The amount of medical research with persons who lack decision-making capacity is rapidly increasing, but in most states it takes place without any legal authority. In addition to creating significant liability risks for researchers and persons who provide consent on behalf of incapacitated subjects, the lack of explicit legal standards means that few, if any, safeguards exist to protect incapacitated persons’ rights and welfare. Previous efforts to close the gap between clinical reality and legal requirements have failed in part because they have not provided a coherent or persuasive ethical justification for permitting this research. This Article fills that void by proposing a new way of thinking about the ethics of research with incapacitated persons, grounded in a long-term, systemic approach to risk-benefit assessment. This approach explains why it is ultimately in incapacitated persons’ best interests to be governed by a policy that permits them to be enrolled in research without their personal authorization—even if such a policy puts them at risk of participating in studies that, when viewed in isolation, may involve more burdens than benefits. Unlike other approaches, the framework developed here does not depend on false analogies between participating in research and receiving medical treatment, dubious claims about family members’ inherent authority, or incapacitated persons’ obligations to society. Because the proposed framework directly responds to the criticism that research with incapacitated persons is a form of exploitation, it increases the likelihood that proposals to authorize this research will actually be adopted. At the same time, it has important implications for both how laws governing research with incapacitated persons should be structured, and the roles and responsibilities of surrogate decision makers.

At its broadest level, this Article examines how the zone of law enforcement, once the mirror is turned, is also a zone of under-enforcement.  Except in the most egregious cases—those involving brutality or death, for example—law enforcement officers can engage in otherwise sanctionable and criminal behavior usually without fear of consequences.  The point of this Article, however, is not to engage in a jeremiad against police wrongdoing.  Rather, the point of this Article to is articulate an argument, acceptable to those on the left and those on the right, to civil libertarians and law and order advocates, and ultimately to the police themselves, for why there should be a more democratic policing of police officers.  Essentially, this Article builds upon legitimacy theory to make a utilitarian argument: more policing of the police, far from tying the hands of law enforcement, can actually work to reduce crime in the general community. 

In the last few years, corporate mergers and acquisitions have witnessed explosive growth.  Although more recent market conditions have appeared to restrain the latest merger movement, scholars and commentators have used the rise in merger activity to reevaluate the preferential tax treatment granted to those mergers and acquisitions that fall under the U.S. tax law’s definition of a corporate “reorganization.”  Under the current Internal Revenue Code, neither shareholders nor corporations recognize gain or loss on the exchange of stock or securities in transactions that qualify as a “corporate reorganization.”  The significance of this tax rule raises a central question: why does this tax preference exist?  Since its statutory inception in 1919, numerous scholars have debated the theoretical justifications for this tax law.  Few, however, have sought to move beyond intellectual and conceptual origins to address the more pertinent question of institutional development: how and why has this tax benefit become a deeply entrenched part of American corporate tax law?         
    This Article mainly addresses this second question.  It contends that historically constituted political and economic interests have gradually transformed this law from its beginnings as a limited statutory exception into a modern version of voluntary corporate welfare.  This transformation can be explained less by resort to timeless economic logic or legal doctrine than by reference to the institutional dynamics and the concrete economic, political, and social conditions that have existed during crucial moments in the incremental expansion and maintenance of this tax provision.
    In narrating the early phases of this gradual transformation, this Article has two interrelated objectives.  First, it seeks to historicize the pre-history, the statutory origins, and the early liberalization of this corporate tax law.  Second, this article highlights the sequential and contingent development of the reorganization provisions.  In examining the historical processes that led to the early expansion and entrenchment of this tax law, this Article illustrates the contested and provisional nature of the creation, expansion, and maintenance of this corporate tax benefit.  This Article mainly investigates two pivotal periods—the 1920s when this rule was gradually liberalized, and the early 1930s when this tax law faced near elimination—to underscore how material context and historical sequence determined the possibilities of legal change.

Corporate criminal liability has become an important and much-talked about topic.  This Article argues that entity-based liability – particularly the manner in which it is currently applied by the federal government –creates social costs in excess of its benefits.  To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation’s employees would commit crimes, and then charge companies for those insuring those risks.  The insurance would cover civil penalties associated with the entity’s employee-related criminal conduct.  Part I begins with a discussion of corporate criminal liability and the costs that accrue from the manner in which it has been implemented by the Department of Justice.  Part II examines several proposals to change corporate criminal liability, and explains why most of these proposals would barely alter the current structure.  Part III lays out the proposal for an insurance system in lieu of entity-based criminal liability and explains, in rough form, how corporate entities might contract for insurance, how claims might be filed and how damages might be measured.  Part III also addresses a number of arguments that others might raise against the proposal.

In Kelo v. City of New London, the U.S. Supreme Court upheld the taking of private property for the purpose of an economic redevelopment project. The decision has sparked a flurry of criticism. Much legal commentary calls for heightened scrutiny of such economic development takings under the public use provision of the Takings Clause. For these critics, the Supreme Court’s deferential standard is deficient in that it allows special interests to abuse the eminent domain power to pursue their own economic interests. As a result, governments routinely condemn property on behalf of politically connected private developers, who offer in return only the speculative public benefit of stimulating the local economy.  
    Apart from this line of criticism, this Note argues that seeking increased protection of private property rights under the public use provision lacks a strong constitutional basis. The Constitution does not require that economic legislation be free from the influence of special interests, and this principle is no less true for economic development takings. Given this weakness of the constitutional argument for heightened judicial scrutiny, if citizens wish to impose greater restraints on legislatures’ use of eminent domain for economic development, they must demand those restraints not from the Federal Constitution, but from state law.

As the world becomes more integrated, the recognition that globalization constitutes a force with growing influence over a host of transnational problems has gained increasing traction.  In response to these problems, many theorists have posited an emergent new world order as the construct most descriptive of how the world currently confronts all global problems or as prescriptive on how the world should confront these problems in the future.  These theories often expressly or implicitly suggest that all the global problems can be solved through a single new framework or reconfiguration of existing frameworks.
    While the search for a unified solution can play an integral role in policy development, this Note rejects the view that any single panacea will bring relief to the myriad afflictions influenced by globalization.  Rather, each problem requires a solution tailored to its own unique characteristics, such that a proposed solution for human rights abuses by private actors may prove poorly suited to confront human rights abuses committed by state actors.