Articles

Credit default swaps (CDS) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS counterparties are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled the CDS market, leading some market participants to view the collaborations as a sign that CDS are little more than a rigged game. Conversely, some view “engineered CDS transactions” as an innovative form of financing for distressed companies. As engineered CDS transactions proliferate in the market, it becomes increasingly prudent to look beyond their contractual acceptability to assess whether, from a legal point of view, these transactions are permissible. 

Engineered CDS transactions demonstrate the challenges that the existing legal and non-legal framework face in effectively responding to new forms of market distortion. This Article examines the costs and benefits of engineered CDS transactions on the market as a precursor to determining whether legal intervention is needed. Assessment of the relative costs and benefits of engineered transactions indicates that despite their innovativeness, engineered CDS transactions are largely detrimental to the markets because they impose costs on actors unaffiliated with the CDS market and, more broadly, destroy public trust in the financial markets. Yet, despite their associated harms, legally, engineered transactions exist in a gray space. This Article analyzes the phenomenon of engineered CDS transactions, assessing the capacity of applicable legal frameworks, private standards, and market discipline to address these transactions, and finds each to be lacking. Consequently, this Article proposes a range of responses, including modernization of the existing anti- manipulation framework, to mitigate the harm and collateral consequences that stem from engineered CDS transactions. 

The #MeToo movement has ushered in a new kind of sexual misconduct accusation—accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law. 

Contemporary global crime and cross-border law enforcement cooperation have multiplied “foreign affairs prosecutions,” cases that encompass foreign apprehension, evidence gathering, and criminal conduct, as well as cases that implicate foreign nations’ criminal justice interests. Robert Mueller’s Russia investigation, the fugitive Edward Snowden, and the cross-border crimes of FIFA and El Chapo all exemplify such foreign affairs prosecutions. This Article argues that foreign affairs prosecutions represent a consequential shift in U.S. criminal law, offering the promise of closing global impunity gaps. At the same time, however, such cases risk defendant interests at home and U.S. foreign policy abroad. This Article calls for greater congressional engagement and judicial oversight to minimize such risks while still promoting accountability for cross-border, cyber, and international crime.

Over the last fifty years, naturalized citizens in the United States were able to feel a sense of finality and security in their rights. Denaturalization, wielded frequently as a political tool in the McCarthy era, had become exceedingly rare. Indeed, denaturalization was best known as an adjunct to criminal proceedings brought against former Nazis and other war criminals who had entered the country under false pretenses.

Denaturalization is no longer so rare. Naturalized citizens’ sense of security has been fundamentally shaken by policy developments in the last five years. The number of denaturalization cases is growing, and if current trends continue, it will continue to increase dramatically. This growth began under the Obama administration, which used improved digital tools to identify potential cases of naturalization fraud from years and decades ago. The Trump administration, however, is taking denaturalization to new levels as part of its overall immigration crackdown. It has announced plans for a denaturalization task force. And it is pursuing denaturalization as a civil-litigation remedy and not just a criminal sanction—a choice that prosecutors find advantageous because civil proceedings come with a lower burden of proof, no guarantee of counsel to the defendant, and no statute of limitations. In fact, the first successful denaturalization under this program was decided on summary judgment in favor of the government in 2018. The defendant was accused of having improperly filed an asylum claim twenty-five years ago, but he was never personally served with process and he never made an appearance in the case, either on his own or through counsel. Even today, it is not clear that he knows he has lost his citizenship.

The legal status of denaturalization is murky, in part because the Supreme Court has long struggled to articulate a consistent view of citizenship and its prerogatives.Nonetheless, the Court has set a number of significant limits on the government’s attempts to remove citizenship at will—limits that are inconsistent with the adminis- tration’s current litigation policy. This Article argues that stripping Americans of citizenship through the route of civil litigation not only violates substantive and procedural due process, but also infringes on the rights guaranteed by theCitizenship Clause of the Fourteenth Amendment. Finally, (un)civil denaturaliza- tion undermines the constitutional safeguards of democracy.

One of the predominant themes in the criminal justice literature is that prosecutors dominate the justice system. Over seventy-five years ago, Attorney General Robert Jackson famously proclaimed that the “prosecutor has more control over life, liberty, and reputation than any other person in America.” In one of the most cited law review articles of all time, Bill Stuntz added that prosecutors—not legislators, judges, or police—“are the criminal justice system’s real lawmakers.” And an unchallenged modern consensus holds that prosecutors “rule the criminal justice system.”

This Article applies a critical lens to longstanding claims of prosecutorial preeminence. It reveals a curious echo chamber enabled by a puzzling lack of dissent. With few voices challenging ever-more-strident prosecutor-dominance rhetoric, academic claims became uncritical, imprecise, and ultimately incorrect.

An unchallenged consensus that “prosecutors are the criminal justice system” and that the “institution of the prosecutor has more power than any other in the criminal justice system” has real consequences for criminal justice discourse. Portraying prosecutors as the system’s iron-fisted rulers obscures the complex interplay that actually determines criminal justice outcomes. The overheated rhetoric of prosecutorial preeminence fosters a superficial understanding of the criminal justice system, overlooks the powerful forces that can and do constrain prosecutors, and diverts attention from the most promising sources of reform (legislators, judges, and police) to the least (prosecutors).

What statutory language means can vary from statute to statute, or even provision to provision. But what about from case to case? The conventional wisdom is that the same language can mean different things as used in different places within the United States Code. As used in some specific place, however, that language means what it means. Put differently, the same statutory provision must mean the same thing in all cases. To hold otherwise, courts and scholars suggest, would be contrary both to the rules of grammar and to the rule of law.

This Article challenges that conventional wisdom. Building on the observation that speakers can and often do transparently communicate different things to different audiences with the same verbalization or written text, it argues that, as a purely linguistic matter, there is nothing to prevent Congress from doing the same with statutes. More still, because the practical advantages of using multiple meanings— in particular, linguistic economy—are at least as important to Congress as to ordinary speakers, this Article argues further that it would be just plain odd if Congress never chose to communicate multiple messages with the same statutory text.

As this Article goes on to show, recognizing the possibility of multiple statutory meanings would let courts reach sensible answers to important doctrinal questions they currently do their best to avoid. Most notably, thinking about multiple meanings in an informed way would help courts explain under what conditions more than one agency should receive deference when interpreting a multi-agency statute. Relatedly, it would let courts reject as false the choice between Chevron deference and the rule of lenity for statutes with both civil and criminal applications.

For decades, corporate law played a pivotal role in regulating corporations across the United States. Consequently, Delaware, the leading state of incorporation, and its courts came to occupy a central and influential position in corporate law and governance. This, however, is no longer the case: The compositional shift in equity markets from retail to institutional ownership has relocated regulatory power over corporations from courts to markets. Corporate law has, as a result, and as illustrated by the declined role of the Delaware courts, lost its pride of place and is now eclipsed by shareholder activism.

What explains the connection between the rise of institutional ownership and the death of corporate law? We answer this question by unpacking the relationship between market dynamics and the role of corporate law. Our analysis uncovers a critical, yet hitherto unnoticed, insight: The more competent shareholders become, the less important corporate law will be. Increases in shareholder competence reduce management agency costs, intensify market actors’ preference for private ordering outside of courts, and, ultimately, drive corporate law into the shadow.

In 2044, the United States is projected to become a “majority-minority” country, with people of color making up more than half of the population. And yet in the public imagination—from Robocop to Minority Report, from Star Trek to Star Wars, from A Clockwork Orange to 1984 to Brave New World—the future is usually envisioned as majority white. What might the future look like in year 2044, when people of color make up the majority in terms of numbers, or in the ensuing years, when they also wield the majority of political and economic power? And specifically, what might policing look like? This Article attempts to answer these questions by examining how artists, cybertheorists, and speculative scholars of color—Afrofuturists and Critical Race Theorists—have imagined the future. What can we learn from Afrofuturism, the term given to “speculative fiction that treats African-American themes and addresses African-American concerns [in the context of] techno culture?” And what can we learn from Critical Race Theory and its “father” Derrick Bell, who famously wrote of space explorers to examine issues of race and law? What do they imagine policing to be, and what can we imagine policing to be in a brown and black world?

In National Institute of Family Life Advocates v. Becerra, the Supreme Court said that a preliminary injunction should have been issued against a California law that required that reproductive healthcare facilities post notices containing truthful factual information. All that was required by the law was posting a notice that the state of California makes available free and low-cost contraception and abortion for women who economically qualify. Also, unlicensed facilities were required to post a notice that they are not licensed by the state to provide healthcare.

In concluding that the California law is unconstitutional, the Court’s decision has enormously important implications. It puts all laws requiring disclosures in jeopardy because all, like the California law, prescribe the required content of speech. All disclosure laws now will need to meet strict scrutiny and thus are constitutionally vulnerable. Moreover, the ruling is inconsistent with prior Supreme Court decisions that allowed the government to require speech of physicians intended to discourage abortions. The Court ignored legal precedent, failed to weigh the interests at stake in its decision, and applied a more demanding standard based on content of speech.

But NIFLA v. Becerra is only secondarily about speech. It is impossible to understand the Court’s decision in NIFLA v. Becerra except as a reflection of the conservative Justices’ hostility to abortion rights and their indifference to the rights and interests of women, especially poor women. In this way, it is likely a harbinger of what is to come from a Court with a majority that is very hostile to abortion.

The restrictive changes made by the Trump presidency on U.S. immigration policy have been widely reported: the significant increases in both interior and border enforcement, the travel ban prohibiting immigration from majority-Muslim countries, and the decision to terminate the Deferred Action for Childhood Arrivals (DACA) program. Beyond the traditional levers of federal immigration control, this administration has also moved aggressively to harness the enforcement power of local and state police to increase interior immigration enforcement. To that end, the administration has employed both voluntary measures (like signing 287(g) agreements deputizing local police to enforce immigration laws) and involuntary measures (threatening to defund jurisdictions with so-called “sanctuary” laws).

What has been the “Trump Effect” on subfederal governments’ immigration policies? We define the Trump Effect as the influence that Trump’s immigration policies have had on the immigration policies of states, cities, and counties. Have they fallen in line with the federal push for restrictive policies and increased enforcement, or have they resisted? Using our unique Immigrant Climate Index (ICI), we track the response of cities, counties, and states by analyzing the immigration-related laws they enacted in 2017—the first year of the Trump administration—and comparing it to previous years’ activity. Based on our data, we make several observations. First, subfederal governments have responded with surprising speed and in unprecedented numbers to enact laws that are almost uniformly pro-immigrant. In response to increased federal enforcement, these subfederal governments have enacted “sanctuary” laws limiting their cooperation with federal immigration enforcement. Most of these laws were enacted by cities and counties, which enacted more immigration regulations in this one year than they enacted during the previous twelve years combined (2005–16).

Second, in the context of historical ICI scores, these immigrant-protective laws helped to pull the national ICI score sharply upward. By assigning scores (positive or negative) to each subfederal immigration law, our ICI has tracked the climate for immigrants on a state-by-state basis and identified distinct phases in subfederal immigration regulation since 2005. Though the national ICI score (where individual state scores are added together, through time) remains highly negative, we observe a distinct Trump effect in 2017: Immigrant-protective laws enacted by certain jurisdictions are creating more positive climates for immigrants in those jurisdictions.

Finally, the nature of governmental sanctuary in 2017 was distinctly more diverse than the sanctuary we have seen in decades past. In 2017, big urban cities were not the most active sanctuary cities, as was the case in past years; rather, medium-sized cities and suburbs with populations under 100,000 prevailed. Though most of these smaller jurisdictions voted for Hillary Clinton in the 2016 presidential election, a surprising number voted for Trump. Moreover, new sanctuary entities have emerged—including public school districts, public universities, and even mass transit authorities—which have limited their own cooperation with federal immigration enforcement. This diversity in government sanctuary reflects another aspect of the Trump Effect: how harsh immigration enforcement policies under this administration have made immigration issues much more important to a wider range of communities and to a larger range of policy areas.