Nancy S. Marder’s forthcoming article in the Arizona State Law Journal, The Conundrum of Cameras in the Courtroom, 44 Ariz. St. L.J. 1489 (2013), was quoted in the New York Times on February 18, 2012. The New York Times piece by Adam Liptak, Bucking a Trend, Supreme Court Justices Reject Video Coverage, addresses the U.S. Supreme Court’s reluctance allow cameras into the highest court in the land.
“A pair of new law review articles tries to make sense of the gaps between the American and international approaches. In one of them, in The Arizona State Law Journal, Nancy S. Marder, who teaches at the Chicago-Kent College of Law at the Illinois Institute of Technology, noted correctly that ‘most countries do not allow cameras in their courtrooms’ and concluded that ‘cameras in federal courtrooms will do more harm than good at this time.’ In an interview, she said she worried about a culture in which ‘everything becomes entertainment, focusing on the gaffe.’”
Congratulations to Ms. Marder and members of Arizona State Law Journal for their work on the article.
This article was written by guest author Jasper Doomen, Lecturer at Leiden University.
A traditional way to characterize the norms that govern the laws of war is that between ‘ius ad bellum’ (the right to engage in war) and ‘ius in bello’ (the law of armed conflict, i.e., the right which applies in a state of war). These notions may seem unproblematic. They seem to simply refer to the rules that determine the circumstances under which one is absolved of any fault for belligerence, and those that stipulate how one should act once a state of war is a reality. Serious problems emerge, however, once the status of these rules is critically examined.
To what does ‘ius in bello’ amount? The notion implies the possibility to judge whether the rules in a state of war have actually been observed, which, in turn, implies the existence of an authority that is to act as the court of justice. The problems with such a stance are twofold.
First, this state of affairs conflicts with the nature of war, which is, by definition, characterized by the absence of rules, or at least the nonobservance of rules if they are presumed to exist. This may appear to evidence a dogmatic stance on my part with regard to the meaning of ‘war’: why should war by definition be characterized by a lack of rules? I would argue that the observance of (enforceable) rules to mitigate or resolve the conflict is a sign of the war already being at an end. Second, it presupposes that the transgressor acts upon the possibility that at some point in the future, the war will end, whereupon the defeated party (presuming that this is also the party that has failed to act in accordance with the rules) will be judged. For simplicity, I will hypothesize a two-party conflict. Several parties may be involved, and various conflicts may constitute a war, but that does not affect the present line of reasoning.
In situations of ‘ius in bello’, the transgressor is not judged before the war has ended, since a judgment would make no sense prior to the war’s conclusion. Additionally, at that stage it is not clear whether all relevant acts that are to be judged can be brought to the fore since additional perpetrations may take place in the course of the, ex hypothesi, ongoing war. Once the war is over, a victorious transgressor will still not be judged unless the conflict is limited to a relatively small territory and/or a small number of people, in which case one or more outside parties may serve as judge(s), which is predicated on the power of the party that is to be judged being limited to such an extent that a judgment against it will carry actual consequences. The issue of enforceability is manifest at this point.
‘Ius post bellum’ (the law after a war) is a more appropriate phrase to characterize the situation than ‘ius in bello’. The Geneva Conventions, for example, only make sense if (1) parties observing the rules take into account the possibility that they will lose the war (thus already contemplating the ‘post bellum’ reality, and incorporating it into their considerations), while (2) there is an organization with enough power to – eventually – enforce the rules laid down therein (which constitutes the ‘ius’ part of the phrase, demonstrating, incidentally, the difficulties involved in enforceability at the international level).
Parties presume that they will be victorious, or that the war will never end. They may then take into consideration the temporary cessation of violent activities even where a (stable) state of peace is not taken to be a viable outcome. In that case, the ‘ius’ either (1) cannot have concrete effects (the victorious party not acknowledging an international court of justice, which is a relevant factor if it cannot enforce its verdict), or (2) can never be taken to refer to a real state of affairs (since the state of war, ex hypothesi, does not reach an end).
On the basis of the foregoing, ‘ius in bello’ cannot be maintained as it involves a contradiction in terms, and must be replaced by ‘ius post bellum’. Basically the same analysis applies to ‘ius ad bellum’: here, too, acts can only be assessed after the state of war has come to a conclusion. The only – slight – difference with ‘ius in bello’ consists in the fact that parties that appeal to ‘ius ad bellum’ can be judged without a state of war ever being reached in the first place. This applies if they conform to the rules because they acknowledge the rules’ legitimacy, on that basis abstaining from any belligerent acts. Even in this case, however, the question arises whether they do not simply do so on the basis of a cost-benefit analysis.
In the most consistent interpretation, then, ‘ius in bello’ and ‘ius ad bellum’ are dissolved into ‘ius post bellum’, the latter remaining the only potentially viable notion. I say ‘potentially viable’ since its presence still points to the existence of ‘international law’ as a significant domain of law. I do not presume to be able to address all relevant aspects of this issue here, as the room to do so to the extent the subject-matter would require does not suffice. This is not my version of Fermat’s notorious escape, as I have dealt with the topic in some detail elsewhere, but merely a reflection of my awareness that limitations to discussions such as the present one are necessary, so as not to tax the reader (presuming, hopefully not inappositely, that this point has not already been reached). Suffice it to say that the absence of enforceable rules does not contribute to the convincingness of the position of those who contend that international legislation should be considered a counterpart of legislation at the national level.
This article was written by guest author F.E. Guerra-Pujol, Associate Professor of Law at Barry University.
As we begin another fun-filled year of teaching and thinking, I can’t help but realize that the foundation of our legal system, the common law doctrine of stare decisis, Latin for “let the decision stand,” is nothing but a pretty sand castle, one that crumbles when exposed to the unceasing and timeless waves of logic and practical experience.
Let me explain.
Stare decisis, or the principle of precedent, is based on a simple moral maxim: the idea that judges should treat like cases alike. The general idea, the one that we law professors teach our students on the first day of law school, is that a decision made by a court is a “binding precedent” that the court itself and all inferior courts in the same jurisdiction are obligated to follow.
Moreover, stare decisis not only provides the moral foundation of the Anglo-American legal system; it is also said that stare decisis promotes the “rule of law,” since it limits the discretion of judges and keeps the legal system predictable and stable over time.
But, at best, the principle of precedent, the maxim of treating like cases alike, provides the mere illusion of predictability and stability. In reality, it neither enhances the “rule of law” nor limits the discretion of judges because, at the end of the day, it is the judges themselves who decide when two cases are sufficiently “alike” or “unalike.”
In summary, the principle of precedent, or stare decisis, is a sand castle for two reasons: one practical, the other logical.
Let us consider the practical problems first. It is all well and good to say that judges should treat like cases alike, but who decides when two different cases, call them case A and case B, are sufficiently “alike” or “unalike”? Why, it is the judges themselves who decide this!
Thus, from a purely practical perspective, the impotence of the principle of precedent should become apparent at once. On the one hand, the main purpose of stare decisis is to limit the discretion of judges, but at the same time, it is these same judges—i.e. the very same officials whose discretion we wish to limit—who decide which precedents are binding!
To make matters worse, the notion of “binding precedent” is itself an oxymoron, a logical contradiction. That is, even when everyone agrees that case A and case B are, in fact, sufficiently alike for purposes of stare decisis—so that case A controls the outcome of case B—this happy state of affairs now raises a new and more troubling question: on what authority is stare decisis itself based on?
Why is this question so troubling? Because the obvious answer to this question undermines the very moral foundation of our legal system. That is, since it is the common-law judges themselves who have established the doctrine of stare decisis on normative grounds—the moral maxim of treating like cases alike—and since it is the judges themselves who have announced that precedents are binding, then by this same logic, these same judges also have the authority to disregard the doctrine that they themselves have created!
Of course, one could reply that my argument has no practical import, since so few judges would ever openly disregard or undo the doctrine of stare decisis. Really? What about the hard cases?
In any case (pun intended), I am not making a sociological or legal realist observation about how judges actually behave. I am just making a logical argument about the nature of the doctrine of stare decisis. Simply put, if judges have the power to make previous precedents binding under the doctrine of stare decisis, then by the same logic, they also have the power to make those same precedents “unbinding.”
But don’t just take my word for it. Just read your casebooks and find out for yourselves.
Barry Law School
Book Review: THE SHAREHOLDER VALUE MYTH: HOW PUTTING SHAREHOLDERS FIRST HARMS INVESTORS, CORPORATIONS, AND THE PUBLIC. By Lynn Stout.
This article was written by guest author, Michael C. Macchiarola, Distinguished Lecturer at City University of New York.*
As our inelegant Presidential contest examines unceremoniously the very foundations of free enterprise, and questions the appropriate roles and responsibilities of its participants and of government more generally, Professor Lynn Stout’s The Shareholder Value Myth offers a critique of its own, laying blame for many of the corporate world’s recent failures at the feet of the overzealous corporation and its unapologetic pursuit of shareholder value. Stout’s book represents a natural progression – or corporate law corollary – to the financial world’s growing mistrust of the Efficient Market Hypothesis in the wake of our recent crisis. And, I must confess, at the outset, that I approached this book and its philosophy with a healthy dose of skepticism. For, just as efficient markets could not explain the world as neatly as many first advanced, a shareholder primacy ideology certainly could not be the boogeyman that the very title of this book suggested. My suspicions were only heightened when the very first page of the book’s preface seemed to tag Enron’s shareholder-centric policies, of all things, for that company’s shameful demise.
The Enron assertion, however, is indicative of the work’s bipolarity. On the one hand, The Shareholder Value Myth offers a major contribution to our understanding of corporate purpose. In a well written and breezy style, the book confronts and debunks many of the myths, biases and ambiguities that have crept into our language and conception of corporate law. The book format allows the author to synthesize a series of topics that she has spent a celebrated career exploring with the depth and rigor of a first-rate scholar. At the same time, however, The Shareholder Value Myth struggles to distinguish correlation from causation and, at times, suffers its own brand of inexactness that, too often, offers sweeping generalizations liable to frustrate an aporetic reader.
Professor Stout’s overarching philosophy comes in three parts and, to her credit, stands much of today’s conventional wisdom on its head. First, despite what many have been taught as doctrine, Stout argues persuasively that “U.S. corporate law does not, and never has, required directors of public corporations to maximize shareholder value.” Second, again in the face of the routine understanding and conditioning of many, Stout maintains that the shareholders of today’s public corporations are “neither owners, nor principals, nor residual claimants.” Finally, Stout contends that “empirical evidence does not provide clear support for the proposition that shareholder primacy rules produce superior results.” Whether by happenstance or otherwise, these assertions progress from strongest to weakest. And, the author concedes that the answers to some of what she confronts are elusive, as understanding the corporation remains as much an art as a science. Each assertion, however, is worthy of further examination in this review, and, such an assessment follows.
“How Shareholder Primacy Gets Corporate Law Wrong” represents the book’s strongest chapter, contesting the “widespread perception” that the stewards of the corporation have a legal duty to maximize shareholder wealth. Building on her recent scholarship, Stout traces the birth of this “fable” to the “oversized effects of a single outdated and widely misunderstood judicial opinion.” Dodge v. Ford Motor Company was a 1919 decision of the Michigan Supreme Court. The opinion’s status as a meaningful legal precedent on the issue of corporate purpose is tenuous at best. Yet, its facts “are familiar to virtually every student who has taken a course in corporate law.” As Stout has observed in the past, “[t]he case is old, it hails from a state court that plays only a marginal role in the corporate law arena, and it involves a conflict between controlling and minority shareholders” more than an issue of corporate purpose generally. The chapter explains quite well that any idea that corporate law, as a positive matter, affirmatively requires companies to maximize shareholder wealth turns out to be spurious. In fact, none of the three sources of corporate law (internal corporate law, state statutes and judicial opinions) expressly require shareholder primacy as most typically describe it. To the contrary, through the routine application of the business judgment rule, courts regularly provide prophylactic protection for the informed and non-conflicted decisions of corporate boards.
Left underdeveloped in this chapter, however, is the more nuanced notion that the duty of directors is owed less to the shareholders than to the corporation itself. Such an outlook provides that directors’ efforts should be aimed at promoting the corporation’s existence and long-term success. In the much cited decision of Unocal Corporation v. Mesa Petroleum Company, for example, the Delaware Court of Chancery described a corporate board’s “fundamental duty and obligation” as “to protect the corporate enterprise, which includes stockholders.” The court’s very words suggest that the interests of a corporate enterprise include a constituency beyond just the shareholder. The notion of shareholder primacy might fit more neatly into such a construction than the author considers, however, with the fortunes of the shareholder operating as a convenient, yet inexact, proxy for the success of the overall corporate enterprise. Ultimately, such an idea is entirely consistent with the financial theory that values a corporation’s shares according to the present value of the perpetual stream of dividends to which they entitle their holder. After all, dividends are paid to shareholders. Much as a bond can be stripped of its coupons, the corporation’s long-term prospects can be broken into a series of expected dividend payments to be paid in perpetuity. And, while shareholders certainly invest with different expectations, levels of patience and investment time horizons, those who oversee the corporation are entrusted with protecting the enterprise’s overall success. Like it or not, shareholders’ fortunes are tied to the achievement of the corporation during the time they hold shares. Few would argue, for example, with the author’s contention that many in the C-suite at Enron were obsessed with the company’s share price. But such a short-sighted obsession was likely to implode in the long run and, therefore, should not be confused as consistent with any reasonable person’s version of a responsible shareholder-centric model.
After successfully debunking the myth that shareholder maximization is a positive requirement of a corporate board, the book’s next chapter, entitled “How Shareholder Primacy Gets Corporate Economics Wrong,” takes aim at three mistaken assumptions that have undergirded the popular, yet wrongheaded, principal-agent model of a corporation. In a refreshingly efficient manner, Stout refutes the oft-repeated ideas that shareholders enjoy special status as (i) owners, (ii) principals, or (iii) residual claimants of the corporation. Again, as Stout observes, to the extent that a special status is observed, it is more a clumsy result of convenience than any reliable reality. And, the shareholder primacy methodology, for all of its faultiness, might simply be seen as a palatable solution to the agency cost problem highlighted by Jensen and Meckerling. Besides, “a manager told to serve two masters (a little for the equity holders, a little for the community) has been freed of both and is answerable to neither.” Moreover, flawed as it may be, there is no denying that the shareholder primacy model offers a valuable signaling mechanism and some predictability to all of the corporation’s constituents, however defined.
Unsurprisingly, the evidence in support of the contention that shareholder primacy rules fail to produce better results for public corporations is incomplete at best. As a result, those who question this assertion are left to prove the counter-factual and make the case that somehow, without an ideology of shareholder primacy, the recent record of American corporations would have been even worse. Yet, in indicting shareholder primacy thinking as “unrealistic” and “dysfunctional,” Professor Stout holds no punches. Asserting that the ideology “reduces investors to the lowest common denominator,” she comments that:
“It favors the desires of the pathologically impatient investor over the long-sighted; favors the opportunistic and untrustworthy over those who want to be able to keep ex ante commitments to stakeholders and each other; favors the irrationally self-destructive over those more sensitive to their own interest as diversified universal owners; and favors the psychopathically selfish over the prosocial concerned about other people, future generations, and the planet.”
Stout bemoans the fact that the “gospel of shareholder value” and its accompanying rhetoric have made for a convenient dogma, ready to offer up the misbehaving corporate agent as an “obvious suspect for every headline-grabbing corporate failure and scandal.” At times, however, her book is just as guilty – finding a convenient malefactor all its own. In fact, throughout the book, the reader is confronted with a whole host of issues for which shareholder primacy is left to shoulder the blame. And, too often, this is done when other, more plausible explanations are readily available. For example, “[t]he population of publicly held U.S. corporations is shrinking rapidly” the book offers, in an effort “to escape the pressures of shareholder-primacy thinking.” The costs and burdens of Sarbanes-Oxley, the possibility of a cyclical macroeconomic slump and the dramatic speculation-encouraging effects of decimalization are hardly investigated as causes of the dearth of IPOs. Never mind that globalization and technological improvements have made the competition for listings more competitive than ever. In another example, we are told that “[i]n 1984, equity-based compensation accounted for zero percent of the median executive’s compensation at S&P 500 firms; by 2011, this figure had risen to 66 percent.” Such a statement is offered to support Stout’s damning point that “managers in U.S. companies had stronger personal incentives to run public corporations according to the ideals of shareholder value thinking.” The growth of equity-based compensation is not surprising, however, when one considers (i) the incredible innovation and development of financial derivatives, (ii) the birth of the Internet and the technology revolution, and (iii) the accompanying bull market for equities over that time period. Other choices also strike a discerning reader as petty, curious or politically motivated. One of today’s favorite targets, Goldman Sachs, for example, is cited for taking “risks that nearly toppled the financial system,” yet Lehman Brothers and Bear Stearns pass with nary a mention.
The book’s most disappointing part is its last section, where the author’s voice moves beyond constructive critique and flirts with endorsing the corporate loathing that has become all the rage today. In any shape, the so-called “pro-social shareholder” construct that the author offers is destined for disappointment. Socially responsible investing, for example, fails to account for the idiosyncratic tastes and ethical values of individual market participants and is unlikely to amount to more than a utopian mirage. In fact, “[a]bsent large-scale coordination – which seems both impractical and uncomfortably threatening to liberty – an individual fund can affect ‘ethical purity’ on its investment process only to its own economic disadvantage.”
In providing a thought-provoking and engaging examination of some of the more basic tenets that have become gospel in the area of corporate law, Stout supplies plenty of food for thought. But, in skirting the issue of what might replace the conventional shareholder-primacy ideology, the work fails to abide by the old axiom that “if you are going to criticize, you should propose.” Nonetheless, the book has effectively highlighted some of the deficiencies and biases embedded in such a view. Perhaps more importantly, it goes a long way to awaking those who might lazily and reflexively continue to offer that “the only shareholder whose interests count is the shareholder who is short-sighted, opportunistic, undiversified, and without a conscience.” This book makes clear that it is imperative that executives running America’s public companies maintain a more holistic understanding of their enterprise. Energy and effort is required to respond to the company’s shareholder base, and understand its various stakeholders and constituencies (shareholder and otherwise). Moreover, public companies must remain vigilant in assessing the dynamic nature of today’s markets and their imperfect and chaotic regulation. For all of the book’s achievements, however, it remains more a diagnosis than a prescription. And it fails to fully appreciate the significantly wide chasm between causation and correlation. Simply because the ideology of shareholder primacy has not proven as self-sustaining as we might have originally hoped or believed, does not mean that there exists a preferable alternative. And, simply because the recent past remains inglorious for U.S. corporations does not establish unequivocally that the focus on shareholder primacy was the culprit. A series of concomitant events should not immovably spawn a theory. For, as the seasoned corporate lawyer can attest, “past performance is not necessarily indicative of future results.”
In the end, any prescribed alternative to the maximization of shareholder value is likely to prove more frustrating than Stout anticipates. And, any such ideology seems destined too to be dogged by many of the coordination problems that have beset the non-homogeneous shareholders of today’s companies. Absent a reliable guidepost – as flawed, frustrating or displeasing as it might be – corporate results are likely to be even more subjective and chaotic. In the end then, this review hopes to bespeak caution – warning all that we should be careful in discarding the good in pursuit of the perfect.
* I thank Nicholas Meza, Mark Molique and their colleagues at the Arizona State Law Journal Blog. Their special efforts to bring efficiency to the world of legal scholarship are a welcomed development. As always, I thank Frank J. Macchiarola for his thoughtful comments and his overall inspiration.
 The Efficient Market Hypothesis asserts that financial markets are “informationally efficient” and, as a result, an investor cannot consistently achieve excess returns given the information available at the time that an investment is made. See Eugene F. Fama, Random Walks in Stock Market Prices, Fin. Analysts J., Jan./Feb. 1995, reprinted from Sept./Oct. 1965, at 76 (“[a]n ‘efficient’ market is defined as a market where there are large numbers of rational, profit-maximizers actively competing, with each trying to predict future market values of individual securities, and where important current information is almost freely available to all participants.”).
 Lynn Stout, The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public (2012) at v. (describing Enron as “a firm obsessed with raising its share price and a supposed paragon of ‘good corporate governance’” that “collapsed in fraud and scandal in 2000.”).
 See, e.g. Lynn A. Stout, The Legal Origin of the 2008 Credit Crisis, 1 Harvard Bus. L. Rev. 1 (2011); Lynn A. Stout, The Mythical Benefits of Shareholder Control, 93 Va. L. Rev. 789 (2007); Lynn A. Stout, The Shareholder As Ulysses: Some Empirical Evidence on Why Investors In Public Corporations Tolerate Board Governance, 152 U. Pa. L. Rev. 667 (2003).
 Stout, supra note 2 at 58.
 Stout, supra note 2 at 58.
 Stout, supra note 2 at 58.
 See, e.g. Stout, supra note [ ] at 57 (offering that “[b]ecause there are so many variables at work when we look at major trends instead of individual companies or nations, statistical regressions of the type so popular among those who do empirical research on corporations may be of little use.”).
 Stout, supra note 2 at 25.
 Stout, supra note 2 at 25. For her original critique, see Lynn A. Stout, Why We Should Stop Teaching Dodge v. Ford, 3 Va. Law & Bus. Rev. 163 (2008) (“Much of the credit, or perhaps more accurately the blame, for this state of affairs can be laid at the door of a single judicial opinion: the 1919 Michigan Supreme Court decision in Dodge v. Ford Motor Company.”).
 Stout, Why We Should Stop Teaching Dodge v. Ford, supra note [ ] at 164.
 See Stout, Why We Should Stop Teaching Dodge v. Ford, supra note [ ] at 168.
 Stout, supra note 2 at 31 (observing that “[t]he business judgment rule thus allows directors in public corporations that plan to stay public to enjoy a remarkably wide range of autonomy in deciding what to do with the corporation’s earnings and assets.”). Professor Stout herself has written in praise of the business judgment rule and its application, see Lynn A. Stout, In Praise of Procedure: An Economic and Behavioral Defense of Van Gorkom and the Business Judgment Rule, 96 Nw. U. L. Rev. 765 (2002).
 Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 954 (Del. 1985).
 Unocal Corp. v. Mesa Petroleum Co., 493 A.2d at 955 (suggesting that directors consider “the impact on ‘constituencies’ other than shareholders”). See also Credit Lyonnais Bank Nederland, N.V. v. Pathe Communications Corp., 1991 WL 277613 (Del. Ch. Dec. 30, 1991) (suggesting that the duties of directors expand in scope when a corporation is in the “zone of insolvency”).
 See Richard A. Brealey, Stewart C. Myers and Franklin Allen, Principles of Corporate Finance (9th ed., 2007) at 88 (observing that the present value of a stock is a discount of the future cash dividends by the return that can be earned in the capital market on securities of comparable risk).
 See Jesse Eisinger, Challenging the Long-Held Belief in ‘Shareholder Value’, N.Y. Times DealBook (Jun. 27, 2012) (commenting that “[i]t’s almost as if the legal world has been keeping a giant secret from the economists, business schools, investors and journalists.”).
 Frank H. Easterbrook and Daniel R. Fischel, The Economic Structure of Corporate Law (1991) at 38. See also Michael C. Jensen, Value Maximization, Stakeholder Theory, and the Corporate Objective Function, 12 Bus. Ethics Qtrly 238 (Apr. 2002) (noting that “[a]ny organization must have a single-valued objective as a precursor to purposeful or rational behavior” and further observing that it is “logically impossible to maximize in more than one dimension at the same time.”).
 Stout, supra note 2 at 107.
 Stout, supra note 2 at 107. Cf. Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (2004) (describing corporations as “dangerous psychopathic” entities).
 Stout, supra note 2 at 19-20.
 Stout, supra note 2 at 5.
 In fairness, the author does give Sarbanes-Oxley a passing mention, see, e.g. Stout, supra note [ ] at 54. Decimalization, on the other hand, is not mentioned at all. And, it remains an understudied topic. For a discussion of the effects of decimalization see Michael Macchiarola, Has Decimalization Been a Success?, RealClearMarkets.com (Apr. 7, 2011) avail. at http://www.realclearmarkets.com/articles/2011/04/07/has_decimalization_been_a_success_98947.html.
 Stout, supra note 2 at 20.
 Stout, supra note 2 at 21.
 Stout, supra note 2 at 104.
 Michael C. Macchiarola, Book Review: Human Rights, Corporate Complicity and Disinvestment, 22 LAW & POL. BOOK REV. 344, 346 (2012).
 Stout, supra note 2 at 10.
This article was written by guest author Derrick Diaz. Mr. Diaz is a 2012 graduate of Rutgers Law and is looking forward to a fruitful clerkship with the Superior Court of New Jersey. Mr. Diaz has also authored Minors and Cosmetic Surgery: An Argument for State Intervention, 14 DePaul J. Health Care L. 235 (2012).
Much has been topically written on the Beason-Hammon Alabama Taxpayer and Citizen Protection Act (“HB 56”), which was purportedly passed to “help protect [the] constitutional rights [of] Alabama citizens.” However, HB 56 actually subjects both U.S. citizens and lawful aliens to racial profiling, in addition to robbing them of their Fourth Amendment protections against unreasonable seizures. First, HB 56′s brand of reasonable suspicion lays upon Alabama law enforcement the impossible burden of differentiating between ethnic citizens and aliens, in addition to differentiating between aliens lawfully and unlawfully present. Second, Section 12 of HB 56 requires law enforcement, under threatened loss of state funding and civil lawsuit, to categorically detain any and all people whom they suspect to be an unlawful alien. Third, in direct contravention of Fourth Amendment jurisprudence, HB 56 implicitly calls for unparticularized suspicion of persons not committing an offense. This will consequently lead to profiling based on race, color, and national origin—sweeping both U.S. citizens and lawful aliens into an overly broad immigration dragnet. Fourth, the Bill’s authors were undoubtedly aware of the strong likelihood that racial profiling would occur, so they reserved the weakest language for the five prohibitory provisions restricting officers from using race, color, or national origin. Fifth, even if reasonable suspicion could be employed by Alabama officers without profiling, the verification process is still violative of Fourth Amendment jurisprudence because it requires detention far beyond a brief stop or detention.
Alabama’s Law Poaches the Constitution
Section 12 is the Bill’s catchall provision governing any and all interactions between law enforcement and the public. This section requires an officer conducting “any lawful stop, detention, or arrest,” and who has reasonable suspicion to believe that a person is an unlawful alien, to attempt to determine the “citizenship and immigration status of [that] person.” Section 12(a) also ambiguously qualifies such an “attempt” by providing that it be done when “reasonable” and “practicable.” For reasonable suspicion purposes, the Bill also instructs that the officer “may not consider race, color, or national origin” while enforcing Section 12.
The section also requires that the final status determination be made by federal agents, and that state officers “shall not attempt to independently make a final determination.” Section 12 has an additional provision for any alien “arrested and booked into custody.” This provision requires that an alien “shall be released from custody” if, while checking immigration status, the alien is delayed beyond the time she would normally have been released from police custody.
Section 6, most crucially, threatens loss of state appropriations against any department not enforcing HB 56. It also opens law enforcement to civil liability, most broadly, to any Alabama resident for enforcing HB 56 “to less than the full extent permitted by [HB 56].” As such, all investigatory stops will herein be treated as investigatory detentions because, for all practical purposes, when Section 12 and Section 6 are combined, officers have too strong a motivation to unconstitutionally detain while making a federal immigration inquiry.
Section 12 Bites Off More Than It Can Chew
The reasonable suspicion mandate of Section 12(a) requires officers to retroactively articulate two complex layers of fact which lead the officer to infer before a stop, detention, or continued detention that the person was an alien unlawfully present. First, the officer must articulate how, using only reasonable suspicion, he surmised that the individual was an ethnic non-citizen rather than ethnic citizen–though there are no distinguishing markers to differentiate between the two. Then, if the officer suspected that the person was a non-citizen, the officer must next articulate facts which lead him to presume that the individual was unlawful, rather than lawfully present.
Adding to the complexity is the fact that there are a great diversity of ways to be legally present. The U.S. Citizenship and Immigration Services (“USCIS”) issue permanent immigrant visas, the recipients of which are called “Lawful Permanent Residents.” These visas are issued based on several categories, such as a family preference system, employment, diversity lottery, and derivative status.
The USCIS also issue temporary nonimmigrant visas, the duration for which vary significantly, and are granted for a plethora of reasons. These include business and pleasure visitors, student visas-academic study, professional employees, unskilled workers, student visas-cultural exchange, intra-company transferees, student visas-vocational study, aliens with extraordinary abilities, entertainers, human trafficking victims, or victims of criminal activity. People may also be admitted for humanitarian reasons, as either refugees or asylees. Furthermore, under the Visa Waiver Program, people from 36 different countries can visit the U.S. and stay for 90 days without ever obtaining a visa. In sum, Section 12 requires Alabama law enforcement, using only reasonable suspicion, to differentiate between unlawful aliens and the great diversity of those who are lawfully present–an impossible task.
This Half-Baked Reasonable Suspicion Smells Like Permissible Racial Profiling
While Section 12(a) does not explicitly provide officers with a list of factors for reasonable suspicion determinations, it implicitly does so by flaccidly stating that officers “may not” use race, color, or national origin to enforce the section. In a grammatically imperative sense, Section 12 uses the obligatory word “shall” a total of seven times, but uses the permissive word “may” only once in 12(c), in reference to the use of race, color, or national origin. In fact, the phrase “may not,” used a total of five times throughout HB 56, is the exclusive phrase used when referencing these characteristics. Conversely, the unambiguous prohibitive phrase “shall not” is used a total of 38 times throughout HB 56.
Furthermore, the only other instance where “may not” is used are in Sections 5(c) and 6(c). Both sections grant state authorities the power to send, receive, and maintain immigration status information. However, the use of “may not” in these two sections is legally innocuous for the state, as states already possess this authority under the primary goal of Obama’s Secure Communities program–to identify and share immigration status with state law enforcement. Most importantly, however, the use of “may not” in Sections 5(c) and 6(c) do not infringe on the Fourth Amendment rights of people stopped or detained by state law enforcement.
Such permissive language leaves open an ambiguous zone of legal interpretation which, in practice, allows officers to use race, color, and national origin to enforce Section 12. For practical and legal purposes, the relevant phrase in 12(c) can be interpreted as follows: A law enforcement officer may or may not consider race, color, or national origin. Instead, if the Bill’s authors were truly interested in prohibiting the use of immutable characteristics, then the language would have more properly been drafted: A law enforcement officer shall not consider race, color, or national origin.
The only conclusion to draw is that the drafters intentionally wrote HB 56 ambiguously due to their recognition of the impossibility of enforcing it without using immutable characteristics. In fact, an experienced Alabama sheriff testified that he does not think it even possible to enforce HB 56 without considering characteristics such as appearance and manner of speaking. The sheriff also testified that while his deputies have been trained on reasonable suspicion in criminal matters, they have not been trained on HB 56′s reasonable suspicion standard for immigration matters–thus leaving interpretation and implementation, on an incident-by-incident basis, to the everyday officer on the beat. The sheriff continued to testify that even if his deputies were so trained, such training might not be adequate or appropriate for enforcing the federal law because the state is not competent to train in matters never before in its jurisdiction.
The authors of HB 56, aware of these realities, intentionally chose the legally ambiguous phrase “may not” over “shall not.” The direct result can only be that HB 56′s brand of reasonable suspicion implicitly calls for unparticularized suspicion of persons not committing an offense. This is in direct contravention of the particularity requirement because it makes profiling based on race, color, and national origin openly permissible—sweeping both U.S. citizens and lawful aliens into its overly broad immigration dragnet.
Do Not Overcook: the Prohibition Against Overextending Hot-Seat Time
Pragmatically speaking, Section 12(a), coupled with the threats of Section 6, require officers to continue detention while verifying immigration status with federal authorities. David Palmatier, Unit Chief of the Law Enforcement Support Center (“LESC”), an arm of Immigration and Customs Enforcement, explained that responses to status inquiries are significantly delayed. He explained that the average query must wait 70 minutes before an LESC specialist begins to work on the request. The specialist then needs an additional 11 minutes to search the DHS system and provide a written alien status determination–a total of 81 minutes. The wait time to determine the status of a U.S. citizen erroneously suspected to be an unlawful alien is the same–81 minutes. Detention for such a period of time is certainly a violation of the Fourth Amendment right against unreasonable seizures because it goes far beyond the constitutionally permissible “brief investigatory stop” requirement.
In a leap of legal logic, however, an Alabama district court judge reasoned that the plain language of Section 12(a), which states that a “reasonable attempt” to determine immigration status will be made “when practicable,” indicates that if a stop goes beyond the time necessary to serve the original purpose of the stop then an officer is entitled to terminate the inquiry. Such a leap is unmerited.
First, the language which the Judge indicates as “plain” reads: “a reasonable attempt shall be made, when practicable.” However, the statute neither explains what constitutes a “reasonable attempt” nor when it is “practicable” for an officer to detain someone for a status determination.
Second, if the statute were intended to be plain, rather than legally ambiguous, it would hav
e express termination language to the effect that if the stop goes beyond the time necessary for the purpose of the original stop, then the officer is required to terminate the encounter. However, the statute was plainly not written so. Indeed, the authors were well aware of how to use such language and is the reason the termination requirement was expressly inserted into Section 12(b) for arrested persons.
Third, even if Section 12(a) conceivably suggested that an officer may end an inquiry when not practicable, Sections 6(a) and 6(d) still threaten loss of state funding and subjection to civil liability by any Alabama resident. Rather than making unmerited leaps of logic, it is far easier to reason that so long as HB 56 is allowed to remain state law, civil liability and appropriations loss will remain too strong an incentive for officers to enforce Section 12 beyond what is “reasonable” or “practicable.”
Lastly, while Section 12(b) does explicitly provide for release from custody when delayed too long for status determinations, this provision is expressly limited to persons who have been “arrested and booked into custody [at the police station].” Thus, there is no extension of the release provision to those detained by police but not taken to the police station–for example, people initially detained by the side of the road for a traffic citation, but then awaiting a status determination. As such, under Section 12 as a whole, people detained but not arrested must categorically be detained by law enforcement for the duration of the query wait time, regardless of the delay involved or the actual status of the detainee. Moreover, and most importantly, officers are compelled to do so under threat of appropriations loss and civil lawsuit by any Alabama resident.
In Conclusion: Racial Profiling With a Side of Excessive Detention Time
Alabama’s HB 56 was purportedly passed to protect the constitutional rights of Alabama citizens, but it actually robs, through its overly broad immigration dragnet, both U.S. citizens and lawful aliens of their Fourth Amendment rights. The law unreasonably requires law enforcement, through racial profiling, to distinguish between ethnic citizens and aliens, in addition to differentiating between aliens lawfully and unlawfully present, and then detain the persons while verifying immigration status. Such a law was not passed to protect anyone’s constitutional rights. Instead, it was implemented by lawmakers to force law enforcement, under threatened appropriations loss and civil suit by any resident, to harass and intimidate ethnic people out of Alabama.
 2011 Ala. H.B. 56, available at http://immigration.alabama.gov/docs/Immigration-AL-Law-2011.pdf. See also U.S. v. Ala., 443 Fed. Appx. 411, 420 (11th Cir. 2011) (enjoining enforcement of Sections 10 and 28 pending appeal, and denying temporary injunction of Sections 12, 18, 27, and 30), modified by 2012 U.S. App. LEXIS 9968 (enjoining, in addition, enforcement of Sections 27 and 30). But see generally Az. v. U.S., 132 S.Ct. 2492, 2494-97 (preempting Arizona’s SB 1070 provision making it a misdemeanor to fail to comply with federal alien-registration requirements, the provision making it a misdemeanor for undocumented aliens to work, and the provision authorizing arrests for removable offense; however, withholding a decision, for lack of ripeness, of the provision which authorizes detention, by law enforcement, for immigration status checks based on reasonable suspicion, but also expressly leaving open review once ripeness has been attained and for other constitutional challenges other than preemption).
 Alabama Immigration Information Center, http://immigration.alabama.gov/.
 The reasonableness clause of the Fourth Amendment guarantees people a right to be secure in their bodily person against unreasonable seizures by law enforcement. U.S. Const. amend. IV.
 This article only considers the investigatory stop and detention portion of the law, not the part pertaining to arrests. A law enforcement investigatory stop occurs when an officer stops a person and asks questions or to see identification. The person stopped is free to either decline the officer’s request(s) or immediately end the communication. U.S. v. Drayton, 536 U.S. 194, 202 (U.S. 2002). Such an investigatory stop is not a violation of a person’s Fourth Amendment right against unreasonable seizures, “as long as the police do not convey a message that compliance with their request is required.” Fla. v. Bostick, 501 U.S. 429, 435 (1991); see also INS v Delgado, 466 US 210, 216-17 (1984) (explaining that mere questioning of respondents by federal INS agents [not state law enforcment], without more, concerning their citizenship, did not amount to a detention or seizure under the Fourth Amendment); see also U.S. v. Drayton, 536 U.S. 194, 201 (2002) (“If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”) (emphasis added). However, if a person refuses the officer’s request and the police then take additional steps to enforce compliance with their request, then the Fourth Amendment imposes a minimal level of justification, under the rubric of reasonable suspicion, to validate a seizure of the person. INS v Delgado, 466 US 210, 216-17 (1984).
 Both an arrest and detention constitute a seizure of the person under Fourth Amendment jurisprudence. Seizure of the person occurs whenever an officer has restrained the liberty of a person through either physical force or show of authority. Fla. v. Bostick, 501 U.S. 429, 434 (1991). Such a detention need not lead to an arrest to constitute a seizure because, while an arrest may be the “quintessential seizure of the person under . . . Fourth Amendment jurisprudence,” Cal. v. Hodari D., 499 U.S. 621, 624 (1991), the Fourth Amendment still governs seizures of the person which do not eventuate into a trip to the police station and prosecution for crime. Terry v. Ohio, 392 U.S. 1, 16 (1968) (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”).
 Reasonable suspicion requires the officer to “point [out] specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the seizure].” Id. Even though the level of suspicion required for a detention based on reasonable suspicion is less demanding than that for probable cause, U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000), the officer must still “be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” Ill. v. Wardlow, 528 U.S. 119, 123-24 (2000). This “particularity requirement” means that the officer must have reasonable suspicion to believe that the individual being stopped is, in fact, committing or has committed a crime. U.S. v. Cortez, 449 U.S. 411, 418 (1981). As such, courts reject profiles which sweep ordinary citizens into a generality of suspicious appearance—particularly those involving immutable characteristics. U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000). Moreover, and importantly, an officer must have reasonable suspicion before she detains a person for a stop which eventuates into even the briefest of detentions, id. at 1130 (explaining that a stop may only be justified by reference to factors that were present up to the time the stop was made), without violating that person’s Fourth Amendment right against unreasonable seizures. Terry v. Ohio, 392 U.S. 1, 21 (1968).
 H.B. 56, supra note 1, at 12(a) (emphasis added).
 Id. at 12(c) (emphasis added). National origin is a legal phrase used to refer to place of birth and verbal accent. Because HB 56 does not define “national origin” in Section 3, this definition is adapted from the U.S. Equal Employment Opportunity Commission, available at http://www.eeoc.gov/laws/types/nationalorigin.cfm.
 H.B. 56, supra note 1, at 12(a).
 Id. at 12(c) (emphasis added).
 Id. at 12(b) (emphasis added).
 Id. at 6(a).
 Id. at 6(d).
 Declaration of Sheriff Mike Hale at ¶ 4, Hispanic Interest Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, No. C:5-11-cv-02484-SLB (N.D. Ala. 2011) (explaining that officers will need to detain the target of the stop pending confirmation of immigration status), available at http://www.justice.gov/opa/documents/ex4-hale-declaration.pdf.
 HB 56, supra note 1, at 3(1) (defining “alien” as “any person who is not a citizen or national of the United States.”).
 HB 56, Section 3(10), defines lawful presence by explaining that “A person shall be regarded as an alien unlawfully present in the United States only if the person’s unlawful immigration status has been verified by the federal government.” Moreover, both Section 3(10) and 12(d) grant a presumption of lawful presence to persons for possessing certain documentation. However, Sheriff Hale expressed concern that reliance on such documentation is not justified because the documentation list is ambiguous and not at all dispositive. For example, both Sections 3(10)(d) and 12(d)(4) grant the presumption of lawfulness, upon carrying any federal or state issued photo ID, “if issued by an entity that requires proof of lawful presence . . . before issuance”; however, Sheriff Hale explained that his department has not been trained on deciphering which agencies, of the great multitude of state and federal agencies in the U.S., require proof of lawful presence before issuance. Sheriff Mike Hale, supra note 15, at 11.
 But see Sheriff Mike Hale, supra note 15, at ¶ 10 (explaining that neither he nor his deputies have received, or are likely to receive, the training necessary to determine when someone is present unlawfully).
 For a helpful summary, see Cornell University Law School, Immigration, at http://www.law.cornell.edu/wex/Immigration. See also IRS, Immigration Terms and Definitions Involving Aliens, at http://www.irs.gov/businesses/small/international/article/0,,id=129236,00.html.
 8 U.S.C.A. 1153(a), Preference allocation for family-sponsored immigrants.
 Id. at (b), Preference allocation for employment-based immigrants.
 Id. at (c), Diversity immigrants.
 Id. at (d), Treatment of family members.
 8 U.S.C.A. 1101(a)(15)(B).
 Id. at (a)(15)(F)(i).
 Id. at (a)(15)(H)(i)(b).
 Id. at (a)(15)(H)(ii)(a).
 Id. at (a)(15)(J).
 Id. at (a)(15)(L).
 Id. at (a)(15)(M)(i).
 Id. at (a)(15)(O).
 Id. at (a)(15)(P).
 Id. at (a)(15)(T).
 Id. at (a)(15)(U).
 8 U.S.C.A. 1157, Annual admission of refugees and admission of emergency situation refugees.
 8 U.S.C.A. 1158, Asylum procedure.
 U.S. Department of State, Visa Waiver Program, at http://travel.state.gov/visa/temp/without/without_1990.html#vwp.
 See Sheriff Mike Hale, supra note 15, at ¶ 11 (explaining that he does not think it possible, despite his 35 years law enforcement experience, to enforce HB 56 without considering immutable characteristics such as appearance and manner of speaking).
 Compare with the Civil Rights Act of 1964, Equal Employment Opportunities, 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because of such individual’s race, color, . . . or national origin.”) (emphasis added).
 HB 56, supra note 1, Sections 7(d), 10(c), 11(c), 12(c), and 30(e).
 See http://www.ice.gov/doclib/foia/secure_communities/securecommunitiesstrategicplan09.pdf.
 Sheriff Hale is an Alabama native son and lifelong resident of Jefferson County, Alabama, with 35 years of law enforcement experience. Sheriff Mike Hale, supra note 15, at ¶ 1.
 See Sheriff Mike Hale, supra note 15, at ¶ 11. See also U.S. v. Brignoni-Ponce, 422 US 873, 884-85 (1975) (explaining that, at the border, federal Customs and Border Protection officers can consider such factors as proximity to border, patterns of traffic, recent information on illegal border crossings in area, driving behavior, or an extraordinary amount of passengers). However, the Court was careful to caveat that such factors were to be considered by federal immigration agents at the border; whereas, Alabama is three states away from the U.S. border with Mexico. Indeed, these factors become irrelevant when considered so far from the U.S. border.
 Sheriff Mike Hale, supra note 15, at ¶ 10.
 See Brignoni-Ponce, supra note 43, at 885-86 (holding that federal border patrol officer’s reliance on a single factor to justify stopping defendant’s car, the Mexican ancestry of occupants, did not furnish reasonable grounds to believe that the three occupants were aliens). See also U.S. v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000) (rejecting profiles which are likely to sweep many ordinary citizens into a generality of suspicious appearance); and Brent v. Ashley, 247 F.3d 1294, 1300 (11th Cir. 2001) (explaining that if a profile is overly general, it carries little weight in determinations by a court of whether the federal border patrol officer had reasonable suspicion).
 A lawful seizure of the person can become unconstitutional if the detention lasts longer than is necessary to effectuate the purpose of the detention. Muehler v. Mena, 544 U.S. 93, 101 (2005) (explaining that a lawful seizure can become unlawful if prolonged beyond time required to complete mission of seizure). See also Fla. v. Royer, 460 U.S. 491, 500 (1983) (“The investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”) (emphasis added); and, U.S. v. Place, 462 U.S. 696, 710 (1983) (concluding that 90-minute detention was sufficient to render seizure unreasonable). Indeed, the U.S. Supreme Court has explained time and again that, while law enforcement are permitted to “briefly stop” a person for investigatory purposes, if the detention time exceeds that which is necessary for the purposes of the stop and detention, then the detention is no longer minimally intrusive and thus a violation of their Fourth Amendment right against unreasonable seizures. See also Brignoni-Ponce, supra note 43, at 881-82 (explaining that even federal border patrol agents, on roving border patrol, must conduct only brief investigatory stops, and that any further detention requires either probable cause or consent).
 See Sheriff Mike Hale, supra note 15, at ¶ 9.
 The LESC fields immigration status requests from state, local, and federal law enforcement, including requests from officers at traffic stops. Declaration of David C. Palmatier at ¶ 5-7, U.S. v. Arizona, 641 F.3d 339, No. 10-16645 (9th Cir. 2011), available at http://www.justice.gov/opa/documents/declaration-of-david-palmatier.pdf.
 Id. at ¶ 1.
 Id. at ¶ 8.
 Id. at ¶ 12.
 See generally, supra note 47.
 Hisp. Int. Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846, 124-25 (N.D. Ala. 2011), injunction granted in part & denied in part, sub nom., U.S. v. Ala., supra note 1.
 See Sheriff Mike Hale, supra note 15 (explaining, in paragraph 4, that his deputies will be required to detain individuals pending immigration verification because provisions, such as Section 6, mandate enforcement; in paragraphs 5, 6, and 12, expressing concern over subjecting his office to costly litigation; in paragraph 7, explaining that Section 6 makes clear that immigration enforcement is to be given top priority; and, in paragraph 12, expressing concern over the law allowing any Alabama citizen to sue the Sheriff’s Department for even being perceived as softly enforcing the law).
 Compare with Plaintiff’s [United States] Motion for Preliminary Injunction at 9, U.S. v. Alabama, 813 F. Supp. 2d 1282, No. 2:11-CV-2746-SLB (2011) (erroneously and outrageously conflating Sections 12(a) with 12(b), despite the express qualification in 12(b) for persons “arrested and booked into custody”), available at http://www.justice.gov/opa/documents/motion-preliminary-injunction.pdf.
 H.B. 56, supra note 1, Section 6(a).
 Id. at 6(d). See also Sheriff Mike Hale, supra note 15, at ¶ 12 (expressing concern that HB 56 will embroil the Sheriff’s office in costly litigation at a time when resources are low, that his deputies will be burdened with the threat of lawsuit by anyone for even being perceived as failing to enforce HB 56, defending against lawsuits from lawful aliens who happen not to possess the presumption-granting documents, and the loss of law enforcement’s qualified immunity for enforcing a law which is “unconstitutional on its face”).
Succession Planning for Social Enterprises: Consider the Flexible Purpose Corporation or Benefit Corporation
This article was written by guest author Alicia Plerhoples. Ms. Plerhoples is a Visiting Assistant Professor at University of California at Hastings College of the Law and will be an Associate Professor of Law, Georgetown University Law Center, starting Fall 2012. This post is based on her article Can an Old Dog Learn New Tricks?: Applying Traditional Corporate Law Principles to New Social Enterprise Legislation, 13 Tenn. J. Bus. L. [_] (forthcoming 2012).
Theoretically, the organizational spectrum has two extremes. On one end of the spectrum are organizations that pursue social and environmental missions and eschew profit motives, such as non-profit organizations. On the other end of the spectrum are organizations that focus solely on profit-maximization and disregard social and environmental missions—these might be called profit-maximizing businesses. Somewhere between these two extremes lie social enterprises that blend profit motives and social missions.
For many social enterprises, how the business operates is just as important as what the business produces. Rather than seek out the cheapest raw materials and labor, social enterprises are likely to establish their supply chains to source sustainable materials and engage in fair trade practices, while paying fair wages and providing fair benefits to their employees. The social enterprise movement attempts to move beyond corporate social responsibility or “greenwashing.” Social enterprises truly “serve two masters”—they have a profit motive, but their social and environmental missions are at the core of their business models.
As the market for products and services produced by social enterprises grows, traditional profit-maximizing corporations—which may have given limited attention to their social or environmental outputs in the past—will want a piece of this market share and will be able to make a rapid market entrance by acquiring an established social enterprise. On one hand, a social enterprise may face a change in control transaction because it chooses to forgo profits to achieve a social or environmental mission. For example, TOMS Shoes has given away over one million pairs of shoes. The management of TOMS Shoes made a strategic decision to start manufacturing operations in Ethiopia and Argentina as part of its social objective to create jobs in the areas where it donates shoes. Some would argue that choosing to provide jobs where it provides charity rather than ship shoes from China, where it also has manufacturing operations, could come at the expense of company earnings if the labor and raw materials are more cheaply available in China. The social enterprise’s earnings affect its stock price and entice a buyer, either hostile or friendly, in an attempt to achieve greater earnings and higher stock prices for the company.
On the other hand, many would argue that the financial success of a social enterprise may be because of—and not in spite of—its social and environmental mission, since many consumers prefer socially responsible and environmentally sustainable products and services. Profit-maximizing businesses will expand into that market by acquiring an established participant rather than starting their own brands. Such an acquisition leads to an immediate immersion in the market, marked by the legitimacy of the target social enterprise. Such was the case of Tom’s of Maine, Inc. (purchased by Colgate-Palmolive Company), Burt’s Bees, Inc. (purchased by The Clorox Company), and Ben & Jerry’s (purchased by Unilever). As one mergers and acquisitions lawyer notes, “it might just be cheaper to buy than build.”
The shareholder wealth maximization norm and shareholder primacy are fundamental corporate law principles that impact a social enterprise engaging in succession planning. Shareholder wealth maximization requires board directors to make decisions based solely on the maximization of shareholder value. Shareholder primacy requires board directors to advance and prioritize shareholder interests over non-shareholder interests. Under certain circumstances, once a social enterprise offers itself for sale, the shareholder wealth maximization norm and shareholder primacy work together to dictate heightened judicial scrutiny of the directors’ decision-making process. Notably, Delaware’s Revlon rule would impose heightened judicial scrutiny of the sale transaction and would inquire as to whether the directors sought to obtain the best value reasonably attainable for the corporation. Questions surround whether a social enterprise formed as a traditional profit-maximizing corporation could consider the social enterprise’s social and environmental value during the sale of corporate control.
Legislatures are beginning to provide social entrepreneurs with off-the-shelf corporate forms to employ for social enterprise—ones that eschew the shareholder wealth maximization rule but wholly embrace shareholder primacy, such as the flexible purpose corporation and the benefit corporation. Shareholder primacy in the context of social enterprises has a different meaning than it does for profit-maximizing corporations. Shareholders of social enterprises—namely impact and social investors—may not want shareholder value prioritized over social and environmental considerations. For example, the California flexible purpose corporation law explicitly rejects the shareholder wealth maximization norm and allows adoption of charitable purposes or consideration of other constituencies (including the community, society, and the environment) as “special purposes” of the corporation. Thus, for a flexible purpose corporation, shareholders invest with both economic and non-economic interests in mind. Importantly, under both the flexible purpose corporation and benefit corporation statutes, only a shareholder—and no other constituent—has a private right of action to enforce the board of directors’ fiduciary duties to the corporation.
A social enterprise organized as either a flexible purpose corporation or a benefit corporation presumably would be free to pursue social and environmental objectives along with shareholders’ economic interests, even when engaging in a sale or change of control transaction. Moreover, conversions and mergers with other corporations require a supermajority vote of the shareholders. Presumably, the social enterprise formed as a flexible purpose corporation or a benefit corporation will thus be able to better preserve its social and environmental mission.
However, these new corporate forms are untested. It remains unclear as to how traditional corporate law principles will be applied to the flexible purpose corporation or the benefit corporation. The lack of corporate law precedent is a true barrier to the proliferation of these new corporate forms, although perhaps social entrepreneurs, by virtue of their careers as entrepreneurs and not lawyers, are willing to take that risk.
 “Profit-maximizing business,” or “PMB,” is a term used by Muhammad Yunus to describe companies that seek profits, even if the company also has social or environmental missions. See Yunus, Building Social Business, supra note 44, at 1.
 Matthew 6:24.
 One for One, TOMS Shoes, http://www.toms.com/our-movement/movement-one-for-one (last visited Mar. 10, 2012) [hereinafter TOMS Shoes].
 See TOMS Shoes, Shoe Digest (July 5, 2011), http://www.shoedigest.com/donate-shoes/toms-shoes.
 Dennis J. Block, Public Company M&A: Directors’ Fiduciary Duties And Recent Developments In Corporate Transactions, at 20, in Contests for Corporate Control 2009: Current Offensive & Defensive Strategies in M&A Transactions (2009).
 I do not wish to overstate the significance of Revlon. Subsequent Delaware cases have narrowed the scope of the Revlon rule and some scholars have eschewed its import. Nevertheless, as it stands, the Revlon rule is the most proscriptive use of the shareholder wealth maximization norm in corporate law. And to some extent, corporate managers and their general counsel heed its directive. As such, the Revlon rule presents a useful lens through which to examine the shareholder wealth maximization norm and shareholder primacy.
 Cal. Corp. Code § 2602(b)(2)(B) (Deering 2012).
This contribution was written by guest author Mark Glover. Mr. Glover is a Teaching Fellow and Assistant Professor of Professional Practice at Louisiana State University’s Paul M. Hebert Law Center. This post is based on his articles A Therapeutic Jurisprudential Framework of Estate Planning, 35 Seattle. U. L. Rev. 427 (2012) and The Therapeutic Function of Testamentary Formality, 61 U. Kan. L. Rev. (forthcoming).
The estate planning processes can be unsettling. Because the preparation of an estate plan and the implementation of that plan through the execution of a will and other estate planning documents necessarily requires the testator to acknowledge that at some point he will die, estate planning can be psychologically tumultuous.[i] Indeed, few enjoy contemplating their own mortality,[ii] and this reluctance to acknowledge the inevitability of death causes some to avoid the estate planning process altogether.[iii] As Michele de Montaigne, the sixteenth-century essayist, explained, “You can frighten [ordinary] people by mentioning death…; and since it is mentioned in wills, never expect them to draw one up before the doctor has pronounced the death-sentence.”[iv]
Although the estate planning process can evoke unpleasant thoughts and emotions, it ultimately can have a therapeutic effect. Consider, for example, Ludwig van Beethoven’s experience of executing a will. Beethoven, the great German composer and pianist, began to lose his hearing while in his mid-twenties. As a result of the fear that his worsening deafness would impede his musical career, Beethoven experienced severe despair and thoughts of suicide.[v] With these concerns in mind, the composer traveled to the small Austrian town of Heiligenstadt in the spring of 1802 with the hopes that seclusion would prove therapeutic.[vi] His time there not only influenced his future compositions but also inspired Beethoven to draft his will.[vii] Known as the Heiligenstadt Testament,[viii] Beethoven’s will bequeaths his entire estate to his two brothers and extensively describes the psychological turmoil that he experienced as a result of his impaired hearing.[ix]
Beethoven, for example, recalled instances in which others heard music and sounds that he could not, and he described the intense emotions evoked by these occurrences in his will. As he recounted, “[W]hat a humiliation for me when someone standing next to me heard a flute in the distance and I heard nothing or someone heard a shepherd singing and again I heard nothing.”[x] Beethoven’s condition placed him on the brink of suicide, as the composer described: “Such experiences brought me close to despair; a little more of that and I would have been at the point of ending my life.”[xi] Similarly passionate descriptions of Beethoven’s anguish fill the text of the Heiligenstadt Testament.[xii]
Fortunately, the expression of these thoughts and feelings through the exercise of his testamentary power was therapeutic for Beethoven, as he overcame his suicidal compulsions and continued his life’s work.[xiii] Indeed, one historian explains that “Beethoven’s sheer act of writing the Heiligenstadt Testament…seems to have granted its author the will to go on with life, turning even the defeat of deafness into a victory of will.”[xiv] As Beethoven’s testamentary experience illustrates, the estate planning process provides the participant an opportunity for self-reflection and self-expression.[xv] This expressive quality of estate planning contributes to the overall therapeutic nature of the estate planning process and can help counteract the anxiety that accompanies the contemplation of mortality.[xvi]
In addition to this opportunity for self-expression, the estate planning process has a number of other therapeutic qualities. For example, the ability of the testator to direct how his property should be distributed after his death allows the testator to exercise autonomy over important and intensely personal decisions.[xvii] Additionally, the process also provides the testator an opportunity to consult an estate planning attorney, who can help prepare an estate plan that fulfills the testator’s testamentary wishes and who can therefore serve as a therapeutic agent for his client.[xviii] In sum, a variety of aspects of the estate planning process can ultimately transform the unpleasant experience of preparing for one’s death into a therapeutic experience.[xix]
Although the estate planning process can have both positive and negative psychological consequences, therapeutic concerns have largely been ignored in the evaluation of potential reforms of the law of succession.[xx] By contrast, the emerging field of therapeutic jurisprudence urges that these psychological qualities of the law should be weighed alongside other policy considerations when policymakers implement law reform. As Professor David Wexler, a major proponent of the field, explains, “[therapeutic jurisprudence] focuses on the law’s impact on emotional life and on psychological wellbeing;” it “focuses our attention on this previously underappreciated aspect, humanizing the law and concerning itself with the human, emotional, [and] psychological side[s] of law and the legal process.”[xxi] By turning policymakers’ attention to these psychological concerns, the goal of therapeutic jurisprudence is not to ensure that the law is reformed in the most therapeutic manner but is instead to simply “bring to the table some of these areas and issues that previously have gone unnoticed.”[xxii] With this goal in mind, scholars have applied the therapeutic jurisprudential framework to a variety of areas of the law, including criminal law and family law.[xxiii]
Because the estate planning process can raise a variety of psychological and emotional concerns and because they are frequently overlooked, the law of succession provides a ripe opportunity to expand the reach of therapeutic jurisprudence. Indeed, therapeutic jurisprudence can be used to analyze a number of areas of the estate planning process, including not the psychological effects of the law on the individual testator but also therapeutic issues related to those who stand to benefit from the testator’s estate plan, such as his friends and family.[xxiv] In sum, therapeutic jurisprudence provides a new framework to evaluate potential reforms of the law of succession, a framework that encourages policymakers to consider the psychological and emotional aspects of the law and that ultimately seeks to maintain the overall therapeutic nature of the estate planning process.
[ii] See Charles I. Nelson & Jeanne M. Starck, Formalities and Formalism: A Critical Look at the Execution of Wills, 6 Pepp. L. Rev. 331, 348 (1979) (“[F]acing the reality of death and its attendant consequences is one of the most difficult responsibilities in life.”); Thomas L. Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 Iowa L. Rev. 376, 377 (1969) (“[D]eath is an unpleasant fact to modern man.”).
[iii] See Jesse Dukeminier, Robert H. Sitkoff & James Lindgren, Wills, Trusts and Estates 71-72 (8th ed. 2009).
[iv] Michele de Montaigne, The Complete Essays 93 (M.A. Screech trans., Penguin 1991).
[v] See Lewis Lockwood, Beethoven: The Music and the Life 118-21 (2005) (analyzing the text of the Heiligenstadt Testament).
[vi] See Alexander Wheelock Thayer et al., Thayer’s Life of Beethoven 303 (10th ed. 1991) (1921).
[vii] See Lockwood, supra note 5, at 121-22 (drawing connections between the Heiligenstadt Testament and Beethoven’s later work).
[viii] For an image of the original Heiligenstadt Testament see id. at 116.
[ix] See Tim Blanning, The Triumph of Music 99-100 (2008).
[x] Lockwood, supra note 5, at 119 (quoting the Heiligenstadt Testament).
[xi] Id. (quoting the Heiligenstadt Testament).
[xii] See id. at 118-21.
[xiii] See Barry Cooper, Beethoven 130 (2000) (“Beethoven’s decision to reject suicide and overcome his feelings of despair by writing them down [in the Heiligenstadt Testament], can be seen as a turning point in his life.”); Lockwood, supra note 5, at 115 (“[T]he confessional Testament becomes his central soliloquy in this personal drama, a means of rebuilding his shattered confidence and facing the bleak life of a lonely, socially alienated artist.”); Charles P. Mitchell, The Great Composers Portrayed on Film, 1913 through 2002 17 (2004) (“Simply expressing his deepest thoughts [in the Heiligenstadt Testament] had a therapeutic effect for the composer.”).
[xiv] Alessandra Comini, The Changing Image of Beethoven: A Study of Mythmaking 76 (2008).
[xv] See Glover, supra note 1, at 455-61.
[xvi] See id.
[xvii] See id. at 444-46.
[xviii] See id. at 446-50.
[xix] See id. at 443-61. The formal requirements of will-execution, such as the formalities that wills be written, signed, and witnessed, also contribute to the therapeutic nature of the estate planning process. See Mark Glover, The Therapeutic Function of Testamentary Formality, 61 U. Kan. L. Rev. (forthcoming).
[xx] See Glover, supra note 1, at 432-33.
[xxi] David Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L. Rev. 125, 125 (2000).
[xxiii] See id. at 128-29.
[xxiv] See Glover, supra note 1, at 467-70.
This article was written by guest author Michael C. Macchiarola. The author is a Distinguished Lecturer at the City University of New York.
On March 15, a panel of three Second Circuit judges stayed a proceeding in the courtroom of Judge Jed S. Rakoff of the Southern District of New York. The stay is pending resolution of Citigroup’s appeal of Judge Rakoff’s rejection of its proposed settlement with the Securities and Exchange Commission (“SEC” or “Commission”) in connection with a civil enforcement action accusing the bank of substantial securities fraud in connection with the sale of collateralized debt obligations. In granting the stay, the panel was persuaded that Citigroup presented a “strong showing of likelihood of success” in having Judge Rakoff‘s rejection of the original settlement set aside. The full appeal will be heard on the merits by a separate Second Circuit panel that remains “free to resolve all issues without preclusive effect” from the March 15th Order. While commentators were quick to declare the Commission and Citigroup as victors or characterize the stay as a “stinging rebuke,” the Second Circuit’s actions are far from a deathblow to Judge Rakoff‘s crusade. And, no date has yet been set for the appeal.
The recent Second Circuit order notwithstanding, reports of the demise of Judge Rakoff’s on-going argument with the SEC are greatly exaggerated. While the Second Circuit’s stay reveals an unsympathetic panel, the merits of the dispute will ultimately be heard by a different group, with the judge’s position briefed by counsel. And, while commentators have spilt much ink on the high-profile defendant, appealing facts or colorful judicial language of the Citigroup controversy, the value of the judge’s opinion is found, more basically, in his insistence that the proper role of the courts be respected in interactions with administrative agencies. It is unfortunate that the three Second Circuit judges issuing this week’s unsigned order do not seem to share the point of view. By requiring that the courts function to protect the “overriding public interest in knowing the truth,” Judge Rakoff has shown fidelity to Montesquieu’s warning (echoed by James Madison) that the power of judging should remain separated from the legislative and executive powers. At the same time, the judge has questioned an ad hoc brand of bureaucracy that allows the government to dispense a highly volatile and unpredictable version of regulation.
The judge’s credibility is bolstered by at least two facts unmentioned by the Second Circuit panel. First, Judge Rakoff’s actions have already shown tangible results in the earlier Bank of America controversy. Most notably, the judge’s effort exposed the facts surrounding some of the greatest transgressions of our Great Recession – facts that otherwise would have remained in the dark. His persistence also resulted in substantially increased reparations for the victims of Bank of America’s iniquities versus what the SEC had initially negotiated on their behalf. Second, the Commission remains free to negotiate any private arrangement that it would like with a defendant – without involving any court.
In civil litigation, it is well established that a dispute can be resolved by contract between the parties, and courts remain nearly powerless to shape their private bargain. An established public policy in favor of settlement reduces the number of trials, and is consistent with the civil justice system’s overall goal of ensuring a just, speedy, and inexpensive determination of every action. A deferential role for courts in evaluating consent judgments negotiated by government agencies finds root in the U.S. Constitution, with prosecutorial decisions exclusively an executive function.
Today, over ninety percent of SEC proceedings are settled. And, the overwhelming majority of courts have approved settlements rather routinely, without scrutinizing their factual bases or requiring substantive adjustment. This “rubber stamp” has persisted despite the fact that public agency settlements can be distinguished from the best private settlements because they (i) regularly impact third parties, (ii) often lack good faith negotiations between two equals, and (iii) generally derive from less noble motivations.
Today’s proposed SEC settlements routinely include boilerplate language prohibiting the settling party from engaging in similar violations in the future, and from making any public statement denying any allegations in the government’s complaint. This “non-admission / non-denial” posture seems unconcerned with the truth of an underlying allegation — typically disfavoring truthful facts in favor of a comfortable contrivance that each party can live with. Such a posture seems hostile to both the Commission’s charge to protect the integrity of the nation’s securities markets and a court’s duty to defend and ensure the public interest. The inattention to truth represents a particular absurdity within a regulatory structure that regularly calls upon registrants to abide by full, fair and accurate disclosure.
While not required, the Commission has increasingly sought court approval of each settlement, in an effort to gain the courts’ contempt and injunctive relief powers if a settling party subsequently violates an agreement’s terms. Yet, despite the formidable nature of the contempt remedy, by its own admission, the Commission has not frequently pursued civil contempt proceedings. In fact, the Commission admitted to Judge Rakoff that it does not appear to have initiated such proceedings against any large financial entity in the last ten years.
While the Second Circuit panel was quick to assert that “[i]t is not . . . the proper function of federal courts to dictate policy to executive administrative agencies,” it left unanswered just what authority a court retains if its judicial powers are given to the SEC as a matter of course and free of any real cost or inconvenience. With no real price to pay, it is no wonder that the Commission routinely seeks the judicial imprimatur. And, in that regard, the Second Circuit’s order says more about how the panel values judicial authority than anything else.
This article was written by guest author Rory Bahadur, Associate Professor of Law at Washburn University School of Law.
The recent news media coverage of the so called “Florida Stand Your Ground Law,” illustrates succinctly the sleight of hand that selective nomenclature sometimes facilitates. The so called “Stand Your Ground Law” is actually a combination of three separate statutes and the stand your ground provision is perhaps the least radical and controversial. These statutes are as follows:
- Fla. Stat 776.012 titled “Use of Force in Defense of Person.”
- Fla. Stat. 776.013 titled “Home Protection; Use of Deadly force; Presumption of Fear or Death or Great Bodily Harm”
- Fla. Stat. 776.032 titled “Immunity from Criminal Prosecution and Civil Action for Justifiable use of Force”
The least controversial and least radical change to the common law doctrine resulting from enacting of the statute is the permission to stand your ground. , The media and supporters of the law have coined the statutory scheme “Stand Your Ground” in order to deflect from the more controversial and radical provisions. 776.013 allows a person who is attacked to meet force with force without having a duty to retreat. Under the statute the attacked person may use deadly force whenever he “reasonably believes” deadly force is necessary to “prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”
The only difference between this statute and the common law is that there is no duty to retreat (or to avoid the use of force) before using force. All this section of the statute does is expand the so called “castle doctrine” from a person’s house, which was considered their castle which could be forcibly defended without first retreating, to any area where the person has the right to be. The statute requires however that a person using deadly force “reasonably believe” the use of the force is necessary. This reasonable standard is an objective standard which will justify the use of deadly force only if a reasonable person would believe it was necessary. It is not a free for all blank check to use deadly force whenever a particular individual feels it is necessary but only permitted when the use of that force is objectively reasonable. Judges and juries routinely evaluate whether the reasonableness of actors based on the particular facts before them in the American legal system. Therefore, a defender takes a chance that his use of deadly force will not be deemed reasonable after the fact. As noted, this section only permits the use of reasonable force by someone who is attacked.
The rest of the statutory schemeis where most of the controversy should exist. But the media has largely ignored this statutory language. Section 776.012 separately establishes that use of deadly force is justified without a duty to retreat when a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.” Additionally, section 776.013(1) presumes the existence of “reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another” in a wide variety of circumstances.
Once that presumption has been established, the person using deadly force is “immune from criminal prosecution and civil action for the use of such force,” according to Florida Statute 776.032 The statute further explains that once the presumption is established, law enforcement may investigate the use of force, “but may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.” Civil suits for wrongful death against the person using deadly force are also discouraged as 776.032 provides that if the user of force is found to be immune from prosecution the court “shall award reasonable attorney’s fees, court costs, compensation for loss of income and all expenses incurred by” the person using the deadly force. The Florida Supreme Court has recently stated that a judge rather than a jury should determine the existence of the immunity. Dennis v. State, 51 So. 3d 456, 458 (Fla. 2010).
The presumption, and therefore immunity, exists whenever two conditions are met. The first is that the deadly force was used against someone who was “in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle.” The second condition is that the person using the deadly force, “had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”
This second condition is the radical change. Under the common law, the use of force after the danger had passed was presumptively retaliatory and not legally considered self-defense. See Linsley v. State 101 So. 273, 275 (Fla. 1924) (explaining “[t]he taking of human life is neither justifiable nor excusable, where one fires the fatal shot or strikes the fatal blow after danger or death or great bodily harm to him from the deceased’s attack has passed.”)
This is why presumably a Florida judge recently threw out a case against Greyston Garcia when according to the Miami Herald the facts were as follows:
The incident took place on Jan. 25, when Roteta and another youth were behind Garcia’s apartment at 201 SW 18th Ct. According to police, Roteta was stealing Garcia’s truck radio.Garcia, alerted by a roommate, grabbed a large knife and ran downstairs. He chased Roteta, then stabbed him in a confrontation that lasted less than a minute, according to court documents.The stabbing was caught on video. Roteta was carrying a bag filled with three stolen radios, but no weapon other than a pocketknife, which was unopened in his pocket and which police said he never brandished.
See “Miami Judge Decides Fatal Stabbing was Self-defense,” Miami Herald, Mar. 21, 2012, at http://www.miamiherald.com/2012/03/21/2706789/miami-judge-stabbing-in-the-back.html. According to the Herald, the judge granted immunity. The investigator in the case objected. He questioned how a chase like this could be considered standing your ground. The investigator was apt to realize the case had nothing to do with standing ground as provided in 776.013. In reality, the case had to do with the largely ignored, broad grant of immunity in sections 776.013(1) and 776.032(1).
As the Treyvon Martin case continues, it is important for the media to inform the public on the breadth of the Florida self-defense law that results in immunity from prosecution rather than continue to focus on the unremarkable stand your ground provision of the law. The stand your ground provision of the law permits investigators to assess the reasonableness of the conduct and the necessity of using the deadly force. The presumptions and immunities, on the other hand, are the really radical laws which do not require reasonableness in the use of force. The media needs to make the public aware of these sections of the law rather than focusing on the catchy but toothless “stand your ground” refrain.
This contribution was written by guest author Joe Dryden. Mr. Dryden is an Assistant Professor of Education and Law at Texas Wesleyan University in Fort Worth, Texas. Mr. Dryden’s research interest include student First Amendment issues , the collateral impact of educational policy, dilemmas in educational leadership and effective classroom instruction.
Despite the widespread calls for guidance, the Supreme Court recently denied certiorari in three cases dealing with the balance between off-campus student expression and the compelling interest of the state to protect the learning environment and those within it from cyber bullying and cyber harassment.1 There is a desperate need for a uniform standard that can be consistently applied to reduce variability in intervention efforts, and litigation outcomes. The vacuum of guidance leaves a legal landscape marked by the misapplication of Tinker’s substantial disruption test, a test developed over 40 years ago when no one could have foreseen the Internet or the proliferation of electronic communication devices.2
The least troubling byproduct created by this misapplication is contradictory federal court decisions.3 Far worse is the damage generated when school administrators are forced to operate in a legal quagmire where intervention may violate a student’s constitutional rights resulting in expensive and protracted litigation, while inaction leaves victims with inadequate avenues of recourse.4 Inconsistent outcomes fail to provide adequate notice to students regarding the limits of protected off-campus expression.5 School administrators are unsure of the limits on their authority culminating in polarized reactions. In some cases, school officials over react and implement disproportionate consequences for protected off-campus student expression.6 In others, they elect not to intervene which can lead to tragic outcomes.7
Judges are forced to manufacture illogical arguments and apply unsubstantiated assumptions to arrive at conclusions that lack judicial wisdom. The Third Circuit applied the following incoherent and incongruous explanations in ruling against school officials in J.S. v. Blue Mountain and Layshock v. Hermitage.
- If school officials cannot catch every student involved in the publication of off-campus websites that create a substantial disruption of school operations, they cannot punish those they do.8
- Using school computers to access a website created off campus to show classmates does not constitute on-campus expression.9
- A student, who has a propensity for lying, can avoid all responsibility for posting malicious and defamatory lies accusing a school official of crimes of moral turpitude simply by claiming he was only joking.10
- If the student can show that an immediate supervisor didn’t believe the contents of a malicious and defamatory fake profile, then it is safe to assume no one believed the content to be true.11
- If school officials use filtering software to prevent student access to inappropriate websites then no child will be able to view a malicious and defamatory fake profile of a classmate or school employee.12
- It is the reaction of school officials that is the proximate cause of disruptions associated with off-campus student expression.13
In Kowalski v. Berkeley County Schools, the Fourth Circuit used Tinker’s substantial disruption test to support school officials where one student conducted a targeted cyber-attack on a classmate from an off-campus location. Several students were invited to reply, and many did, but the incident did not produce a substantial disruption of school operations.14 In cases of student-on-student cyber bullying, the results may substantially interfere with a student’s educational opportunities, but this does not satisfy Tinker’s substantial disruption test. Courts should consider Tinker’s second prong, expressions which interfere with the rights of others,15 or the application of the deliberate indifference standard where sexual harassment creates a hostile environment.16
Another misapplication of Tinker’s substantial disruption test lies in the misguided efforts of those who invoke Tinker to protect expressions that are threatening, defamatory, or designed to intentionally inflict emotional distress. The Tinker decision protected political, symbolic, non-disruptive speech, 17 far different from the content of most off-campus student expression cases. Todd Erb captured this distinction well by stating “[i]t would be hard to argue in a judicial proceeding . . . that websites allowing students to vote on who’s the biggest slut in the school”18 deserves the same protection as political speech regarding matters of public concern.
Denying certiorari in the cases endangers the emotional wellbeing and safety of children by perpetuating the status quo. This issue is ripe, dozens of lower court cases have been adjudicated and hundreds of legal scholars have proposed solutions. The Supreme Court’s failure to act is inexcusable.
1 Kowalski v. Berkeley Cnty. Schs., 80 U.S.L.W. 3427 (U.S. Jan. 12, 2012) (No. 11-461); J. S. v. Blue Mt. Sch. Dist., 80 U.S.L.W. 3425 (U.S. Jan. 12, 2012) (No. 11-502); Layshock v. Hermitage Sch. Dist, 80 U.S.L.W. 3427 (U.S. Jan. 12, 2012) (No. 11-502).
2 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) [hereinafter Tinker].
3 Compare J. S. v. Blue Mt. Sch. Dist., 593 F.3d 286 (3rd Cir. 2010) [hereinafter Blue Mt.] (ruled in favor of the school district), vacated and rev’d en banc 650 F.3d 915 (3d Cir. 2011), with Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (3d Cir. 2010) (ruled in favor of the student), vacated and aff’d en banc 650 F.3d 205 (3d Cir. 2011).
4 See Joe Dryden, It’s a Matter of Life and Death: Judicial Support for School Authority over Off-Campus Student Cyber Bullying and Harassment, 33 U. LAVERNE L. REV (in press).
5 Id. at 10.
6 See Coy v. Bd. of Educ. of North Canton City Schs., 205 F.2d. 791 (N.D. Ohio, 2002).
7 See Rutgers Student Suicide Renews Debate Over Cyberbullying (Oct. 1, 2010), http://www.foxnews.com/politics/2010/10/01/rutgers-student-suicide-renews-debate-cyberbullying/.
8 Layshock, 496 F. Supp. 2d at 210.
9 Id at 217.
10 Blue Mt., 593 F.3d at 921.
11 Id. at 930.
12 Id. at 929.
14 Kowalski v Berkeley Cnty Schs., 652 F.3d 565 (4th Cir. 2011).
15 See Martha McCarthy, Student expression that collides with the rights of others: Should the second prong of Tinker stand alone?, 240 WEST’S EDUC. L. REP. 1, (2009).
16 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).
17 Tinker, 393 U.S. at 504.
18 Thomas Erb, A case for strengthening school district jurisdiction to punish off-campus incidents of cyber bullying, 40 ARIZ. ST. L. J. 257, 284 (2008).