The Excessive Fines Clause in the Federal Courts: A Quarter-Century of Narrowing

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined in the lower courts. This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals. The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines. Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian. The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right

Solving the Consideration Problem in Non-Compete Agreements: Continued At-Will Employment is Inadequate Consideration

Non

Benefits Transparency

Recently, several states and cities have enacted equal pay laws in a push for pay transparency in job postings to inform and help reduce wage gaps. Some of these laws also require a description of the employee benefits that the company offers. However, none of these laws require a detailed description of said benefits, even though employee benefits on average make up 24% of an employee’s compensation. Businesses can choose how much to disclose with respect to their benefits and they may even engage in what this author calls “benefits washing”—a practice where companies provide vague or misleading information about their employee benefits. This discretion is problematic. Workers make decisions on where to apply and where to work based on information obtained on the internet, such as company websites. But these company disclosures do not divulge enough information to properly value the benefits. For example, many people do not understand that 401(k) plan features differ significantly across employers. Mandatory detailed, succinct disclosure of employee benefits—specifically 401(k) plan benefits—is a public necessity as these benefits are exceedingly complex. Myriad stakeholders—employees, jobseekers, consumers, investors, and companies—would find more detailed, understandable disclosure of interest. For example, some consumers and investors—including ethical consumers and ESG investors—seek to align their purchases and investments with companies that treat their employees fairly. Additionally, people do not have enough saved for retirement, which not only poses a problem for them but also for taxpayers. And requiring companies to disclose their vesting schedules and other plan features will help companies better assess their own benefits and perhaps nudge or shame them into providing more favorable benefits. One would also hope that the prevalence of such detailed disclosure would help to normalize the value of retirement saving to all stakeholders. We must not capitulate to the legal fantasy that companies will provide detailed and accurate information willingly, even if it may help the companies themselves. As such, this author calls on the government to mandate benefits transparency. This Article contends that benefits transparency is essential particularly with respect to complex benefits like 401(k) plan benefits. Governmental regulation mandating detailed disclosure where stakeholders expect to see it is necessary to bring such transparency to fruition in an organized, comparable manner. This could be accomplished by state and local governments in their equal pay/pay transparency laws, or federally through Department of Labor rulemaking or an amendment to ERISA. The SEC and FASB could also require such disclosure for all publicly traded companies. So long as there are enforcement and penalties with teeth, we could see vital benefits transparency take hold

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Boden Lecture: Of Chameleons and ESG

Ever since the rise of the great corporations in the late nineteenth and early twentieth centuries, commenters have debated whether firms should be run solely to benefit investors, or whether instead they should be run to benefit society as a whole. Both sides have claimed their preferred policies are necessary to maintain a capitalist system of private enterprise distinct from state institutions. What we can learn from the current iteration of the debate— now rebranded as “environmental, social, governance” or “ESG” investing— is that efforts to disentangle corporate governance from the regulatory state are futile; governmental regulation has an inevitable role in structuring the corporate form

Innovator Ecosystem Diversity As A Global Competitiveness Imperative

Non

On the 175th Anniversary of the Wisconsin Constitution: An Examination of the Early Court “Repairs” of a Rushed Document

The Wisconsin Constitution was a document prepared in a hurry. The fall 1848 national election was expected to be a referendum on the spread of slavery and the only way for residents of the Wisconsin Territory to vote in the national election was for Wisconsin to become a state. In order to become a state, however, Wisconsin first needed a constitution. For forty days in late December 1847 and January 1848, a constitutional convention met in Madison. Using the 1840s equivalent, delegates “cut and pasted” whole sections from the constitutions of New York and Michigan, as well as from an 1846 Wisconsin version rejected by the territory’s voters

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