Volume 69, Number 2 – November 2019

Articles

Beyond Bias in Diversity Jurisdiction
Scott Dodson
PDF

The long-running debate over the propriety and proper scope of diversity jurisdiction has always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity jurisdiction, while opponents argue that it does not. This Article argues that both sides have it wrong. Supporters are wrong that out-of-state bias and its perception are sufficient to justify diversity jurisdiction today. Yet opponents are wrong that the lack of bias supports the abolition or extreme restriction of diversity jurisdiction. The problem is the centrality of the bias rationale, which has obscured more pertinent considerations in diversity debates. This Article aims to shift the debate about diversity jurisdiction away from the bias rationale and toward matters relevant to modern litigation, including facilitating multistate aggregation. This Article shows that moving beyond bias allows for more honest and legitimate debate of the propriety and scope of diversity jurisdiction, and it identifies promising areas for diversity reform in light of that new focus while remaining faithful to the Constitution.

Insuring Nature
Carolyn Kousky & Sarah E. Light
PDF

Scholars and policymakers have argued that insurance can shape behavior in ways that mitigate climate risks, such as by providing financial incentives to property owners to safeguard their property from increasingly intense hurricanes or from the risk of sea-level rise. But natural ecosystems like coral reefs, mangroves, and forest ecosystems can themselves protect property from these increased climate risks. This Article turns the climate governance literature on its head, examining the circumstances under which it is possible to insure nature itself in order to preserve these critical ecosystem services in the face of a changing climate.

2019 Currie-Kenan Distinguished Lecture

#MeToo: Why Now? What Next?
Deborah L. Rhode
PDF

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

Notes

Dazed and Confused: Revamping the SEC’s Unpredictable Calculation of Civil Penalties in the Technological Era
Samuel N. Liebmann
PDF

Twenty-first-century problems cannot be solved with twentieth-century solutions. This applies with particular force to securities regulation, in which regulators must constantly adapt to rapid financial innovation. In an era of high-frequency trading and unprecedented market connectivity, the SEC has struggled to apply its existing regulatory framework. Specifically, the Commission’s tiered civil-penalty regime—a remnant of the 1990 Penny Stock Reform Act—is outdated and presents a number of challenges as applied to sophisticated trading violations. Primarily, the current structure, which allows Administrative Law Judges to punish financial misconduct for each illegal “act or omission” that has occurred, permits excessive discretion to impose monetary penalties and can result in varying penalty amounts. This lack of predictability introduces too much uncertainty into market behavior and also accelerates settlement rates, depriving industry members of valuable precedent. Punishing for each “act or omission” can also be an improper proxy for the severity of a particular offense, such as when a single act causes severe damage to market confidence. This Note argues that Congress should alter this outdated tier structure in favor of a gain-based penalty system, which would reduce variability and more accurately punish wrongdoing.

Grappling with Gebardi: Paring Back an Overgrown Exception to Conspiracy Liability
Jack C. Smith
PDF

For over a century, the Supreme Court has recognized that someone can conspire to commit a crime that he is not eligible to commit himself. Though this broad rule seeks to prevent the exploitation of statutory loopholes by concerted bad actors, courts have recognized narrow exceptions to this baseline reach of conspiracy liability for nearly as long as the rule itself. One such exception was announced in Gebardi v. United States , a 1932 Supreme Court case concerning an early human trafficking law that criminalized the act of transporting a woman across state lines for prostitution. The Court held that a woman transported in violation of this law was not guilty of conspiring with her transporter merely because she acquiesced to the journey. In the ensuing decades, lower courts debated the implications of the case for other kinds of criminal conspiracies and reached conflicting interpretations of the Gebardi exception—with some deriving broad, categorical exceptions for large classes of actors.

This Note argues that Gebardi created only a narrow exception requiring inquiries into both statutory construction and individual intent. While this reading comports with recent Supreme Court discussion of Gebardi as a narrow exception, one circuit court has since dismissed that brief treatment and expanded the Gebardi exception to its breaking point. This incongruence suggests further clarity and direction are needed to ensure cohesion in an area that could implicate a vast array of criminal statutes.

Volume 69, Number 2 – November 2019

Articles

Beyond Bias in Diversity Jurisdiction
Scott Dodson
PDF

The long-running debate over the propriety and proper scope of diversity jurisdiction has always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity jurisdiction, while opponents argue that it does not. This Article argues that both sides have it wrong. Supporters are wrong that out-of-state bias and its perception are sufficient to justify diversity jurisdiction today. Yet opponents are wrong that the lack of bias supports the abolition or extreme restriction of diversity jurisdiction. The problem is the centrality of the bias rationale, which has obscured more pertinent considerations in diversity debates. This Article aims to shift the debate about diversity jurisdiction away from the bias rationale and toward matters relevant to modern litigation, including facilitating multistate aggregation. This Article shows that moving beyond bias allows for more honest and legitimate debate of the propriety and scope of diversity jurisdiction, and it identifies promising areas for diversity reform in light of that new focus while remaining faithful to the Constitution.

Insuring Nature
Carolyn Kousky & Sarah E. Light
PDF

Scholars and policymakers have argued that insurance can shape behavior in ways that mitigate climate risks, such as by providing financial incentives to property owners to safeguard their property from increasingly intense hurricanes or from the risk of sea-level rise. But natural ecosystems like coral reefs, mangroves, and forest ecosystems can themselves protect property from these increased climate risks. This Article turns the climate governance literature on its head, examining the circumstances under which it is possible to insure nature itself in order to preserve these critical ecosystem services in the face of a changing climate.

2019 Currie-Kenan Distinguished Lecture

#MeToo: Why Now? What Next?
Deborah L. Rhode
PDF

This Essay explores the evolution, implications, and potential of #MeToo. It begins by reviewing the inadequacies of sexual harassment law and policies that have permitted continuing abuse and that prompted the outrage that erupted in 2017. Discussion then turns to the origins of the #MeToo movement and assesses the changes that it has propelled. Analysis centers on which changes are likely to last and the concerns of fairness and inclusion that they raise. A final section considers strategies for sustaining the positive momentum of the movement and directing its efforts toward fundamental reform.

Notes

Dazed and Confused: Revamping the SEC’s Unpredictable Calculation of Civil Penalties in the Technological Era
Samuel N. Liebmann
PDF

Twenty-first-century problems cannot be solved with twentieth-century solutions. This applies with particular force to securities regulation, in which regulators must constantly adapt to rapid financial innovation. In an era of high-frequency trading and unprecedented market connectivity, the SEC has struggled to apply its existing regulatory framework. Specifically, the Commission’s tiered civil-penalty regime—a remnant of the 1990 Penny Stock Reform Act—is outdated and presents a number of challenges as applied to sophisticated trading violations. Primarily, the current structure, which allows Administrative Law Judges to punish financial misconduct for each illegal “act or omission” that has occurred, permits excessive discretion to impose monetary penalties and can result in varying penalty amounts. This lack of predictability introduces too much uncertainty into market behavior and also accelerates settlement rates, depriving industry members of valuable precedent. Punishing for each “act or omission” can also be an improper proxy for the severity of a particular offense, such as when a single act causes severe damage to market confidence. This Note argues that Congress should alter this outdated tier structure in favor of a gain-based penalty system, which would reduce variability and more accurately punish wrongdoing.

Grappling with Gebardi: Paring Back an Overgrown Exception to Conspiracy Liability
Jack C. Smith
PDF

For over a century, the Supreme Court has recognized that someone can conspire to commit a crime that he is not eligible to commit himself. Though this broad rule seeks to prevent the exploitation of statutory loopholes by concerted bad actors, courts have recognized narrow exceptions to this baseline reach of conspiracy liability for nearly as long as the rule itself. One such exception was announced in Gebardi v. United States , a 1932 Supreme Court case concerning an early human trafficking law that criminalized the act of transporting a woman across state lines for prostitution. The Court held that a woman transported in violation of this law was not guilty of conspiring with her transporter merely because she acquiesced to the journey. In the ensuing decades, lower courts debated the implications of the case for other kinds of criminal conspiracies and reached conflicting interpretations of the Gebardi exception—with some deriving broad, categorical exceptions for large classes of actors.

This Note argues that Gebardi created only a narrow exception requiring inquiries into both statutory construction and individual intent. While this reading comports with recent Supreme Court discussion of Gebardi as a narrow exception, one circuit court has since dismissed that brief treatment and expanded the Gebardi exception to its breaking point. This incongruence suggests further clarity and direction are needed to ensure cohesion in an area that could implicate a vast array of criminal statutes.