VOLUME 81:4 (forthcoming)
Articles
Artificial Fiduciaries
Author: Zhaoyi Li
Abstract: The rapid development of technology in the last decade has affected all levels of society. Corporate governance has not been immune to these changes. In the future, Artificial Intelligence [TC1] (“AI”) fiduciaries may be technologically capable of serving as independent corporate directors. This could be an effective way to address the challenge of the absence of truly independent directors in the traditional governance framework. Artificial fiduciaries could also offer a way to mitigate agency costs and improve overall corporate governance. However, traditional corporate law lacks solutions for coping with the integration of AI into corporate governance.
Currently, there is little scholarship discussing the intersection of AI and corporate governance. Because the impact of technology on corporate governance is inevitable, jurisdictions with a robust corporate focus (such as Delaware) will likely have to amend their corporate laws. This Article introduces the theory of artificial fiduciaries and offers a novel interpretation of traditional fiduciary duties. It aims to harmonize the long‑established duties of loyalty and care with the fast‑paced technological advancements of the modern era. The discussion extends beyond the question of whether AI is more than a mere tool and scrutinizes the anticipated critiques of AI’s alleged faults¾including issues of bias, the “black box” problem, and concerns related to the “superdirector.” It also explores the “human in the loop” option in the context of artificial fiduciaries. This comprehensive analysis not only highlights AI’s pivotal role in driving the evolution of traditional corporate governance toward an innovative technological framework but also delineates clear trajectories and presents a strategic blueprint for technological governance’s forthcoming evolution.
Grasping the Third Rail: Restorative Justice and Violent Crime
Author: Olwyn Conway
Abstract: Restorative justice is a means of responding to harm—including criminal offenses—through active accountability and repair, rather than through passive punishment and isolation. While restorative justice has demonstrated potential to meaningfully improve processes and outcomes for individuals and communities, the implementation of restorative justice programs to address crime—both within and alongside the American criminal system—has been slow, limited, and misplaced. Programs are often directed at low‑level, nonviolent offenses that involve little if any cognizable harm. This approach creates two problems. One, it risks net‑widening: bringing more citizens under criminal surveillance and carceral control for minor offenses—further diluting the constitutional and procedural protections already watered‑down in our misdemeanor courts. Two, it ignores the research showing that restorative justice is more necessary and more effective in cases where serious harm has occurred.
As restorative justice offerings across the country expand, legislators and prosecutors continue to exclude crimes of violence, particularly domestic and intimate partner violence and sexual offenses, from their initiatives. These offenses have become the “third rails” of restorative justice. Yet it is precisely in these cases that conventional criminal system responses are failing. It is also in these cases that restorative justice has the greatest potential to meet the needs of involved parties and reduce rates of reoffending. So why are they considered off‑limits? This is partly due to pervasive misunderstandings and misconceptions of what restorative justice is and how it operates, both in theory and in practice.
It is time to grasp restorative justice’s third rail: to reconsider how and where it is being used in the criminal system and explore what restorative justice could offer in the pursuit of more effective and equitable responses to violent crime.
Interpreting Religious Doctrine: The Third Rail that Wags the Dog in Religion Clause Jurisprudence
Author: Samuel J. Levine
Abstract: This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands‑off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off‑limits and better left untouched. Indeed, the Court’s justifications for the hands‑off approach rely on both constitutional and often—perhaps more centrally—policy concerns over the competence and prudence of judicial adjudication of religious questions. Moreover, scholars have documented the continued expansion of the scope the Court’s approach, representing the view that, like the third rail, the interpretation of religious doctrine poses a danger to the judicial system, such that judges should not only steer clear of these questions but should also remain far away. Finally, the image of a third rail conveys the notion that, alongside and intertwined with doctrinal Free Exercise and Establishment Clause decision‑making, the hands‑off approach constitutes a third basic element of contemporary Religions Clause jurisprudence.
Second, characterizing the hands‑off approach as the third rail stands for the proposition that the Court’s abiding and increasing reluctance as well as refusal to interpret religious doctrine has developed alongside the other two primary components of the Court’s Religious Clause jurisprudence. Instead, the hands‑off approach arguably appears to be driving many of the Court’s decisions in Free Exercise and Establishment Clause cases in a number of meaningful ways. Although not as well‑documented as other descriptive aspects [KJ4] of the Court’s approach, close analysis of key elements from modern Religious Clause case law and legislation points to the outsized role the hands‑off approach has played in this regard as well.
Third, as a normative matter, the implied reference to the hands‑off approach as “the tail that wags the dog” reflects the contention that the Court’s approach not only drives important areas of Religions Clause jurisprudence, but that it has had unnecessary and problematic—if not detrimental—effects on the Court’s decisions. In several areas, close adherence to an expansive hands‑off approach has negatively impacted both the Court’s reasoning and the outcome in important cases. Thus, the hands‑off approach stands as the tail vis‑à‑vis broader concepts and concerns underlying Religion Clause jurisprudence.
Discrimination, Model Rule 8.4(g), and the ABA’s Quixotic Quest for Uniformity
Author: Alex B. Long
Abstract: Under American Bar Association (“ABA”) Model Rule 8.4(g), it is professional misconduct for a lawyer to engage in conduct related to the practice of law that the lawyer knows, or reasonably should know, is harassment or discrimination on the basis of race and other protected characteristics. Widespread concerns over the breadth and lack of clarity concerning the rule have triggered substantial criticism, including the refusal of multiple states to adopt this model rule. Instead, several states have responded by introducing alternative versions of Model Rule 8.4(g) or by applying older rules of professional conduct in the case of discriminatory speech or harassing conduct on the part of lawyers.
This Article discusses the ongoing dialogue between the states and the ABA concerning the kind of form a rule regulating discrimination and harassment within the profession should take. It highlights some of the complex issues involved through an examination of several high‑profile cases involving controversial speech on the part of lawyers and in light of the ABA’s longstanding goals of promoting greater clarity and uniformity concerning the rules of professional conduct. It also examines the potential for some of these state alternatives to provide rule makers with greater insight into the benefits and potential drawbacks of relying upon Rule 8.4(g) or other legal ethics rules designed to deal with the issue of discrimination in the legal profession. Ultimately, the Article concludes that the values of clarity and uniformity should give way to the values of innovation and experimentation at the state level.
Notes
Back to the Future: Revisiting State Constitutions to Protect Against New Technological Intrusions
Author: Matthew Radford
Abstract: [forthcoming]
From Anti-BDS to Anti-ESG: The Next Generation of Boycotting the “Boycott” Is Only Slightly Less Problematic
Author: Kali Venable
Abstract: [forthcoming]
[This webpage does not necessarily reflect the final order of appearance in the Print issue.]
