Working Papers
Rebuilding Anticorruption Law for the Era of Modern Finance
(manuscript available)
Public corruption used to be traceable. When an official accepted cash, a Rolex, or gold bars in exchange for political favors, the law knew where to look. These arrangements could generate substantial private wealth for unscrupulous politicians, but they were constrained by the practical limits of the physical economy. They required capital, time, and regulatory approval, and they often left visible trails that could be scrutinized by regulators or prosecutors. They involved identifiable exchanges of value that roughly mapped onto the doctrinal categories of bribery, fraud, and conflicts of interest.
Modern financial markets threaten to change all that. Memecoins and stablecoins, special purpose acquisition companies, branded funds, and now prediction markets can all be used to enrich public officials through the auspices of ordinary market activity, leaving behind no gift, no contract, and, often, no counterparty. These instruments do more than just make public corruption faster, easier, and more lucrative (though they do that, too). They mask corruption by making it look like ordinary investing. In doing so, they sever the transfer of value from the core elements underwriting anticorruption law: an identifiable payor, a discrete payment, and an official act performed in return. Compounded by decades of retreating enforcement, judicial narrowing of the tools for policing fraud and political misconduct, and President Trump’s unprecedented zeal to profit personally while in public office, today’s legal system is ill-equipped to combat this new, financialized model of public corruption.
This Article tracks how leading financial instruments supercharge public corruption; shows why traditional legal doctrine struggles to account for the financialization of political self-enrichment; and proposes a wide-ranging set of reforms, from limiting assets that officials may hold to adopting new doctrines designed to stamp out political self-enrichment when it is being laundered through finance. Our analysis is unified by one principle: if corruption now operates through markets, the law must regulate these instruments directly rather than await the type of ex post enforcement that they easily evade.
Stop Trying to Maximize Shareholder Wealth (Like That)
(manuscript available)
The conventional story about shareholder wealth maximization is that for-profit businesses should maximize corporate value, which means that corporate leaders should treat long-term shareholder wealth as both goal and guide in making decisions. This Article challenges that conventional wisdom, arguing that the theory of shareholder wealth maximization does itself a disservice when it insists, either explicitly or implicitly, that corporate leaders deliberate in a particular way. Drawing on longstanding debates in moral and political philosophy, this Article isolates a series of self-defeating pathologies pervasive amongst consequence-maximizing theories. Consequentialists have long accepted that self-consciously aiming to maximize good outcomes turns out, paradoxically, to be a surefire way of missing one’s target. Analogizing to the corporate sphere, making decisions solely with an eye towards maximizing shareholder wealth invites an approach towards corporate governance that is conceptually self-defeating, practically counterproductive, and needlessly morally alienating.
But shareholder wealth maximization itself is not the problem. Rather, the problem is a mistaken, albeit widely accepted, premise that shareholder wealth maximization must specify a decisionmaking procedure in the first place. Reframing shareholder wealth as offering a criterion of corporate success—but not a corresponding method or procedure for achieving that success—positions the theory to sidestep those self-sabotaging pathologies otherwise endemic to consequence-maximizing decisionmaking procedures. Moreover, this characterization, call it criterial shareholder wealth maximization, strengthens the overall theory across three domains. First, it brings coherence to Delaware’s scattered doctrines around director duties, making sense of corporate law’s seemingly inconsistent mix of strict shareholder focus, deference, and boundary-policing. Second, it deflates one of the sharpest complaints leveled by critics of shareholder wealth maximization, creating space for a more stakeholder-friendly—but still fundamentally shareholder-centric—theory of corporate purpose. Third, criterial shareholder wealth maximization better aligns with real-world corporate practice, giving us richer resources to describe how directors and managers actually do, and should, go about creating shareholder wealth.
Is Criminal Law Theory Built Upon a Mistake? Lessons from McGirt v. Oklahoma
112 Iowa Law Review (forthcoming 2027) (manuscript available)
In McGirt v. Oklahoma, 591 U.S. 894 (2020), the Supreme Court concluded that the state of Oklahoma lacked jurisdiction over Native Americans accused of committing specified crimes against other tribal citizens in “Indian Country” (an area that comprises most of northern and eastern Oklahoma). As a result, tribal citizens who commit these crimes against other tribal citizens within Indian Country may be tried only by tribal courts or in federal court. McGirt is perhaps “the most significant Indian law case in well over 100 years.” Aside from its real-world impact, McGirt raises basic questions for theorists of criminal law.
Most criminal law theory is geared towards theories of punishment, or an account of the justification for the imposition of burdensome and reprobative measures on supposed offenders for supposed crimes. Some criminal law theorists aim to provide an account of criminalization, or an account of “[f]or what conduct may the state subject persons to punishment.” Yet the McGirt decision shows that neither of these projects is fundamental and that both presuppose a more basic account of political legitimacy. Furthermore, McGirt demonstrates that most efforts to theorize punishment and criminalization rest on an implicit account of sovereignty that is mistaken. The mistake arises out of conflating the project of justifying state authority with the project of accounting for state legitimacy. These questions are distinct, even for accounts that define state legitimacy largely in terms of the justification for the state’s political institutions (such as John Rawls’s liberal principle of legitimacy).
The McGirt decision thus illuminates two mistakes that underly much of criminal law theory. The first mistake is construing criminal law theory as a project in moral theory rather than one in political philosophy. The second mistake is conflating the justification and legitimacy of political institutions. Although McGirt v. Oklahoma brings these mistakes into relief, their significance extends far beyond the realm of Indian law.
Testing McGirt
(manuscript available via SSRN)
McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022) reallocated criminal jurisdiction across federal, state, and tribal governments in eastern Oklahoma on a scale unmatched in modern American history. Three testable predictions framed the debate around these landmark decisions: (1) that the federal courts would be inundated and incapacitated (the Deluge Hypothesis); (2) that concurrent state jurisdiction over General Crimes Act cases under Castro-Huerta would either strengthen or undermine enforcement (the Dual Sovereignty Hypotheses); and (3) that Indian country defendants would face harsher or more lenient sentences in federal court than in state court (the Disparity Hypotheses).
We test these predictions against a novel dataset of over 140,000 Oklahoma state criminal sentences and nearly 1,500 federal Indian country prosecutions hand-collected from PACER. Four findings emerge. State sentences imposed on American Indian defendants in the McGirt reservation counties fell by roughly 78%, while sentences elsewhere held steady or rose. The federal deluge was real but short-lived, consistent with the Oklahoma Court of Criminal Appeals’ 2021 decision against retroactive application in Matloff v. Wallace. Federal General Crimes Act filings collapsed after Castro-Huerta, supporting the warning that concurrent state jurisdiction would result in federal under-enforcement. However, the increase in state prosecutions in the affected counties apparently subsumed the decline in federal prosecutions. And across every offense category we examine, federal sentences are equal to or lighter than their state counterparts.
These empirical findings should inform the future of federal Indian law and policy. The restoration of reservation status triggers serious consequences for federal, state, and tribal courts, and these consequences can be managed without sacrificing the rule of law. McGirt challenged the federal courts but did not break the system. Courts can wield criminal procedural rules to limit the fallout of major jurisdictional change. Our findings also show that concurrent jurisdiction results in significant effects on criminal practice. For better or for worse, Castro-Huerta produced a substantial return of General Crimes Act cases to the state system. And despite their strained capacity, federal courts tasked with adjudicating Indian country crimes sentenced consistently throughout the surge, at levels at or below those of Oklahoma—one of the most punitive states in the Union.