Vol. 104 Issue 1

We are in a small slaughterhouse seventy-five miles from Minneapolis. A United States Department of Agriculture (USDA) inspector’s report captures the scene: A slaughter plant manager slit a cow’s throat, but the animal did not die. The plant manager was legally required to shoot her again, but instead he electrocuted her with a shock prod, over and over, trying to get her to leave the stun box, where she was trapped with another cow in a space intended to hold just one animal.

Because the gate to the stun box was partially down, the cow’s escape was a “physical[] impossibility,” but that did not stop the plant manager from trying. The cow’s screaming drew a crowd, including two USDA inspectors, but their presence did not deter the plant manager from continuing to repeatedly electrocute this poor animal. The electric shocks were tormenting, and so the cow tried to cram her body through the gate. Because this was impossible, her “hide [was] peeled back . . . and there was blood and hair throughout the wound, as well as blood and hair on the lift gate.” The entire ordeal lasted fifteen minutes. . . .

Among the many executive actions to reform immigration enforcement taken by President Obama on November 20, 2014, one measure was not like the others. Homeland Security Secretary Jeh Johnson directed Immigration and Customs Enforcement (ICE) to discontinue the Secure Communities program, under which noncitizens arrested by local law enforcement could be detained and eventually transferred to federal custody to process their deportations. This action differed substantively from the other forms of prosecutorial discretion utilized by the Obama Administration because it benefits immigrants who have a criminal record. This conflicts with the general Obama strategy on immigration enforcement, which prioritizes noncitizens with criminal records for apprehension and deportation. In the President’s words: “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”

Given the President’s expressed “felons, not families” policy, it is peculiar that ICE would be asked to shut down a program that specifically targets noncitizens who are arrested on suspicion of criminal activity. Although the Obama Administration has used its discretion to grant reprieves from deportation for millions of unauthorized immigrants, it has also deported noncitizens at a record rate. This dual approach depends in large part on ICE’s ability to find immigrants with criminal records so that the government may target its apprehension, detention, and deportation resources accordingly. Secure Communities was a critical tool in carrying out this policy because it made it easy for ICE to make sure that immigrants arrested by local authorities would not be released back into the community. But the critical link in Secure Communities was the use of ICE detainers, through which ICE asked local police to detain people longer than they would be permitted to on purely criminal grounds so that ICE agents could easily take them into federal custody. . . .

Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type—the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time’s revealing past to our messy doctrinal present—first by compiling an initial doctrinal tally, then by sorting the doctrine into a novel time typology. This typology splits into three core categories—all time, some time, and broken time—and it brings analytical coherence to a concept too-long ignored. Even more, it sketches a blueprint for worthwhile reform. This Article proposes four such reforms—to Hicks v. Miranda, to mootness and desuetude, to retroactivity doctrine, and to Federal Rule of Civil Procedure 60(b)—and it rethinks the courts’ most enduring time commitments. It also builds the foundation for what is to come, opening a discussion about time as a legal technology, arguing for a more critical investigation of the law’s clock.

The Delaware public benefit corporation is a relatively new for-profit legal entity that allows for the explicit pursuit of a corporate social or environmental mission. The public benefit corporation requires its directors and managers to balance the interests of its shareholders and beneficiaries of its corporate social or environmental mission. These competing interests implicate the shareholder wealth maximization norm, throwing directors’ legal obligations into question. Critics of the public benefit corporate form argue that the fiduciary duties created by the public benefit corporation statute conflict with traditional common law fiduciary duties; namely, that the duty to maximize shareholder value cannot legally coexist with the duty to consider the interests of other constituents. Supporters argue that in practice the shareholder wealth maximization norm does not conflict with a director’s fiduciary duties because Delaware law already supports the notion that directors may consider non-shareholder constituent interests in making both day-to-day and anti-takeover corporate decisions.

Because public benefit corporations are only increasing in number, and demand for their products and services is growing, addressing these questions is critically important. It is only a matter of time before a benefit corporation looks to tap into the resources of the public capital markets; but is there enough investor interest in public benefit corporations to support an IPO? After a public benefit corporation goes public, its directors owe significant obligations to the corporation’s shareholders and constituents—obligations that might be in tension with one another. Thus, can a public benefit corporation legally be a public company under current Delaware law? And fearing the violation of their fiduciary duties, public benefit corporation directors may believe they are unable to defend against activist investors and hostile takeovers; thus, can a public benefit corporation survive as a public and independent company? . . .

For decades, mandatory consumer arbitration has been ground zero in the war between the business community and the plaintiffs’ bar. Some courts, scholars, and interest groups argue that the speed, informality, and accessibility of private dispute resolution create a conduit for everyday people to pursue claims. However, others object that arbitration’s loose procedural and evidentiary rules dilute substantive rights, and that arbitrators favor the repeat-playing corporations that can influence their livelihood by selecting them in future matters. Since 2010, the stakes in this debate have soared, as the U.S. Supreme Court has expanded arbitral power and mandated that consumers resolve cases that once would have been class actions in two-party arbitration. But although the Court’s jurisprudence has received sustained scholarly attention, both its defenders and critics do not know how it has played out behind the black curtain of the extrajudicial tribunal.

This Article offers fresh perspective on this debate by analyzing nearly 5,000 complaints filed by consumers with the American Arbitration Association between 2009 and 2013. It provides sorely needed information about filing rates, outcomes, damages, costs, and case length. It also discovers that the abolition of the consumer class action has changed the dynamic inside the arbitral forum. Some plaintiffs’ lawyers have tried to fill this void by filing numerous freestanding claims against the same company. Yet these “arbitration entrepreneurs” are a pale substitute for the traditional class mechanism. Moreover, by pursuing scores of individual disputes, they have inadvertently transformed some large corporations into “extreme repeat players.” The Article demonstrates that these frequently arbitrating entities win more and pay less in damages than one-shot entities. Thus, the Court’s consumer arbitration revolution not only shields big businesses from class action liability, but gives them a boost in the handful of matters that trickle into the arbitral forum.