Publications by Maurer Faculty

Permanent link for this collectionhttps://hdl.handle.net/2022/34883

This collection contains faculty publications that may be distributed via our institutional repository. For a comprehensive listing of scholarship by Maurer School of Law faculty, please visit our Faculty Publications guide.

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Now showing 1 - 20 of 3406

The Global Reporting Initiative, Transnational Corporate Accountability, and Global Regulatory Counter-Currents.
(UC Irving Journal of International, Transnational, and Comparative Law, 2016) Williams, Cynthia A.
In this essay, the Author provides an overview in Part I of some initiatives to require or encourage companies to produce specific ESG data, authored both by governments and by private standard-setters. In Part II, one disclosure initiative in particular will be discussed as an example of a transnational legal order (TLO), as defined by Professors Shaffer and Halliday, and that is the Global Reporting Initiative, which has become the benchmark corporate social disclosure framework. Part III identifies a number of significant questions about our knowledge of the real power of information strategies to change corporate behavior, as the GRI seeks to do, as well as questions about the efficacy of self-regulation generally. Part IV then asserts that the "legality" aspect is a centrally-important element of the TLO framework advanced by Shaffer and Halliday. Particularly regarding transnational corporate responsibility, reliance has been placed almost exclusively on "new governance" initiatives, which are generally non-binding, voluntary, collaboratively developed standards for responsible behavior. New governance standards have fascinated academics from a wide range of fields, including this author, leading to an explosion of literature on the cognate topics over the last ten to fifteen years. Yet, during this same period of time, Bi-lateral Investment Treaties (BITs) and free-trade agreements, such as the North American Free Trade Agreement (NAFTA), have been negotiated throughout the world. These treaties generally permit private companies to challenge any government action-legislative, regulatory, or judicial-that is alleged to reduce the company's future profits. These challenges are heard by private arbitrators and are not subject to judicial review. The contrast is stark between new governance forms of collaborative, often industry-led, voluntary standards for responsible action, and the limits on sovereign regulatory authority being developed as a result of the expansion of the investor state system for arbitration pursuant to BITs and trade agreements, leading this author to remember the line in the movie the Witard of Ott: "pay no attention to the man behind the curtain." To badly mix literary references, we may have fixed our collective attention on the construction of a transnational regulatory Potemkin village even as the man behind the curtain progressively undermines the capacity of the strong form of regulation, that of sovereign domestic law. It is in emphasizing the importance of legality and how transnational norms "touch down" in binding processes, court proceedings, contracts, or public proceedings that Shaffer and Halliday's theory of Transnational Legal Orders reorients our thinking in a productive, and important, direction. Part V concludes.
Can Soft Regulation Prevent Financial Crises?: The Dutch Central Bank's Supervision of Behavior and Culture.
(Cornwell International Journal, 2018-11-14) Williams, Cynthia A.; Conley, John M.; Smeehuijzen, Lodewijk; Rupp, Deborah
Financial regulation has traditionally been “hard”: national legislatures and regulators (and sometimes international bodies) require certain kinds of behavior and forbid others, on pain of business sanctions, fines, or even criminal penalties. When a financial crisis happens, the usual after-the-fact response is more hard regulation. That pattern goes back at least to the 1929 market crash that precipitated the Great Depression. But financial crises still occur, leading many observers to wonder if what the financial world needs is a way to identify those pathological risk-takers in advance and, perhaps more importantly, to make sure that the financial institutions that employ them discover and control them. Such an approach to financial governance might be characterized as “soft” regulation: rather than relying on prescribing, proscribing, and punishing specific actions, it would focus on education and persuasion (still backed up by the threat of sanctions) to encourage financial institutions to head off excessive risk-taking before it occurs. This Article presents in-depth study of the first major effort to put this theory into practice: De Nederlansche Bank’s (DNB; the central bank of the Netherlands) novel initiative to promote a healthy corporate culture in the large banks that is supervises. Despite its radical originality, this initiative has been almost entirely unreported in the U.S. legal and business literatures. DNB’s traditional mandate has been to ensure the stability and integrity of the national financial system by promulgating and enforcing regulations and supervising individual banks. In response to the 2007-08 financial crisis, of 2007-2008 DNB has expanded its supervision to include the evaluation of both individual behavior and group-level culture — “Behaviour & Culture” (B&C) supervision. We have investigated the history and theoretical roots of B&C supervision; interviewed both the regulators and the regulated about their practical perspectives; explored relevant themes in law and the social sciences; and considered the implications of B&C supervision for banking regulation elsewhere. We conclude that, while the response to B&C supervision has been generally positive, its tangible effect remains unproven. Moreover, its relatively positive reception may depend on the specific business culture of the Netherlands, which casts doubt on whether it can be exported to larger banking systems.
Proxy Voting Reform: What Is on the Agenda, What Is Not on the Agenda, and Why It Matters for Asset Owners.
(Boston University Law Review, 2019-05) Williams, Cynthia A.
Investor proxy voting practices have entered the public spotlight again in 2018 as Congress and the Securities and Exchange Commission ("SEC") consider changes to the rules which govern proxy voting and regulation of proxy advisors. The focus has largely been on companies 'frustration with an asserted out-sized influence of proxy advisory firms and the corporate community's long standing pushback to shareholder proposals, especially those dealing with environmental, social, and governance ("ESG') issues. However, an accurate recognition of the longstanding principles which underlie institutional investors 'fiduciary duties and provide the legal context for the exercise of proxy voting rights has been largely missing from the debate. In this Article, we explore current fiduciary duties of institutional investors, asset managers, and proxy advisors and how those legal principles apply to processes for analysis, voting and oversight of proxies on behalf of fund beneficiaries. We also review what current research shows concerning the financial effects of material ESG issues. We conclude that fiduciaries, when voting, monitoring or advising on voting, must apply an up-to-date understanding of fiduciary duties and must correspondingly evaluate how ESG factors and systemic risks can often be material economic issues at individual companies and across industries. We counsel that fundamental-fiduciary duty principles require more explicit and forward-looking attention in proxy voting processes to (1) evolution in research on ESG factors and the knowledge base which are driving changes in voting trends, (2) balancing intergenerational short- and long-horizon transfers of risk and return, (3) aggregate influence of systemic risks that can spread across companies and compound over time; (4) improved asset owner oversight of investment manager and proxy advisor business model conflicts of interest, and (5) cost-benefit advantages of collaborative asset owner and investment manager use of proxy and other advisors. Thus, concerns expressed in Congress and at the SEC about integrity of the proxy voting system largely miss the mark because they come from a perspective that is outdated and misguided.
Fiduciary Duties and Corporate Climate Responsibility.
(Vanderbilt Law Review, 2021-11) Williams, Cynthia A.
I remain intrigued with the benefits as well as the costs of agency relationships and in particular the possible power of fiduciary duties to be harnessed to advance the firm's social responsibilities. That is, can internal mechanisms of the firm, the private law (from a European perspective) fiduciary duties of agents, be used to advance external public law goals? Instead of outward standards of responsibility being brought into the firm through external mechanisms (i.e., voluntary standards development and third-party assurance), could the internal standards of agents' responsibilities to the firm, their fiduciary duties, be used to extend responsible action beyond the firm and through that mechanism actuate what many are calling for as the firm's social responsibilities? In this paper, I take up this question by reference to a public law issue much in focus today, that of climate change. In Part I, I provide an extremely brief overview of the understanding of climate risk as a financial risk, connecting that overview to the question of why private law fiduciary duties might be engaged to address that risk. In Part II, I summarize the familiar territory of directors' and officers' fiduciary obligations, using Delaware law as the exemplar, and in Part III, I describe a more ambitious approach to directors' fiduciary obligations, a new idea by the Dutch academic and practitioner Jaap Winter of directors having "societal duties." In Part IV, concentrating on Delaware law, I develop some of the implications of these duties for directors' and officers' obligations to include climate change in their oversight, strategic direction of the company, and possible disclosure. Part V connects these discussions back to the question with which I began, that is, could the fiduciary duties of officers and directors be engaged to securely ground the company's duties to society generally, beyond climate change? I then briefly conclude the article.
Climate Change, West Virginia v. EPA, and the SEC's Distinctive Statutory Mandate.
(Administrative & REgulatory Law News, 2022) Williams, Cynthia A.; Nagy, Donna M.; Fisch, Jill E.; Georgiev, George S.
In March 2022, the Securities and Exchange Commission (SEC) proposed a rule that would require publicly traded companies to provide investors with various climate-related disclosures. See The Enhancement and Standardization of Climate-Related Disclosures for Investors, 87 Fed. Reg. 21344 (Apr. 11, 2022) (the Proposal). The rule has generated extensive debate; to date, the SEC has received more than 4,000 substantive comment letters and more than 10,000 form letters. Commenters have raised a variety of concerns about the Proposal, including questioning the extent to which the SEC has the authority to mandate climate-related disclosure. Since the Supreme Court’s June 2022 ruling in West Virginia v. EPA, some commentators have also asserted that the Proposal runs afoul of the major questions doctrine (MQD).
Private Climate Governance of Finance: "Net Zero" Prospects and Politics.
(University of Pennsylvania Journal of Buiness Law, 2024) Williams, Cynthia A.
In 2021, as part of the COP26 climate negotiations in Glasgow, the Glasgow Financial Alliance for Net Zero (“GFANZ”) was announced. This Alliance of banks, asset managers, and insurance companies, among other financial institutions, with more than $130 trillion of assets under management when announced, was based on a pledge by the participating companies to work towards net-zero status in their businesses by 2050 or sooner. Led by former UK Bank of England Governor Mark Carney, who is now the U.N.’s Special Envoy on Climate, it seemed to have some promise as a “soft law” governance mechanism to develop voluntary industry standards for the constituent entities in reducing the carbon emissions of their businesses and their “financed emissions”—at least such promise in the absence of stronger, enforceable standards. By 2024, the Alliance seems to be in disarray, at least if media reports are accurate. Efforts to align GFANZ with the substantive standards of the U.N.’s ‘Race to Zero’ have provoked sustained political pushback in the U.S. The Race to Zero standards include limiting financing of new oil and gas and excluding new coal financing. As such, they are in line with the International Energy Association’s views on what is necessary if the world is actually to reach a net zero economy by 2050. Yet, by seeming to make promises to limit fossil-fuel financing, members of GFANZ such as BlackRock, JPMorgan Chase, Citigroup, and Bank of America have been targeted in the United States by Republican state Attorneys General for their participation in “fossil fuel boycotts.” In contrast, BlackRock has been asked by New York City’s Comptroller Brad Lander to explain the disconnect between its public statements purporting to limit fossil fuel investments as part of GFANZ, and its continuing position as the world’s largest investor in fossil fuels. Efforts by the Republican Attorneys General challenging GFANZ participants and requesting information, under oath, follow legislative efforts in oil and gas producing states to exclude state business with, or pension fund investment in, these and other listed banks for their “fossil fuel boycotts.” These state initiatives are starting to have their intended effects, with asset manager Vanguard and insurance companies Zurich Insurance Company and Munich Re, among others, leaving GFANZ-affiliated initiatives, citing antitrust concerns. Moreover, any suggestion that global banks are pulling back on fossil fuel funding as part of their commitments to GFANZ is a chimera. Since the Paris Agreement was signed, in total global banks provided $4.6 trillion of new fossil fuel finance through 2022. Two of the top four U.S. fossil fuel financing banks—Citibank and Bank of America—are members of the Steering Committee for the Net Zero Banking Alliance (one of seven industry-specific GFANZ alliances). Canadian banks that are also members of GFANZ continue to fund tar sands oil extraction in the province of Alberta, even as many international banks and investors are pulling out of that particular site of extraction. In 2021 each of the five top Canadian fossil fuel funding banks joined the Net-Zero Banking Alliance, an affiliate of GFANZ, even as their tar sands lending doubled.
Does Climate Disclosure Work to Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism.
(Seattle University Law Review, 2025) Williams, Cynthia A.
The purpose of this Article is to bring some of the emerging empirical literature evaluating the effects of required greenhouse gas (GHG) disclosure to bear on discussions of disclosure as a mechanism to address climate change. Since disclosure has become such a significant part of global efforts to address climate change, whether it has the effects in fact that are attributed to it in theory is properly subject to interrogation. In this Article, several interrelated questions will be discussed. First, what does the empirical evidence show about the effects of required (GHG) disclosures on emissions? What mechanisms are engaged in producing the reductions in GHG emissions that are seen in some studies? Is there evidence that disclosure of climate data causes institutional investors to re-allocate capital, and that this re-allocation is a significant source of pressure on firms? What, then, can we conclude about the use of disclosure in efforts to address climate change? Newly emerging empirical research shows that mandatory GHG disclosure can cause firms to reduce their GHG emissions and the carbon intensity of their products. The mechanisms by which this effect occurs include changes in managers’ strategies and operational changes in the firm, increased public pressure once data becomes available, and investor re-allocations of capital. There is some evidence that firms’ voluntary GHG disclosures similarly have a “disciplining” effect within the firm, in that emissions go down after firms start to disclose this information. In both cases, and arguably important to the results, the information being disclosed is quantitative and the standards for measurement are well defined. To bring the discussion into focus, Part One will first briefly describe three global, voluntary disclosure frameworks—Taskforce on Climate Related Financial Disclosures (TCFD), Taskforce on Nature Related Financial Disclosures (TNRD), and International Sustainability Standard Board (ISSB)—each of which has either been globally influential (TCFD) or has the capacity to become influential (TNRD and ISSB). Part One will also describe two mandatory climate disclosure regimes: the Corporate Sustainability Reporting Directive (CSRD) in the EU, and the Securities and Exchange Commission’s (SEC) Climate Disclosure Rule in the U.S. Part Two will discuss some emerging empirical evidence on the effects of GHG emissions disclosure as an example of targeted climate transparency. Empirical research on the effects of mandatory GHG emissions disclosure in the UK and U.S. will be used to inform that discussion. Part Three will explore the implications of that empirical evidence for evaluating the likely power of the disclosure initiatives described in Part One in reducing GHG emissions and stabilizing nature loss.
Climate Change and Corporate Law in the United States: Not "Woke" But Eyes Open.
(Iowa Law Review, 2025) Williams, Cynthia A.
This Essay discusses the evidence that climate change and nature loss create financially material risks for corporations that must be carefully considered by officers and directors pursuant to their fiduciary duties of loyalty and care. This analysis concludes that under the current state of fiduciary duty law and the known financial risks presented by climate change and nature loss, officers and directors of corporations may breach their fiduciary duties by failing to implement and monitor a robust system to identify and manage each type of industry-specific climate-related and nature related risk. Risk of breach is particularly acute for entity-specific compliance risks, such as those arising from climate-related breaches of disclosure laws. Attending to the financial risks of climate change and nature loss does not imply changes in the corporate purpose. Rather, such attention is inherent in the directors' and officers' obligations to promote the long-term best interests of the corporation for the benefit, ultimately, of its shareholders. This conclusion is supported by recent caselaw in Delaware, particularly new Caremark cases and McRitchie v. Zuckerberg, and the conclusions of the American Law Institute's current project developing an updated Restatement of Corporate Governance. Where a company's strategy to advance its long-term success has been developed in good faith and on reasonable investigation, its directors would prevail in litigation even if that strategy imposes costs in conflict with some shareholders' interests in short-term profit maximization.
Interpreting Anti-Boycott Laws in the Shadow of the First Amendment
(University of Florida Journal of Law & Public Policy, 2026) Tomain, Joseph A.
Thirty-eight states have enacted “anti-BDS” laws. These laws require people or entities doing business with the state to certify that they do not participate in the Boycott Divestment Sanction movement against Israel. Typically, these laws define boycott as a “refusal to deal, terminating business, or other actions” that limit commercial relations with Israel or Israeli entities. It is highly contested in the courts and commentary whether these anti-boycott laws violate the First Amendment. Assuming arguendo that the “refusal to deal” and “terminating business” clauses do not implicate the First Amendment, that leaves the residual clause. At least one court and one commentator find that the “or other actions” clause does not implicate the First Amendment by applying the canon of statutory construction, ejusdem generis. Ejusdem generis looks to the specifically listed items that precede the residual clause to define and often limit its scope. This semantic canon of statutory construction is centuries old and still actively used today. In the October 2023 Term, the Supreme Court discussed ejusdem generis in four cases. But the First Amendment issue raised by these anti-boycott statutes cannot be avoided simply by invoking ejusdem generis because semantic canons cannot be used to contradict a statute. A statute-by-statute analysis is required to determine whether ejusdem generis can be properly applied to the residual clause of these laws. To avoid the intractable debate about the use of legislative history, I reach this conclusion by focusing on anti-BDS laws that include enacted legislative findings, statutory definitions of “boycott,” and clauses that expressly exclude speech from their coverage. This analysis shows that applying ejusdem generis to some anti-BDS laws may contradict the statutes whereas applying it to other statutes may honor them. In all instances, however, the context of each statute must be individually analyzed to determine the propriety of applying ejusdem generis. In addition to analyzing statutory text, Supreme Court cases applying ejusdem generis are analyzed, including four cases from the October 2023 Term Moreover, these anti-BDS laws are being used as a template for anti-boycott laws in other contexts, such as fossil fuels, firearms, and economic boycotts generally. Thus, this Article’s relevance transcends the BDS context and raises important and timely questions regarding the intersection of statutory interpretation and the First Amendment.
Cultivating Free Speech Culture
(Washington University Journal of Law and Policy, 2026) Tomain, Joseph A.
Defending dissent to safeguard speech and political opposition is a challenging and necessary task for a self-governing democracy. Moreover, it is a collective task. Succeeding in this endeavor sometimes requires defending speech with which one disagrees, especially in a nation as pluralistic as the United States. Although imperfect and inconsistent, there are numerous examples where strange bedfellows join together to achieve this goal. While First Amendment law helps us reach the goal, law alone is not enough. We also need a cultural commitment to defending dissent. This Essay argues that cultivating a culture that values robust free speech protection is an essential component to ensuring our grand and wobbly experiment in democracy moves forward in a positive trajectory.
Aligned: Sex Workers’ Lessons for the Gig Economy
(Michigan Journal of Race & Law, 2021) Butler, Yvette
Society’s perception of a type of work and the people who engage in money-generating activities has an impact on whether and how the law protects (or does not protect) the people who perform those activities. Work can be legitimized or delegitimized. Workers are protected or left out to dry depending upon their particular “hustle.” This Article argues that gig workers and sex workers face similar challenges within the legal system and that these groups can and should collaborate to their collective advantage when seeking reforms. Gig workers have been gaining legitimacy while sex workers still primarily operate in the shadow economy. This Article digs into the sometimes-conflicting desires of individuals working as sex workers and gig workers to inform how gig workers can achieve the power and economic independence necessary to prevent workplace exploitation.
In Pursuit of Collective Liberation in Feminist Constitutionalism
(Michigan Law Review, 2024) Butler, Yvette
A review of After Misogyny: How The Law Fails Women and What to Do About It. By Julie C. Suk.
Survival Labor
(California Law Review, 2024) Butler, Yvette
This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor. The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating racialized bodies and the policing of those bodies has created a culture where blackness is equivalent to criminality. While a penal abolitionist framework is helpful to ridding the harmful criminal and civil consequences of that label of criminality, a labor framework shifts the narrative in a way required to transform the perception of crime to one of labor. This shift is particularly important given the renewed attention to penal abolitionist logic and conservative and libertarian attempts to resurrect the “right to earn a living.” In what will become a series of several pieces, this first Article proposes a narrative shift that allows us to critique and reimagine our conceptions of work. People engaged in survival crimes are often subject to the criticism that they should pursue real work. After reading this Article, I hope the legal community will question why we continue to criminalize poverty, reconsider our understanding of work, and invest in this transformative project to protect the victims of state sponsored oppression.
Climate Prosecution as Climate Regulation
(Northwestern University Law Review Online, 2024) Cho, Cindy J.
Last term, the Supreme Court weakened the federal government’s ability to regulate. Three new decisions—and one landmark case from the previous term—will affect everything from drug approvals to overtime pay to national security. One issue stands out as a political flashpoint that will prove particularly difficult to address via regulation in the wake of this term: climate change. Given the unlikelihood of congressional climate action any time soon, those concerned about the risks of a warming planet will no doubt be looking for alternatives to regulation. Private and state civil lawsuits against polluters reflect an important legal tradition that must continue. The same goes for affirmative civil enforcement by governments and standard federal environmental prosecutions. This essay proposes that a new alternative that, although perhaps riskier, can achieve regulatory aims via the criminal law: prosecuting emitters with homicide when their reckless or knowing conduct kills people. This basic idea has gained substantial attention recently, and its primary aim is to bring justice for victims of unnatural heat. My work on that proposal, as well as my experience as a prosecutor, convince me such prosecutions—in particular, the threat of criminal law’s most serious punishments, as well as the stigma a homicide charge generates— would advance the same ultimate purposes in the fight against climate change the regulatory state may now struggle to achieve following the most recent Supreme Court term.
Reconstituting Corporate Power & Accountability
(Texas Law Review Online, 2025) Cho, Cindy J.; Braman, Donald; Gabaldon, Theresa
Modern society faces a growing crisis of corporate impunity. While corporations generate immense value, they increasingly inflict harm at scales that dwarf those of traditional street crime. Decades of deregulation, unchecked corporate lobbying, and a judiciary actively dismantling the administrative state have created a dangerous accountability vacuum. And just as federal oversight is collapsing, the Supreme Court's expanding preemption doctrine is handcuffing state regulators. This Article proposes a paradigm shift: the revitalization of state criminal authority, a power largely shielded from federal interference. Upon securing a conviction or deferred prosecution agreement, states should mandate that the offending corporation conduct all future business within the state through a public benefit corporation. This innovative remedy moves beyond ineffective fines, leveraging the state's authority over corporate charters to fundamentally restructure corporate incentives and align the pursuit of profit with the public good.
What Fischer v. United States Gets Wrong About Prosecutorial Discretion
(Ohio State Law Journal Online, 2024) Cho, Cindy J.
Conservative Supreme Court Justices have recently expressed heightened concerns about prosecutorial power in cases involving former President Donald Trump and the Capitol siege on January 6, 2021. Making good on those worries, the conservative majority in Fischer v. United States, rested its decision in part on theoretical concerns about government overreach. The Department of Justice has pushed back on those concerns, but to this point, the debate has been mostly rhetorical and hypothetical. This article attempts to fill that rhetorical void—and concretely answer the concerns animating Fischer—with evidence from actual cases. A survey of ten January 6 cases directly answers the Justices’ hypotheticals and lends strong support to the Fischer dissent’s conclusion that such “fear is overstated.” Those real cases also support Solicitor General Elizabeth Prelogar’s argument that Department prosecutors have demonstrated meaningful restraint in bringing the most serious charges against alleged rioters. And because it took just a couple of hours to find ten cases proving the point, this case study suggests that the Justices’ fears of prosecutorial overreach in politically charged cases—which clearly animated the Fischer majority’s textual analysis—are unnecessary and should not have guided the decision-making process in Fischer, or in other relevant pending cases.
Facial Recognition Technology and the First Amendment
(Michigan Technology Law Review, 2025) Tomain, Joseph A.
The growing ubiquity of facial recognition technology (FRT) is a problem. While much has been written on harmful government use of FRT, little has been written regarding harmful private actor use. This Article helps fill a gap in the literature by providing a detailed analysis of the First Amendment interests at stake when private actors use FRT. Specifically, this Article analyzes whether laws that limit the use of publicly available photographs to create faceprints for inclusion in FRT databases violate the First Amendment rights of private actors. In May 2025, a multidistrict litigation against Clearview AI, an FRT company, offered an opportunity to answer that question, but it settled. The court stated that the “settlement agreement leaves unresolved the question that motivated this multidistrict litigation: whether the collection of publicly available biometric information for use by private or government entities . . . is reconcilable with constitutional privacy rights.” This Article helps answer that unresolved question. But privacy is too narrow a framework. Constitutional rights of free speech, association and assembly are also affected. This Article makes two claims, one descriptive and one normative. The descriptive claim is two-fold: (1) existing First Amendment law does not resolve the novel question of whether laws that limit how private actors use publicly available images violate their First Amendment rights, and (2) free speech advocates are divided on the proper response. The normative claim answers the unresolved question by concluding that some regulation of private actor use of publicly available images to create faceprints and FRT databases should be found constitutionally permissible. Not only does this Article analyze the First Amendment arguments of FRT companies like Clearview AI, but it also introduces the other half of the story: the First Amendment interests of the face printed. After identifying problematic uses of FRT and showing the inadequacy of existing law, this Article makes the normative argument by engaging with three methods of constitutional interpretation, identifying First Amendment values that support regulating the use of FRT, and drawing lessons from Fourth Amendment doctrine and theory.
“Spinning Wheel Got to Go Round”: Developments in the Law Affecting Electronic Payments and Financial Services
(The Business Lawyer, 2026) Hughes, Sarah Jane; Kierner, Tom; Middlebrook Stephen T.
The past year reminds us of the rock lyrics from “Spinning Wheel” on Blood, Sweat & Tears’s 1968 self-titled record—“What goes up, must come down/Spinning Wheel got to go round”—because there have been many changes in strategy and reversal of policy since President Trump’s inauguration in January 2025. Our Survey documents these changes and reversals as they affect electronic payments and financial services. This year’s Survey also reports on warnings from state and federal regulators aimed at bank and non-bank providers of consumer financial services. Part II examines an FTC enforcement action related to the unfair and deceptive marketing of so-called “free” products. In Part III, we address a CFPB action against a peer-to-peer payments platform for failing to protect consumers from fraud. Part IV examines several federal enforcement actions that emphasize safety and soundness, as well as robust anti-money laundering programs. We also examine several cases that demonstrate how states are stepping up to address regulatory issues that are not being pursued at the federal level in Part V. In a similar vein, Part VI discusses developments in New York regarding Buy Now, Pay Later (“BNPL”) legislation in the wake of CFPB abandoning its regulatory authority over those products. In Part VII, we give a brief account of the federal government’s effort to impose economic sanctions on a “crypto mixer,” Tornado Cash, our only nod to our longstanding coverage of crypto currencies. We conclude in Part VIII with brief comments on—to borrow from the same refrain—what happens if you miss the “directing sign on the straight and narrow highway.” While the “spinning wheel” of regulatory pronouncements and retractions may prove dizzying to many observers, we trust this year’s Survey will help business lawyers provide a steadying hand and calming influence to nervous clients.
The Pressure Points of Professional Identity for Judges in the Modern Era
(Mercer Law Review, 2025) Geyh, Charles G.
The duties core to the professional identity of a judge are encapsulated in an ethical directive at the literal forefront of the Model Code of Judicial Conduct, some variation of which all state and federal judiciaries have adopted. Rule 1.2 provides that “[a] judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary[.]” This directive implicates three challenges, or pressure points, relevant to a judge’s identity: 1) insofar as judges begin their legal careers as practicing lawyers, when they ascend the bench their professional identities must transition from partial advocates to impartial adjudicators; 2) judges must, to an uncertain extent, sublimate their personal identities to the needs of their professional identities by acting “at all times”—on and off the bench—in a manner consistent with their professional obligations; and 3) the duty to preserve public confidence in their impartiality, independence, and integrity signals a need for judges to resist external encroachments and influences upon their decision-making that could compromise their real and perceived professional identities as forthright, impartial arbiters of facts and law.
To Legitimacy and Beyond: A Reform Agenda to Restore Public Confidence in the Federal Courts
(Law and Contemporary Problems, 2024) Geyh, Charles G.
The article begins by describing he ongoing cycle of anti-court sentiment directed at the federal courts. It situates that cycle in historical context, to the end of showing how independence norms have evolved to constrain more draconian efforts to curb the courts in those cycles. The article then explains why the latest cycle is unusually aggressive and why norms that have protected the judiciary’s independence for generations may be at risk if public skepticism of the courts reaches the point of undermining the judiciary’s perceived legitimacy. Next, the article sorts through the definitional clutter that complicates assessments of whether the current cycle of hostility is diminishing court “legitimacy”—a term that social scientists and commentators have deployed as the tipping point when public faith in the judiciary falters. I propose to avoid the confusion that legitimacy talk perpetuates by thinking about the public’s confidence in the judiciary’s authority to govern as a matter of degree, along a “public confidence continuum.” The article then synthesizes data on the impact of recent developments in the latest cycle of anti-court sentiment, which shows that faith in the Supreme Court, and possibly the lower courts as well, has declined across the public confidence continuum. Finally, the article proposes a preliminary, pragmatic, principled, and intra-judicial reform agenda, to restore public confidence in the federal judiciary.

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