2017, Vol. 112, No. 1
There is no such thing as corporate family law. But there are corporate families, and corporate families fight. What happens when corporate family members fight and the conflict is so severe that one or more of the parties wants out of the corporate relationship? Corporate law provides some solutions, but they are shaped by the assumption that all parties will bargain effectively for protections when seeking to exit a corporate relationship. Under this theory, family business is, after all, just business. The problem with this assumption is that corporate family members do not bargain the way that corporate law expects. Corporate family members are idiosyncratic bargainers who operate from a position of bounded rationality and self-interest. Consequently, they are unlikely to take steps to protect themselves against corporate oppression. The result is a mismatch between corporate law and its underlying assumptions for a substantial swath of family business owners who are subject to corporate law and corporate oppression. Thus far, lawmakers have not looked to family law to solve this problem. This Article argues that they should. Family wealth laws—divorce and inheritance—offer an alternate model of asset allocation at the end of a relationship, providing robust financial protections for parties who are vulnerable in light of their idiosyncratic bargaining position. Such laws provide the theoretical foundation for a more realistic and fair conception of protection for corporate family members subject to corporate oppression. There may be no such thing as corporate family law, but there should be.
These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.
The Inaugural Abraham Lincoln Lecture on Constitutional Law: Electoral College Reform, Lincoln-Style
This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.
Notes & Comments
Current regimes for distributing state and local authority have two primary flaws: (1) they unnecessarily restrict local authority by preventing local governments from passing private laws, and (2) they often require local ordinances to be enforced in state courts, thereby depriving local governments of the ability to interpret their own laws and requiring states to pay the judicial costs of local policy preferences. This Note suggests a new means of distributing state and local authority designed to address these two deficiencies: the reverse-commandeering system. The reverse-commandeering system would not distinguish between local authority to pass public and private laws. Instead, the reverse-commandeering system would (1) give local governments the option to create, staff, and fund their own municipal courts and (2) prevent local governments from passing ordinances that could not be enforced in their municipal courts. By doing so, the reverse-commandeering system would allow local governments to realize the benefits of private law and relieve states of the financial burden of the judicial enforcement of local ordinances.
This Essay posits that certain structural dynamics, which dominate criminal proceedings, significantly contribute to the admissibility of faulty forensic science in criminal trials. The authors believe that these dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are “repeat players” in criminal litigation and, as such, routinely support reduced pretrial protections for defendants. Therefore, we argue that the significant discrepancies between the civil and criminal pretrial discovery and disclosure rules warrant additional scrutiny.
In the criminal system, the near absence of any pretrial discovery means the criminal defendant has little to no realistic opportunity to challenge forensic evidence prior to the eve of trial. We identify the impact of pretrial disclosure by exploring the admission of expert evidence in criminal cases from a particular forensic discipline, specifically forensic odontology. Finally, this Essay proposes the adoption of pretrial civil discovery and disclosure rules in criminal proceedings to halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions.