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Where Do Families Come From? The Law of Family Definition
Full text linkWhy does the law recognize families? Sometimes family recognition serves to foster cooperative communities in which sharing norms, more than the market or the government, determine rights and obligations. These communities often take care of dependents and serve as important sources of individual self-determination and pluralism. At other times, family delineation serves a corrective purpose, when it forces family members who are not sharing with each other to do so. At still other times, family delineation serves a distributive purpose, as when the law uses “family” definition to distribute resources to determine an intended beneficiary. This use of “family” for assumptive purposes helps distribute either public or private resources efficiently and appropriately.
In the constitutional jurisprudence of the family, the Supreme Court has rarely acknowledged these different purposes for defining family even as it has adopted, without explaining, different definitions of family in different contexts. This Article argues that the different purposes served by family delineation help explain why the Supreme Court has been so willing to embrace different definitions of family. Contrary to what the Supreme Court has said, whether a statute or program “slices into” or “infringes on” the definition of family is not an important question. All legislation that impacts families does that. The important question is whether a particular definition of family is appropriate in light of the governmental purpose served by family in that context. In explaining why one must consider context before deciding on the appropriate definition of family, this Article shows that the Supreme Court’s application of constitutional doctrine in the family context has been confused because it has been premature. One cannot determine what either the equal protection or due process rights of family members are unless one knows what a family member is. How the Court has determined what a family member is can—and this Article argues should—turn on the purpose family delineation is serving in different contexts
Garrity Immunity and the U.S. Armed Forces
Full text linkThe U.S. military is one of the nation’s largest and most important public employers. Given the unique nature of military service, the service branches have a strong interest in ensuring the integrity of their ranks. Yet the military lacks a critical force-management tool used by every other public employer to investigate workplace misconduct: the ability to demand answers to potentially incriminating questions under Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity solution, known as “Garrity immunity,” strikes a critical balance between the government’s interests in workplace oversight and accountability with the employee’s Fifth Amendment right against self-incrimination by immunizing the employee’s statements from being used in any future criminal prosecution. Given that service member misconduct and on-the-job mishaps can have grave consequences in the military, Garrity has the potential to serve as a critical tool for the military commander.
This Article contends that despite the military’s separate and unique justice system and the increased protections against self-incrimination afforded to service members, as a matter of law, nothing prohibits the application of Garrity immunity to the military. Thus, this Article argues that, in certain circumstances and with appropriate safeguards, allowing military commanders to compel service members to answer questions that are directly related to their official duties under threat of administrative separation could promote the commander’s goal of achieving justice, good order and discipline, and the mission-readiness of his or her unit
Clark Memorandum: Spring 2024
Full text linkFacing Fear with Faith The Great Law(s) of Peace Grace in the Law Schoolhttps://digitalcommons.law.byu.edu/clarkmemorandum/1074/thumbnail.jp
Corpus Linguistics and the Original Meaning of the Sixth Amendment
Full text linkThe Sixth Amendment guarantees the right of an accused to have the assistance of counsel in a criminal prosecution. Put simply, under the U.S. Supreme Court’s current framework, an accused does not enjoy this right until the government has brought a formal charge. Thus, an accused who engages in plea bargaining before being formally charged is not guaranteed the Sixth Amendment right to counsel. Many critics of this framework focus on the purpose of the Sixth Amendment to argue that the right to counsel should be guaranteed in pre-charge plea bargaining. Others point to policy concerns.
This Note is among relatively few to perform an in-depth analysis of the original public meaning of the Sixth Amendment’s right to counsel provision and is the first scholarship to employ corpus linguistics in that analysis. The Sixth Amendment guarantees an accused the right to counsel in “all criminal prosecutions.” Using corpus linguistics, this Note finds strong evidence that Founding-era Americans ordinarily understood “prosecution” to occur only after a formal charge was brought against an accused. Therefore, the right to counsel in pre-charge plea bargaining is likely not guaranteed under the original public meaning of the Sixth Amendment
The Harm in the Fiduciary Myth
Full text linkFiduciary law has become the doctrine of choice in scholarship aiming to protect vulnerable parties from powerful decisionmakers. But fiduciary law cannot fill all the gaps in those impersonal, public relationships because the beneficiary class is large, disparate, and widely dispersed. Public leaders and decision makers cannot zealously pursue the interests of all parties vulnerable to their decision making and they are often driven by various personal interests in choosing which set of beneficiary interests to prioritize. The persistent myth that leaders of large groups are fiduciaries and that fiduciary obligation is the answer to all power imbalance problems harms the very people it claims to protect.
This Article is the first to argue that the fiduciary myth is harmful. The myth is most prevalent in corporate governance, in the notion that corporate directors owe fiduciary duties to the corporation and its shareholders. The move to replicate corporate fiduciary duties in other settings is misguided because the fiduciary myth undermines, rather than promotes, ethical director behavior in corporate law. It would do even worse in other public relationships. Trustworthiness, not fiduciary loyalty, is the character trait the law should work to inculcate in public leaders and decision makers. Fiduciary doctrine obscures trustworthiness. The threat of fiduciary litigation makes the supposed fiduciary relationship adversarial. It sets the parties at odds with each other, when the goal is supposed to be to align their interests and to encourage empathy on the part of those in power.
Attempts to adapt fiduciary obligation to the contexts of other public relationships can only replicate the harms of the fiduciary myth. Suggestions to export fiduciary principles are well-intentioned. But good intentions alone do not effective solutions make, and such suggestions often do more harm than good when they over-promise and underdeliver
Inequity in Equities: SPACs and the Expansion of the Retail Market
No full textFederal securities law creates a divide between the haves and the have-nots: On one side are the wealthy, who can invest in private companies; on the other side stand the rest of us, noses pressed up against the glass. Ordinary (or retail) investors are on the outside looking in because generally they can only invest in companies after they have gone public. Even the traditional process of going public typically keeps coveted initial public offering (IPO) shares in the hands of the rich. Put differently, even as a private firm debuts on the public markets, the wealthy take their cut before everyone else can get a taste.
Special purpose acquisition companies (SPACs) invert the traditional process by using a merger, rather than an IPO, to bring a private company public. In doing so, they allow the public access to those private companies the conventional IPO denies them. But today SPACs are in decline, due in part to pressure from scholars and regulators who argue that SPACs are nothing more than back-door IPOs.
Bucking the dominant narrative, we argue that SPACs are more than disguised IPOs. Indeed, their innovation is to radically expand the investment opportunities available to ordinary investors. Thus, SPACs offer a rare chance to reevaluate core assumptions underpinning the U.S. public securities markets — chief among them, that the law must prevent average investors from investing in anything but publicly traded securities. SPACs create a revolutionary public market in information about still private companies, a situation unseen since before the Securities Act of 1933. In this Article, we use hand-collected data to empirically examine what this public market for private firms looks like. We argue that, with much-needed reform, SPACs could offer a viable, valuable, and more democratic alternative to the traditional IPO
