For the past decade and a half, third-party litigation finance (TPLF) has become an important part of the U.S. civil litigation system, helping litigants (especially plaintiffs) relieve litigation-related financial stresses and prosecute claims to enforce their legal rights. In response to the industry's appearance, a first generation of TPLF regulation unfolded from roughly 2010 until 2022. This first-generation reform program was a state law phenomenon, with a dozen or so states enacting a series of tentative and piecemeal reforms. Over the past three years, and in response to intense policy demands of business groups like the Institute for Legal Reform (ILR), TPLF regulation has experienced a qualitative intensification. Unlike the first-generation TPLF reform, second-generation reform is happening at the state and federal levels. It also exhibits a more adversarial regulatory posture that at times appears to have eliminationist ambitions, particularly with respect to (1) new civil and criminal penalties and (2) new threats from Congress to tax the industry's income at punitive rates. And yet, notwithstanding the clamor from TPLF critics, the available empirical data belie the critics' complaint that TPLF is responsible for an avalanche of frivolous lawsuits and instead suggest that TPLF providers are carefully selecting for high-quality legal claims. The Article contends that the acceleration of second-generation TPLF reform, fueled by well-organized policy demanders like ILR and others, is outpacing the ability of policymakers to carefully calibrate the social benefits and costs of various proposals to reform the industry. Most troublingly, lawmakers are currently failing to consider the industry's manifold benefits: how it both solves practical first-order problems of litigants relating to liquidity and risk and also produces several second-order economic and socio-political benefits for society.
In Mahmoud v. Taylor, the Supreme Court recognized for the first time a constitutional right for religious parents to exempt their children from public school instruction affirming LGBTQ+ identities. This Article argues that Mahmoud inaugurates a troubling new form of "opt-out constitutionalism": a judicial model that privileges religious exit over civic engagement, transforms exposure to difference into a constitutional injury, and threatens the very foundations of public education in a pluralist democracy. Although framed as a defense of religious freedom, the Court's decision in Mahmoud ultimately distorts the proper application of strict scrutiny, strays from the core commitments of political liberalism, and undermines the traditional civic mission assigned to public education. By constitutionalizing subjective offense and collapsing the distinction between exposure and coercion, the Court invites an era of fragmented, ideologically siloed education. This Article situates the Court's turn in Mahmoud within the broader landscape of deepening political polarization and growing civic retreat and turns to comparative constitutional frameworks to identify institutional models that balance religious accommodation with the imperative of democratic integration. Reconstructing the doctrinal landscape, this Article offers a normative and institutional framework for resisting constitutionalized exit and re-centering voice in public education. It argues that preserving the public school as a site of civic encounter, not ideological retreat, is essential to sustaining constitutional democracy in an age of division.
Police violence in the United States occurs at an alarming rate. Enforcing federal criminal laws aimed at holding law enforcement officers accountable for their misconduct is difficult. Even where there is strong evidence of guilt, jurors often acquit officers rather than allow them to face criminal consequences for their actions. This Article examines suspected nullification verdicts in excessive force cases through the lens of an expansive body of research on juror and jury decision making. What emerges is the theory that nullification verdicts in excessive force cases are a function of the presence of one or more authoritarian jurors, the measure of gaps left in the prosecution's story, and the degree to which jurors understand the power of nullification and its appropriate and inappropriate uses. Instructing juries in excessive force cases on nullification and advancing explicit anti-nullification arguments is one corrective measure that prosecutors could effectively employ to minimize wrongful acquittals of law enforcement officers. Excessive force juries should be told of their power to nullify and encouraged to wield that power only in the pursuit of a just verdict. Doing so will diminish the likelihood that law enforcement officers will be incorrectly acquitted where there is overwhelming evidence of guilt and will recalibrate the circumstances under which nullification is employed, that is, to function as a check on the abuse of government authority.
This Article makes two main contributions at the intersection of Constitutional Law and critical analyses of race and racial (in)equality. First, and more narrowly, the Article provides an in-depth analysis and critique of the with respect to a crucial aspect of the case that has not been addressed in depth in other scholarship on the decision: how key opinions conceptualize "race" in their reasoning. The and inconsistent, understandings of what "race" "is" and means in different parts of their analysis. It also illustrates how these inconsistencies are not random or arbitrary but instead appear to be the product of the pursuit of ideological preferences for maintaining the hierarchical status quo in which American society is ordered along racial lines. Second, and more broadly, the Article provides a theoretical framework that explains how and why we should understand such decision making as "conceptual gerrymandering." This concept is part of a broader framework for analyzing Supreme Court decision making which I call "jurisprudential gerrymandering" analysis, and which aims to uncover if, when, and how Justices manipulate or distort their jurisprudential choices in order to implement their political or ideological preferences for how society should be organized. Jurisprudential gerrymandering analysis aims to provide a shared vocabulary and conceptual framework that facilitates more substantive discussion and debate about Supreme Court decision making, especially between people who generally disagree with each other about the decisions of the Court, by focusing on whether the Justices' work meets widely shared expectations for how the Justices ought to exercise their institutional role and craft their work product. The Article situates these two contributions in the context of how SFFA has been mobilized by other actors (in particular, in recent actions by the executive branch). The Article concludes by discussing what its analysis suggests for how one might think about and respond to this recent "weaponization"of SFFA, as well as for how we might more productively engage with each other on the complex topic of race more generally.
The brutal history of conflict over land demonstrates its importance for national security. Farmland in particular is in short supply and has appropriately been designated as "critical infrastructure." However, the Committee on Foreign Investment in the United States (CFIUS) reviews foreign investment in farmland only if the farmland's location is close to military or other sensitive sites. The United States Department of Agriculture (USDA) gathers information on specific types of foreign farmland investment yet is wholly removed from any type of national security review. While it might seem like a ban on foreign investment in farmland is an easy solution to this problem, that is far from true. The first in a planned series of articles looking at threats to farmland, this article argues that farmland-central to America's food supply, natural resources, and international relations-must be treated as critical infrastructure subject to review under the CFIUS even if it is not located near a military or other sensitive site. Specifically, "covered real estate transactions" should be redefined to include foreign farmland investments meeting strategic criteria such as that already existing within numerous USDA reporting regulations and various state reporting laws. Improvements to the USDAs outdated system of data gathering and reporting are necessary to allow the USDA to better support the efforts of CFIUS. Such changes will enhance national security without imposing blanket bans that could disrupt the agricultural economy or foreign relations. It is time that we treat farmland as the valuable commodity and critical infrastructure it is, recognizing that "[a]griculture is foundational to our nation" and "farm security is national security."1
In the aftermath of the COVID-19 pandemic, school absences have skyrocketed. While racially minoritized, disabled, and low-income students have historically been, and remain, most likely to experience absence, white and affluent students' rates of attendance have also declined. To respond to this new universality of student absenteeism, some policymakers have begun to seek alternatives to what we term "the truancy paradigm." We define the truancy paradigm as the range of coercive and often punitive interventions deployed by states and school districts to enforce compulsory attendance statutes. This paradigm, we argue, wrongly assumes (a) that strict enforcement of compulsory attendance laws is always in the students' best interest; (b) that absent students are willfully disobeying the state and their parents; (c) that student absences fit neatly into an excused/unexcused binary (and that this binary is a useful policy tool); (d) that parents have complete and consistent control over their children's actions; and (e) that a regime of punishment is not only an effective way to keep kids in school, but that its usefulness also
Private Equity (PE) is a term for large funds that use mostly borrowed money to buy and restructure companies, supposedly to make them more profitable. They manage trillions of dollars in holdings and have come to dominate many sectors of our economy, often not for the better. Private Equity is perhaps a more genteel form of the hostile take-overs that were so prevalent several decades ago, because now instead of ousting management of the firms they acquire, Private Equity offers their officials sweet deals to stay on. Those arrangements often raise conflicts which result in the shareholders of the target companies receiving less than full value for their shares. But an even more serious problem with Private Equity firms is that many times society and ordinary individuals pay the price for the adverse consequences that result from their purchases of viable companies. They load those businesses up with unsustainable debt and channel their assets to themselves by way of big dividends and consulting fees. That frequently results in the consumers of those firms getting poorer quality goods and services while the private equity insider become fabulously wealthy. It is unlikely the current administration dominated by fund managers and other members of the super-wealthy will take any action to address these serious concerns. Yet as the situation continues it will be even more necessary in the future to find ways to control private equity firms and counter the on-going scandalous wealth and income inequality that they are inflicting on our country. This Article will therefore examine these often harmful operations and review various proposals to tame them by reining in some of their socially irresponsible conduct. In addition, the author will put forth his own reforms that would require Private Equity firms to be both more transparent about their results and receive prior approval from public officials to make sure that their goals truly serve the common good.
As artificial intelligence increasingly reshapes financial advising, the SEC has proposed new rules requiring broker-dealers and investment advisers to eliminate or neutralize conflicts of interest arising from AI use. This Article critically assesses the proposal's scope, rationale, and feasibility, contending that its sweeping definitions and prescriptive mandates risk overregulation and conflict with the SEC's longstanding disclosure-based regulatory approach. Drawing on case law, fiduciary duties, Regulation Best Interest, and existing antifraud provisions, this Article argues that the current legal framework, grounded in disclosure and informed consent, remains sufficient to manage AI related conflicts. It cautions against imposing categorical conflict elimination requirements that may stifle innovation, limit market efficiency, and overlook existing mechanisms of market discipline and enforcement. Instead, the SEC should focus on enhancing disclosure standards and leveraging its antifraud authority to address emerging risks, such as AI washing. By advocating for a principles-based, disclosure-driven approach, this Article proposes a more balanced and effective path to algorithmic accountability in financial advising, aligning regulatory oversight with technological innovation and market realities.
Should billionaires be able to live large by borrowing against appreciated assets? By holding and not selling the appreciated assets, billionaires pay no taxes on the wealth unlocked through the borrowing. This feat is accomplished by relying on the interplay of two fundamental principles of the U.S. federal income tax system. First is the principle of "realization." Whether or not this principle has a constitutional foundation, which is hotly debated, the current tax system requires that, except in very limited circumstances, a gain is taxed only if it is "realized" through a sale, exchange, or other disposition of the asset. As long as the taxpayer retains the asset, any appreciation in the asset's value is known as "unrealized" gain. The second principle is that borrowed funds are not considered to be income and therefore cannot be subject to income taxation. The foundation of this principle is even more fundamental: in order to have income, a taxpayer must enjoy dominion over an "accession to wealth." Because the "accession" to borrowed funds is fully offset by an obligation to repay those funds, the conventional wisdom is that there is no "wealth" to which the taxpayer can accede. When appreciated property is given as collateral for borrowing, the foundations underlying both of these principles are radically undermined. By pulling out cash that can be used for any purpose, the taxpayer has taken full advantage of the asset's appreciation. This should clearly be considered a realization event, regardless whether the concept has constitutional underpinnings. And there can be no question that holding property that has increased in value is an accession to wealth, regardless whether it is sheltered from taxation by the realization requirement. Even though the taxpayer (or the taxpayer's heir) has an obligation to eventually pay back the loan, taking cash out against appreciation in asset value is clearly a real and immediate monetization of that wealth. This Article advocates that Congress amend the Internal Revenue Code to make borrowing against substantial asset appreciation a taxable event.
