Regents: Resurrecting Animus/Renewing Intent, 51 Seton Hall Law Review 983 (2021)

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A sleeper issue in the U.S. Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California, invalidating the Trump administration’s rescission of the Obama-era Deferred Action for Childhood Arrivals program, is the Court’s rejection of the plaintiffs’ equal protection animus claim. That rejection may well portend a revival of the animus concept that many had speculated the Court would abandon after its primary proponent, Justice Anthony Kennedy, left the Court.

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The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union (with John Kowal) (The New Press, 2021)

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The real history of the Constitution is the astonishing story of how subsequent generations have reshaped this founding document amid some of the most colorful, contested, and controversial battles in American political life. In their book, Codrington and Kowal offer an alternative history of the continuing struggle to realize the Framers’ promise of a more perfect union.

The Place of the Prosecutor in Abolitionist Praxis, __ UCLA Law Review __ (forthcoming 2021)

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Progressive prosecutors have been widely hailed as the solution to mass incarceration, but Godsoe argues that the legal arm of law enforcement can never be the full answer to its problems. She questions whether the system should be changed from within and if it can be changed from within. Godsoe concludes by gesturing to the limits of all lawyers in fixing the carceral monster they largely created, and a call for greater attention to grassroots bottom-up change.

Forum Selection Clauses, Non-Signatories, and Personal Jurisdiction, __ Notre Dame Law Review __ (forthcoming 2021) (with John Coyle)

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Effron and Coylecritique the rules that determine whether a non-signatory is bound by a forum selection clause. They propose reforms that would impose a degree of order on a fractured due process landscape, and that provide more robust protections to non-signatory defendants.

Pernicious Loyalty, 62 William & Mary Law Review 1187 (2021)

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Some of the very features of fiduciary loyalty that make it valuable also encourage behaviors harmful to beneficiaries, third parties, or society as a whole. Examples include the corporate director whose concern with shareholder wealth maximization leads to considerable environmental harm and the skillful attorney whose zealous representation undermines justice between the parties. Gold considers the nature of pernicious loyalty together with potential legal responses to its excesses.

Private Equity & Industries in Transition: Debt, Discharge, & Sam Gerdano, 71 Syracuse Law Review 521 (forthcoming 2021)

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Bankruptcies of brick-and-mortar RETAILERS seem to follow a similar path. A private equity firm purchases the retailer, ostensibly to save it, but the firm ultimately fails and liquidates. The predominance of failed rescues does not seem to dissuade investors. Indeed, the private equity firms appear to make a profit while the businesses fail. Janger examines the plausibility of two competing and irreconcilable micro-stories with macro implications: the private equity/market discipline story and the industry-in-transition story, and evaluates the Stop Wall Street Looting Act of 2019 in light of these considerations.

Follow-Up Enforcement, 70 Duke Law Journal 1569 (2021)

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When firms break the law, government agencies have the power to bring enforcement actions against them. One of the goals of enforcement is to prevent recidivism. Jennings takes a critical look at the “clawback” approach, under which defendant firms receive penalty credit in exchange for remedial efforts that, it is hoped, will prevent misbehavior tomorrow. Jennings concludes that an alternative “follow-up” approach that credits only firms’ demonstrated results would be more effective and efficient at recidivism prevention.

The Curriculum of the Carceral State, 120 Columbia Law Review 1631 (2020)

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Since the middle of the twentieth century, American law schools have offered a course in criminal law in which homicide is the paradigm crime and legality a core organizing principle. The curricular canon depicts criminal law as a necessary and race-neutral response to grave injuries, and it also depicts criminal law as capable of self-restraint through various internal limiting principles. This model does not correspond closely to actual legal practices, but was designed to model what criminal law could become. Ristroph reveals the pro-carceral implications of the prevailing canon and offers the outline of a different model that could alter American attitudes toward criminal law.

Terrorism and the Inherent Right to Self-Defense in Immigration Law, 109 California Law Review 615 (2021)

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The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity, but these provisions often have been used to deny relief to individuals who have taken actions in self-defense. Sayed argues that Congress should adopt reforms to ensure that the government does not deny immigration relief to individuals who have exercised this most basic of rights, accomplishing two desired immigration law goals: excluding terrorists and providing protection to individuals fleeing persecution.