Navigating Section Three from Griffin’s Case to the Case of Couy Griffin: Who Should Decide Its Longstanding Questions?

Section Three of the Fourteenth Amendment was a long-dormant constitutional provision enacted to bar former Confederates from political office. Then, as a result of the shocking political violence at the United States Capitol on January 6, 2021, Section Three suddenly found itself resurrected into the national political discussion. Scholars and courts are now grappling with Section Three’s original meaning and modern application to those politicians and office holders whose conduct led to the events on January 6 — events that interrupted the peaceful transfer of power and left a stain on the United States’ democratic tradition. Yet, use of Section Three to disqualify or remove elected officers has its own implications on democracy. Democratic ideals presuppose that individuals have the right to vote for candidates of their choosing. Can formalistic application of constitutional requirements for office burden that right? The United States’ constitutional structure contains a democracy restrained within a framework of rules and limits. This is well understood. But when there are questions about those constitutional rules — such as whether candidates are disqualified under Section Three — how does the system find answers? The states, courts, legislative bodies, and individual voters all must play diverse roles in deciding our rules of democracy

Ukraine, Urban Warfare, and Obstacles to Humanitarian Access: A Predicament of Public International Law

Humanitarian assistance is not carried out in a vacuum. As urban warfare historically complicates humanitarian aid’s access to civilians in war zones, Ukraine, having suffered and still facing highly publicized violence in civilian-dense areas, has encountered dire obstacles in acquiring necessary resources for civilians’ survival, including both direct and incidental attacks on humanitarian access. Thus, it is vital the international legal community take measures to mitigate current and future dangers of urban warfare, as well as design new solutions, such as strengthening current international law under which obstructing humanitarian access constitutes a violation of jus cogens principles, attempting to induce countries to move away from conflict in civilian-populated areas, supporting previously attempted alleviations such as “safe zones” and humanitarian corridors, and boosting the concrete legal status of NGOs’ and other organizations’ neutrality, to ensure easier access to humanitarian aid in present and future war zones. In Part II (Part I being an introduction), this paper will first lay a foundation of the history of humanitarian assistance in armed conflict and civilians’ rights to humanitarian assistance in armed conflict. Part III will introduce the history of urban warfare, then discuss common obstacles to humanitarian assistance (whether intentionally or unintentionally caused by States), specifically in situations of urban warfare. Part IV will examine how Ukraine has experienced and is currently experiencing humanitarian access issues, and the applicable obligations which involved States have failed to uphold. Finally, Part V will discuss potential solutions to the difficulty facing aid workers in Ukraine and other urban armed conflict situations where civilians are impacted

Expectation v. Reality: Practical Problems with the Right of First Refusal as a Defense Against Eminent Domain

In the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners. The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory right of first refusal has at least three major shortcomings. If legislators wish to arm property owners with effective tools against eminent domain, they should learn from Utah’s experience and bolster their own statutory right of first refusal

Exploring Flexibility in 83(b) Elections: A Tax Policy Proposal

Property awards, such as equity, are taxable to the recipient and have tax implications for employers, too. Without a recipient making an 83(b) election, property awards are taxable when they are granted. For awards that have vesting requirements or are considered “restricted,” they are generally taxable upon vesting. However, making an 83(b) election allows recipients of restricted property awards to be taxed as if the property were vested, meaning more income will shift from ordinary tax rate treatment to preferential tax rate treatment. The preferential tax system is foundational to the 83(b) election. Advocates believe that preferential tax rates in an 83(b) context promote economic growth and encourage efficient capital allocation. However, critics contend that 83(b) elections disproportionately benefit the wealthy because they require electors to pay taxes earlier, which may disadvantage lower-income individuals. Two similarly situated employees may receive significantly different tax treatment based on the type of compensation and whether they make the 83(b) election. Furthermore, the complexities and rigidity of this provision of the tax code create their own inequities. Although the 83(b) election grants flexibility and control for taxpayers, it needs more flexibility by extending the deadline to file. Perhaps providing downside protection for 83(b) electors can encourage more employers to grant property to their employees and service providers. Ultimately, these solutions will allow more people to enjoy the benefits of preferential tax treatment, thereby making preferential tax rates more equitable for everyone

Valuing ESG

Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once nonpecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise. To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at $100 in its charter. The company would use that valuation as a metric in its assessment of projects, pursuing only those projects that would remain “profitable” after adjusting its forecasted cashflows by subtracting$100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than $100 per ton of carbon saved. Similarly, the fund might pick stocks for investment based on potential profitability at a carbon price of$100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing

The Future of Federal Law Clerking

The market for federal law clerks has been upended. Beginning in 2003, the Federal Judges Law Clerk Hiring Plan was implemented to regulate clerkship hiring. According to the Plan, a judge could not interview or hire a potential law clerk before the beginning of the applicant’s third year of law school. The Plan, however, never worked well, constantly got worse, and has now officially collapsed. Across the country, clerkship hiring once again regularly occurs during the second year of law school. This Article addresses the rise and inevitable fall of the Plan. In particular, it submits that the Plan never had a realistic chance of success because coordinated action in a competitive market is difficult to maintain, especially without an effective enforcement mechanism to punish noncompliance. Here, the Plan collapsed because its enforcement mechanism was far too weak. And the reason why the Plan did not have a more effective enforcement mechanism was no accident: any mechanism that could work would require judges to give up too much. Against that backdrop, this Article explains what clerkship hiring will likely look like in the future. Importantly, given the steep costs of an effective enforcement mechanism, this Article contends that it is unlikely that a new hiring plan will be adopted. This is especially true because modern trends are already beginning to mitigate the concerns associated with an unregulated clerkship market

The ESG Gap

The corporate world is undergoing a transformation: there has been a dramatic influx in demand for companies to promote environmental, social, and governance (ESG) values. Yet these preferences do not necessarily translate into effective corporate actions. In this Article, we underscore the structural problems that prevent such preferences from steering the corporate ship full steam ahead toward ESG goals. We analyze the central actors in the corporate sphere that can potentially bring about such change on the ground: managers, institutional investors, and activist hedge funds. We demonstrate that none of these actors have the two central elements required for promoting ESG goals: motivation and competence. We refer to this problem as the ESG gap. We then suggest bridging the gap by forming a new entity, the Activist ESG Fund (AEF). The AEF would be an exchangetraded, closed-end mutual fund, uniquely designed for targeted activist investment. The closed-end traded fund structure would enable the fund management to focus on the long run by attracting patient money while permitting impatient investors to sell their shares on the highly liquid stock exchange. The establishment of AEFs can be a turning point in corporations’ and society’s effective promotion of ESG goals