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Nevadaware Divergence in Corporate Law
Full text linkThe differences between Nevada and Delaware corporate law - which I call Nevadaware divergence - are the subject of media attention, scholarly critique, and current litigation. Nevada corporate law has a reputation as being a no-liability Zone where officers and directors are free to defraud stockholders without consequences. My goal in this article is to inform a more fulsome understanding of Nevada corporate law, both substantively and theoretically, as compared to Delaware corporate law). Starting with the premise that Nevada corporate law is more nuanced than common wisdom suggests, I highlight Nevadaware divergence - not only about substantive corporate law-but also about each state\u27s balance of the competing policies underlying corporate law. I explore the ebb and flow of the relationship between Nevada and Delaware corporate law, from the days of copycat-ism to the current era of Nevadaware divergence, and I deeply analyze three areas in which Nevada and Delaware corporate law\u27 diverge: exculpation, appraisal, and freeze-out mergers. Based on my analysis, I assert several new perspectives about Nevadaware divergence on substantive corporate law\u27, including the controversial argument that breaches of the duty to act in good faith are not exculpated in Nevada. Drawing from Nevada and Delaware\u27s different choices about the appropriate balance of the competing polices underlying corporate law, I also offer a broader perspective on the policies underpinning Nevada corporate law. In short, across the board, Nevada- to a greater degree than Delaware- prioritizes the policy goals of minimizing the negative impacts of potential monetary liability on officers and directors (such as disincentivizing qualified individuals from serving or making risky decisions) over the competing policy goals of deterring breaches of fiduciary duty, compensating stockholders and corporations for fiduciaries\u27 breaches, and incentivizing minority stockholder protections
RESTORING THE PUBLIC INTEREST COMPONENT OF THE PRIOR APPROPRIATION DOCTRINE IN CONJUNCTIVE MANAGEMENT OF THE EASTERN SNAKE PLAIN AQUIFER
Full text linkTHE IMPACT OF COUNTERMAN V. COLORADO ON STALKING PROSECUTIONS IN IDAHO
Full text linkThis Note reflects on the recent United States Supreme Court decision in Counterman v. Colorado, which held that in order to find liability for true threat crimes the state or plaintiff must prove the defendant’s subjective intent to threaten the recipient. The holding creates a new, additional burden on the movant to prove intent, where before, the majority of state and circuit courts only required an objective, reasonable person standard to prove intent in true threat cases. Idaho, being one of the states that previously used a reasonable person standard in prosecuting true threats, is affected by this holding in that the state in stalking prosecutions must now prove beyond a reasonable doubt the defendant’s subjective intent in threatening the recipient. Accordingly, this Note evaluates the impact of the Counterman holding on Idaho stalking statutes and the effects this will have for future prosecutions in the state
CHILD RAPE AND THE DEATH PENALTY
Full text linkThe act of rape on an eight-year-old body is a matter of the needle giving because the camel can’t. The child gives, because the body can, and the mind of the violator cannot.
- Maya Angelou
In May 2023, Florida authorized the death penalty for the sexual battery of a child under twelve. This policy quickly sparked a wave of similar legislation. Tennessee capitalized child rape in May 2024, followed by Idaho in March 2025. These laws—passed with strong bipartisan support in each state—challenge the Supreme Court to overrule Kennedy v. Louisiana, a controversial 2008 decision holding that the Eighth Amendment prohibits capital punishment for the rape of a child.
This surge of legislative interest in capitalizing child rape heralds the reemergence of an old frontier in Eighth Amendment jurisprudence. It also highlights a deeper dysfunction in the way that we criminalize child sexual abuse. There is a need to reexamine Kennedy in this light and, more broadly, to interrogate the paradoxical role that sex crimes against children occupy in American law and culture. This Article provides that analysis and makes three scholarly contributions.
First, the Article provides a thick descriptive account of the dissonance in the criminal system’s response to child sexual abuse—a blend of apathy and outrage, horror and indifference. Second, the Article uses the emotion of disgust to reconcile these seemingly contradictory narratives. Though most often associated with food and bodily waste, disgust can attach equally to social violations. Scholars have employed disgust to explain anti-sodomy laws, incest prohibitions, and domestic violence judgments, and this Article extends the analysis to sex crimes against children. Third, the Article links this analysis to the concept of epistemic violence and uses that framework to illuminate the constitutional infirmities of capital child rape laws.
Ultimately, the Article proposes that capitalizing child rape acts as a symbol of revulsion at the expense of the broader system of punishment, an expression of our own unsettled view of the crime
Strategically Restated Defaults
Full text linkBusiness and commercial statutes are composed almost entirely of default rules, which parties may override via agreement or adopt via silence. Drafters of these statutes, and theories about the substance of default rules, assume that parties indeed adopt statutory default rules via silence. Against this backdrop, this Article examines unexpected behavior by parties to business and commercial agreements: parties often restate statutory default rules in their agreements rather than adopting those rules via silence. Based on a review of actual limited partnership agreements and security agreements, this Article identifies five unique species of restatement-bald, tweak, refill, baseline, and context restatements-and provides examples of each. This Article considers the implications of this unexpected behavior. First, this Article analyzes the strategic reasons that parties restate statutory defaults in their business and commercial agreements rather than adopting those rules via silence. Second, this Article argues that a restated statutory default should be interpreted identically to the restated statute, contrary to the Delaware Supreme Court\u27s holding in Murfey v. WHC Ventures, LLC, 236 A.3d 337 (Del. 2020). Finally, this Article considers how the theories of statutory defaults should be adapted in recognition of the strategic reasons that parties restate statutory defaults in their agreements
EXAMINING IDAHO’S ELECTION LAWS: STRICT STANDARDS AND THE CRITICAL ROLE OF CONTEXT IN STATE ELECTION SYSTEMS
Full text linkRecent attention to elections has brought a wave of new voting laws throughout the U.S., and now, to Idaho. Despite presenting no evidence of voter fraud, the Idaho Legislature eliminated student ID cards and limited the types of proof of residency documents that may be used to prove eligibility to vote. These laws together have created significant burdens on groups like voters experiencing homelessness and students, without providing effective alternatives.
This Comment examines Idaho’s new voting laws and compares the overall state of Idaho’s election law to those of other states with similar restrictions. Now, Idaho has some of the strictest election laws in the United States. This Comment then analyzes the constitutionality of the new laws and the likelihood of successful challenges brought under the U.S. Constitution and Idaho Constitution. These new laws implicate the Fourteenth Amendment, the Twenty-Sixth Amendment, and several provisions under the Idaho Constitution. Courts and litigants should consider the comprehensive burden of Idaho’s election laws when evaluating constitutional claims. Finally, this Comment discusses recommendations and alternatives that could improve election integrity and conformity without undermining the rights of Idaho\u27s most vulnerable voting groups
Episode 24: Erin Daly (Widener) Discusses Dignity Under the Law
No full textErin Daly (Professor Emerita of Law & the Director of the Dignity Rights Institute, Widener University) talks with us about her campaign for basic human dignity under the law, and running a clinic for the same