Volume 54, Issue 4

About Abortion: The Complications of the Category

My subject this afternoon is abortion, a subject that for the last 40 years has embedded itself in American consciousness, American politics, and American culture with remarkable durability and reach. Looking only at the first decade of this century—from George W. Bush to Barack Obama, to use two presidential landmarks—abortion has been central to how Americans conceptualize, debate, and sometimes resolve all sorts of things: foreign aid, health care reform, high school sex education, and judicial nominations to the Supreme Court. Abortion has been at the heart of disputes over what products Walmart keeps on its shelves, whether Super Bowl fans should watch or boycott half-time advertisements, and what health care services are available to pregnant servicewomen serving abroad. Reliably divisive, the subject is never far out of sight; it stands at the ready to stir the pot or, depending on one’s viewpoint, to bring sudden clarity to whatever issue is under discussion.

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The Naked Fiduciary

Business law is grounded in the common law of fiduciary duty. Courts and policymakers have been loath to abandon that principle. Yet, particularly in the contractual context of limited liability companies (“LLCs”), the fiduciary label is illusory and may undercut sound governance practices for those entities. This Article presents an in-depth empirical study about governance provisions included in LLC operating agreements and examines the implications of the data in the context of various types of businesses that might choose to organize as LLCs. The Article uses the data and related case studies to offer a new approach to LLC governance—the “coactive” LLC.

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Making Non-Competes Unenforceable

The law of employee non-competition agreements is a mess. Differing standards, unpredictability, and uncertainty within and between jurisdictions is the norm. This diversity of state law provides an incentive to forum shop, which leads to conflict of laws and parallel litigation. Conflict-of-laws doctrine, comity principles, and abstention doctrine all fail to satisfactorily address these problems. Uniformity in non-compete law, whether achieved through the uniform act process, a model act, or otherwise, is thus desirable. Moreover, a uniform rule of unenforceability would do the most to reduce the disadvantages of the diversity of state law and to facilitate the flow of commercial transactions because such a rule is discrete, easily applied, the least likely to be subject to interpretive changes over time, and promotes a free market in labor.

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Chapter 11 Triage: Diagnosing a Debtor’s Prospects for Success

This Article presents the results of a large empirical study of Chapter 11 cases filed in 2004, the year before Congress enacted the small business reforms in the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”). The study confirms what the National Bankruptcy Review Commission (“Commission”) and Congress suspected: Overall rates of plan success are low in Chapter 11, and those low rates are largely attributable to the small Chapter 11 debtor. Congress, however, did a better job than the Commission at determining the criteria for identifying debtors with low prospects for success in Chapter 11. Committee formation—present in the Code’s small business debtor definition but absent in the Commission’s definition—was significantly associated with increased rates of plan confirmation and successful plan performance. In addition, the $2 million liability cutoff that Congress put into place in BAPCPA generally served as a better predictor than the Commission’s $5 million limit of the point at which plan confirmation and performance rates became significant.

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Net Neutrality and Nondiscrimination Norms in Telecommunications

“Net neutrality” refers to the principle that broadband providers should treat all Internet content and applications equally. After much debate, the Federal Communications Commission adopted binding net neutrality rules in December 2010, which forbid broadband providers from unreasonably discriminating when delivering Internet traffic.

The prohibition on unreasonable discrimination has a long pedigree in telecommunications law, and net neutrality proponents have long asserted the need to extend that nondiscrimination norm to cyberspace. But the Commission’s net neutrality rules impose far greater obligations on broadband providers than the law ever imposed on other telecommunications companies. While the Commission laudably seeks to protect consumers, its rules have the unintended consequence of stifling innovation in the broadband industry. A more nuanced set of restrictions grounded in the Commission’s traditional nondiscrimination rules would be far superior policy, and would reflect the learned wisdom of 75 years of telecommunications law.

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Seeking a Sane Solution: Reevaluating Interests in Forcibly Medicating Criminal Defendants to Trial Competency

The forcible medication of incompetent criminal defendants involves complex legal and ethical issues. The Supreme Court has recognized the significant liberty interest of an individual to be free from unwanted medication. Governments can forcibly medicate non-dangerous detainees to trial competency only after proving the medication will further significant government interests, is medically appropriate, and is necessary. Because the standard for medicating a dangerous detainee is easier to meet, governments can alternatively medicate defendants to competency upon a showing of dangerousness. This Note discusses the different levels of protection afforded to dangerous and non-dangerous detainees and the implications of these two standards. It reevaluates liberty and government interests in light of the likely outcomes of a decision under current doctrine and concludes that preserving the right of a mentally disordered person to refuse treatment should not be balanced merely against the government interest in bringing the accused to trial, but also against the government interests in alleviating suffering, respecting life, and the personal autonomy sacrificed to the disease by refusing treatment.

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Regulators in Wackyland: Capturing the Last of the Designer Drugs

Since 2008, synthetic marijuana has been openly sold as “herbal incense” in head shops, gas stations, and online. A short time after the emergence of synthetic marijuana, cathinone derivatives appeared as “bath salts.” Since then, poison control centers and emergency rooms throughout the U.S. have seen numerous incidents of people experiencing severe negative effects from these drugs. Several people have died from cathinone derivatives. Yet, four years later, synthetic marijuana, cathinone derivatives, and other “legal” drugs remain widely available. Lawmakers’ response to these drugs has been inept. This Note examines the actions taken to control “legal highs” and explains why they have all failed, and will continue to fail, unless new methods of control are employed.

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Keep Dreaming: Deferred Action and the Limits of Executive Power

The Obama administration recently announced a policy whereby it would grant deferred action to undocumented immigrants who arrived in the United States as children and who meet additional criteria. In response, Arizona Governor Jan Brewer issued an executive order instructing state agencies to deny driver’s licenses and other public benefits to individuals granted deferred action under the new policy. Both actions drew significant criticism and raised important questions as to the limits of executive power vis-à-vis the rights of undocumented immigrants. Despite critics’ concerns, however, the actions of both executives are likely to have little lasting effect in the absence of further legislative action. In order for an executive to grant substantive benefits to a class of persons that a future administration cannot revoke, the legislative branch must first define and confer those benefits. Conversely, an executive cannot abridge a class of individuals’ rights that the legislative branch has clearly defined and granted. With respect to undocumented immigrants who arrived in the United States as children, then, only the legislative branch can grant lasting force to the executives’ actions.

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Engler v. Gulf Interstate Engineering, Inc. and the Role of Control in Vicarious Liability

In Engler v. Gulf Interstate Engineering, Inc., the Arizona Supreme Court adopted the Restatement (Third) of Agency as the test for whether an employer is vicariously liable for the torts of its employee. This Case Note examines the development of Arizona vicarious liability law, and discusses the inconsistencies in how Arizona courts incorporated “control” in their vicarious liability analysis. With Engler, the Court’s adoption of the Restatement (Third) resolves these inconsistencies by adopting control as the primary test for whether an employer is vicariously liable. This clarifies Arizona law while still honoring the policy justifications that underlie vicarious liability.

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