There are two different paradigms that can be used in analyzing private criminal settlements. The first paradigm, used by scholars who have previously considered this issue, is to treat these settlements as a form of blackmail. Legislatures in every state have used this paradigm to criminalize private criminal settlements. But as the article points out, the justifications for criminalizing these agreements under a blackmail paradigm turn out to be particularly weak.

The article goes on to analyze private criminal settlements under a different paradigm, by treating them as the private analogue to public plea bargains. Using this analysis, the true cost of these agreements becomes apparent. Public plea bargains have long been criticized as providing a sort of second-class justice, but many scholars have also concluded that the process of plea bargaining brings certain benefits to the criminal justice system. The article applies the critiques of plea bargaining to private criminal settlements, and concludes that private settlements share all the drawbacks and costs of public plea bargains, while providing almost none of the benefits.

The article ends by discussing the implications of this analysis for current laws regarding private criminal settlements. It concludes that private criminal settlements should remain criminalized, but with one significant exception: settlements made between individuals who had a pre-existing relationship should be permitted.

Legally speaking, the determination of whether a religious organization qualifies as a church is most implicated by the tax code.  Beyond the benefits of tax exemption granted to all qualified religious organizations,  churches are granted special privileges, including limitations on their notification requirements to the IRS  and greater protection against government investigation.  Given the government’s interest in facilitating church growth,  its ability to encourage the creation of churches through tax incentives, and the potential for growth among Internet churches,  legal analysis regarding the qualifications of Internet churches under tax law is a window into the evolving debate over the most traditional of institutions.

This Recent Development focuses on Foundation of Human Understanding v. United States (“Foundation III”),  which offers two issues for analysis. The first is the question of which test to use in distinguishing churches from mere religious organizations under the federal tax code. In brief, prior to Foundation III, the associational test was carved out of fourteen criteria used by the IRS  (the “fourteen criteria test”)  for making its own determinations of church status. The associational test emphasizes certain criteria of those fourteen, such as regular assemblies, which, taken together, test the “associational role” of churches.  Although the associational test is credited to American Guidance v. United States,  that court used it merely as a threshold test, which it held the appellant did not satisfy.   However, the American Guidance court’s reliance on the associational test did not foreclose subsequent reference to the remaining criteria if an organization has satisfied the associational test  Among the many other criteria included in the fourteen criteria test are “a formal code of doctrine,” “a membership not associated with any other church or denomination,” and “established places of worship.”  The Claims Court’s holding in Foundation II voiced constitutional discomfort with the fourteen criteria test, suggesting that it might favor traditional churches, yet applied the test nonetheless.  Ultimately, however, the court based its holding on the associational test.  Despite echoing these same constitutional concerns with the fourteen criteria test,  the Foundation III court failed to issue a ruling on the test’s constitutionality, instead determining that the Associational test was, for the first time, exclusively satisfactory for determining church status.  In limiting the review of church status to what had previously been a threshold test, Foundation III unnecessarily restricted itself from considering broader considerations offered by the fourteen criteria test, for which sufficient barriers were already in place to mitigate constitutional concerns.

In their 2008 article, Bar-Gill and Warren argued that a new consumer financial protection agency was needed because, among other reasons, existing federal financial regulators were insufficiently motivated to focus on consumer protection.  Bar-Gill and Warren also alleged that the aggressive preemption of state consumer financial protection laws by the Office of the Comptroller of the Currency (“OCC”)  in the 2000s weakened consumer financial protection at the state level.  Throughout the past decade, consumer advocates, attorneys general, and academics have agreed, criticizing the OCC and the Office of Thrift Supervision (“OTS”)  for their use of preemption to prevent states from cracking down on predatory lending.  For their part, the OCC and other federal regulators have defended their use of preemption, arguing that the U.S. Constitution requires preemption where state law conflicts with federal law, and that preemption is an important tool for promoting the efficient operation of credit markets.  As developed more fully below, both sides of the debate make a compelling argument, creating a preemption dilemma: preemption of state consumer financial protection laws could both harm and benefit consumers.

This Recent Development examines how Dodd-Frank changes the relationship between state and federal consumer financial protection authority and helps resolve the preemption dilemma. It argues that Dodd-Frank promotes “dynamic federalism,” an arrangement of governance whereby overlapping authority and competition between state and federal regulators in the area of consumer financial protection has the potential to make the preemption dilemma much less problematic.  By creating a powerful new agency in the CFPB while simultaneously weakening the ability of federal regulators to preempt state consumer protection laws, Dodd-Frank creates a new framework for state and federal consumer protection authorities. This innovation in consumer financial protection should satisfy both those arguing for greater state powers to protect their citizens and those emphasizing the need for consistent, nationwide regulations in order to promote efficient credit markets.

This Recent Development will argue that collecting an arrestee’s DNA under the DNA Database Act of 2010 without a search warrant violates the Fourth Amendment’s protection against unreasonable searches. In Part I, this Recent Development will discuss the passage of the DNA Database Act and the statute itself. Part II will establish that a cheek swab of an arrested individual is a search. Since “[s]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions,” Part III will demonstrate that none of the “well-delineated exceptions,”—including search incident to lawful arrest, inventory search, or plain view—justify the warrantless search. Furthermore, as discussed in Part IV, at least two state courts differ in their treatment of this issue, and the Minnesota Court of Appeals’ invalidation of a statute analogous to North Carolina’s is instructive on the Fourth Amendment unreasonableness of cheek swabs under such statutes. Finally, Part V will show that the policy reasons advanced by supporters of DNA database laws are not persuasive, and there is a less constitutionally questionable method to achieve many of the same goals.

Beyond the caricature lies a rich history of policing, both public and private, which has been extensively explored within the literature addressing private policing. For the purposes of this Recent Development, this history provides one fundamental takeaway: the policing function has never been controlled exclusively by the government, nor have its functional components been rigidly defined. The responsibilities of private police have, as a result, been driven in part by “perceived gaps in the policing services provided by government.” If a government does not provide adequate preventive, protective, or investigatory services, then the general public will frequently demand a private alternative.

This expressed reluctance to come to specific terms with general claims about the value of director diversity inspired our title phrase: dangerous categories. That is, while “diversity” evokes universal acclaim in the abstract, our respondents’ narratives demonstrate that it is an elusive and even dangerous subject to talk about concretely. So we are left with narratives that simultaneously extol difference and express embarrassment with it.

Unfortunately, the value added by board diversity is hard to prove with any rigor, as the indeterminate findings in the extensive empirical literature on the subject—including some of the contributions to this symposium—amply demonstrates. To be sure, the intuitions seem persuasive enough. If one treats the board as a work group, under the right circumstances having differing perspectives and differing backgrounds should prompt more creative problem-solving and blunt the tendencies toward “groupthink.” And as stakeholder groups (employees, customers, suppliers, etc.) become more diverse, having board members who are especially attuned to their interests and values should be productive, and also send a positive signal of firm sensitivity.

So why is it so hard to find tangible evidence of added value? My commentary will focus on two of the symposium contributions: the wonderfully interesting field study by Broome, Conley, and Krawiec (“BCK”), who asked board members to talk about their own observations of value added by having more diversity on corporate boards, and the intriguing empirical study by Dobbin and Jung (“DJ”), who try to explain troubling evidence that both share value and non-blockholding institutional ownership appear to drop when women are added to boards, even though there is no evidence that firm financial or accounting performance declines as a result. Before turning specifically to these, however, I want to explore a bit what may be a cause of the muddle—the fact that we have no coherent, consistent explanation for how boards themselves add value to the firm. Without knowing what boards really do in terms of economic value, it is hard to develop and test any useful hypothesis about their diversity.

For a considerable period of time, the primary argument in favor of increasing the diversity of corporate boards was that it would result in more successful companies. As noted above, this is referred to as the business case. In her most recent article, Professor Lisa Fairfax aptly points out that the business case for diversity on corporate boards of directors has had limited success. As Professor Fairfax explains, the success of the business case in demonstrating a positive correlation between board diversity and corporate performance is limited in at least two respects. First, the existing studies are at best equivocal. Second, notwithstanding the studies tending to show a correlation, the business case has not been successful in increasing board diversity in recent years. Professor Fairfax concludes that the business case should not crowd out the moral rationale. Professor Fairfax undoubtedly is correct that the business case has not been as robust a foundation of increased board diversity as proponents of an increase would prefer. There are a number of rationales to support board diversity and rather than simply question the strength of the business case rationale, the question that should be asked and is whether these other rationales, when combined with the business case, support legal rules and regulations that encourage increased board diversity.