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By  Sierra Van Allen*

This Article analyzes the statutory language of the PACT Act, passed in 2019, and applies the law to force-feeding ducks and geese on foie gras farms. While the PACT Act contains an exception for “customary and normal” agricultural husbandry, this Article argues that the force-feeding performed on foie gras farms is neither customary nor normal. This Article then argues that without the application of this exception, force-feeding for foie gras inflicts serious bodily injury on ducks and geese that is prohibited under the PACT Act. Thus, the Department of Justice should enforce the PACT Act by creating a Deferred Prosecution Agreement, allowing foie gras farms time to remove force-feeding from their practices before they are criminally prosecuted.

By Kenya J.H. Smith*

This Article begins with a focused survey of the gubernatorial pardon power provided in the four most populous American states: California, Texas, Florida, and New York. This Article then continues by discussing the theoretical bases supporting applicability of the gubernatorial pardon power to corporations and other juridical persons, focusing on the acknowledged and generally accepted concept of criminal culpability, the at least tacit acknowledgement of the corporate pardon potential embedded in certain state laws, and the analogous acceptance of the posthumous pardon—removing the formerly sacrosanct acceptance requirement imposed on the party receiving the pardon. This Article then analyzes the potential impact and ripple effects of applying the gubernatorial pardon power to corporate criminal culpability and concludes by highlighting certain prophylactic mechanisms that might dissuade a state’s chief executive from the temptation to utilize the pardon power to benefit a corporation in which the executive might have an economic interest.

By David Rosenfeld*

Elon Musk doesn’t much like the SEC. He has said publicly that he does “not respect the SEC” and called them “bastards.” He has repeatedly claimed that the SEC coerced him into a settlement over his “Taking Tesla Private” tweets by putting a gun to his child’s head. Musk has also pushed the envelope, testing the limits of the settlement agreement. So, what should the SEC do about Musk, a man routinely described as ii “incorrigible”? So far, the SEC has shown a certain amount of restraint in the face of Musk’s provocations, although Musk clearly doesn’t see it that way. It hasn’t been easy for the agency to show restraint, and it has been widely criticized for not standing up to the world’s richest man. But sometimes, restraint is the better part of wisdom. There are times when the remedy can be worse than the disease. Too often, the SEC acts reflexively when it comes to enforcement and seeks to impose the maximum sanctions available without considering all the collateral consequences. Indeed, a look back at the events surrounding the original settlement shows that the SEC may have acted a bit rashly when it filed a lawsuit seeking to bar Musk from serving as an officer or director of a public company. The SEC’s enforcers have many tools at their disposal and need to be guided by the overarching goal of investor protection. In the case of Musk, that may mean holding their noses a bit by letting investor protection take precedence.

By Nicole G. Iannarone 

This Symposium edition has been devoted to Elon Musk and business law. The subject presents multiple opportunities to discuss law. This Articles describe how and why the author uses the preliminary stages of the Twitter takeover as a case study to bring business law concepts and related professional responsibility concerns to life. In the context of a Business Organizations course, the Twitter takeover demystifies business law and engages students. In a Professional Responsibility course, Elon Musk presents an opportunity to discuss commencing and terminating client-attorney relationships, social media in law practice, diminished capacity and impairment, and professional identity formation.

 By Angela N. Aneiros & Karen Woody 

The influence that “superstar” CEOs have over a company’s board of directors can be alarming. Among other things, Elon’s ability to skirt personal liability for seemingly obvious breaches of duty has raised concerns within the realm of corporate governance and corporate regulation. While much has been written on Elon’s influence on Tesla’s board of directors, one area of the law that often gets overlooked that has exacerbated Elon’s corporate governance issues is that of directors and officers (D&O) liability insurance. While personally insuring board members seems like a very “Elon” move, it could have broader implications beyond Elon. Are “superstar” CEOs above the law? What are the effects on corporate law? How can we safeguard accountability of fiduciary duties?

This Article narrates the behavior of Elon, as CEO, Chairman, and a director of Tesla, which led to several lawsuits and SEC sanctions. Undoubtably, his behavior and resulting litigation had an impact on Tesla’s D&O insurance rates, leading to Tesla to forgo traditional ways of insuring, resulting in Elon personally insuring the directors. However, this demonstrates the tension that can occur when a conflict arises and a director, as a corporate fiduciary, is required to put the interests of the company above the interest of themselves and the interest of the CEO. This Article explores the importance of D&O insurance and its impact on corporate fiduciary duties by shedding light on the concerns and potential consequences of Tesla-Elon type D&O agreements on corporate governance and corporate law.

If you asked the average American to name unprotected or vulnerable groups, “fashion models” would be unlikely to leave anyone’s lips. After all, models are living a life of plane tickets and Prada . . . right?

Fashion is fueled by appearances, and this is not only true of each respective garment or collection, but also of the fashion world generally. One foundational facade is that everyone within the industry lives a life of carefree glamor. On social media, models pose with everything from borrowed bags to subsequently discarded burgers. In interviews, they deliver carefully scripted narratives. In reality, the industry has what attorneys in a recent (and rare) instance of model versus agency class action litigation called “a dark underbelly.”

Due to nearly unfettered control by their agencies and the pervasive knowledge that they are replaceable, fashion models inhabit a world rife with financial exploitation, sexual harassment, and severe eating disorders. While these dangers are multifaceted, they could all be mitigated through one change: recognizing models’ status as employees. Models are currently classified as independent contractors; however, when one examines the relevant factors, it becomes evident that they should be classified as employees. The most important factor in determining employee status is control, and though agencies exercise far greater control over models than the average employer does over employees, the parties ostensibly do not share an employer/employee relationship. Without employee status, models (many of whom are underage) remain without the essential protections afforded to other U.S. workers. In fact, more legal protections exist for the sale of actual clothing hangers than for the workplace health and safety of the individuals known as “human clothing hangers.”

This Article identifies the issues within the fashion industry and explores how correctly classifying models as employees would provide them with long-overdue protection. Utilizing arguments rooted in everything from torts to contracts, incorporating sources ranging from the Uniform Commercial Code to supermodel autobiographies, and vivifying the experience through anecdotes from fictional model Macey Buchanan, this Article explores how the all-too-common injustices within the fashion industry could be remedied through one simple change.

Models are clothed in different outfits daily, but dignity, safety, and simple legal rights remain excluded from the proverbial wardrobe. It is time our system updated its look.

This Article argues that the expanding use of the state secrets privilege by the executive branch impairs litigants’ right to a fair trial. The state secrets privilege allows evidence to be barred from discovery when the government asserts that disclosure of such material would threaten national security. This oftentimes leads to the suit being dismissed, leaving the litigants without recourse.

United States v. Reynolds established the formal recognition of the modern use of the state secrets privilege. The decision in Reynolds enumerated a five-factor analysis (the “Reynolds factors”) which serve as a guide for evaluating the validity of the use of the privilege. This Article explains the “Reynolds factors”—their shortcomings, improper interpretation in subsequent cases, and an analysis of potential future uses. The need for an updated procedure is highlighted by a discussion of contemporary case law and statutes, an inquiry into the acquiescence of judicial and congressional authority, and a policy argument for expanded judicial intervention.

Matters of national security, of course, must be handled with extreme sensitivity and care. But sensitivity does not mean expansive deference to the executive branch. There is not a one-size-fits-all solution when the privilege is invoked. But by limiting judicial deference through in camera review, the judiciary upholds and adheres to the constitutional need to enforce limits and encourage balance throughout the government.

The presented solutions in this Article consist of different paths that lead to the same outcome: less judicial deference via the use of in camera review.

Since the U.S. Supreme Court overruled Roe and Casey and returned the issue of abortion to the states, attention has shifted to state constitutions: Do state constitutions protect the right to an abortion? Florida is one of the few states whose constitution contains an explicit right of privacy. That provision, Article I, Section 23, was adopted by the voters in 1980. It states: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.” Not a decade later, the Florida Supreme Court held that section 23 protected the right to an abortion, and the court reaffirmed that holding in the decades since. But the Florida legislature recently passed, and the governor signed, a surely unconstitutional law that largely bans abortions after fifteen weeks—setting up a challenge to the court’s abortion precedents. The state and prolife activists believe that those precedents are wrong. Invoking originalism, they say that the original meaning of section 23 was that it protected only the right to informational privacy—the right to control personal information—not the right to an abortion. The larger implication of their argument is that Section 23 does not protect the right to decisional privacy, which is a person’s right to make certain kinds of important decisions.

Is that right? I seek to answer that question here by applying the principles of public meaning originalism, the dominant version of originalism. After explaining the basics of originalism, I engage in a careful, phrase-by-phrase analysis of Section 23’s text. Then, I examine the history of Section 23 at length, covering the general background, an earlier and unsuccessful attempt in 1978 to amend the Florida Constitution to add a privacy right, the successful proposal in 1980 that resulted in Section 23, and post-approval history. Applying the principles of public meaning originalism to assess the historical evidence, my conclusion is that the original understanding of Section 23 was that it would protect informational privacy and decisional privacy, including the right to an abortion.