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A Central Counterterrorism Coalition: An Analysis of Intelligence Sharing and the Challenges it Faces in the European Union
Get PDFEstados Unidos Mexicanos v. Smith & Wesson Brands, Inc. et al.: How American Exceptionalism Emanates Beyond its Borders
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Regulating History
Get PDFAmerica’s local historic commissions collectively wield tremendous influence over millions of privately-owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state governments, which have declined to offer robust legal protections to private historic sites.
Litigation challenging local historic decisions and press vilifying commissions for their alleged elitism, anti-environmental decisions, and general obstruction of progress have put preservation in the contemporary crosshairs. While we align with those who believe that clear-thinking commissions can successfully mediate between the past and the present for the sake of the future, we decline to wade deeply into these debates. Instead, we expose an uncomfortable truth: neither opponents nor supporters have a full grasp of local historic preservation law.
This Article peels back the curtain, revealing for the first time the broad reach and deep control of local regulation over private property and, by extension, our built heritage. The Article offers a meticulous census of over 3,500 local ordinances, comprehensively analyzes enabling authorities across all fifty states, explores the extent to which demographic and political factors correlate with local adoption, and delves deeply into the content of over 300 local ordinances. Just as importantly as this comprehensive analysis, this Article fills a gap in the sparse literature on local administrative law, using new empirical data to illuminate the commonality of particular procedural and substantive regulatory levers; the complicated dynamics between federal, state, and local governments; and the ambition and motives of local regulators.
This Article provides the first nationwide empirical basis for current debates about local historic district commissions, proving that these commissions are both surprisingly common and surprisingly influential over private property. It also offers insights with practical implications for the preservation field and theoretical implications for administrative legal theory
From Powell to Present: Defining the Right to Counsel Beyond Rothgery
Get PDFEvery morning in jails across America, new arrestees are woken up and ushered into a courtroom to be heard on their re- lease. Some might be coming down from a high, dealing with the consequences of binge drinking, or distressed about what this arrest might mean for their future. No matter the condition in which these defendants arrive to court, many will be forced to represent themselves and plead their own case for release without ever having spoken to an attorney. This leaves the defendant at risk of being detained pretrial, incriminating themselves in the courtroom, or even pleading guilty on the spot to avoid more jail time. Unfortunately, the initial appearance is not the only time a defendant may be placed in this position. Any time a hearing is not deemed “critical” by the courts, a defendant may find them- selves alone in a courtroom opposite a prosecutor and a judge, without legal representation of their own. And nearly no jurisdiction offers defendants a remedy if that uncounseled hearing seriously harms their case.
The Sixth Amendment guarantees certain fundamental rights that are at the heart of the American criminal justice system: the right to a speedy and public trial, the right to an impartial jury of your peers, the right to know the accusations against you, the right to confrontation, the right to compulsory process, and the right to assistance of counsel. Thanks to Miranda, the right to assistance of counsel may be the most widely known of these guarantees, but most do not know what that right actually entails. When the Supreme Court handed down their 2008 decision in Rothgery v. Gillespie County, many commentators saw it as finally clarifying the right to counsel. However, this supposed clarity has left lower courts divided on whether the initial appearance in court, as well as other post-attachment proceedings, qualify under the Sixth Amendment’s right to counsel guarantee.
This Note examines the post-Rothgery right to counsel and the issues with continued confusion in the lower courts about what the right entails. Ultimately, the Note argues for a new rule: that every hearing in front of an officer of the court qualifies as a “critical stage” of the proceedings requiring appointed counsel. This bright-line rule provides a simple solution for the decades-old problem of trying to figure out which hearings require counsel, and which do not. It also offers sufficient protection for defendants in jurisdictions that do not currently guarantee the right through the courts. Having representation at that initial appearance can affect every other aspect of how a case proceeds, and thus no defendant should be compelled to stand up in a courtroom without an attorney by their side
There Is No Such Thing as Circuit Law
Get PDFLawyers and judges often talk about “the law of the circuit,” meaning the set of legal rules that apply within a particular federal judicial circuit. Seasoned practitioners are steeped in circuit law, it is said. Some courts have imagined that they confront a choice between applying the law of one circuit or another. In its strong form, this idea of circuit law implies that each circuit creates and interprets its own body of substantive law that is uniquely applicable to disputes that arise within the circuit’s borders. This article argues that the notion of circuit law is nonsensical and undesirable to boot. Federal circuit courts of appeals do not create or apply their own bodies of law. Instead, they interpret and apply a uniform body of federal law, and their interpretations are subject to reversal by the Supreme Court. To conclude otherwise would deeply undermine the animating purpose of federal law: national uniformity. To be sure, courts of appeals issue decisions that can have binding effect not only on the parties before them but also on litigants in future cases, lower courts within the circuit, and even future panels of the same court. But those effects are produced by the rules of horizontal and vertical stare decisis. They do not derive from the existence of a unique body of “circuit law” that must be applied in certain cases, in the same way that federal judges must apply state law in diversity cases. Much of the time, practitioners’ reference to “circuit law” is an understandable shorthand for the body of circuit precedent on an issue. But not always, and that’s where the trouble starts. In recent decades, many courts of appeals have begun conceiving of their body of collective precedent as something more, something akin to a body of substantive law in the choice-of-law sense. Call this the “myth of circuit law.” The myth has led courts and commentators astray across such diverse areas of law as patents and trademarks, qualified immunity, venue and multidistrict litigation, and administrative law. Widespread issues like the Federal Circuit’s refusal to answer novel and important questions of federal law for itself, and nearly every circuit’s artificially narrow approach to determining what constitutes clearly established law, can be traced to the myth of circuit law. This article identifies and unpacks the myth of circuit law in three ways. First, it traces the institutional changes that set the stage for the myth of circuit law to take root. Second, it illustrates the mischief the myth has caused and makes the doctrinal case for why the myth is just that. Third, it builds a pair of theoretical arguments for why the myth is inconsistent with our system of judicial federalism
Independence Reconceived
Get PDFWhat makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing at the job they were championed to do.
This Article addresses this puzzling tension, offering a novel theoretical and practical reframing of the decades-old discourse around independent directors. The historical focus on the classical managerial agency costs paradigm emphasized that directors who lack ties to the management team can prevent managerial slack or value extraction. However, this approach overlooks the critical role directors also have in curbing managerial overzealousness. In today’s governance ecosystem, directors are not only tasked with preventing managerial slack. They are increasingly tasked with preventing managerial overreach and misconduct even when such overreach or misconduct is compatible with promoting shareholder value. This has important theoretical and practical implications.
This Article makes two key contributions to the literature. First, it reframes the question of what makes directors independent by supplementing the focus on agency costs as the driver for independence. By identifying a need to prevent boards from rubber-stamping managerial actions—even those taken in good faith—this Article suggests that a simple lack of ties to management fails as a litmus test for independence. Second, by reconceiving independence, this Article also provides tangible credence to the value of diversity on boards, the value and perils of hedge fund activism, and to the emerging discourse regarding ESG and stakeholderism
The Value of Understandable Consumer Insurance Contracts
Get PDFInsurance consumers, the intermediaries who serve them, and the regulators who protect them all would benefit from understandable consumer insurance contracts. This article outlines the benefits of understandable insurance contracts, identifies the regulatory tools that are or can be used to ensure such comprehensibility, and reviews the existing literature about how well consumers comprehend their insurance policies within the context of personal lines insurance in the U.S. The article concludes by proposing an empirical research strategy to study consumers’ understanding of the terms of homeowners insurance policies and, even when they have not read their policies, their expectations about coverage
