a situation made worse by just enacted legislation in the state.
This article responds to the problem with a straightforward solution. The solution begins with consistently applying a presumption that the power of a shareholder to select directors equals the ability of the shareholder to control those directors. Accordingly, those directors presumptively lack the independence in dealing with the shareholder that would justify the court deferring to them. To rebut the presumption, this article proposes following the notion that independence is as independence does. This entails looking at whether the director has a record of saying no to a shareholder with the power of selection. Following this approach will dramatically reduce the confusion and inconsistency in this area of law and substantially improve protection of the investing public, especially in light of the greater trust placed in directors under just enacted Delaware legislation dealing with controlling shareholder transactions
The Illusion of Democracy—Why Voting in Decentralized Autonomous Organization Is Doomed to Fail
No full textThis article presents the first in-depth analysis of the reality of voting within Decentralized Autonomous Organizations (DAOs) by examining over 4,963 voting events through a combination of quantitative and qualitative research methods.1 DAOs have risen to prominence as an innovation in business organization models, with advocates highlighting their potential to offer democratic, non-hierarchical governance, lower agency costs, and evade regulatory oversight. However, this study reveals that DAOs are inherently susceptible to low voter participation, contradicting their decentralized ethos by potentially centralizing decisionmaking power and casting doubt on their democratic promise. These findings carry significant implications for the classification of DAO tokens as securities, hinging on their genuinely decentralized decision-making attributes. This article suggests policy interventions to stimulate voter engagement and foster genuine decentralization. Additionally, it introduces a novel regulatory framework—the “probationary business classification”— for DAO classification which considers the dynamic nature of DAO governance. This approach seeks to reconcile the decentralized ambitions of DAOs with the realities of their operational structures, potentially reshaping the regulatory landscape for DAO tokens
A Minor Privacy Issue? A Discussion of the Standard Contract for the Cross-Boundary Flow of Personal Information within the Greater Bay Area and Its Potential Impact on the Processing of Mainland Chinese Minors\u27 Personal Information
No full textThe Greater Bay Area is a geographic and economic zone comprising several large cities in Southern China as well as the special administrative regions of Hong Kong and Macao. The Standard Contract for the Cross-Boundary Flow of Personal Information within the Greater Bay Area (GBA SCC), which took effect in 2024, provides a streamlined path for cross-border data flow between designated cities in Southern Mainland China and Hong Kong by simplifying and reducing certain previous requirements. Since the GBA SCC’s introduction, the legal community has focused primarily on the contract’s broad implications for data processors, particularly on how the new contract will ease cross-border data transfers for Mainland Chinese firms. However, there has been little discussion of the GBA SCC’s impact on the protection of the data itself. This Comment focuses on a subset of data: the personal information of minors. What are the implications of the relaxed provisions of the contract on the handling of Mainland Chinese minors’ personal information transferred to Hong Kong?
This Comment argues that the relaxed provisions of the GBA SCC potentially expose Mainland Chinese minors’ personal information transferred to Hong Kong to less protection than provided under relevant Chinese data protection laws and other cross- border data transfer mechanisms. However, this Comment’s contribution lies not only in what it reveals about the GBA SCC itself, but also in what it proposes to best balance priorities of economic development and integration with data protection. In reaching this conclusion, this Comment first compares the legal protections in place for minors’ personal information in Mainland China and Hong Kong and discusses the potential historical, societal, and political factors that contributed to the divergent developments in these two regions. This Comment also discusses the economic push factors behind the promulgation of the GBA SCC, which will provide context for later policy proposals. In its conclusion, this Comment proposes two distinct, though not mutually exclusive, solutions. The first is to amend the terms of the GBA SCC, and the second is for Hong Kong to adopt stricter measures for the processing and handling of minors’ personal information. The benefits of adopting such protections go far beyond the context of the GBA SCC and bring Hong Kong in line with protections offered by other regions such as the European Union
Truth and Technology: Deepfakes in Law Enforcement Interrogations
No full textThe increasing deployment of generative artificial intelligence (AI) in law enforcement raises pressing theoretical and normative questions, particularly regarding its potential to infect a critical aspect of a police investigation, the custodial interrogation. A central issue is whether, and to what extent, police may lawfully employ generative AI tools to induce confessions from suspects during custodial questioning.
Historically, courts have permitted law enforcement officers to use certain deceptive tactics during interrogations without running afoul of constitutional protections. Permissible forms of deception have included the presentation of falsified forensic evidence, fabricated witness statements, and pretend polygraph results. These methods, though controversial, have long been accepted as part of the strategic repertoire of law enforcement, on the premise that they do not overbear the suspect’s will to a constitutionally impermissible degree.
However, the advent of generative AI introduces new dimensions of manipulation that may significantly intensify the inherent compulsion of a custodial interrogation. AI-generated deepfakes —synthetic audio, video, or images that appear convincingly authentic—can be used to fabricate incriminating evidence with unprecedented realism. Imagine a scenario in which police confront a suspect with a deepfaked video depicting a purported eyewitness who falsely claims to have observed the suspect committing the crime, or a video of an “accomplice” confessing and implicating the suspect. Such fabrications, made possible by AI, could profoundly distort a suspect’s perception of the evidence against them, potentially exceeding the bounds of due process and exacerbating the potential for false confessions.
Beyond the presentation of false evidence, generative AI may also enable real-time interrogation enhancements. Advanced models may soon analyze inputs, such as a suspect’s facial expressions, vocal tone, posture, and demographic characteristics, and generate immediate feedback or strategy suggestions for interrogators. These AI-driven analytics could guide law enforcement toward more psychologically effective, and possibly more coercive, techniques tailored to the individual suspect. The potential use of such data-driven, adaptive interrogation strategies raises serious concerns under established voluntariness jurisprudence.
To address the unprecedented risks posed by generative AI in the interrogation context, courts should adopt a clear and administrable per se rule: that the use of fabricated evidence generated by AI to elicit a confession renders that confession involuntary. As generative AI enables increasingly persuasive and deceptive forms of evidence fabrication, a categorical prohibition on its use in custodial interrogations is both doctrinally sound and normatively imperative. This approach would preserve the integrity of the criminal justice system and ensure that constitutional protections remain robust in the face of rapidly advancing digital manipulation
Solving the Aggregate Liability Problem
Full text linkHere is a familiar legal problem: First, a statute prescribes a damage award for each violation of its terms. Second, a plaintiff sues an individual or small business that has committed many minor violations of the statute. Third, the jury multiplies the defendant’s number of violations by the statute’s per-violation award, imposing an enormous aggregated judgment capable of bankrupting the defendant. Finally, the trial judge unilaterally reduces the jury award, calling it unreasonable or disproportionate to the defendant’s conduct. This dynamic may be a problem in the sense that the damage award is in fact unreasonably large. But it is also a problem in the sense that the judge’s decision to reduce the award subverts the clear terms of the statute. This Note is the first to canvas the tools used by federal district court judges to address this “aggregate liability problem.” It identifies six such tools: three constitutional tools (substantive due process, procedural due process, and the Excessive Fines Clause) and three non- constitutional tools (statutory interpretation, remittitur, and discretion in class certification). The constitutional tools, it argues, are legally suspect and unhelpful at addressing the problem. The non-constitutional tools, by contrast, are appropriate and useful in some circumstances. The Note concludes by considering measures Congress could take to resolve the aggregate liability problem at its source
Presidential Disability and Mandatory Removal
Full text linkPresidents often develop physical and mental impairments during their tenure in the White House. While certain impairments have a neutral or even positive effect on a president’s leadership capacity, others severely diminish it. Does such diminished leadership violate the Constitution? This Comment answers that question by advancing three novel claims. First, the Constitution imposes on the President duties to personally direct and supervise the executive branch. Second, certain kinds of severe impairments make the President unable to direct and supervise, thereby causing a breach of duty. Third, to remedy that breach, the President must resign or voluntarily transfer power to the Vice President using Section Three of the Twenty- Fifth Amendment. If the President will not resign or transfer power, the Vice President and Cabinet must replace the President using Section Four of the Amendment. And if the Vice President and Cabinet will not use Section Four to replace the President, Congress must impeach and remove the President. By reframing presidential disability as an issue of duty and breach, this Comment delineates a clear boundary between circumstances in which the President’s removal is optional and those in which it is constitutionally compelled