Articles

Each year, millions of Americans rely on public defenders to fulfill their Sixth
Amendment right to counsel. Despite being the linchpin of the criminal justice
system, public defense remains both underfunded and understudied. This Article
provides empirical analysis to contribute to a critical question: How should public
defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor
vertical representation in public defense. Under this model, a single public defender
represents a defendant throughout their case, from their initial appearance through
sentencing. The alternative approach—horizontal representation—operates like an
assembly line: Different attorneys handle each stage of a case, from preliminary
hearings to pretrial conferences to trials. The preference for vertical representation
stems from the intuitive belief that continuity of representation improves outcomes
for defendants. However, no prior empirical work has tested this assumption.

Using a natural experiment created by the Defender Association of Philadelphia’s
transition from a fully horizontal representation system to a partially vertical one, we
find no evidence that increasing attorney continuity through a vertical representation
system improves defendant outcomes.

These findings have significant implications for how public defender offices should
allocate their scarce resources. While vertical representation is considered by many to
be the ideal, our results cast doubt on whether the additional resources and logistical
challenges relative to horizontal representation are justified given the current reality
of underfunded public defense. As jurisdictions nationwide grapple with a chronic
lack of resources for public defense, this article provides crucial empirical evidence
to inform decisions about how best to uphold defendants’ Sixth Amendment right
to counsel.

Fast-growing startups in search of capital and liquidity have traditionally sought to
exit the private capital market through M&A or IPO. Until recently, antitrust enforcers
rarely challenged startup acquisitions. But under the Biden administration, enforcers
worried about the growing dominance of Big Tech sued to block more startup deals.
Since antitrust restricts M&A but not IPOs, one might expect that greater antitrust
enforcement would cause startups to substitute one kind of exit for another, leading
to more IPOs. That did not happen. While M&A and IPOs both provide liquidity,
they are not perfect substitutes. We model heterogeneity in M&A and IPO pricing
to explore how increased antitrust enforcement impacts venture capital. Economies
of scale and scope, synergies, regulatory costs, market power, and market cyclicality
can cause IPO valuations to fall significantly below M&A prices. And heightened
antitrust scrutiny can reduce the value of an IPO by undermining one of its main
advantages: access to publicly traded equity that can be used as currency for future
acquisitions.

In this Article, we show how startups have responded to the antitrust crackdown not
by choosing a different exit but by choosing no exit. Startups are easing liquidity
pressure by letting employees cash out their shares in tender offers. Venture capitalists
are extending their exit horizons by forming continuation funds. Would-be acquirers
have developed new structures to evade antitrust law, such as the centaur—a private
company funded by public company cash flows—and the reverse acquihire—a mass
employee exodus from a startup to a public tech company, coupled with a cloaked
payoff to the startup’s investors. We explain the implications of these changes for
competition policy, capital formation, and the continuing erosion of transparency
into socially important businesses.

Today, civilians can participate in war as never before. Through smartphones and
the internet, civilians can now contribute directly to military operations, whether they
are in an active conflict zone or on the other side of the globe. A civilian can, for
example, use an app to help military forces intercept threats, join a virtual network of
volunteers that conduct cyberoperations against a party to an armed conflict, or use
a crowdfunding site to donate funds to provide weapons to combatants. We call this
revolution in war fighting “Crowdsourced War.” This Article identifies this growing
phenomenon, demonstrates how it creates extraordinary new risks for civilians, and
recommends critical steps that States like the United States must take to address those
risks.

In the wake of the September 11, 2001, attacks on the United States, new interpretations
of the law governing armed conflict took shape. Applying these new interpretations
to Crowdsourced War, this Article shows how civilians today may unknowingly
forfeit their protected status and be regarded as legitimate military objectives under
international law. Civilians participating in Crowdsourced War not only unwittingly
endanger themselves, they also endanger civilians living and working alongside them.
The spread of Crowdsourced War can also lead combatants to suspect all civilians of
being participants in war—and thus lawful targets.

To address these problems, we argue it is time to adopt new rules for Crowdsourced
War. States, including the United States, should revisit broad interpretations of the
law first adopted for a different kind of conflict—interpretations that now make vast
numbers of civilians newly vulnerable. States must also take greater responsibility
when they invite civilians to participate in Crowdsourced War, including by
ensuring that they do not put civilians at unnecessary risk and by informing them
of the consequences they may face. Finally, international humanitarian law must be
revised to account for this sea change in the way wars are fought. The International
Committee for the Red Cross, together with States like the United States that are
committed to the rule of law, should renew efforts to tighten standards for targeting
civilians. This is necessary to ensure that the era of Crowdsourced War does not
become the era in which the distinction between civilian and combatant completely
evaporates.

Much of education law scholarship on school segregation has focused on majority-minority schools. Yet school segregation does not occur only in majority-minority schools, but also in so-called integrated schools: majority-white and Latine schools in which Black children are in the minority. What we know about segregation in these schools focuses on tracking, the practice of segregating Black students in classrooms according to ability, which has deleterious effects on Black children in schools where they are the minority. Outside of tracking, we have few firsthand accounts of integrated schools’ effects on these students.

In this Article, I present data obtained from in-depth interviews with ninety-five Black students and fifty Black parents. These students and parents moved from majority-Black schools to schools in which they were in the minority seeking the perceived academic benefits of an integrated school. Yet, integration and achieving better educational outcomes concern more than simple racial demographics of schools. In these interviews, students identify another avenue of in-school segregation: school policing. Black students in these integrated schools experience pervasive surveillance and punishment by school police in collaboration with other school officials. Rather than feeling truly integrated, these students feel both marginalized and unsafe in ways that undermine the academic benefits that integration is supposed to produce.

This Article does not merely contend that Black students are policed irrespective of the racial demographics of their schools. It also argues that scholars, policymakers, and lawyers need to be more attentive to student experiences in order to explicate how formally integrated institutions can nonetheless serve as domains of racial segregation. Policing affects schools’ institutional culture, reducing the benefits that were supposed to accompany racial integration. This reality suggests that the project of racial integration for Black students, a project that Brown v. Board of Education launched more than seventy years ago, may be even more illusory than we generally understand.

This Article develops a new framework for thinking about the place of race in Contracts. It argues that culture and context work in tandem in the form of “cultural scripts” to weave racial associations into texts where race is not explicitly identified. This suggests that the impact and influence of race in Contracts might have as much to do with the racialized stories that we tell about our consumer and commercial lives as it does with the racial identity of litigants.

To make this argument, this Article reconstructs the afterlives of one of Contracts’ most well-known cases, Williams v. Walker-Thomas Furniture Co. (1965). The case, now the foundation of unconscionability doctrine, pits Ora Lee Williams, a mother of seven living on welfare, against an exploitative furniture company. Although Williams’s race was not confirmed until 1997, students and teachers long before (and since) assumed that she was Black. This assumption stemmed from the ways in which casebooks talked about and framed Williams.

The Race Case in Contracts undertakes the first systematic analysis of Contracts casebooks—129 in total—to show how “cultural scripts” about urban poverty and welfare mothers tethered Williams to ideas about race generally, and Blackness specifically. In other words, stories told about and around Ora Lee Williams mattered as much as, if not more than, the fact of her racial identity. Williams illustrates that if we do not speak directly on the role of race in Contracts, these stories might speak for us.

In 2023, the Department of Justice published its first-ever report on demographic disparities in revocations of community supervision, a critical yet under-studied part of the federal criminal justice system. The report revealed extreme and systematic disparities affecting American Indian defendants. Compared to other groups, American Indians were more likely to have their supervision revoked, more likely to be revoked for non-criminal technical violations, and more likely to be sentenced to additional supervision after revocation. Although the report acknowledged these disparities, it did little to explain them.

In this Article, I provide the first legal analysis of community supervision in Indian Country, identifying three unique features that may contribute to higher rates of revocation for American Indian defendants. First, the federal government is the primary prosecutor of violent crimes in Indian Country, which creates a population of defendants who are more likely to have their supervision revoked. Second, American Indians tend to live in rural areas, where complying with the conditions of supervision is more difficult. Finally, the federal supervision system reflects a legacy of conquest that continues to reenact past episodes of discrimination, displacement, and destruction.

To reform Indian Country supervision, I argue that the federal government should recognize the inherent authority of Indian tribes to supervise tribal members living in tribal territory. Community supervision is a core part of tribal sovereignty, because it is not just a form of punishment, but also a vehicle for important social services. Recently, tribal governments have developed their own formal supervision programs that both incorporate tribal values and send fewer people to prison. By following the principles of tribal governance, community cohesion, and cultural respect, federal probation officials can promote better outcomes for Indian defendants and fuller autonomy for Indian tribes.

Public company boards of directors have opened up a new front in their longstanding battle with hedge fund activists by rewriting the procedural rules governing board elections. Many boards now require shareholders to make long and complicated sets of disclosures in order to nominate candidates for board elections. These disclosure requirements—contained in advance notice bylaws (ANBs)—have come under fire in the Delaware courts for being drafted so expansively that they seem like “tripwires” intended to protect incumbents against even the possibility of a proxy contest.

In this paper, I analyze modern ANBs, drawing insights from a new dataset consisting of over 14,000 full sets of bylaws filed by more than 3,800 U.S. public companies from 2004 to 2023. During this time, ANBs have become longer and more complex market-wide, and variation in disclosure requirements across firms has increased. Additionally, firms with relatively few disclosure provisions have tended to add more provisions if they are targeted by an activist. These changes in drafting practice may have significant effects on corporate governance. When ANBs are long and complex with ambiguous requirements, it is more costly for activists to launch proxy contests, and boards are more insulated from outside pressure. This reduction in accountability is likely more severe for small firms and firms with high agency costs. However, modern ANBs also provide the benefit of filtering out campaigns by unsophisticated activists and bad actors.

Legal reforms could reduce the costs associated with modern ANBs without eliminating their benefits. These include (1) requiring shareholders to approve ANB amendments, (2) requiring companies to give activists time to cure deficient nomination notices, and (3) allowing shareholders to facially challenge ANBs under an “overbreadth” theory. Recent efforts by shareholders also suggest that private ordering may curb some of the effects of modern ANBs without outside intervention.

We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two distinct faces: one turned toward regulation and benefits distribution, and one turned toward physical force and surveillance. The two faces are growing further apart under the Roberts Court, which has hemmed in the first face with decisions like Loper Bright while showing solicitude for national security and law enforcement agencies.

This Article delineates the two faces of the administrative state. It provides a descriptive account of the second face and the distinctive administrative law that governs it. While first-face administrative law demands delegated authority, transparent justification, and democratic collaboration, second-face administrative law allows agencies to operate without specific grants of power, to process knowledge in secret, and to control populations. Second-face administrative law inverts the ordinary norms of first-face administrative law. And where the first face drives legal and political conflict, the second face enjoys relative consensus.

Bringing the second face into view qualifies talk of an ongoing “attack” on the administrative state. It calls attention to neglected issues of enforcement, allows us to analyze how administrative law supports an interrelated set of violent state structures, and reveals that consensus support for second-face agencies is misguided. Those who seek to combat government overreach and to protect liberty and popular self- governance should turn their attention to the administrative state’s second face.

The last several years have been marked by contentious disputes about which governments represent the states of Venezuela, Libya, Yemen, Myanmar, Afghanistan, and Niger. Such disputes are far from idle curiosities—rather, they go to the core of the modern international legal order. States are the building blocks of the international legal system, but it is the consent of their governments that forms the cornerstone of international law and diplomacy. When the rightful government is contested, numerous questions emerge with enormous implications for both the states involved and the international community as a whole. Most critically, who is permitted to consent on behalf of the state—to military intervention, to treaties, to the use of state assets—or receive immunities? Who represents the state in international fora? Who is responsible for ensuring the state complies with human rights law and international humanitarian law? And what happens if different governments are recognized by different states and international organizations, as is not only possible, but common?

This Article aims to bring clarity to this debate. It begins by explaining the difference between state and government recognition. It then identifies seven important rights and responsibilities that accompany government recognition, ranging from the right to consent to military intervention to the obligation to uphold international human rights and international humanitarian law. It shows that individual states, and to a lesser extent, international organizations, are currently the primary actors in government recognition decisions. Their varying approaches to government recognition have resulted in incoherence and inconsistency that threaten to undermine international law. This Article makes the case for a new approach: granting the United Nations Credentials Committee, through the United Nations General Assembly, the power to determine the recognized government of a given state for all matters directly implicating international law. This approach would bring greater coherence to government recognition and would thereby strengthen the international legal order as a whole.

Contract law is generally understood in terms of enforcement. The legal definition of a contract is a promise that the state will enforce. Individuals are empowered by contract law to create legal arrangements that the state will step in and enforce. And yet most contracts never make it to court.

This Article inverts the conventional focus on enforcement through a study of extralegal contracts. These are formal written agreements that parties call contracts but are not intended for legal enforcement. Examples of these extralegal contracts include no-suicide contracts and contracts for sexual slavery.

Examining extralegal contracts offers multiple insights. First, this analysis sheds new light on Lon Fuller’s classic functions of contractual formalities. Second, it reveals five novel functions of these formalities: diagnostic, expressive, constitutive, mapping, and experiential. Third, it shows the relevance of empirical work in behavioral science on the so-called Question Behavior Effect to our understanding of contracting behavior.

These insights from extralegal contracts are theoretically interesting in their own right and practically relevant to our understanding of legal contracts. The Article develops an account of strategic contracting behavior across legal contexts, drawing on the novel functions and Question Behavior Effect mechanisms, specifically dramatizing the impact through contract domains where enforcement is uncertain or unlikely, including preliminary agreements, surrogacy contracts, and demands for assurances.