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Revocation at the Founding
Get PDFThe Supreme Court is divided over the constitutional law of community supervision. The justices disagree about the nature of a defendant’s liberty under supervision, the rights that apply when the government punishes violations, and the relationship between parole, probation, and supervised release. These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4–1–4 on whether the right to a jury trial applies to revocation of supervised release. Their opinions focused on the original understanding of the jury right at the time the Constitution was ratified.
This Article aims to settle the debate over the law of revocation at the Founding. In the late-eighteenth-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior. Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the sentence for a crime, providing surveillance and reporting on the defendant’s behavior, with violations punishable by imprisonment. Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation proceedings today is to ask whether the common law required a jury for punishing violations of a recognizance.
Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial. This requirement disappeared during the nineteenth century only due to the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment. Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to revocation of probation or parole. The law of revocation at the Founding preserves lost constitutional rights that deserve modern recognition and renewal
Scrutinizing the Bathroom Binary: Equal Protection Theories for Nonbinary Students
Get PDFOver the past decade, transgender students have challenged discriminatory school bathroom policies under the Equal Protection Clause with varying success. But another group of students, facing similar discrimination, has yet to see its day in court. Like their transgender peers, nonbinary students often lack access to gender-appropriate restrooms at school. Many K–12 schools offer only “boys” and “girls” restrooms, ignoring the needs of students who identify as neither boys nor girls, as both of those genders, or as something else entirely. Forced to use sex-segregated bathrooms (or no bathroom at all), nonbinary students suffer adverse health, safety, and educational outcomes. To illustrate pathways to relief, this Note provides an inventory of equal protection claims nonbinary students can make to challenge discriminatory bathroom policies. Each theory—alleging unconstitutional discrimination on the basis of sex, transgender status, or nonbinary status—is promising and limited in its own respect. Independently or together, these theories can support a viable equal protection challenge that triggers heightened scrutiny
Meme Corporate Governance
No full textCan retail investors revolutionize corporate governance and make public companies more responsive to social concerns? Beginning in 2021, there was a dramatic influx of retail investors into the shareholder base of “meme” stock companies such as GameStop, AMC, and Bed Bath & Beyond. Observing the unprecedented, coordinated trading among retail investors, scholars and practitioners predicted that the influx of retail investors would reduce the power of large institutional investors and democratize corporate governance. These predictions were driven by three factors: generational, with assumptions that millennial and Gen Z investors would challenge corporate management; societal, reflecting growing discontent with slow progress on issues such as sustainability and boardroom diversity; and technological, with the advent of easily accessible and user-friendly mobile apps allowing investors to directly intervene in corporate governance. While plausible, these predictions have so far not been tested. This Article empirically analyzes the impact of retail investors on corporate governance, particularly at meme stock companies. We provide new quantitative evidence regarding the origins of meme investing and conclude that—despite their coordinated trading behavior in the market—meme investors have not democratized corporate governance or advanced social issues. The Article presents three principal findings. First, we show how the “meme stock” frenzy was affected by the abolition of trading commissions by major brokerages in 2019. Meme stock companies experienced positive abnormal stock returns when commission-free trading was widely introduced and saw elevated trading volumes afterward. Second, we find that despite the promise of a more active retail shareholder base, meme stock companies experienced a significant decrease in shareholder voting. Shareholder proposals have also been very limited, with most meme stock companies seeing no proposals after the rapid rise in retail ownership. Third, we do not find any improvement in meme stock companies’ corporate governance, financial performance, and social responsibility, as represented by director independence, board gender diversity, ESG scores, and capital and R&D expenditures. Collectively, our findings suggest that the influx of retail shareholders has not translated into more “democratic” governance regimes or encouraged shareholder participation in corporate governance at companies most affected by the meme investor storm
Once More: Digital Services Taxes Should Be Creditable
No full textIn a previous column, I argued that digital services taxes should be creditable as in-lieu-of taxes under section 903. A new analysis by Jane Gravelle sheds further light on this topic but does not change the outcome.
Gravelle makes three arguments against the creditability of DSTs. First, she argues that the whole concept underlying both pillar 1 and DSTs (allocating value to market jurisdictions) is wrong, and therefore they cannot be justified. Second, she argues that DSTs are passed on in full to consumers and that this precludes creditability. Finally, she argues that DSTs are discriminatory excise taxes on U.S. corporations and that this justifies denial of creditability. All these arguments are misguided
Feedback Loops: Upward Appreciation.
No full textWhen was the last time you tried to make your boss feel welcome? Last week? Last month? Never?
How about the last time you tried to make one of your mentors feel welcome? Your mom? Your dad? A particularly helpful pastor, rabbi, imam, or other religious leader
The Broader Lessons of Privacy Law
No full textThis Article explores the trend of privacy—and what kind of techno-social or legal effect ought to count as a “privacy harm”—expanding to encompass a growing set of social factors. This big-tent approach to privacy has several virtues. However, it also comes with a few costs. While others have explored the conceptual and doctrinal tradeoffs that an expansive approach to privacy may entail, this Article focuses on a secondary effect the trend toward expansiveness has had on the relationship between privacy scholarship and legal scholarship more broadly. This Article suggests that the internal expansiveness of privacy means that insights developed within the field that are of general import for the legal analysis of a digital society are being neglected by legal theory more broadly. Much of the recent development in “privacy law” presents a body of legal-theoretical work that, while holding divergent views on substantive conceptions of what privacy is for, shares a common approach to understanding how interpersonal relations and legal institutions are being impacted and remade in—and by—an increasingly digital society. This approach is not only relevant for scholars of privacy law but is generally useful for understanding and analyzing the legal issues that arise in a pervasively informationalized society. Relegating this common approach to even the expansive doctrinal tent of “privacy law” undersells the methodological value privacy scholarship has to offer a wider body of legal scholarly work
Tax Delegation After Loper Bright
No full textThis paper examines the scope of the IRS and Treasury’s tax reg-writing authority after the Supreme Court’s decision in Loper Bright
The Right to Remove in Agency Adjudication
No full textIn SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication to an Article III federal court. This right to remove would avoid the constitutional issues Jarkesy presents while also advancing the goals of agency enforcement and adjudication better than the alternative of only bringing enforcement actions in federal court. Moreover, the SEC could adopt this right to remove now, before the Court decides Jarkesy, through internal administrative law. Congress, of course, could also enact it through ordinary legislation. It is also possible that the Court itself could adopt this remedy in Jarkesy, based on its recent decisions in United States v. Arthrex, Inc. and Axon Enterprise v. FTC
Giving people the words to say no leads them to feel freer to say yes
No full textWe examine how to structure requests to help people feel they can say no (or yes) more voluntarily. Specifically, we examine the effect of having the requester provide the request-target with an explicit phrase they can use to decline requests. Part of the difficulty of saying no is finding the words to do so when put on the spot. Providing individuals with an explicit script they can use to decline a request may help override implicit scripts and norms of politeness that generally dictate compliance. This should make individuals feel more comfortable refusing requests and make agreement feel more voluntary. Hence, we hypothesized that telling people how to say no (by providing them with an explicit script) would make compliance decisions feel more voluntary above and beyond merely telling them they can say no. Across two experimental lab studies (N = 535), we find support for this prediction