The events of September 11, 2001, forever changed the political and legal responses to terrorism. After more than ten years, two wars, numerous targeted military strikes, and significantly increased surveil-lance, we have not stopped the growth of al-Qaeda and other terrorist organizations. The War on Terror has involved more than military operations. To stop terrorism, it is imperative to cut off its funding stream. To this end, a number of nations have created financial laws that prohibit the formation of anonymous companies and monitor suspicious bank transfers. Though these laws have been touted as evidence that we are winning the War on Terror, this Article questions their efficacy. In particular, this Article demonstrates how easy it is to form a terrorist finance network and to exploit the impotence of these international and domestic financial regulations. The Article presents findings from the largest global, randomized controlled trial on this issue to date. In our experiment, we acted as customers seeking to form anonymous shell companies in a variety of scenarios resulting in either greater risk or greater reward. On the whole, forming an anonymous shell company is as easy as ever, despite increased regulations follow-ing September 11. The results are disconcerting and demonstrate that we are far from a world that is safe from terror.
Constitutional Colorblindness and the Family
Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including, most notably, affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family law context. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents.
This Article, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has—over the last forty years—had numerous opportunities to address the growing divide. Nevertheless, the Court (and particularly some of its most ardent affirmative action detractors) has historically been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided cases involving the use of race in family law—and taken other steps to limit the reach of its doctrine in the family law arena—based on a perception that remaining uses of race in the family are fundamentally different, and at least in some contexts, benign.
This history has profound implications for the Court’s broader race law jurisprudence. The Supreme Court has—at least facially—rejected the possibility of a role for contextual or normative factors in its application of equal protection doctrine to race. Instead, the Court has demanded that race-based classifications—no matter what their intent or effects—be subjected to strict scrutiny. But the history of the Court’s approach to family law strongly suggests that the Court itself does in fact weigh such considerations in its approach to taking up and adjudicating race law claims. This Article suggests that there are serious process, legitimacy, and substantive concerns raised by such a divergence between the Court’s formal doctrine and its practice, and discusses alternatives for aligning the two more fully.
Why Do Retail Investors Make Costly Mistakes? An Experiment on Mutual Fund Choice
Congress has recently acknowledged the need for a better understanding of investor behavior. In the Dodd–Frank Act, Congress instructed the SEC to conduct a study of investor financial literacy. The SEC’s study was conducted at the most superficial level, however, and provided limited insight into developing future regulatory policy. Although the SEC found investor mistakes and misconceptions, it did not seek to identify the reasons for these mistakes or to understand the underlying mechanisms driving investor choices.
This Article takes up where the SEC study left off. We report the results of an experiment designed to explore how investors use the information provided to them, and why they often ignore it. Using a simulated investment game in which participants were asked to allocate funds in a retirement account among ten mutual fund alternatives, we offer some insights into how individuals seek and assimilate information about a fund’s characteristics. In particular, our experiment offers a novel addition to the body of experimental evidence on investor decisionmaking by incorporating a technology that allows us to collect data on the specific information that investors choose to view.
The Divided States of America: Reinterpreting Title VII's National Origin Provision to Account for Subnational Discrimination Within the United States
From the marginalization of Native Americans to the bitter rivalry between the North and the South, discrimination within the United States is not a new phenomenon. For centuries, Americans have discriminated against one another because they come from different parts of the country. Northerners have been derogatorily referred to as “Yankees,” Southerners as “rednecks,” Appalachians as “hillbillies,” Californians as “hippies” and “Valley girls,” and Native Americans as “red skins.” Such discrimination has had particularly adverse consequences in the employment context due to the assumptions employers draw from these regional identities.
Despite the prevalence of regional animus in the United States, employment discrimination based on regional origin is currently not actionable under Title VII’s national origin provision. Rather, most courts have interpreted Title VII’s national origin provision narrowly, requiring employees to point to a sovereign country of origin in order to make out a national origin discrimination claim. The problem with this country-focused conception of national origin is that it presupposes that nations are homogeneous when, in reality, nations—especially large ones like the United States—are composed of divergent subgroups.
This Comment critiques the assumption underlying Title VII’s national origin provision—that nations are homogenous—by detailing the various forms of employment discrimination that occur within the United States. It then analyzes existing case law and notes that although courts have gradually begun to expand the scope of national origin to encompass some forms sub-national discrimination, they have only recognized such claims where employees can trace their national origin to sub-national groups in foreign countries, such as Acadians, Creoles, and Serbians as part of the former Yugoslavia. However, courts have refused to allow employees to trace their national origin to sub-national groups within the United States.
This Comment concludes by arguing that Title VII’s national origin provision should be taken one step further to include regional discrimination within the United States. This interpretation would permit Title VII to protect against the employment discrimination that occurs among individuals sharing the same American origin, while keeping national origin within geographically circumscribed limits. This Comment invites further discussion regarding the policy implications of this approach.
Putting Plea Bargaining on the Record
More than a decade ago, Rolando Stockton rejected a plea bargain that came with a ten-year prison sentence, opting instead to take his chances at trial. The trial went badly. After being found guilty on several drug and firearm charges, Stockton received a forty-year prison sentence. From an objective point of view, Stockton should have taken the deal; rejecting it cost him thirty years of freedom. In postconviction proceedings, Stockton proffered a reason for his poor judgment: his lawyer failed to disclose to him the maximum sentence he faced at trial and the advantages of the ten-year deal. In spite of his admittedly hazy memory of the events, the lawyer disagreed, claiming he told Stockton that the plea deal was a “good offer.” Without clear evidence, the reviewing court sided with Stockton’s lawyer. On that finding, Stockton lost his claim, and he is still serving his initial sentence today.
Under the recent Supreme Court decisions in Lafler v. Cooper and Missouri v. Frye, defense counsel has a duty to inform and reasonably advise clients about plea offers from the prosecution, so that defendants do not forego favorable plea bargains due to the ineffective assistance of their counsel. Yet the story above demonstrates a fundamental problem with these new duties: the lack of a record of the plea bargaining process makes them unenforceable. Without such a record, the defendants, who bear the burden of proof in Sixth Amendment ineffective assistance of counsel claims, have no evidence to support claims of defective advice. Their hopes thus rest on the cooperation of the very lawyers they accuse of being ineffective. When combined with the other difficulties inherent in establish-ing an ineffective assistance of counsel claim, this problem renders the new right toothless.
In this Comment, I propose that the criminal defense bar adopt a practice of recording the plea bargaining process in order to better protect defendants’ Sixth Amendment rights. I begin in Part I with a brief background of Sixth Amendment right-to-counsel jurisprudence, the plea bargaining process, and the evolution of the Supreme Court’s views on these topics.
Selling State Borders
The relationship between state sovereignty and state territory in the United States is more complex, interesting, and unstable than the reassuring familiarity of an American map might suggest. State borders move as a result of wandering rivers, interstate border compacts, and even newly discovered surveying errors. States and the federal government also buy and sell proprietary interests in vast tracts of public land, while effectively leasing their sovereign functions to private parties. This Article argues that those threads—mobile state borders and active markets for public land and sovereign functions—can and should be woven together to create an interstate market for sovereign territory.
The absence of a market for state borders is puzzling for many reasons: the market has a historical pedigree, would not face insurmountable legal barriers, and could help solve a variety of pressing problems. Among other things, such a market might facilitate the resolution of interstate border disputes, which remain surprisingly common. North and South Carolina, for example, are currently adjusting their border southward to correct a two hundred-year-old surveying error. This change will be costly for the thirty affected households, whose residents will have to pay new taxes, change car insurance and schools, and might well find it harder to dance the shag with tar on their heels.8 Simple Coasean bargaining suggests that if such costs outweigh the benefits of correcting the surveying error, then the Old North State should simply sell the equivalent of a quitclaim, thus leaving the border where it has always been in practice.
Other utility-enhancing deals are not hard to imagine. States facing bankruptcy could raise revenue by selling territory to wealthier neighbors— an idea that has already been floated at the international level—while others might capture gains in metropolitan areas that straddle state borders but could be more efficiently administered by a single state. One scholar has suggested that Camden and Philadelphia be joined; a side payment to or from New Jersey could help bring that about. Even holding aside the financial gains, an active interstate market for sovereign territory could encourage useful competition between states by allowing the “laboratories” to come to the people, rather than requiring the people to go to the laboratories. The next time Killington, Vermont, votes to join New Hampshire because it prefers the latter’s tax system, or Martha’s Vineyard votes overwhelmingly to leave Massachusetts in response to unfavorable redistricting in the state legislature, compensation could facilitate the moves (or forestall them, depending on which state is willing to pay). Sales of state borders could even strengthen state identity in areas where residents’ identities are more closely tied to a state other than the one in which they live. If, for example, wealthy residents of Greenwich, Connecticut—many of whom earned their fortunes in Manhattan—would prefer to be New Yorkers, why not let them buy their way out?
The First Disestablishment: Limits on Church Power and Property Before the Civil War
The rights and responsibilities of religious institutions are hotly debated in the early twenty-first century. Liberal separationists argue that religious organizations should be subject to secular laws regarding labor, health care (including access to birth control), child protection, and more. Their opponents counter that the ideals of “church autonomy” or “the freedom of the church” exempt religious organizations from legal, administrative, or legislative oversight. The standoff is exacerbated by the opposing interpretations of history on offer. Former presidential candidate, talk show host (and historian) Newt Gingrich has called the Affordable Care Act’s requirement that all secular employers—regardless of their owners’ religious affiliations and convictions—provide birth control insurance coverage for employees “the most outrageous assault on religious freedom in American history” and asserted that “every time you turn around the secular govern- ment is shrinking the rights of religious institutions in America.”
From the other side of the spectrum, the invocation of history is equally strident. For example, Americans United for Separation of Church and State has battled against the claim that the government has undermined church autonomy. From this group’s perspective, strict separation of church and state is “good for America” and “good for religion” because it prohibits government involvement with religious organizations. American history, they argue, demonstrates that Presidents and right-thinking Americans alike have always supported their interpretation of disestablishment.
This back-and-forth highlights the sharply differing views among activists, scholars, and politicians regarding the tradition of special deference (or lack thereof) given to religious organizations. The Hobby Lobby case, set for argument at the Supreme Court in early spring 2014, is just the latest incarnation of these battles. The question is as old as the nation, however. The rights of individuals versus organizational rights have been essential to the development of the law of religion in America. The place of religious organizations was keenly debated as a key component of disestablishment. Yet we know almost nothing about the experience of such organizations in our nation’s history.
The Next Generation Communications Privacy Act
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely regarded as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress were to repeal ECPA and enact a new privacy statute to replace it.
The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based. ECPA was designed for a network world with high storage costs and only local network access. Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for noncontent records, and no attention to particularity or jurisdiction. Today’s Internet reverses all of these assumptions. Storage costs have plummeted, leading to a reality of almost total storage. Even U.S.-based services now serve a predominantly foreign customer base. A new statute would need to account for these changes.
This Article contends that a next generation privacy act should contain four features. First, it should impose the same requirement on access to all contents. Second, it should impose particularity requirements on the scope of disclosed metadata. Third, it should impose minimization rules on all accessed content. And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for U.S.-based users and a permissive regime for users located abroad.
Read My Lipsky: Reliance on Consent Orders in Pleadings
Consent orders are used to resolve government enforcement actions through a court-approved settlement. Although consent orders often include detailed factual and legal findings, defendants typically deny or neither admit nor deny those findings. Nevertheless, some private plaintiffs have relied extensively on findings from consent orders to plead claims that piggyback off of enforcement actions. Whether private plaintiffs may properly rely on consent orders in their pleadings is the subject of this Comment.
Many district courts cite a Second Circuit opinion from 1976, Lipsky v. Commonwealth United Corp., for the proposition that allegations derived from consent orders must be struck as “immaterial” under Rule 12(f) of the Federal Rules of Civil Procedure. Other courts have also held that plaintiffs cannot satisfy the duty of independent investigation under Rule 11(b)(3) if they rely on only consent orders as sources of information. More recently, however, some courts have challenged the reasoning of Lipsky and permitted plaintiffs to derive allegations from consent orders.
This Comment clarifies existing law governing reliance on consent orders. It argues that Rules 11(b)(3) and 12(f)—and even the Lipsky decision if properly construed—permit plaintiffs to rely on consent orders as sources of factual information. By relying on consent orders to allege facts, plaintiffs appropriately signal that they believe the allegations are true and that admissible evidence in support of the allegations will likely be found after further investigation or discovery.
The rule proposed in this Comment, however, may unsettle regulatory policy that favors negotiated settlements of enforcement actions. If courts uniformly permit private plaintiffs to rely on consent orders, then defendants may have fewer incentives to settle enforcement actions. This Comment invites further discussion regarding the policy implications of that rule.
Patent Nonuse and Technology Suppression: The Use of Compulsory Licensing to Promote Progress
The U.S. Supreme Court has consistently and adamantly held that patents do not require patentees to use or commercialize their inventions. Rather, patents simply grant inventors the right to exclude others from using or producing their inventions. That exclusive right, once granted, cannot be taken away because of a right holder’s failure to work the patent. Great societal harm results, however, when patentees fail to commercialize their patents or deliberately and strategically suppress technologies purely for financial gain.
This Comment argues that utilizing compulsory licensing to combat patent nonuse and technology suppression can help to better achieve the primary goal of the Intellectual Property Clause of the U.S. Constitution. Compulsory licensing that compensates inventors through reasonable and marketplace-based royalty rates will ensure that inventors continue to develop and disclose their research and discoveries to the public. Furthermore, by weakening intellectual property rights on a limited scale, Congress can ensure that patents are made available to the highest-value users who can best use these patents to achieve efficient societal innovation and progress. This Comment therefore questions why patentees are not required to at least make good faith efforts to practice their patents.
Deciding by Default
Impersonal default rules, chosen by private or public institutions, establish settings and starting points for countless goods and activities—cell phones, rental car agreements, computers, savings plans, health insurance, websites, privacy, and much more. Some of these rules do a great deal of good, but others might be poorly chosen, perhaps because the choice architects who select them are insufficiently informed, perhaps because they are self-interested, perhaps because one size does not fit all. The existence of heterogeneity argues against impersonal default rules. The obvious alternative to impersonal default rules, of particular interest when individual situations are diverse, is active choosing, by which people are asked or required to make decisions on their own. The choice between impersonal default rules and active choosing depends largely on the costs of decisions and the costs of errors. If active choosing were required in all contexts, people would quickly be overwhelmed; default rules save a great deal of time, making it possible to make other choices and in that sense promoting autonomy. Especially in complex and unfamiliar areas, impersonal default rules have significant advantages. But where people prefer to choose, and where learning is both feasible and important, active choosing may be best, especially if people’s situations are relevantly dissimilar. At the same time, it is increasingly possible for private and public institutions to produce highly personalized default rules, which reduce the problems with one-size-fits-all defaults. In principle, personalized default rules could be designed for every individual in the relevant population. Collection of the information that would allow accurate personalization might be burdensome and expensive, and might also raise serious questions about privacy. But at least when choice architects can be trusted, personalized default rules offer most (not all) of the advantages of active choosing without the disadvantages.
Lawyers and judges speak to each other in a language of precedents – decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I call “factual precedents”: the tendency of lower courts to cite Supreme Court cases as authorities on factual subjects, as evidence that the factual claims are indeed true. Rather than citing, for example, evidence from the record to establish that carpal tunnel syndrome regularly resolves without surgery, lower courts instead cite language from a Supreme Court opinion for that point.
This Article carefully describes how lower courts are using Supreme Court facts today and then argues that these factual precedents are unwise. The Supreme Court is not a factfinding institution. Facts change over time. And, unlike legal precedents, one cannot be certain that factual statements from the Supreme Court are carefully deliberated and carry the force of law. I argue that Supreme Court statements of fact should not receive any authoritative force separate from the force that attaches to whatever legal conclusions they contributed to originally. If a fact is so central to the legal holding that the two meld together, then the Supreme Court is free to so state and thus insulate the factual conclusion from future challenges by making it part of the legal rule. But the presumption, I suggest, should be no precedential value for generalized factual claims – even if they are facts found in the U.S. Reports.
Reuniting 'Is' and 'Ought' in Empirical Legal Scholarship
Scholars engaged in empirical legal research have long struggled to balance the methodological demands of social science with the normative aspirations of legal scholarship. In recent years, empirical legal scholarship has increased dramatically in methodological sophistication, but in the process has lost some of its relevance to the normative goals that animate legal scholarship. In many empirical studies, the phenomena that are readily measured have a complex relationship with the values that are relevant to legal reform, yet empirical scholars often neglect to explain how their positive findings relate to normative claims. Although some empirical studies offer prescriptions, they often rely on normative premises that are clearly untenable or simply fail to explain how they purport to derive an ‘ought’ from an ‘is.’ Other empirical studies avoid prescription altogether, reporting results without clarifying how they are relevant to meaningful questions about law or legal institutions.
Using as examples three types of measures commonly used to evaluate judges and institutions—citation counts, reversal rates, and inter-judge disparities—this Article describes widespread flaws in efforts to connect the ‘is’ and the ‘ought’ in empirical legal scholarship. The Article argues that normative implications should not be an afterthought in empirical research, but rather should inform research design. Empirical scholars should focus on quantities that can guide policy, and not merely on phenomena that are conveniently measured. They should be explicit about how they propose to measure the goodness of outcomes, disclose what assumptions are necessary to justify their proposed metrics, and explain how these metrics relate to the observable data. When values are difficult to quantify, legal empiricists will need to develop theoretical frameworks and empirical methods that can credibly connect empirical findings to policy-relevant conclusions.
To Benefit or Not to Benefit: Mutually Induced Consideration As a Test for the Legality of Unpaid Internships
Over the last fifteen years, unpaid internships have become a part of our generation's psyche. You try to get into the best college; then you try to get the best unpaid internship; and finally you try to get the best full-time job. This pattern, however, has raised four primary problems. First, it disadvantages students from the middle and lower class because they can't afford to take unpaid internships, which increases and perpetuates socioeconomic and often racial inequality. Second, when interns are not paid, various federal sexual harassment and discrimination legal protections do not apply, since courts have held that such interns are not classified as employees. Third, the emphasis on having work experience in today's employment market necessitates that already debt-burdened students take unpaid internships, putting themselves into further financial trouble. And fourth, employers are firing full-time employees and replacing them with teams of unpaid interns.
Despite these concerns, unpaid internships persist, and as of today, there is little to no case law about them—mainly because interns fear the whistle-blower stigma that would arise from bringing a lawsuit. Recently, however, two class action suits were launched against prominent media and entertainment companies. My Comment seeks to shape the law for these cases of first impression. Using a Supreme Court case from the 1940s, the Fair Labor Standards Act, and the Department of Labor’s Fact Sheet #71, I propose a simple test to determine the legality of unpaid internships: if a for-profit employer, ex ante, expects to derive a benefit from the internship, then the intern is an "employee" (not a "volunteer") who deserves at least the minimum wage and also protection from sexual harassment and discrimination.
Solar-Backed Securities: Opportunities, Risks, and the Specter of the Subprime Mortgage Crisis
Existing project financing structures utilizing the Investment Tax Credit (ITC) and depreciation benefits have helped spur growth in the solar industry but are insufficient on their own to enable the residential solar sector to scale up and become a mainstream energy source. In the span of only a few years, the solar market has grown from a fledgling niche industry to an important global player. Solar installations in the United States grew at an annual rate of 70% between 2005 and 2012. Federal tax incentives and state-level subsidies have largely driven this growth. However, for reasons I explore in this Comment, these tax incentives and subsidies will be unable to sustain such rapid growth in the coming years, especially in the residential sector. If the solar industry is to continue to grow and become competitive with other energy sources, innovative private financing mechanisms are needed to allow residential solar developers to tap into capital markets and access new classes of investors (e.g., mutual funds, pension funds, and other institutional investors).
The securitization of solar leases presents a promising solution to this problem, but a variety of barriers currently prevent solar companies from securitizing these assets successfully. This Comment identifies and assesses these barriers and recommends strategies to promote low-cost securitization of residential solar leases while minimizing the potential risks that such securitization poses.
In Part I, I introduce the solar market, emphasizing in particular the current mechanisms to finance solar systems, the existing policies promoting solar energy, and the residential solar leasing model. In Part II, I present an overview of the asset-backed securitization process, outline how it might apply to solar leasing, and assess the risks and benefits of solar lease securitization. Finally, in Part III, I recommend strategies to reduce the risks posed by solar lease securitization and offer some predictions for the sector going forward. This Comment focuses primarily on residential solar systems but will also address some concepts common to commercial and utility-scale solar systems. Ultimately, I argue that while securitization is not a quick fix, it is a valid option for increasing liquidity and attracting new sources of capital to the solar leasing market.