Volume 71, Number 7 – April 2022

Articles

Anonymous Companies
William J. Moon
PDF

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business enterprises with owners who are practically untraceable to the general public. Anonymous companies were essential to launch the first abortion drug in the United States at a time when no pharmaceutical company was willing to touch it for fear of backlash by anti-abortion activists. Anonymous companies today serve as “race-neutral” public faces of Black entrepreneurs who conceal their race in order to more equitably compete in a marketplace infected with systemic racism. And anonymous companies are ubiquitous over the internet, enabling survivors of intimate partner violence to become financially self-sufficient entrepreneurs without fear of harassment or stalking.

This Article thus reveals privacy as a prevalent, yet under-theorized function served by modern business entities. In documenting their use in today’s commercial life, this Article makes two contributions to the literature. First, it disrupts prevailing accounts concerning the function of business entities, departing from scholarly accounts that predominantly conceptualize business entities as transactional cost-reducing devices that facilitate the pooling of capital for business ventures. This Article enriches these accounts by showing how protecting the identity of capital contributors from forced public disclosure—what it refers to as identity shielding—can advance important economic and humanistic interests. While the doctrine of limited liability encourages entrepreneurial risk-taking by limiting the amount of capital risk borne by the firm’s equity owners, identity shielding encourages the flow of capital to business enterprises by preserving the business owner’s ability to control knowledge about oneself to the world. Second, it develops a policy framework that enables a more nuanced discussion balancing the interest in ameliorating the harm inflicted by anonymity, as well as harnessing the promise of identity shielding in promoting entrepreneurial risk-taking and human collaboration.

Rethinking Breakups
Hiba Hafiz
PDF

Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling.

This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift worker wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the 1980s breakup of the Bell System on the Communications Workers of America, gutting union density within the telecommunications industry from 56 percent pre-breakup to 24 percent by 2001. Breakups, much like workplace “fissuring,” can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions.

The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust law’s alternating hostility to or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers’ countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare.

Notes

Reconciling Reproductive Rights: Eugenic Abortion and Home Birth Disputes at the European Court of Human Rights
Olivia Coral Daniels
PDF

Reproductive autonomy has been at the heart of culture clashes across the world for decades. Judicial intervention has proven necessary to resolve the rights and interests clashes between pregnant women, medical care providers, and fetuses. At the European Court of Human Rights (“ECtHR”), judges have carefully parsed Article 8 of the European Convention on Human Rights to balance the various rights implicated, including the right to abortion, the right to agency in giving birth, and the right to conscientious objection. Further, decisionmakers may take into account state interests in fetal life. As the ECtHR prepares to face the next stages of litigation concerning reproductive rights—eugenic abortions and home births—its decisions will set an example for the rest of the world, as many governments face and prepare to tackle similar questions and rights clashes. This Note turns to international human rights law to derive three legal principles that should guide the ECtHR in its upcoming decisions. Applying this original framework, this Note argues, the ECtHR can effectively balance the rights of pregnant women, the rights of medical care providers, and the interests of fetuses. In doing so, the European human rights system will ensure women retain legal agency when it comes to decisions about whether and where to give birth.

Long Over-Due Process: Proposing a New Standard for Pretrial Detainees’ Length of Confinement Claims
Kendall Huennekens
PDF

Prolonged pretrial detention poses one of the greatest unchecked threats to due process in the United States. The Supreme Court has never announced the proper analysis to adjudicate detainees’ allegations of prolonged detention pending trial (for criminal detainees) or removal (for noncitizens in immigration detention centers). Because the Court has continually ducked this constitutional question, detainees and courts alike lack guidance regarding how to vindicate this fundamental liberty interest.

This Note identifies the inconsistencies in the Court’s due process jurisprudence generally, as well as the dangers intrinsic to collapsing the standards used to evaluate pretrial detainees’ claims under the Due Process Clause and prisoners’ claims under the Eighth Amendment. In the wake of the Court’s holding in Kingsley v. Hendrickson, this Note argues that the Court should expand an objective due process analysis to detainees’ overdetention claims in place of the subjective analysis derived from the Eighth Amendment. This Note further argues that freedom from overdetention is a fundamental right protected by substantive due process, and it proposes a framework with graduated levels of scrutiny to be applied to pretrial criminal detainees’ and noncitizens’ overdetention claims.

Volume 71, Number 7 – April 2022

Articles

Anonymous Companies
William J. Moon
PDF

Hardly a day goes by without hearing about nefarious activities facilitated by anonymous “shell” companies. Often described as menaces to the financial system, the creation of business entities with no real operations in sun-drenched offshore jurisdictions offering “zero percent” tax rates remains in vogue among business titans, pop stars, multimillionaires, and royals. The trending headlines and academic accounts, however, have paid insufficient attention to the legal uses of anonymous companies that are both ubiquitous and almost infinite in their variations.

This Article identifies privacy as a functional feature of modern business entities by documenting the hidden virtues of anonymous companies—business enterprises with owners who are practically untraceable to the general public. Anonymous companies were essential to launch the first abortion drug in the United States at a time when no pharmaceutical company was willing to touch it for fear of backlash by anti-abortion activists. Anonymous companies today serve as “race-neutral” public faces of Black entrepreneurs who conceal their race in order to more equitably compete in a marketplace infected with systemic racism. And anonymous companies are ubiquitous over the internet, enabling survivors of intimate partner violence to become financially self-sufficient entrepreneurs without fear of harassment or stalking.

This Article thus reveals privacy as a prevalent, yet under-theorized function served by modern business entities. In documenting their use in today’s commercial life, this Article makes two contributions to the literature. First, it disrupts prevailing accounts concerning the function of business entities, departing from scholarly accounts that predominantly conceptualize business entities as transactional cost-reducing devices that facilitate the pooling of capital for business ventures. This Article enriches these accounts by showing how protecting the identity of capital contributors from forced public disclosure—what it refers to as identity shielding—can advance important economic and humanistic interests. While the doctrine of limited liability encourages entrepreneurial risk-taking by limiting the amount of capital risk borne by the firm’s equity owners, identity shielding encourages the flow of capital to business enterprises by preserving the business owner’s ability to control knowledge about oneself to the world. Second, it develops a policy framework that enables a more nuanced discussion balancing the interest in ameliorating the harm inflicted by anonymity, as well as harnessing the promise of identity shielding in promoting entrepreneurial risk-taking and human collaboration.

Rethinking Breakups
Hiba Hafiz
PDF

Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling.

This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift worker wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the 1980s breakup of the Bell System on the Communications Workers of America, gutting union density within the telecommunications industry from 56 percent pre-breakup to 24 percent by 2001. Breakups, much like workplace “fissuring,” can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions.

The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust law’s alternating hostility to or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers’ countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare.

Notes

Reconciling Reproductive Rights: Eugenic Abortion and Home Birth Disputes at the European Court of Human Rights
Olivia Coral Daniels
PDF

Reproductive autonomy has been at the heart of culture clashes across the world for decades. Judicial intervention has proven necessary to resolve the rights and interests clashes between pregnant women, medical care providers, and fetuses. At the European Court of Human Rights (“ECtHR”), judges have carefully parsed Article 8 of the European Convention on Human Rights to balance the various rights implicated, including the right to abortion, the right to agency in giving birth, and the right to conscientious objection. Further, decisionmakers may take into account state interests in fetal life. As the ECtHR prepares to face the next stages of litigation concerning reproductive rights—eugenic abortions and home births—its decisions will set an example for the rest of the world, as many governments face and prepare to tackle similar questions and rights clashes. This Note turns to international human rights law to derive three legal principles that should guide the ECtHR in its upcoming decisions. Applying this original framework, this Note argues, the ECtHR can effectively balance the rights of pregnant women, the rights of medical care providers, and the interests of fetuses. In doing so, the European human rights system will ensure women retain legal agency when it comes to decisions about whether and where to give birth.

Long Over-Due Process: Proposing a New Standard for Pretrial Detainees’ Length of Confinement Claims
Kendall Huennekens
PDF

Prolonged pretrial detention poses one of the greatest unchecked threats to due process in the United States. The Supreme Court has never announced the proper analysis to adjudicate detainees’ allegations of prolonged detention pending trial (for criminal detainees) or removal (for noncitizens in immigration detention centers). Because the Court has continually ducked this constitutional question, detainees and courts alike lack guidance regarding how to vindicate this fundamental liberty interest.

This Note identifies the inconsistencies in the Court’s due process jurisprudence generally, as well as the dangers intrinsic to collapsing the standards used to evaluate pretrial detainees’ claims under the Due Process Clause and prisoners’ claims under the Eighth Amendment. In the wake of the Court’s holding in Kingsley v. Hendrickson, this Note argues that the Court should expand an objective due process analysis to detainees’ overdetention claims in place of the subjective analysis derived from the Eighth Amendment. This Note further argues that freedom from overdetention is a fundamental right protected by substantive due process, and it proposes a framework with graduated levels of scrutiny to be applied to pretrial criminal detainees’ and noncitizens’ overdetention claims.