Since 1970, mixed-income (inclusionary) housing projects have proliferated in the United States. In a community of this sort, only some of the dwelling units, perhaps as few as 10 to 25 percent, are targeted for delivery of housing assistance. Eligible households that successively occupy these particular units pay below-market rents, while the occupants of the other units do not. This article...
Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking
Judicial and scholarly descriptions of the deterrent power of civil rights damages actions rely heavily on the assumption that government officials have enough information about lawsuits alleging misconduct by police officers that they can weigh the costs and benefits of maintaining the status quo. But no one has looked to see if that assumption is true. Drawing on extensive documentary evidence...
Case Note: Constitutional Law - Free Speech - Ninth Circuit Upholds City Council's Ejection of Audience Member Based on Nazi Salute Norse v. City of Santa Cruz
An irony of American free speech law is that it provides more protection for ranting on a street corner than speaking out at a public meeting. This is partly a quirk of the United States Supreme Court’s complicated First Amendment jurisprudence and partly a recognition that such meetings are venues for administrative business and not just citizen engagement. And yet all across the country, city...
False Profits: Reviving the Corporation’s Public Purpose
For much of the twentieth century, corporations pursued a simple strategy: maximize shareholder wealth. This strategy led to significant gains for shareholders, but too often came at the expense of the public. This dynamic was on display in the past two years, as high-risk financial instruments brought down the global economy. These instruments, including credit default swaps and mortgage-backed...
Coercive Discovery and the First Amendment: Towards a Heightened Discoverability Standard
This Comment addresses whether the First Amendment restricts a litigant’s or the government’s ability to compel disclosure of information about protected First Amendment activities. In evaluating whether such speech-related information may be subpoenaed, courts have struggled to balance a speaker’s right to anonymous or confidential speech with the evidentiary needs of prosecutors or plaintiffs...
A “Standard Clause Analysis” of the Frustration Doctrine and the Material Adverse Change Clause
In the darkest depths of a corporate merger agreement lies the MAC clause, a term that permits the acquirer to walk away from a transaction if, between signing and closing, the target company experiences a “Material Adverse Change.” Multibillion-dollar deals rise or fall based on the anticipated interpretation of a MAC clause, and invocation of the clause in a sensitive transaction could trigger...
Portraits of Resistance: Lawyer Responses to Unjust Proceedings
This Article considers a question rarely addressed: What is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. The analysis in this Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Alabama in the 1950s...
The Many Faces of Promissory Estoppel: An Empirical Analysis Under the Restatement (Second) of Contracts
This Article examines more than three hundred promissory estoppel cases decided between January 1, 1981, when the Restatement (Second) of Contracts was published, and January 1, 2008, when research for this project began, to explore the manner in which courts conceptualize, decide, and enforce promissory estoppel claims under § 90 of the Restatement (Second) of Contracts. Specifically, because...