The Florida-UCC Filing System Disaster

Since the widespread adoption of the Uniform Commercial Code (UCC) in the 1960s, the UCC’s name-based filing system has been a constant embarrassment to its drafters. System overhauls in 1998 and 2010 failed to fix it. In Florida, the problem came to a head in 1944 Beach Boulevard, LLC v. Live Oak Banking. Based on a widely shared misunderstanding of how Florida’s unorthodox, privatized UCC filing system worked, the Florida Supreme Court held that the system had no search logic, so the UCC § 9-506(c) safe harbor from debtor name errors did not apply. Instead, a “zero-tolerance” test applied, with the consequence that any error in a debtor’s name on a financing statement “no matter how minor” renders the financing statement ineffective and the secured party unperfected. This Article presents the first formal empirical study estimating an error rate for UCC filings anywhere in the United States. The study found that under the Florida Supreme Court’s zero-tolerance test, 32% of UCC filings in Florida against registered organizations—over 230,000 filings—are ineffective by reason of name errors alone. Even if Florida had adopted the traditional search logic used in other states and qualified for the safe harbor, 5% of the filings—about 11,650 filings—would still have been ineffective for name errors alone. This Article argues that, with respect to filings against registered organizations, the states should replace the UCC’s name-based filing system with a point-and-click filing system. In a point-and-click system, UCC filings against registered organizations would be made, stored, and searched in the state’s entity records. Such a system is already operational in the United Kingdom. Instead of filers and searchers trying to reproduce the elusive “public organic record” names of registered organizations in the correct boxes on filing and search requests, filers and searchers would need only to navigate to the debtor’s entity record on the state’s website. There, lenders could click on their debtors’ correct names to file financing statements, and searchers could see all UCC filings against their debtors in one place. All information a filer or searcher would need to determine whether it was filing or searching against the correct entity would be visible to it on the same page. That would include addresses, public organic records, and annual reports. Point-and-click would eliminate debtor name errors in filing and searching, eliminate the need for debtor name amendments and debtor name monitoring, greatly simplify the processes of filing and searching, and dramatically reduce wrong-entity and wrong-state filing errors. It would increase the accuracy of the UCC filing system while cutting its costs to filers, searchers, and the state to a fraction of their current levels

Liberty, Safety, and Misdemeanor Bail

The highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question is Harris County, Texas, the third largest county in the United States, which has implemented the largest-scale and farthest-reaching constitutional remedies in a misdemeanor bail system. In 2019, after years of federal litigation and a preliminary injunction finding pervasive constitutional violations, Harris County entered a Consent Decree requiring comprehensive reform. This Article describes the constitutional remedies this novel Consent Decree set out and the implementation of those remedies. This Article also addresses the central question of bail: whether pretrial release comes at a cost to public safety. We find that the constitutional rights protections of the Consent Decree appear largely successful in that people are now promptly freed in misdemeanor cases without the requirement that they pay cash bail. More surprising, perhaps, we find that public safety has also powerfully benefited. We describe a steady decline in the numbers of both misdemeanor arrests and rearrests. Few could have predicted with any certainty what the results of this large-scale bail reform would be. The result suggests there is no necessary trade-off between constitutional rights and public safety. These findings have powerful implications for rethinking the structure and application of the Salerno balancing test and for jurisdictions considering wholesale bail reform

Presuming Trustworthiness

A half-century ago, the U.S. Supreme Court often praised speakers performing the press function. While the Justices acknowledged that press reports are sometimes inaccurate and that media motivations are at times less than public-serving, their laudatory statements nonetheless embraced a baseline presumption of the value and trustworthiness of press speech in general. Speech in the exercise of the press function, they told us, is vitally important to public discourse in a democracy and therefore worthy of protection even when it falls short of the ideal in a given instance. Those days are over. Our study of every reference to the press function in the history of the Court reveals that the Justices’ positive assumptions about press-speaker trustworthiness—and the benefit of the doubt that accompanied them—have vanished. Yet, for other types of speakers, the presumption of trustworthiness remains and is perhaps stronger than ever. The Roberts Court Justices continue to indulge a generous starting premise for an array of other expressive actors, regardless of the value of their speech or the potential that their speech was the product of less-than-public-serving motives. This contrast provides important insight into both the future protection of the democracy-enhancing press function and the ways that the Roberts Court is leaving certain types of speech outside the ambit of its much-touted expansion of speaker protection

The Frozen Ones: Disputes, Divorces, and Dispositions

Couples who may have been unsuccessful in their efforts to conceive naturally have found ways to parenthood through assisted reproductive technologies. In vitro fertilization is one of the most complex processes these couples pursue, and it involves creating an embryo outside of the human body and then inserting it into the woman with the hopes of successful implantation. Under the circumstances, many embryos may be created and then frozen—or cryopreserved—to prolong the availability of the process to the couple for months or even years. However, a conflict can arise if the couple gets divorced, which begs the question: what happens to the frozen embryos? The answer to this question begins with how the state defines an “embryo” because this makes a difference regarding legal rights and the type of law to be applied. Embryos are generally defined as either property, human life, or an interim category between the two. Once an embryo is defined, a state court must then determine which approach it will use to answer the disposition question. There are three main approaches: the enforcement of informed consent agreements, the contemporaneous mutual consent approach, and the balancing competing interests test. Regarding how to define an embryo, this Note argues that states should place embryos in the interim category to respect their potential for human life. Furthermore, this Note advocates for states to require the donor parents to complete multiple informed consent agreements before starting the cryopreservation process. These forms should specifically address the couple’s disposition preference for any remaining frozen embryos in the event of a divorce. Since many couples who sign these forms may not realistically consider the possibility of divorce, this Note argues that changed circumstances should permit a court to reconsider the enforceability of such an agreement

The People\u27s War and Its Application to China\u27s Legal Framework for Cybersecurity

This Article addresses the growing threat of cyberattacks on critical infrastructure by examining China’s response, particularly through its Cybersecurity Law (CSL), against the backdrop of global cybersecurity laws like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). The CSL, enacted in 2016, is analyzed within the context of Chinese military doctrine, specifically, the concept of the People’s War introduced by Mao Zedong. Part I traces the historical evolution of the People’s War, Part II explores its continued relevance in cyberspace, and Part III discusses how the People’s War elements manifest in the CSL and related regulations. This Article argues that the CSL focuses on elevating China’s defensive cyber capabilities across governmental and consumer sectors, diverging from the more consumer-privacy-centric approach of other global cybersecurity laws. Part IV delves into the challenges the United States faces in responding to the CSL and suggests potential paths forward to bridge strategic divides between the two countries in the realm of cyberspace. The introduction vividly portrays real-world scenarios of cyberattacks impacting critical infrastructure, setting the stage for the exploration of China’s unique response in the subsequent sections

Tax Law Enforcement and Redistributive Politics

The Inflation Reduction Act signed by President Biden on August 16, 2022, allocated $80 billion in additional funding for the IRS. While Democrats unanimously supported the bill, not a single Republican voted in favor of it. The first legislation advanced by the new Republican majority in 2023 was to repeal this increase in IRS funding. Given the diminished state of IRS enforcement capacity, increasing the resources devoted to tax enforcement seems like an obvious imperative without a clear partisan valence. One might think that political and ideological battles would be fought over what the tax law is, not whether the IRS has the resources to enforce it. But IRS funding has become a major political point of contention. Why is tax law enforcement such a partisan issue? In this Article we propose an answer. We argue that the income tax is the primary instrument for income redistribution, and so the efficacy of tax enforcement shapes people’s support for redistribution. When the IRS makes sure people pay their taxes, support for income redistribution increases. And when the IRS is unable to enforce the nation’s tax laws, support for income redistribution decreases. Thus, for political progressives increasing tax enforcement generates a double dividend. It both provides more funds for redistribution and also increases political support for redistribution, which can then be translated into redistributive changes to the tax law. For symmetric reasons, reducing tax enforcement generates a double dividend for those who disfavor income redistribution. To support our theory, we use unique data from the General Social Survey on perceptions of tax law enforcement. We show that perceptions of tax enforcement are strongly correlated with redistributive preferences. Specifically, people who think that tax law is underenforced are less likely to support income redistribution. We find similar results when looking at specific redistributive welfare programs. To disentangle causation from correlation, we administered a national representative survey which specifically asked about the effects of increased tax law enforcement on support for redistribution. Thus, tax law enforcement does not only determine the amount of tax revenue we collect; it also shapes our redistributive preferences which in turn affects our redistributive polices. This means that as long as our political parties are divided about the desirability of income redistribution, the political battles around IRS funding and enforcement are not likely to wane

Personal Jurisdiction\u27s Moment of Opportunity: A Reform Blueprint for Originalists and Nonoriginalists

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on jargon rather than a coherent account of how to allocate jurisdictional power in a federal system. Reform may be possible. In 2021, the Court decided Ford Motor Co. v. Montana Eighth Judicial District Court, which unanimously rejected Ford’s extravagant challenge to jurisdiction in states where it sold thousands of cars. Unanimity masked Justices’ simmering frustration with precedents that made Ford’s challenge more plausible than it should have been. Two Justices went so far as to suggest reconsidering settled precedent from an originalist perspective. Nonoriginalist Justices will be wary of using historical analysis to interpret the Due Process Clause, but may otherwise be open to revisiting foundational assumptions about state jurisdiction. This Article provides a blueprint for reforming personal jurisdiction doctrine that can appeal to both originalists and nonoriginalists. Finding common ground is essential at a time when the meaning of due process is contested and personal jurisdiction precedent is unstable. Part I uses Ford as a case study to illustrate how current rules governing personal jurisdiction excessively shield defendants from accountability. I argue that precedent undervalues state interests and horizontal federalism concerns, overvalues the importance of purposeful contacts with the forum, needlessly distinguishes between suit-related and state-related contacts, and relies on a categorical rather than sliding scale approach to specific and general jurisdiction. Part II explains why some Justices are willing to embrace reform. Part III identifies challenges that confront efforts to rebuild personal jurisdiction doctrine on a more stable and sound foundation. A common theme uniting these challenges is that an originalist inquiry into personal jurisdiction must navigate the same complexities that have undermined nonoriginalist jurisprudence. There is a risk that originalist methods will elide these complexities and create a veneer of reform that obscures doctrinal incoherence. Similarly, there is a risk that nonoriginalists will gloss over these complexities rather than join with originalists to find a mutually acceptable path toward reform. The Article therefore proposes eight criteria for rebuilding personal jurisdiction doctrine that Justices should consider regardless of the interpretive methodology they employ. This framework can help the Court seize an opportunity to repair a broken field of constitutional law

Domesticating Foreign Finance

More than a decade after the 2008 financial crisis, U.S. policymakers still have not adequately addressed one of the primary causes of the crash: foreign banks. When foreign banks first entered the United States fifty years ago, they specialized in traditional banking products like loans and deposit accounts. Over time, however, many foreign banks shifted to a riskier strategy focused on speculative capital markets investments and fueled by volatile short-term debt. This novel business model created vulnerabilities for the U.S. financial system, as became clear when Deutsche Bank, Barclays, UBS, and other foreign banks accelerated the 2008 crisis. This Article contends that while foreign banks’ role in the U.S. financial system has evolved over time, the U.S. regulatory framework has not kept pace. After the financial crisis, policymakers tried to rein in foreign banks by regulating some of their U.S. offices directly, rather than deferring to home-country authorities. Some foreign banks, however, have evaded these reforms by shifting billions of dollars in assets to lightly regulated U.S. branches—a classic case of regulatory arbitrage. This Article asserts that foreign banks continue to pose risks to the U.S. financial system, threatening a recurrence of the Great Recession. Accordingly, this Article recommends an alternative regulatory approach—namely, mandatory subsidiarization of large foreign bank branches—that would better safeguard foreign banks’ U.S. operations while remaining consistent with longstanding international regulatory norms

The Legal Primacy Reform

Corporate law scholarship revolves around two polar conceptions, known as “shareholder primacy” and “corporate social responsibility.” This Article takes the literature in a new direction, arguing that the current dichotomy misses a crucial aspect of corporate law: its norm of legal primacy. Any pursuit of profit, by the corporation, is legally permitted only within the bounds of full compliance with non-corporate positive law. When the corporation acts unlawfully, corporate law provides a powerful, and until now undertheorized, set of remedies against its fiduciaries and shareholders. As this Article demonstrates, the most effective way to promote socially desirable corporate behavior is by utilizing the legal primacy devices that corporate law already offers, while continuing to strengthen non-corporate law. Connecting legal primacy with corporate practice, this Article discusses a number of doctrines, some of which have recently become high-profile topics of litigation and scholarship: the fiduciary duty of good faith; directors’ oversight duties; the mandatory limits on dividends and buybacks; the shift in corporate purpose in the vicinity of insolvency; the seniority of preferred and trust shareholders; and the judicial dissolution of law-breaking corporations. The analysis offered in this Article can help shape the law to better protect stakeholders (without departing from rule of law principles, or the rights that entities and shareholders do have), and chart a more nuanced trajectory for broader discourse on business law, private law, and public regulation