Articles

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces the understudied and undertheorized private prosecutions of the family regulation system and situates them within the carceral state. Drawing on sources including statutes, legislative history, case law, accounts developed by other scholars, information obtained through records requests, and interviews with practitioners and state officials, it sketches out the legal framework for these prosecutions and traces recurring patterns of use. This study reveals private prosecutions to be a tool of last resort: Private individuals opt to prosecute their loved ones—or even themselves—after the state has failed to meet their needs through other means.

The Article makes two contributions. First, it develops an initial descriptive account of private prosecutions in the family regulation system. Second, the Article builds from that account to develop a theoretical claim. It argues that private prosecution illustrates the state’s decision to operate an expansive carceral state in place of a robust welfare state. Moreover, private prosecution lays bare the central role of private individuals in maintaining and expanding the carceral state, as private prosecutors increase the reach of the carceral apparatus while entrenching its logics. But even as private prosecutions shore up the carceral state, so too do they allow private individuals to extract support from it. As debates around the utility of private prosecution and enforcement across the carceral state continue, private dependency prosecutions offer a reminder. Before evaluating the utility of private prosecution, we must ask its goal: to disrupt the carceral state or to provide immediate relief to some already suffering in its thrall.

Real and personal property may last forever, but intellectual property (IP) ends. Despite the doctrinal complexity and practical significance of the mechanisms that terminate IP rights, scholarship has scarcely focused on them, and none has analyzed these doctrines as a unified field. As a result, the discourse about the ways IP ends remains impoverished, with courts, legislatures, and commentators offering imprecise and inconsistent formulations that obscure the rationales for these doctrines. This Article offers the first comprehensive taxonomy of IP’s terminal mechanisms, providing much-needed conceptual and definitional coherence. It then reveals the underappreciated policy leverage these mechanisms can deliver and offers a set of concrete proposals for reforming IP through expanding and adapting its terminal rules. Finally, the Article considers what lessons, if any, traditional property law might learn from how IP ends.

Since the Tax Revolt of the 1970s, cash-strapped state and local governments have increasingly relied on user fees to pay for public programs. Scholars attuned to city budgets have raised alarms about these fees: They undermine government’s redistributive role, impose regressive costs, and exclude low-income people from vital public services. This Article complicates these prevailing claims based on a first-of-its-kind study of user fee policies in a sample of American cities.

The Article reveals that policymakers regularly call on a progressive tool to reduce fees’ harms: fee waivers. As implemented, user fees are thus more redistributive than the standard understanding of them has allowed. But they are also more complex. The survey finds that fee waiver eligibility rules are patchwork, burdensome, and narrowly targeted. User fee rules form a multifaceted tapestry of exclusion and protection, deprivation and generosity.

The Article also sounds a clarion call: User fees’ protective features are not guaranteed. Without adequate defense, fee waivers risk succumbing to external attack from those who would outlaw them. Without adequate scrutiny, they risk falling victim to their own internal design flaws. The Article addresses these risks by offering reform principles drawn from model programs surveyed across the country. Mayors, city councils, school boards, and state legislatures can use this Article as a playbook to inform the design of user fees that raise revenue while protecting vulnerable American households.

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 f ind 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.