Vol. 102 Issue 5

This Note demonstrates that courts have frequently but unpredictably circumvented the nondisclosure norm embodied in Matthews, creating confusion for issuers attempting to figure out whether and when to disclose uncharged criminal conduct. Greater clarity is needed. To alleviate the problem, this Note proposes a template courts can use to more reliably determine whether company statements trigger a duty to disclose uncharged criminal conduct. In addition to providing more guidance to issuers, certainty in disclosure obligations will also
benefit shareholders. Companies would be less likely to withhold material information solely because they are uncertain whether the statement would trigger a duty to disclose.

Part I describes the theory behind the federal securities laws and outlines the disclosure framework, which generally does not require companies to disclose information to investors unless the information is material and there is a duty to disclose it. The next two Parts use the Second Circuit’s opinion in Matthews as a springboard for understanding arguments courts have made on both sides of the disclosure divide. Part II explores the four justifications for nondisclosure set forth in Matthews and related cases, which collectively form the backbone of the pervasive nondisclosure norm. Part III then examines how other courts have rebutted these justifications and required disclosure. Although courts have found disclosure appropriate in numerous instances, the contours of these requirements are imprecise and there are few clear rules to guide issuers. Finally, Part IV considers how to clarify disclosure obligations for issuers. Proposals for the SEC to implement a new line item are rejected in favor of a decisional framework courts can use to apply the half-truth doctrine more consistently. Unlike a line item, clarifying the half-truth doctrine enables companies to retain control over when uncharged criminal conduct is disclosed.

Should federal courts give stare decisis effect to statutory interpretation
methodology? Although a growing number of legal scholars have answered this
question in the affirmative, this Essay makes the case against methodological
stare decisis. Drawing on recent empirical studies of Congress’s expectations
regarding statutory interpretation, we show that existing knowledge of Congress’s
expectations is insufficient to settle on one consistent approach to
statutory interpretation. Moreover, Congress has almost certainly changed its
expectations over time, and this raises serious problems for methodological
stare decisis from the perspective of faithful-agency theories. We argue further
that many theories and doctrines of statutory interpretation are based on
constitutional norms and other public values that do not depend on Congress’s
meta-intent. Constitutional norms and public values also change, and interpretive
methodology should remain dynamic so that the law can be responsive to
changing societal norms. Finally, we argue that the value of extending stare
decisis effect to interpretive methodology is unproven. Although treating prior
methodological decisions as binding precedent could, in theory, promote the
policies underlying stare decisis, the same would be true of extending that
doctrine to virtually any rules. Yet interpretive methodology is different from
first-order rules of law in significant ways, and freezing higher-order legal rules
into place would pose special and perhaps overwhelming difficulties. We therefore
conclude that federal courts should not extend stare decisis effect to
methodological decisions without seriously grappling with these difficulties and
demanding much stronger evidence that such a move would improve the
operation of our legal system.


In Citizens United v. FEC, the Supreme Court swept away long-standing
limits on corporate spending in federal elections, but it also strongly affirmed
the constitutionality of robust disclosure and disclaimer requirements. In the
wake of that decision, many proponents of campaign finance regulation have
turned their attention to disclosure as the best remaining mechanism by which
to regulate money in elections. At the same time, opponents of campaign finance
regulation—including the legal team behind Citizens United—have trained
their sights on disclosure, filing new challenges to existing disclosure requirements
in a number of state or federal courts, although so far with only limited
Relying on the Longitudinal Elite Contributor Database (LECD)—an original
database developed by one of the authors to track the population of unique
individual campaign contributors from 1980 through 2008—this Article tests
the Supreme Court’s rhetoric about disclosure, and some of the premises of our
current policy debates about money in politics, against the realities of the FEC’s
existing disclosure regime. In particular, we find that compliance with existing
disclosure regulations is inconsistent and that the current regime fails to
identify the most potentially influential players in the campaign finance system.
In so doing, the current system fails to provide basic facts about how candidates
(and committees) finance their campaigns. We suggest that much of what the
Court and reformers assume about disclosure is wrong—that their views are
premised on an effective and well-functioning disclosure regime that in fact
bears scant resemblance to the system of disclosure maintained by the FEC.
Correcting these misunderstandings will be critical to crafting better reform
proposals. And the stakes could not be higher: disclosure may well be the only
constitutionally viable and politically feasible method of regulating money in
elections in a post-Citizens United world.

In 2008, with Baze v. Rees, the Supreme Court broke decades of silence
regarding state execution methods to declare Kentucky’s lethal injection protocol
constitutional, yet the opinion itself did not offer much guidance. In the six
years after Baze, legal challenges to lethal injection soared as states scrambled
to quell litigation by modifying their lethal injection protocols. My unprecedented
study of over 300 cases citing Baze reveals that such modifications
have occurred with alarming frequency. Moreover, even as states purportedly
rely on the Baze opinion, they have changed their lethal injection protocols in
inconsistent ways that bear little resemblance to the original protocol evaluated
in Baze and even differ from one execution to the next within the same state.
States’ continuous tinkering often affects already-troubled aspects of their lethal
injection procedures. The compendium of these deficiencies has led to some of
the most glaring failures in lethal injection history.

Part I of this Note sets the background framework for the preemption issue and includes an overview of the federal regulation of immigration, state licensing laws, the intersection of state occupational laws and immigration law, and the parameters of preemption of state licensing laws. To provide context to this background, Appendix 1 chronicles cases that have found state licensing laws to violate equal protection, and Appendix 2 details examples of state occupational licensing laws requiring certain immigration categories as a precondition for eligibility. Part II analyzes the conflicts between federal and state laws and includes a discussion of express, conflict, field, and obstacle preemption. Part III addresses the role of a federal statute, 8 U.S.C. § 1621, at the intersection between immigration and state occupational-licensing laws. A chart in Appendix 3 provides an example of the ambiguity created by § 1621 if the statute is interpreted to prevent states from offering benefits, including licenses, to certain categories of noncitizens that are eligible for other federal and state benefits.

This Note concludes that state laws denying legally present noncitizens
the opportunity to be considered for occupational licenses are preempted by federal regulation. The intersection between licensing and immigration is a contested area in which both levels of government within our federalist system have strong claims to power. In occupational licensing the best way to reconcile these competing claims is through an obstacle preemption analysis. There must be room for a state to maintain its traditional power to establish the professional
competencies required of any person who practices an occupation within its sovereign bounds. But, if a state makes eligibility for a license conditioned on particular immigration status, this stands as an obstacle to the full purpose of Congress and is preempted through the Supremacy Clause.

This Article posits that we are in a key moment of discursive and ideological transition, an era in which the model of elective race is ascending, poised to become one of the dominant frameworks for understanding race in the United States. Because we are in a period of transition, many Americans still are wedded to fairly traditional attitudes about race. For these Americans, race is still an objective, easily ascertainable fact determined by the process of involuntary racial ascription—how one’s physical traits are racially categorized by third parties. The elective-race framework will challenge these Americans to recognize other ways in which people experience race, including acts of voluntary affiliation as well as selective and conditional affiliations. Importantly, even if one concludes that most Americans still hold traditional, ascriptive-based understandings of race, there is evidence that elective race is steadily gaining influence in certain quarters, shaping government institutions’ formal procedures as well as certain Americans’ racial understandings.

To improve the clarity and precision of discussions about elective race, this Article outlines the key premises and norms associated with this ideological framework. My primary goal is to help courts and scholars understand the basic tenets and tensions that are likely to be present in plaintiffs’ elective-race claims. Although some scholars have trivialized racial self-identification interests or represented them as a threat to antidiscrimination law, my project is to show that racial self-identification decisions matter in concrete ways because they can trigger serious race-based social sanctions that are a core antidiscrimination law concern. Indeed, as we will see, voluntary racial-affiliation decisions can and do trigger race-based resentment, rejection, and social sanction when race-based resentment, rejection, and social sanction when they do not match certain expected or established American understandings about the boundaries of racial categories. Moreover, I predict that, though the number of cases that sound in the nature of elective race may be small at present, we should expect to see more cases of this kind given both the increased focus Americans place on the interest in racial self-identification and the shift toward institutional protocols that are intended to accommodate this interest. The elective-race cases will challenge courts, forcing them to decide whether Title VII of the Civil Rights Act of 1964 (Title VII) should recognize the autonomy claims of individuals who are injured in the workplace by the social and formal processes of involuntary racialization. Courts will be asked to rule on cases that suggest that an employee’s dignity interests are unjustly frustrated when other fail to respect the employee’s right to racial self-definition.

What happened to unconscionability? Here’s one version of the story: The
doctrine of unconscionability experienced a brief resurgence in the mid-1960s
at the hands of naive, left-liberal, activist judges, who used it to rewrite private
consumer contracts according to their own sense of justice. These folks meant
well, no doubt, much like present-day consumer protection crusaders who seek
to ensure the “fairness” of financial products and services. But courts’ refusal
to enforce terms they deemed “unconscionable” served only to increase the cost
of doing business with low-income households. Judges ended up hurting the
very people they were trying to help. In the face of incisive criticism, judicial
enthusiasm for the doctrine of unconscionability quickly faded. A new consensus
emerged in favor of legislation requiring better disclosure of consumer
contract terms ex ante, rather than ex post judicial review.

This Article presents a different narrative, one that is informed by extensive
research in previously untapped archival sources. In this story, the wise legislature
does not overrule the misguided courts. On the contrary, it reveals that
lawmakers laid the groundwork for the judicial revival of unconscionability,
and then rewrote statutory rules to codify the ensuing court decisions. In the
District of Columbia, home to the famous Williams v. Walker-Thomas Furniture
Co. litigation, the legislature revived unconscionability through the enactment
of the Uniform Commercial Code (U.C.C.), which reintroduced the oncearchaic
doctrine into the legal vernacular. Just as the U.C.C. drafters intended,
unconscionability review allowed courts to do openly what they had been doing
covertly for years—refuse to enforce harsh, one-sided bargains as written. In
1965, the D.C. Circuit seized the opportunity unconscionability offered to
prevent the loss of a poor woman’s furniture. But the Williams litigation also
did something more. It drew public attention to the controversy before the court
and alerted D.C. lawmakers to a recurring problem in need of a legislative fix.
In response, local leaders set to work drafting consumer credit reform legislation.
Lawmakers eventually adopted a firm set of rules to govern “installment”
sales contracts in the District of Columbia, including a ban on the objectionable
contract term at issue in Williams.

In this narrative, judges and legislators did not advance competing regulatory
visions. They agreed on the need for substantive limits on installment sales
to poor borrowers. Moreover, contrary to what some scholars might predict,
litigation did not divert scarce resources down a dead-end path. Rather, it
catalyzed the process of legislative change, raising public consciousness of
problems in the low-income marketplace and fueling the drive for substantive
reforms on the local level.