Finite Ventures

The law endows corporations and other business organizations with the awesome power of perpetual life—unless the charter expressly provides for a certain duration, such as ten years. But does anyone ever actually choose limited life? Why would they? This article reveals that limited-life business entities—finite ventures—play a significant and underappreciated role in modern commerce. Private equity and venture capital funds, SPACs, and insurance syndicates are all organized with a limited lifespan. Their motivation? This article claims that limited life is a valuable, but often overlooked, tool for ameliorating agency costs: the managers of a finite venture know they must produce results by the end of the term—their future career prospects depend on it—so they have an incentive to be diligent and loyal. Even so, limited life has drawbacks—and perpetual life has benefits of its own—so the trick is to know when to use it. To guide decision-makers, this article identifies key factors that weigh in favor of or against finite structure. It closes by proposing novel applications of limited life as a tool of corporate governance— inviting scholars and practitioners alike to rethink the assumption of corporate immortality

Gender Therapy False Equivalency

One critical dispute surrounding the rights of LGBTQ people and societal recognition of their existence is the legal debate regarding very different types of gender therapy. On the one hand, several states have banned the provision of gender-affirming medical care to transgender youth, positing that it is a dangerous form of mutilation. A separate set of states has banned the practice of so-called gay or gender conversion therapy that seeks to transform youth away from their queer identities, concluding that it is a form of abuse. Both sets of laws have been challenged in courts with the Supreme Court recently delineating constitutional standards applicable to each, with subsequent litigation and societal debate to follow. The Supreme Court concluded that laws banning certain kinds of gender-affirming care for minors do not violate the Equal Protection Clause to the extent they do not draw lines on the basis of sex or transgender identity. Conversely, the Supreme Court just ruled that as applied to talk therapy, Colorado’s ban on conversion therapy for minors must survive strict scrutiny under the First Amendment. But with litigation and legislative evaluation surrounding these laws set to continue, it would be a mistake to conflate each category of law and the practices they seek to regulate. As this Article explains as its central thesis, the differences between these two types of laws exist along two important dimensions, one centered on harm and the other centered on science. In terms of harm, allowing gender-affirming care reduces harm because individuals are permitted to choose their care and explore their identity (subject to medical ethics and parental constraints), whereas in the case of conversion, they undergo practices designed to forcibly change or quash their sexual identity, with resulting psychological, emotional, and sometimes physical trauma. In terms of science, states have grounded their prohibitions of conversion practices on studies indicating that gender identity and sexual orientation are not susceptible to forced erasure. In contrast, bans on gender-affirming care ignore the diversity of our biological world and the scientific reality of gender diversity. By appreciating these two dimensions during a time of legislative and judicial skepticism toward medical expertise and evidence-based research, the false equivalency between these two approaches to gender therapy can be brought into sharper relief, guiding lawmaking and constitutional evaluation of the different regulatory regimes, while preserving the role of science as an important (albeit occasionally imperfect) knowledge institution supporting our constitutional democracy

The Borderline Constitution

This Feature identifies and theorizes a distinct constitutional regime that federal courts have constructed at, adjacent to, and because of the nation’s border. Drawing together strands of First, Fourth, Fifth, and Fourteenth Amendment law, along with habeas doctrine, constitutional torts, tribal sovereignty, and separation-of-powers concerns, this Feature demonstrates how constitutional guarantees systematically recede in the border’s shadow. These deviations from canonical and mainstream constitutional norms authorize intrusive state invasions of privacy and other fundamental rights, abdicate judicial oversight in favor of outsized executive discretion, and entrench racial and religious subordination. The Feature further demonstrates that the effects of border exceptionalism do not remain geographically limited. Instead, the logic and tools of border exceptionalism increasingly migrate inward, shaping core doctrines in settings far outside formal border zones and impacting the lives of citizens and lawfully present noncitizens. This jurispathic diffusion can be traced through racial profiling of and diminished membership rights for Latine citizens; contracted habeas and due-process protections; the erosion of constitutional-tort remedies; and the normalization of militarized policing in mainstream doctrines with effects everywhere in the country. The result is a doctrinal migration capable of destabilizing our constitutional order writ large. Finally, this Feature situates the borderline Constitution within the broader arc of constitutional development, identifying its affinities with anticanonical cases such as Korematsu v. United States, particularly in its reliance on militarized necessity and its willingness to subordinate equality to security. Unless repudiated or decisively constrained, the borderline Constitution threatens to transform locational exceptionalism into the rule. This Feature thus concludes by providing federal courts with a roadmap for paring back border exceptionalism, consonant with the reach and rationale of other bespoke constitutional locations

The Idea of Air

How we view air, especially clean air, has meaningful normative and practical implications. Today, it is commonly recognized as an exhaustible natural resource. But air was not always thought of as something to be conserved, developed, and used. This Article is the first to explore and interrogate that view. The shift to seeing air as a resource started in the first part of the twentieth century. Previously, air was characterized by its limitless supply of oxygen: a pure public good. Over time, the quality of that good changed, and a precious resource emerged. That resource—especially its chemical and physical characteristics—inspired a novel management concept and new approach to air pollution control (today considered the pinnacle of air pollution policy). Treating air as a resource offered a new way to imagine our relationship to air. Indeed, this Article argues that the conceptual origins of the modern Clean Air Act (particularly the air quality standards concept) are grounded in natural resources policy rather than in common law nuisance or in pollution’s externalities. But treating air and, more recently, our atmosphere as a resource also anchors our way of thinking to the natural-resource paradigm. The atmosphere, in particular, may be beyond sustainable use. Reimagining air may be necessary to address the worst impacts of a new problem for air: global climate change

Climate Last Resorts

The United States faces a climate crisis, an affordable housing crisis, and, linking them both, an insurance crisis. At the intersection of these concurrent predicaments lie a set of little-known but surprisingly impactful policies: state Insurer of Last Resort (ILR) programs. ILRs are state policies that provide property insurance when private insurance is unavailable, such as when private insurers determine that climate hazards are too risky to underwrite. This Article argues that long-overlooked ILR programs are quickly becoming lynchpins for addressing some of today’s most pressing concerns around climate, housing, and insurance. Accordingly, ILRs bear urgent attention and reevaluation. In short, ILR programs are likely the most important policies that you’ve never heard of. Building on this observation, the Article makes three main contributions. First, it identifies the power of ILR programs as intersectional policy responses to the concurrent insurance, climate, and housing crises. Second, it surveys existing ILR policies, finding that they are relics of sixty-year-old decisions, and that states have seemingly overlooked the opportunities ILRs provide for tailored responses to insurance, climate, and housing concerns. Third, it analyzes insurance data and state climate policy trends to show that many legacy ILR programs appear out of step with insurance withdrawal threats and state climate policy preferences. This suggests that states should consider revising their ILR programs in the near future

Corporate Climate Targets: Science, Discretion, and Climate-Washing

The use of corporate climate targets has exploded in recent years and now encompasses many of the world\u27s largest and most profitable companies. In a corporate climate target, a company voluntarily commits to reducing its emissions in line with climate science and the Paris Agreement. The broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise climate-washing concerns; i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets and explores different types of climate-washing concerns when commitments turn out to be exaggerated. This Article\u27s analysis focuses on corporate targets issued as part of the Science-Based Targets Initiative (SBTi), the preeminent standard-setting body in the field. The Article finds that the role of science in SBTi\u27s rule framework is more complex than it first appears. SBTi rules employ a scientific concept known as the global carbon budget, but scientific knowledge alone cannot translate that carbon budget, which is indeed global, to company-level targets. When SBTi provides that translation in its rules, it is not merely deriving targets from science, but exercising considerable discretion. That discretion, and its distributive implications, are currently under-appreciated in both academia and practice. Building on this analysis, the Article turns to articulating climate-washing concerns in corporate targets and identifying relevant theories of liability. The key, it argues, is to move beyond the instinct that a target can only amount to climate-washing if it is in direct conflict with science. Because science itself cannot determine appropriate company-level targets, the Article helps to identify other avenues through which advocates may pursue climate-washing liability