Volume 67, No. 3, 2019
Liberal Justice and the Creeping Privatization of State Power
Cornelis J.W. Baaij
Liberal justice demands the levers of the state’s coercive power be in the hands of public officials and institutions that society can hold accountable. This Article contends that the U.S. Supreme Court has gradually shifted courts’ authorization of state power in contract disputes to arbitrators. The Court’s expansive interpretation of the Federal Arbitration Act (FAA) has generated three default rules that together presume arbitrators, not courts, are the proper actors to ascertain the parties’ assent to arbitration. This precedent in effect surrenders courts’ discretion in deciding when the state enforces particular contracts. It risks infringing the principle of liberal justice because while courts are accountable for the authorization of state power through legal reasoning, arbitrators typically have fiduciary duties to the disputants alone. This Article proposes a congressional override that reverses the privatization of state power by placing the burden of proof on the party seeking to enforce an arbitration agreement.
Like courts in other states, Iowa courts employ a multifactor test for veil piercing that evaluates business owners and their entities based on undercapitalization, commingling of finances, failure to observe formalities, and the like. Yet Iowa precedent assigns no weight to any of these factors, offers few insights concerning their meaning, and gives even less guidance on the factors’ relationship to the justifications for piercing.
This Article outlines a path for bringing greater order and predictability to Iowa’s piercing jurisprudence, starting with a taxonomy based on legal scholars’ consensus that courts are justified in piercing when those controlling the entity do one or more of the following: (1) use the corporate privilege to evade obligations imposed by other legal schemes; (2) engage in fraud, misrepresentation, or similar deceptive behavior to obtain corporate credit; or (3) engage in abusive self-dealing that improperly subordinates creditor claims to corporate assets. If one first identifies the asserted policy justification for piercing in a particular case, this Article explains, it becomes easier to assess whether traditional piercing “factors” such as undercapitalization, commingling of finances, or failure to follow formalities warrant application of the remedy and why. Accordingly, this Article recommends Iowa courts require piercing plaintiffs to identify one or more of the foregoing policy justifications for the piercing remedy before determining whether any traditional piercing factors support granting that relief.
This Article also challenges Iowa’s tradition of leaving piercing decisions to juries. Piercing is an equitable remedy that judges should administer without juries, this Article argues, but even if piercing is a legal claim, a decision to grant or withhold the piercing remedy is a lawmaking and policymaking exercise and thus a legal question for the court. Accordingly, this Article recommends that regardless of whether judge or jury makes the underlying factual findings in piercing cases, Iowa judges, rather than juries, should decide whether to grant and how to shape the piercing remedy.
Differentiating Higher Level Homicides: An Empirical Analysis of the Impacts of Legal Definitions in the Real World, Plus an Illumination of the Understudied Crime of Second-Degree Murder
David McCord, Michi Matsukura, & Lendie Follett
First-degree murder, second-degree murder, and voluntary manslaughter constitute the traditional hierarchy of higher level homicide offenses in 27 U.S. jurisdictions. The typical differences in potential sentences among the three crimes are dramatic, ranging from death or life without parole for first-degree murder down to a relatively short prison term for voluntary manslaughter. Accordingly, the level of crime of which a killer is convicted is crucially important to the prosecution, defense, and society.
The legal definitions of these three crimes are relatively clear-cut, but the definitions must operate in a messy, real world that is rife with variables. One purpose of this Article is to empirically examine the extent that real-world convictions are described by these legal definitions and to identify possible patterns when departures are observable.
This Article focuses on six states and covers 371 homicide case resolutions during the first six months of 2017, assembled using newspaper reports. A coding sheet with numerous variables was developed. One set of variables focused on the facts of each case, and the second set of variables reflected the resulting conviction in each case. After each case was coded, it was entered into a spreadsheet to facilitate data analysis. Finally, the results were analyzed qualitatively and quantitatively, using both descriptive statistics and ordered multinomial logistic regression, to ascertain the extent that the legal definitions of the three crimes—first-degree murder, second-degree murder, and voluntary manslaughter—described the case convictions in light of the case facts.
A second purpose of this Article is to provide insights into the crime of second-degree murder, which is the understudied workhorse of U.S. homicide law; indeed, the data demonstrates second-degree murder is the most likely conviction by a significant margin. Remarkably, until now, not a single scholarly piece has ever focused on second-degree murder. This Article will provide indicia of the kinds of fact patterns that tend to result in second-degree murder convictions.
At-Will or Something More?: Reasonable Expectations of Continued Employment by Minority Shareholders Post-Baur v. Baur Farms, Inc.
Matthew C. McDermott & Christopher J. Jessen
In Baur v. Baur Farms, Inc., the Iowa Supreme Court formally adopted the “reasonable expectations test” in minority shareholder oppression cases but left open the question as to what expectations are in fact reasonable. For minority shareholders who are employees of close corporations, Iowa’s appellate courts have yet to address whether these shareholders possess a reasonable expectation of continued employment. This Article addresses how other states applying the reasonable expectations test have answered the question, why Iowa likely would (and should) adopt a similar reasoning and create a cause of action for oppression when a minority shareholder’s reasonable expectation of continued employment is breached, and how minority and majority shareholders can advance or protect their interests accordingly.
The Supreme Court decision in Holder v. Humanitarian Law Project has been widely criticized for its interpretation of the federal statute that prohibits providing material support to foreign terrorist organizations. The Court determined that even support meant to further only the lawful aims of a foreign terrorist organization was punishable under the law, thereby curtailing First Amendment rights of free speech and association in deference to the government’s interest in national security. Although the case was an “as applied” challenge and the ruling technically only applies to the activities of the plaintiffs, a noticeable chilling effect has been observed among international humanitarian groups, despite exceptions for the provision of medicine and religious materials.
This Note considers the analysis of both the majority and the dissent in the Humanitarian Law Project case and considers how a challenge to the two exceptions for medicine and religious materials may fare under each form of scrutiny should the Court decide to tiptoe the lines between free exercise of religion and national security, and between provision of international humanitarian aid and national security. This Note then considers potential solutions to the issues raised by these exceptions.
Tape Don’t Lie
Central to any democracy is an informed citizenry. Recognizing this fact, a group of like-minded politicians, journalists, and reformers pushed for a regime of laws collectively known as Freedom of Information (FOI) laws or Sunshine Laws. Both federal and state FOI laws give citizens and the media a statutory right to the information held by those that govern them. Whether it’s budget materials, memos, inventories, or even e-mails and text messages, government actors are subject to disclosure of these materials upon request (so long as there is not an exemption prohibiting disclosure). This statutory mandate is both a means of monitoring what federal, state, and local government officials are doing as well as a mechanism to scrutinize public conduct that runs counter to the will of those they govern.
In Iowa (like many states) that statutory right is crumbling. Beyond the many exemptions that legislators continue to add to the state’s FOI law, recent judicial interpretations of the law (and its exemptions) have stymied the public’s ability to know what its government is up to. That ability to police government action is under threat the most in matters of policing. As law enforcement agencies continue to use public funds to equip police officers with body cameras, the video from those cameras becomes vital records of officials’ actions. In a climate where police brutality and officer-involved shootings continue to strain public confidence in law enforcement, it is imperative that Iowa embraces an FOI scheme that allows these materials to be turned over to the public. To do so, Iowa courts must reevaluate recent approaches to its FOI law and current exemptions for law enforcement records to accommodate a regime that increases both transparency and access.