Volume and Issue: Vol. 95, No. 5

The Rise of Bankruptcy Directors

In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially those controlled by private equity sponsors, often now prepare for a Chapter 11 filing by appointing bankruptcy experts to their boards of directors and giving them the board’s power to make key bankruptcy decisions. These directors often seek to wrest control of self-dealing claims against shareholders from creditors. We call these directors “bankruptcy directors” and conduct the first empirical study of their rise as key players in corporate bankruptcies. While these directors claim to be neutral experts that act to maximize value for the benefit of creditors, we argue that they suffer from a structural bias because they often receive their appointment from a small community of repeat private equity sponsors and law firms. Securing future directorships may require pleasing this clientele at the expense of creditors. Indeed, we find that unsecured creditors recover on average 20% less when the company appoints a bankruptcy director. While other explanations are possible, this finding shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies. Our policy recommendation, however, does not require a resolution of this controversy. Rather, we propose that courts regard bankruptcy directors as independent only if an overwhelming majority of creditors whose claims are at risk supports their appointment, making them accountable to all sides of the bankruptcy dispute.

Introduction

In August 2017, the board of directors of shoe retailer Nine West confronted a problem. The firm would soon file for Chapter 11 protection, and its hopes to emerge quickly from the proceeding were in danger due to the high probability of creditor litigation alleging that the firm’s controlling shareholder, private equity fund Sycamore Partners Management, had looted more than $1 billion from the firm’s creditors.[1] The board could not investigate or settle this litigation because it had a conflict of interest.[2]

To take control of the litigation, the board appointed two bankruptcy experts as new directors who claimed that, because they had no prior ties to Sycamore or Nine West, they were independent and could handle those claims.[3] Once the firm filed for bankruptcy, its creditors objected. They argued that the new directors still favored Sycamore because it stood behind their appointment, so the directors would “hamstring any serious inquiry into [its] misconduct.”[4] Nevertheless, the gambit was successful. The bankruptcy court allowed the new directors to take control of the litigation.[5] The new directors blocked creditor attempts to file lawsuits on their own[6] and ultimately settled the claims for about $100 million.[7]

The Nine West story illustrates the emergence of important new players in corporate bankruptcies: bankruptcy experts who join boards of directors shortly before or after the filing of the bankruptcy petition and claim to be independent[8] The new directors—typically former bankruptcy lawyers, investment bankers, or distressed debt traders—often receive the board’s power to make important Chapter 11 decisions or become loud voices in the boardroom shaping the company’s bankruptcy strategy.[9] We call them “bankruptcy directors.”

The rising prominence of bankruptcy directors has made them controversial. Proponents tout their experience and ability to expedite the reorganization and thus protect the firm’s viability and its employees’ jobs.[10] Opponents argue that they suffer from conflicts of interest that harm creditors.[11]

This Article is the first empirical study of these directors. While a voluminous literature has considered the governance of Chapter 11 firms, this Article breaks new ground in shining a light on an important change in the way these firms make decisions in bankruptcy and resolve conflicts with creditors.[12] It does so by analyzing a hand-collected sample of all large firms that filed for Chapter 11 between 2004 and 2019 that disclosed the identity of their directors to the bankruptcy court.[13] To our knowledge, it is the largest sample of boards of directors of Chapter 11 firms yet studied.[14]

We find that the percentage of firms in Chapter 11 proceedings claiming to have an independent director increased from 3.7% in 2004 to 48.3% in 2019.[15] Over 60% of the firms that appointed bankruptcy directors had a controlling shareholder and about half were under the control of private equity funds.

After controlling for firm and bankruptcy characteristics, we find that the recovery rate for unsecured creditors, whose claims are typically most at risk in bankruptcy, is on average 20% lower in the presence of bankruptcy directors. We cannot rule out the possibility that the firms appointing bankruptcy directors are more insolvent and that this explains their negative association with creditor recoveries. Still, this finding at least shifts the burden of proof to those claiming that bankruptcy directors improve the governance of distressed companies to present evidence supporting their view in this emerging debate.

We also examine a mechanism through which bankruptcy directors may reduce creditor recoveries. In about half of the cases, these directors investigate claims against insiders,[16] negotiate a quick settlement, and argue that the court should approve it to save the company and the jobs of its employees.[17] We supplement these statistics with two in-depth studies of cases in which bankruptcy directors defused creditor claims against controlling shareholders: Neiman Marcus and Payless Holdings.

Finally, we consider possible sources of pro-shareholder bias among bankruptcy directors. Shareholders usually appoint bankruptcy directors without consulting creditors. These directors may therefore prefer to facilitate a graceful exit for the shareholders. Moreover, bankruptcy directorships are short-term positions, and the world of corporate bankruptcy is small, with private equity sponsors and a handful of law firms generating most of the demand. Bankruptcy directors depend on this clientele for future engagements and may exhibit what we call “auditioning bias.”

In our data, we observe several individuals appointed to these directorships repeatedly. These “super-repeaters” had a median of 13 directorships and about 44% of them were in companies that went into bankruptcy when they served on the board or up to a year before their appointment.[18] Our data also show that super-repeaters have strong ties to two leading bankruptcy law firms.[19] Putting these pieces together, our data reveal an ecosystem of a small number of individuals who specialize in sitting on the boards of companies that are going into or emerging from bankruptcy, often with private equity controllers and the same law firms.

These findings support the claim that bankruptcy directors are a new weapon in the private equity playbook. In effect, bankruptcy directors assist with shielding self-dealing transactions from judicial intervention. Private equity sponsors know that if the portfolio firm fails, they could appoint bankruptcy directors to handle creditor claims, file for bankruptcy, and force the creditors to accept a cheap settlement.[20] Importantly, the ease of handling self-dealing claims in the bankruptcy court may fuel more aggressive self-dealing in the future.[21]

Our findings have important policy implications. Bankruptcy law strives to protect businesses while also protecting creditors. These goals can clash when creditors bring suits that threaten to delay the emergence from bankruptcy. While bankruptcy directors may aim for speedy resolution of these suits, their independence may be questionable because the defendants in these suits are often the ones who appoint them. Moreover, bankruptcy directors often bypass the checks and balances that Congress built into Chapter 11 when they seek to replace the role of the official committee of unsecured creditors (“UCC”) as the primary check on management’s use of the powers of a Chapter 11 debtor.

We argue that the contribution of bankruptcy directors to streamlining bankruptcies should not come at the expense of creditors. We therefore propose a new procedure that bankruptcy judges can implement without new legislation: the bankruptcy court should treat as independent only bankruptcy directors who, in an early court hearing, earn overwhelming support of the creditors whose claims are at risk, such as unsecured creditors or secured creditors whom the debtor may not be able to pay in full. Bankruptcy directors without such support should not be treated as independent and therefore should not prevent creditors from investigating and pursuing claims.

The creditors will likely need information on the bankruptcy directors to form their opinion, and bankruptcy judges can rule on what information requests are reasonable. This will create standardization and predictability. However, disclosure is no substitute for creditor support. Requiring disclosure without heeding creditors on the selection of bankruptcy directors will not cure bankruptcy directors’ structural biases.

Some might argue that our solution is impractical or otherwise lacking. We answer these claims. More importantly, our solution is the only way to ensure that bankruptcy directors are truly independent. If it cannot be made to work, bankruptcy law should revert to the way it was before the invention of bankruptcy directors, where federal bankruptcy judges were the only impartial actors in most large Chapter 11 cases. In such a scenario, debtors will be free to hire whomever they want to help them navigate financial distress, but the court will regard these bankruptcy directors as ordinary professionals retained by the debtor. The court should weigh the bankruptcy directors’ position against the creditors’, allow the creditors to conduct their own investigation and sue over the bankruptcy directors’ objections, and not approve settlements merely because the bankruptcy directors endorse them.

Our study also lends support to the bill recently introduced by Senator Elizabeth Warren to prevent debtors from prosecuting and settling claims against insiders.[22] Like our proposal, this bill would restore the traditional checks and balances of the bankruptcy process while allowing distressed firms to appoint directors of their choice. Still, our proposal has several advantages. It does not require new legislation, it preserves greater flexibility for the bankruptcy court and, by requiring that bankruptcy directors be acceptable to creditors, it ensures that all board decisions in bankruptcy, not just decisions regarding claims against insiders, advance creditor interests.

Our analysis also has implications for corporate law. Much of the literature on director independence in corporate law has focused on director ties to the corporation, to management, or to the controlling shareholder.[23] We explore another powerful source of dependence: dependence on future engagements by other corporations and the lawyers advising them. 

This Article proceeds as follows. Part I lays out the theoretical background to our discussion, showing how the use of independent directors has migrated from corporate law into bankruptcy law. Part II presents examples of bankruptcy director engagements from the high-profile bankruptcies of Neiman Marcus and Payless Holdings. Part III demonstrates empirically how large firms use bankruptcy directors in Chapter 11. Part IV discusses concerns that bankruptcy directors create for the integrity of the bankruptcy system and puts forward policy recommendations.

          [1].      See Notice of Motion of the 2034 Notes Trustee for Entry of an Order Granting Leave, Standing, and Authority to Commence and Prosecute a Certain Claim on Behalf of the NWHI Estate at 15, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Jan. 31, 2019) [hereinafter Notice of Motion of the 2034 Notes Trustee]; Kenneth Ayotte & Christina Scully, J. Crew, Nine West, and the Complexities of Financial Distress, 131 Yale L.J.F. 363, 373 (2021) (describing some of the transfers in detail). For example, the private equity sponsor had allegedly purchased the assets of Kurt Geiger for $136 million in April 2014 and sold them in December 2015 for $371 million. See Notice of Motion of the 2034 Notes Trustee, supra, at 34.

          [2].      See Motion of the Official Committee of Unsecured Creditors for Entry of an Order Granting Leave, Standing, and Authority to Commence and Prosecute Certain Claims on Behalf of the NWHI Estate and Exclusive Settlement Authority in Respect of Such Claims at 17, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Oct. 22, 2018) [hereinafter Nine West Standing Motion].

          [3].      See Transcript of Hearing at 43, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. May 7, 2018).

          [4].      See Nine West Standing Motion, supra note 2, at 34 (“[The lawyers for the independent directors] attended . . . depositions . . . but asked just a handful of questions of a single witness . . . . [And they] chose not to demand and review the Debtors’ privileged documents relating to the LBO . . . .”).

          [5].      See Nine West Standing Motion, supra note 2, at 13 (“The Debtors have barred the Committee from participating in its settlement negotiations with Sycamore . . . .”).

          [6].      Shortly after the unsecured creditors proposed to put the claims against the private equity sponsor into a trust for prosecution after bankruptcy, the independent directors unveiled their own settlement plan. See Notice of Filing of the Debtors’ Disclosure Statement for the Debtors’ First Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code at 1–3, In re Nine West Holdings, Inc., No. 18-10947 (Bankr. S.D.N.Y. Oct. 17, 2018) [hereinafter Nine West Disclosure Statement Announcing Settlement].

          [7].      See Nine West Standing Motion, supra note 2, at 11 (seeking permission to prosecute claims for “well over $1 billion”); Soma Biswas, Nine West Settles Potential Lawsuits Against Sycamore Partners, Wall St. J. (Oct. 18, 2018, 2:12 PM), https://www.wsj.com/articles/nine-west-settles-
potential-lawsuits-against-sycamore-partners-1539886331 [https://perma.cc/RLH4-M9EU] (“Nine West Holdings Inc. unveiled Wednesday an amended restructuring plan that settles potential lawsuits against private-equity owner Sycamore Partners LP for $105 million in cash, far less than the amount the unsecured creditors committee is seeking.”).

          [8].      See, e.g., Notice of Appearance—Lisa Donahue, AlixPartners, Petition (Feb. 19, 2020), https://www.petition11.com/news/2020/2/19/notice-of-appearance-lisa-donahue-alixpartners [https://
perma.cc/NA6H-69AT] (noting that “[independent directors in bankruptcy have] . . . become the latest cottage industry in the restructuring space”).

          [9].      See Regina Stango Kelbon, Michael DeBaecke & Jonathan K. Cooper, Appointment of Independent Directors on the Eve of Bankruptcy: Why The Growing Trend? 17 (2014) (“Employing an outside director to exercise independent judgment as to corporate transactions in bankruptcy may not only provide additional guidance to a suffering business, but can make the decision-making process seem right in the eyes of stakeholders and ultimately, the court.”).

        [10].      See Robert Gayda & Catherine LoTempio, Independent Director Investigations Can Benefit Creditors, Law360 (July 24, 2019, 3:55 PM), https://www.law360.com/articles/1174248/independent-director-investigations-can-benefit-creditors [https://web.archive.org/web/20220401015757/https://
http://www.law360.com/articles/1174248/independent-director-investigations-can-benefit-creditors%5D (noting that independent directors are helpful in bankruptcy where “speed to exit is paramount”).

        [11].      See, e.g., “Independent” Directors Under Attack, Petition (May 16, 2018), https://petition.substack.com/p/independent-directors-under-attack [https://perma.cc/G9RY-U9D4]; Lisa Abramowicz, Private Equity Examines Its Distressed Navel, Bloomberg (May 26, 2017), https://www.bloomberg.com/opinion/articles/2017-05-26/payless-shoesource-private-equity-examines-its-distressed-navel [https://perma.cc/NC4H-DK9M]; Mark Vandevelde & Sujeet Indap, Neiman Marcus Director Lambasted by Bankruptcy Judge, Fin. Times (June 1, 2020), https://www.ft.com/content/
0166cb87-ea50-40ce-9ea3-b829de95f676 [https://perma.cc/5VY4-VQA8]; American Bankruptcy Institute, RDW 12 21 2018, Youtube (Dec. 20, 2018), https://www.youtube.com/watch?v=
Ah8RkXYdraI&ab_channel=AmericanBankruptcyInstitute [https://perma.cc/KG37-TJUC]; The “Weil Bankruptcy Blog Index,” Petition (Jan. 10, 2021), https://petition.substack.com/p/weilbankruptcy
blogindex [https://perma.cc/L356-TFPY] (calling the Nine West case a “standard episode of ‘independent director’ nonsense”).

        [12].      See, e.g., Douglas G. Baird & Robert K. Rasmussen, Antibankruptcy, 119 Yale L.J. 648, 651 (2010) (considering creditor conflict); Douglas G. Baird & Robert K. Rasmussen, The End of Bankruptcy, 55 Stan. L. Rev. 751, 784 (2002); David A. Skeel Jr., Creditors’ Ball: The “New” New Corporate Governance in Chapter 11, 152 U. Pa. L. Rev. 917, 919 (2003) (considering the role of secured creditors); Michelle M. Harner & Jamie Marincic, Committee Capture? An Empirical Analysis of the Role of Creditors’ Committees in Business Reorganizations, 64 Vand L. Rev. 749, 754–56 (2011) (considering the role of unsecured creditors). For other articles that, like this Article, criticize recent changes in Chapter 11 practice, see generally Adam J. Levitin, Purdue’s Poison Pill: The Breakdown of Chapter 11’s Checks and Balances, 100 Tex. L. Rev. 1079 (2022); Lynn M. LoPucki, Chapter 11’s Descent into Lawlessness, 96 Am. Bankr. L.J. 247 (2022).

        [13].      Our full dataset consists of the boards of directors of 528 firms and the 2,895 individuals who collectively hold 3,038 directorships at these firms. While all Chapter 11 firms are required to provide information on their board to the bankruptcy court, not all comply with the law. For more on our sample, see infra Part III.

        [14].      See infra note 152 and accompanying text.

        [15].      We identified bankruptcy directors using information from each firm’s disclosure statement. We then searched those disclosure statements and identified 78 cases in which the debtor represented that its board was “independent” or “disinterested.” See infra Section III.C.1. Independent directors are not new to bankruptcy. WorldCom, for example, used independent directors as part of its strategy to get through the bankruptcy process in its 2003 Chapter 11 filing. See Kelbon, supra note 9, at 20. The change is that a practice that was once relatively uncommon has become ubiquitous and a central and standard part of the process of preparing for a Chapter 11 bankruptcy filing, leading to the growth of an industry of professional bankruptcy directors who fill this new demand for bankruptcy experts on the board of distressed firms. See infra Section III.C.1

        [16].      See infra Table 2.

        [17].      In many cases, a debtor-in-possession contract that requires the firm to leave bankruptcy quickly heightens the debtor’s urgency. See, e.g., Frederick Tung, Financing Failure: Bankruptcy Lending, Credit Market Conditions, and the Financial Crisis, 37 Yale J. on Regul. 651, 672 (2020).

        [18].      See infra Section III.C.4.

        [19].      See infra Section III.C.5.

        [20].      See Telephonic/Video Disclosure Statement and KEIP Motion Hearing at 34, In re Neiman Marcus Grp. Ltd. LLC, No. 20-32519 (Bankr. S.D. Tex. July 30, 2020) [hereinafter Neiman Marcus Settlement Transcript] (arguing that independent directors are changing incentives for private equity sponsors, who will be “encouraged to asset strip”).

        [21].      As Sujeet Indap and Max Frumes write, a leading bankruptcy law firm that advises debtors “developed a reputation for keeping a stable of ‘independent’ board of director candidates who could parachute in to bless controversial deal making.” Sujeet Indap & Max Frumes, The Caesars Palace Coup: How a Billionaire Brawl Over the Famous Casino Exposed the Power and Greed of Wall Street 419 (2021).

        [22].      See Alexander Saeedy, Elizabeth Warren Floats Expanded Powers for Bankruptcy Creditors Against Private Equity, Wall St. J. (Oct. 20, 2021, 1:17 PM), https://www.wsj.com/articles/elizabeth-warren-floats-expanded-powers-for-bankruptcy-creditors-against-private-equity-11634750237 [https://
perma.cc/P3XE-U24Y].

        [23].      See generally Lucian A. Bebchuk & Assaf Hamdani, Independent Directors and Controlling Shareholders, 165 U. Pa. L. Rev. 1271 (2017); Da Lin, Beyond Beholden, 44 J. Corp. L. 515 (2019).

* Professor of Law, Harvard Law School.

† Professor of Law, Tel Aviv University, Faculty of Law.

‡ Associate Professor, Tel Aviv University, Faculty of Law; Lecturer on Law, Harvard Law School. We thank Kenneth Ayotte, Lucian Bebchuk, Vincent Buccola, Anthony Casey, Alma Cohen, Elisabeth de Fontenay, Jesse Fried, Lynn LoPucki, Tobias Keller, Michael Klausner, Michael Ohlrogge, Adam Levitin, Robert Rasmussen, Adriana Robertson, Mark Roe, Daniel Sokol, Robert Stark, Roberto Tallarita, Robert Tennenbaum, and seminar and conference audiences at the Annual Meeting of the American Law and Economics Association, Bay Area Corporate Law Scholars Workshop, the Bar Ilan University Law Faculty Seminar, the Corporate Law Academic Webinar Series (CLAWS), the Duke Faculty Workshop, Florida–Michigan–Virginia Virtual Law and Economics Seminar, the Harvard Law School Empirical Law and Economics Seminar, the Harvard Law School Faculty Workshop, Harvard Law School Law and Economics Workshop, Tel Aviv University Faculty of Law Workshop, the Turnaround Management Association, the University of Toronto Seminar in Law and Economics, and the University of California, Berkeley Law, Economics, and Accounting Workshop for helpful comments. We also thank Noy Abramov, Jacob Barrera, Jade Henry Kang, Spencer Kau, Victor Mungary, Julia Staudinger, Or Sternberg, Jonathan Tzuriel, and Sara Zoakei for excellent research assistance. This research was supported by The Israel Science Foundation (Grant No. 2138/19).

Download

The Rise of Bankruptcy Directors

Jared A. Ellias, * Ehud Kamar† & Kobi Kastiel‡

In this Article, we use hand-collected data to shed light on a troubling development in bankruptcy practice: distressed companies, especially those controlled by private equity sponsors, often now prepare for a Chapter 11 filing by appointing bankruptcy experts to their boards of directors and giving them the board’s power to make key bankruptcy decisions. These

Read More »

Cannon Fodder, or a Soldier’s Right to Life

Saira Mohamed*

In recent years, hundreds of American service members have died in training exercises and routine non-combat operations, aboard American warships, tactical vehicles, and fighter planes. They have died in incidents that military investigations and congressional hearings and journalists deem preventable, incidents stemming from the U.S. government delaying maintenance of deteriorating equipment or staffing vessels with

Read More »

Colorblind Constitutional Torts

Osagie K. Obasogie* & Zachary Newman†

Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a defense for officers facing § 1983 lawsuits for using excessive force. Developed during Reconstruction as a way to protect formerly enslaved persons from new forms of racial terror, 42 U.S.C. § 1983 allows private individuals to bring

Read More »

Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims

Erika Pang

FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.[1] Chances are that many Americans have seen the warning above at some

Read More »

The Agency Problem in SPACs: A Legal Analysis of SPAC IPO Investor Protections

Tyler J. Martin

The events that occurred in 2020 drastically altered the world’s financial markets,[1] contributing to an increase in Initial Public Offerings (“IPOs”) of Special Purpose Acquisition Companies (“SPACs”).[2] In particular, 2020 was a year marked by numerous records within the SPAC market, including the highest number of SPAC IPOs (248), the highest amount of proceeds raised

Read More »

Cannon Fodder, or a Soldier’s Right to Life

In recent years, hundreds of American service members have died in training exercises and routine non-combat operations, aboard American warships, tactical vehicles, and fighter planes. They have died in incidents that military investigations and congressional hearings and journalists deem preventable, incidents stemming from the U.S. government delaying maintenance of deteriorating equipment or staffing vessels with crews that are too small or sending soldiers and sailors and marines on missions with inadequate training. After someone dies, high-level officials sign off on investigations, declare that those lost will not be forgotten, and occasionally institute changes in training or maintenance. Meanwhile, the law and legal scholarship say nothing about the government’s failures to train and equip service members, reflecting and reinforcing the notion that soldiers offer illimitable service to the state but cannot ask for even the most basic legal protections in return.

These deaths, and the government failures that precede them, have been absent from legal scholarship, but this Article surfaces them and centers them. While U.S. law offers no way to reckon with the lapses in leadership at the heart of such incidents, international human rights law has provided an architecture for understanding government accountability for failures to adequately train or equip service members. And yet, these events continue to go unnoticed.

This Article documents the human rights community’s neglect of these events and of the opportunity to give legal significance to the U.S. government’s failure to protect its own service members, and it situates this neglect in the broader, long-standing conception of soldiers as mere instruments of the state. The corpus of human rights law thus provides a set of categories and doctrines to name and classify the government’s conduct, and it also offers, through its recognition of the legitimacy of a soldier’s claims upon their government, a necessary corrective to a culture of treating American service members as volunteering for unquestioning sacrifice.

Introduction

The term “cannon fodder” is conventionally traced to Shakespeare’s Henry IV, Part 1. The play depicts a process of reconciliation between father and son; King Henry IV must quell a rebellion, and Prince Hal transforms from wayward youth into a valiant fighter. Along the way, Prince Hal’s friend Falstaff, technically a nobleman but penniless and disreputable, contributes to the war effort by taking bribes from “good householders, yeoman’s sons” who can pay to avoid going to war, while gathering up instead a motley crew of men “as ragged as Lazarus” to send to battle.[1] When Hal encounters this band of would-be warriors, he derides them as “pitiful rascals,” but Falstaff—a comic figure who betrays both his heartlessness and his willingness to name the exploitation in which he himself participates—protests that they are fit to serve their purpose: “Tut, tut; good enough to toss; food for powder, food for powder; they’ll fill a pit as well as better.”[2]

Much has changed since the days of Shakespeare. The singsong “food for powder” mutated, first emerging in German as kanonenfutter, before jumping back to English in the current form we now know.[3] War, too, has transformed. Today, war is no longer recognized as a legitimate instrument of foreign policy.[4] Today, a robust body of law governs both the resort to armed force and the conduct of hostilities.[5] Today, the term “cannon fodder” is no longer played for laughs.[6]

And yet, the status of military service members remains murky. We might shift uncomfortably in our seats when Falstaff jokes about the disposable nature of these warriors, but what does it mean to respect the lives of soldiers?[7] In the United States, the answer to this question usually relates to how we treat service members when they return home. We offer them thanks for their service, proper medical care and mental health support, access to education and jobs.[8] On the floor of the House of Representatives, during a debate on a military appropriations bill, Representative Bob Filner embraced these practices as an American tradition, one with roots all the way back to the founding: “General Washington said over 220 years ago,” declared Filner, “The single most important factor in the morale of our fighting troops is a sense of how they’re going to be treated when they come home.”[9]

We say less, however, about what happens to service members while they are serving. When they are fighting wars, yes, we “support the troops”—that much is a “fixed point[] of American politics.”[10] But there is little public discourse, and hardly any legal scholarship, on the U.S. government’s obligations to adequately protect soldiers—despite an urgent need for it. War is of course a dangerous business, one that—in what might be described at the same time as a deal with the devil and a simple reflection of state interests—international law has continued to allow, even with the advent of the corpus of human rights law.[11] But service members are dying and suffering severe injuries not only at the hands of the enemy on the battlefield, but also in incidents deemed “unacceptable” and “preventable” even by military leaders. In the early days of the Iraq War, for example, a secret study by the U.S. Department of Defense found that some eighty percent of marines who died from upper-body wounds could have survived if they had extra body armor—armor that was available but that the Pentagon decided not to provide.[12] These failures of prevention and protection are not limited to combat. In the last fifteen years, hundreds of American service members have died during training exercises and routine non-combat operations, aboard American warships and tactical vehicles and fighter planes.[13] They are given deteriorating equipment or crews that are too small or inadequate training. After someone dies, high-level officials sign off on investigations, declare that those lost will not be forgotten, and occasionally institute changes in training or maintenance.[14]

Meanwhile, the law nearly completely ignores these events. When congressional hearings are convened in the aftermath of these events, their focus is on military readiness, overshadowing questions of the legal obligations of the government or the legal rights of service members.[15] Legal scholarship, despite robust engagement on crucial questions of human rights in wartime,[16] generally focuses on protections for civilians and enemy soldiers, neglecting discussion of what a government owes its service members in proper training, well-maintained equipment, or sufficiently staffed crews.[17] In the pages of U.S. law reviews, the main focus of any analysis of government accountability to service members is the Feres doctrine, which prevents civil suits against the government for injuries sustained incident to military service.[18] But entirely overlooked are the deaths and injuries that stem from inadequate training and shoddy equipment, from putting lives at risk in order to speed operational tempo or rush into deployment. Their absence from the literature suggests that they are seen as routine, part of the job, part of the unquestioning sacrifice for which these individuals have willingly volunteered. Soldiers are expected to give of themselves completely; because they accept the possibility of death on the battlefield on account of their military service, it seems, they must accept the possibility of death outside of it, too. Even if no longer cannon fodder, in the national socio-legal imaginary[19] they have been endowed with a different kind of inhumanity, as individuals whose service is seemingly illimitable, who give their lives but are permitted to ask almost nothing from the governments they serve.[20]

Across the Atlantic, international human rights law paints a starkly different picture. In 2013, the United Kingdom Supreme Court held in Smith v. Ministry of Defence that the British government has an affirmative obligation under human rights law to protect the lives of service members.[21] The suit was initiated by the families of three British soldiers who had been killed in Iraq by roadside bombs when they were traveling in Snatch Land Rovers, vehicles that the government had initially developed in the 1990s to grab suspects off the street in Northern Ireland.  As dozens more soldiers died in those vehicles, the Snatch Rovers came to be known in the wars in Iraq and Afghanistan as “mobile coffins”—a far cry from the level of protection that was needed, said the soldiers, their families, and, as would be later revealed, the government itself.[22] The Court held not only that the government’s obligations under the European Convention on Human Rights extends to military service members deployed overseas, but also that the government’s decision to use vehicles that would not adequately protect those individuals could be a violation of its Convention obligations.[23] In the vision of human rights law, the soldier is not expected to sacrifice everything for the state. Instead, the government is expected to fulfill a duty toward the soldier, just as it is expected to protect any other person under its care.

This Article takes as its starting point the juxtaposition of these two vastly contrasting approaches—on the one hand, the expectation of complete sacrifice by a soldier, and on the other, the expectation that the government owes a duty of care to the soldier even while the soldier takes on the significant risks inevitably imposed by the position. From this foundation, it makes two contributions. First, the Article documents the absence of engagement by scholars and practitioners of human rights with the question of U.S. government failures to adequately train and equip military service members. Even though human rights instruments applicable to the United States—including the International Covenant on Civil and Political Rights (“ICCPR”) and the American Declaration on the Rights and Duties of Man—could provide the basis for interpretations similar to Smith in the European system, scholars and advocates have entirely neglected any exploration of whether or how the many failures of the U.S. government leading to service member injuries and deaths may constitute violations of its human rights obligations.[24] This Article fills that gap. Second, the Article situates this neglect within the law’s broader failure to recognize the soldier as an individual endowed with human rights, and it analyzes the consequences of conceiving of soldiers as rights-bearers. Debating the government’s obligation to train and equip service members through the language and legal framework of rights emphasizes that soldiers are agents, not mere instruments of the state who can be disposed of however the government chooses. In so doing, recognition of the soldier’s human rights can chip away at the expectations of unquestioning sacrifice that pervade social and legal treatment of service members.

This Article intervenes in a burgeoning literature on the applicability of international human rights in armed conflict and specifically on the meaning of the right to life in armed conflict. As bodies such as the International Court of Justice and the Human Rights Committee have articulated the scope and application of particular human rights in armed conflict,[25] some scholars have considered how and whether obligations of the law of war, such as the principle of distinction and the requirement of proportionality in attack, should be interpreted to incorporate the human rights protection against arbitrary deprivation of life.[26] Others, meanwhile, have argued that the criminalization of aggression should be understood as rooted in the protection of the right to life in armed conflict.[27] Overlooked in this literature, however, have been the deaths of service members described by journalists and members of Congress and official government investigations as “preventable”[28]: deaths that are traced to failures to properly maintain ships and aircraft and land vehicles and their treads and navigation systems and propellor blades; deaths that stem from failures to adequately train service members to use the equipment they are responsible for;[29] deaths that—like those of Phillip Hewett and Lance Ellis, the British soldiers whose deaths gave rise to Smith—can be traced to decisions on the part of the state to underequip soldiers for combat.[30]

It is these deaths that the Smith case and its underlying principles speak to but that human rights law and scholarship have not yet adequately considered. And it is these deaths to which this Article turns its attention, not only explaining the relevance of human rights law in identifying the U.S. government’s responsibility for training and equipping its service members, but also offering a normative argument for why rendering these deaths a matter of human rights law should form a part of the larger human rights project of subjecting war to its regulation.[31] In short, this Article hopes to do these soldiers justice.

This Article proceeds in three parts. To situate the arguments of this Article in recent events, Part I presents an account of two collisions of Navy destroyers that caused the deaths of seventeen sailors in 2017. The goal of this Part is primarily descriptive, as these are events that have clear parallels with the facts underlying Smith and that have clear legal implications, and despite that, they have received no dedicated attention in legal scholarship.[32] These collisions, replete with high-level leaders’ preventable errors and even negligence, offer representative examples that ground Part II, which explains the legal characterizations that are available to describe these deaths under the frameworks available both in U.S. law and in international human rights law. Part III documents how and analyzes why situations like these collisions remain overlooked. It first explains how the human rights approach discussed in Part II could be used to seek accountability for the U.S. government’s failures with respect to incidents like the McCain and Fitzgerald collisions, and so many more. It then turns to detailing and explaining the absence of any such efforts in human rights law and to analyzing the significance of a human rights framing of situations like the Navy collisions. Bringing human rights law to bear on the U.S. government’s failures to adequately equip and train its troops not only makes clear that war is no longer off-limits to human rights as a general matter, but it also declares with the authority of law that soldiers are not to be sacrificed unquestioningly to the cause of war. By bringing service members’ lives more squarely into its realm, human rights law rejects the notion that soldiers are mere cannon fodder to be disposed of however the state pleases.

          [1].      William Shakespeare, Henry IV, Part 1 act 4, sc. 2, ll. 2382, 2392.

          [2].      Id. ll. 2433–35.

          [3].      Charles Edelman, Shakespeare’s Military Language: A Dictionary 132–33 (2000).

          [4].      See U.N. Charter art. 2 (prohibiting non-defensive use or threat of armed force by states); Mary Ellen O’Connell, The power and Purpose of International Law: Insights from the Theory & Practice of Enforcement 180 (2008); see also Saira Mohamed, Restructuring the Debate on Unauthorized Humanitarian Intervention, 88 N.C. L. Rev. 1275, 1317–21 (2010) (discussing the nature of military force as a community instrument under the U.N. Charter system). See generally Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).

          [5].      E.g., Jakob Kellenberger, Foreword to Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules xv, xv–xvii (2009).

          [6].      See David Ellis, Falstaff and the Problems of Comedy, 34 Cambridge Q. 95, 99–100 (2005).

          [7].      This Article uses “soldier” in the colloquial sense, that is, to describe a person who serves in the military. The term thus includes not only those in a state’s army, but also services such as the air force or navy. See Soldier, Merriam-Webster’s Collegiate Dictionary (11th ed. 2012).

          [8].      E.g., Phillip Carter, What America Owes Its Veterans: A Better System of Care and Support, Foreign Affs., Sept./Oct. 2017, at 115.

          [9].      154 Cong. Rec. 9238 (2008) (statement of Rep. Bob Filner); see also, e.g., Loretta Sanchez, What We Owe Our Troops, Hill (May 20, 2015, 8:35 PM), https://thehill.com/special-reports/
tommorrows-troops-may-21-2015/242772-what-we-owe-our-troops [https://perma.cc/PY73-FPPV].

        [10].      Cheyney Ryan, Democratic Duty and the Moral Dilemmas of Soldiers, 122 Ethics 10, 18–19 (2011).

        [11].      See Karima Bennoune, Toward a Human Rights Approach to Armed Conflict: Iraq 2003, 11 U.C. Davis J. Int’l L. & Pol’y 171, 174–75 (2004); Frédéric Mégret, What Is the Specific Evil of Aggression, in The Crime of Aggression: A Commentary 1398, 1432 (Claus Kreß & Stefan Barriga eds., 2017); Thomas W. Smith, Can Human Rights Build a Better War?, 9 J. Hum. Rts. 24, 24 (2010).

        [12].      Michael Moss, Pentagon Study Links Fatalities to Body Armor, N.Y. Times (Jan.
7, 2006), https://www.nytimes.com/2006/01/07/politics/pentagon-study-links-fatalities-to-body-armor.
html [https://perma.cc/JF67-55P9].

        [13].      See, e.g., Nat’l Comm’n on Mil. Aviation Safety, Report to the President and the Congress of the United States 1 (2020) [hereinafter NCMAS Report]; Nat’l Transp. Safety Bd., NTSB/MAR-19/01 PB2019-100970, Marine Accident Report: Collision Between US Navy Destroyer John S McCain and Tanker Alnic MC, Singapore Strait, 5 Miles Northeast of Horsburgh Lighthouse, August 21, 2017, at 21 (2019) [hereinafter NTSB Report].

        [14].      See, e.g., Hearing to Receive Testimony on the United States Indo-Pacific Command and United States Forces Korea in Review of the Defense Authorization Request for Fiscal Year 2020 and the Future Years Defense Program: Hearing Before the S. Comm. on Armed Servs., 116th Cong. 82 (2019) [hereinafter Indo-Pacific Command Hearing] (statement of Admiral Philip S. Davidson) (explaining that he “produced a 170-page report with 58 recommendations” after the two Naval collisions of 2017 and that “the Navy has been moving out on those recommendations to provide the kind of unit personnel training, to provide advice and resources to the type commanders, the fleet commanders, the Naval Systems Command, all with recommendations to improve [the] situation”).

        [15].      See, e.g., Navy Readiness—Underlying Problems Associated with the USS Fitzgerald and USS John S. McCain: Hearing Before the Subcomm. on Readiness & Subcomm. on Seapower and Projection Forces of the H. Comm. on Armed Servs., 115th Cong. 21 (2017) [hereinafter Joint Subcommittees 2017 Hearing]; Recent United States Navy Incidents at Sea: Hearing Before the S. Comm. on Armed Servs., 115th Cong. 6 (2017) [hereinafter SASC September 2017 Hearing]. During the Senate Armed Services Committee Hearing, Senator John McCain emphasized obligation during his opening remarks, when he noted “our sacred obligation to look after the young people who . . . serve in [our] military.” SASC September 2017 Hearing, supra, at 3.

        [16].      See, e.g., International Humanitarian Law and International Human Rights Law (Orna Ben-Naftali ed., 2011) (collecting essays on interaction between international humanitarian law and human rights law); Theoretical Boundaries of Armed Conflict and Human Rights (Jens David Ohlin ed., 2016) (same).

        [17].      See infra notes 205–07 and accompanying text (discussing limited scholarship on these questions); Saira Mohamed, Abuse by Authority: The Hidden Harm of Illegal Orders, 107 Iowa L. Rev. 2183, 2212–17 (2022) (discussing international law obligations of a state toward its own soldiers).

        [18].      See Feres v. United States, 340 U.S. 135, 146 (1950); infra Section II.A (discussing the Feres doctrine).

        [19].      See Charles Taylor, Modern Social Imaginaries 23–26 (2003) (explaining the idea of the “social imaginary,” on which the concepts of the legal imaginary and sociolegal imaginary draw, as “the ways people imagine their social existence, how they fit together with others, how things go on between them and their fellows, the expectations that are normally met, and the deeper normative notions and images that underlie these expectations”); see also Cornelius Castoriadis, The Imaginary Institution of Society 145 (Kathleen Blamey trans., 1987) (describing the social imaginary as that “which gives a specific orientation to every institutional system, . . . the source of that which presents itself in every instance as an indisputable and undisputed meaning, the basis for articulating what does matter and what does not”).

        [20].      See infra Section III.A.2.

        [21].      See Smith v. Ministry of Defence [2013] UKSC 41.

        [22].      James Sturcke, SAS Commander Quits in Snatch Land Rover Row, Guardian (Nov. 1, 2008, 5:17 AM), https://www.theguardian.com/uk/2008/nov/01/sas-commander-quits-afghanistan [https://
perma.cc/5926-2JJ8]; Comm. of Privy Couns., 11 The Report of the Iraq Inquiry 23–24 (2016) [hereinafter Chilcot Report].

        [23].      See infra Section II.B.

        [24].      See infra Section III.A.

        [25].      See, e.g., Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9); Armed Activities on the Territory of the Congo (Dem. Rep. of the Congo v. Uganda), Judgment, 2005 I.C.J. 168 (Dec. 19); Hum. Rts. Comm., General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, ¶¶ 64, 69–70, U.N. Doc. CCPR/C/GC/36 (Oct. 30, 2018) [hereinafter General Comment 36].

        [26].      See, e.g., Michael Newton & Larry May, Proportionality in International Law 121–54 (2014); Evan J. Criddle, Proportionality in Counterinsurgency: Reconciling Human Rights and Humanitarian Law, in Counterinsurgency law: New Directions in Asymmetric Warfare 24, 34 (William Banks ed., 2013).

        [27].      See Tom Dannenbaum, The Crime of Aggression, Humanity, and the Soldier 13 (2018); Mégret, supra note 11, at 1428, 1440–44; see also Eliav Lieblich, The Humanization of Jus ad Bellum: Prospects and Perils, 32 Eur. J. Int’l L. 579, 581 (2021).

        [28].      E.g., Update on Navy and Marine Corps Readiness in the Pacific in the Aftermath of Recent Mishaps, Hearing Before the Subcomm. on Seapower and Projection Forces & the Subcomm. on Readiness of the H. Comm. on Armed Serv., 116th Cong. 2 (2020) (statement of Hon. Robert J. Wittman, Ranking Member, Subcomm. on Seapower and Projection Forces) (describing “loss of life associated with Navy surface forces and Marine Corps aviation forces” as “preventable”); id. at 4 (statement of Hon. John Garamendi, Chair, Subcomm. on Readiness) (describing sailors and marines’ deaths in surface ship and aviation incidents as “preventable”); U.S. Gov’t Accountability Off., GAO-21-361, Military Vehicles: Army and Marine Corps Should Take Additional Actions to Mitigate and Prevent Training Accidents 26 (2021); see also U.S. Dep’t of the Navy, Report on the Collision Between USS Fitzgerald (DDG 62) and Motor Vessel ACX Crystal and Report on the Collision Between USS John S. McCain (DDG 56) and Motor Vessel ALNIC MC 20, 59 (2017), https://s3.document
cloud.org/documents/4165320/USS-Fitzgerald-and-USS-John-S-McCain-Collision.pdf [https://perma.
cc/5D5U-L52T] [hereinafter Navy Reports on Fitzgerald and McCain] (describing collisions as “avoidable”); Alex Horton & Gina Harkins, Military’s Effort to Reduce Deadly Vehicle Accidents Deemed Inadequate, Wash. Post (July 14, 2021, 4:55 PM), https://www.washingtonpost.com/national-
security/2021/07/14/military-rollover-deaths-gao-report [https://perma.cc/NWT9-9DWG] (discussing findings of a Government Accountability Office report on noncombat tactical vehicle accidents that the “military didn’t take sufficient action to reduce . . . grievous, preventable incidents” causing the deaths of more than 120 service members in a decade).

        [29].      See infra Part I.

        [30].      See 11 Chilcot Report, supra note 22, at 23–24.

        [31].      This Article focuses on the U.S. military, but these concerns are not unique to the United States. The Smith case of course deals with the United Kingdom’s involvement in Iraq, but the same concerns have been raised with respect to its military actions in Afghanistan, and the Italian government, too, has been accused of not adequately equipping its soldiers. Cecilia Åse, Monica Quirico & Maria Wendt, Gendered Grief: Mourners Politicisation of Military Death, in Gendering Military Sacrifice: A Feminist Comparative Analysis 145, 155 (Cecilia Åse & Maria Wendt eds., 2019). Similar questions could be raised regarding the lack of proper training and equipment of Israeli soldiers in the 2006 Lebanon War. See Press Release, PM Received the Final Winograd Report (Jan. 30, 2008), https://www.
gov.il/en/Departments/news/spokewinog300108 [https://perma.cc/S443-6R8C]; see also Anthony H. Cordesman with George Sullivan & William D. Sullivan, Ctr. for Strategic & Int’l Stud., Lessons of the 2006 Israeli-Hezbollah War 57–59, 92, 95–98 (2007).

        [32].      As of July 2021, these events appear in a total of five articles in Westlaw’s Law Reviews and Periodicals database, and in those five, their mention is limited to a few lines at most and is ancillary to arguments unrelated to government obligations to protect soldiers. See Michael C.M. Louis, Dixie Mission II: The Legality of a Proposed U.S. Military Observer Group to Taiwan, 22 Asian-Pac. L. & Pol’y J. 75, 112 (2021) (using the crashes as examples of the customary international law principle that “any foreign vessel in distress has a right of entry to any port”); Tod Duncan, Air & Liquid Systems Corporation v. DeVries: Barely Afloat, 97 Denv. L. Rev. 621, 638 (2020) (noting a brief, in discussion of the doctrine of “special solicitude” afforded to sailors, that mentions the collisions as evidence for the assertion that “today’s maritime work is precarious”); Justin (Gus) Hurwitz, Designing a Pattern, Darkly, 22 N.C. J.L. & Tech. 57, 79 (2020) (using the McCain’s touch-screen failures as “example[s] of the complexity and stakes of design decisions”); Arctic L. & Pol’y Inst., Arctic Law & Policy Year in Review: 2017, 8 Wash. J. Env’t. L. & Pol’y 106, 220 (2018) (listing collisions in section on marine casualties and noting that they and other collisions “provide new insight into the risks posed by vessel traffic in the Arctic”); Erich D. Grome, Spectres of the Sea: The United States Navy’s Autonomous Ghost Fleet, Its Capabilities and Impacts, and the Legal Ethical Issues That Surround, 49 J. Mar. L. & Com. 31, 43–44 (2018) (mentioning the McCain and Fitzgerald collisions to support an argument in favor of a “ghost fleet” that could avoid dangers posed to ships in the South China Sea region).

* Professor of Law, University of California, Berkeley, School of Law. For helpful comments and conversations, I am grateful to Nels Bangerter, Lori Damrosch, Laurel Fletcher, Monica Hakimi, Julian Jonker, Eliav Lieblich, Christina Parajon Skinner, David Zaring, and participants in the Columbia Law School International Criminal Law Colloquium and the Wharton Legal Studies and Business Ethics Faculty Seminar. I thank the editors of the Southern California Law Review for their contributions. Toni Mendicino, Jennifer Chung, Anthony Ghaly, Dara Gray, Diana Lee, and Jenni Martines provided invaluable research assistance.

Download

Colorblind Constitutional Torts

Much of the recent conversation regarding law and police accountability has focused on eliminating or limiting qualified immunity as a defense for officers facing § 1983 lawsuits for using excessive force. Developed during Reconstruction as a way to protect formerly enslaved persons from new forms of racial terror, 42 U.S.C. § 1983 allows private individuals to bring suit against police officers when their use of force goes beyond what the Constitution permits. Qualified immunity provides a way for law enforcement to evade civil suits if officers can show that they did not infringe any constitutional right or they did not violate a clearly established law—concepts that are highly deferential to police. Implicit in the contemporary emphasis on reforming qualified immunity is the idea that but for this concept, § 1983 litigation could effectively fulfill its longstanding goal of holding police officers accountable through civil liability when they beat, maim, or kill without legal justification.

Qualified immunity certainly raises important issues, and reform in this area of law is needed. But deeper problems plague § 1983 claims. In this Article, we examine a key structural deficiency tied to legal doctrine that has largely escaped critique: how the Supreme Court’s 1989 decision in Graham v. Connor radically transformed § 1983 causes of action. Prior to the Graham decision, federal courts used diverse mechanisms, notably Fourteenth Amendment substantive due process, to determine “what counts” as an appropriate use of force. The Graham decision changed this area of law by holding that all claims of police excessive force must be judged against a Fourth Amendment reasonableness standard. This transformation has led to much discussion about what Graham means for understanding which police practices concerning the use of force are constitutionally permissible. However, there has been little conversation about what Graham has specifically meant for federal courts’ conception of civil enforcement mechanisms such as § 1983 that are designed to provide monetary relief when these constitutional rights are violated. 

In this Article, we engage in the first empirical assessment of Graham’s impact on federal courts’ understanding and application of this statute. We find that the Graham decision was not only constitutionally transformative in terms of how federal courts understand the legal standard for “what counts” as excessive force, but also correlates with changes in how federal courts think about the overall scope, purpose, and nature of § 1983. Our data analysis of two hundred federal court decisions shows that the Graham decision effectively divorced § 1983 from its anti-subordinative race conscious history and intent, recasting it in individualist terms. This has led to a regime of what we call colorblind constitutional torts in that the Graham decision doctrinally filtered § 1983 use of force claims down a structural path of minimal police accountability by diminishing the central roles of race and racism when federal courts review § 1983 cases. These findings and theoretical framing suggest that the contemporary emphasis on qualified immunity in police reform conversations misunderstand and significantly underestimate the doctrinal and structural depth of the police accountability problem. This Article provides a novel and useful explanation for how and why police use of force persists and offers a roadmap for change and greater police accountability.

Introduction

It is not uncommon for diabetics suffering from hypoglycemia (low blood sugar) to have their symptoms of disorientation and loss of consciousness misunderstood as being under the influence of drugs and alcohol, which can lead to mistreatment by the police.[1] This is what happened to Dethorne Graham one fall afternoon in 1984. Graham and his friend were pulled over by a police officer who thought Graham was “behaving suspiciously” when he quickly entered and exited a local convenience store in search of orange juice to offset his medical condition. The officer called for backup and, within a few short minutes, Graham was handcuffed face down on the sidewalk. When his friend tried to explain to the officers that Graham was a diabetic, one officer replied, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the [motherfucker] but drunk. Lock the [son of a bitch] up.”[2] Another neighborhood friend familiar with Graham’s condition saw the incident and brought orange juice to the scene. Graham begged Officer Matos, saying, “Please give me the orange juice.” She responded: “I’m not giving you shit.”[3] Graham was roughed up by the officers and thrown in the back of a squad car. Eventually, the officers drove him home, threw him on the ground in front of his house, and sped away.

During the altercation, Graham “sustained a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder . . . [along with developing] a loud ringing in his right ear.”[4] Graham brought a federal civil rights suit under 42 U.S.C. § 1983 against the Charlotte, North Carolina, Police Department, alleging that the police violated constitutional rights granted to him under the Fourteenth Amendment. Before this case, plaintiffs sought remedies for excessive use of force by the police through different legal mechanisms, including substantive due process, equal protection, the Fourth Amendment, and even § 1983 as a stand-alone source for making claims.[5] While the district and circuit courts ruled in favor of the officers, the United States Supreme Court made a surprising decision. The Court held that all claims regarding the constitutionality of police use of force should be analyzed under the Fourth Amendment through a standard of “objective reasonableness.”[6] Graham v. Connor (“Graham”) marks an important, though often underappreciated, moment of doctrinal transformation. It synthesized previously divergent strands of use-of-force case law and established a new constitutional standard for all cases that involve claims of police using excessive force in the context of an arrest or investigatory stop.[7] Rather than framing police use of force as a matter concerning equal protection or substantive due process, the Graham decision effectively forced all conversations concerning excessive force to federal courts’ Fourth Amendment jurisprudence.

Over the past three decades, legal scholars and practitioners have debated the impact that Graham has had on limiting issues concerning the constitutionality of police use of force to a vague and nebulous standard of “objective reasonableness” in light of the broad deference that society and the courts give to law enforcement.[8] This deference and tendency to see almost all police actions as “reasonable” explains, at least in part, how even the most egregious police behavior often goes without penalty—a concern that is at the heart of the contemporary social movement against police violence. But, despite this almost exclusive preoccupation with what Graham has meant for constitutional law, there are other meaningful doctrinal concerns that deserve exploration. Put differently, what other aspects of use-of-force inquiries have been impacted by the shift in constitutional standards brought by Graham?

There are at least two main components to § 1983 litigation concerning police use of force: the enforcement action, which is a statutory mechanism, and the constitutional standard that is being enforced (Fourth Amendment reasonableness, per Graham). The existing scholarship only examines the influence of Graham in regard to how it changed federal courts’ understanding of the constitutional standard for “what counts” as excessive force. But what has Graham meant for how federal courts understand the scope, context, and meaning of civil rights—particularly statutory enforcement mechanisms such as § 1983?

In this Article, we engage in the first empirical assessment that examines Graham’s impact on how federal courts understand the nature and purpose of § 1983. This issue concerning Graham’s impact on § 1983 litigation beyond shaping the constitutional standard for excessive force is important for several reasons. The statute emerged during Reconstruction pursuant to Congress’s Fourteenth Amendment section 5 powers to provide civil remedies such as money damages to claimants when state officials violate constitutional rights while working in their official capacities.[9] Thus, understanding Graham’s impact should not be limited to discursive and doctrinal meditations on reasonableness, which is where the bulk of the discussion on this decision lies. It is also important to explore Graham’s impact on a civil rights statute designed to enforce constitutional rights in terms of how, if at all, the decision affected the way that federal courts read and interpret the history, meaning, and application of § 1983—legislation meant to give claims concerning police excessive force purpose and effect. Clearly, § 1983 as an enforcement mechanism has a close relationship with Fourth Amendment standards on reasonableness in the police use of force context. This Article is an attempt to go beyond existing scholarship on how the Graham decision reshaped the constitutional standard to also understand how it may have impacted the way that federal courts conceptualize the reach and intent of the civil statute meant to enforce these rights.

This research is critically important in light of contemporary social movements and proposed legal reforms responding to growing public awareness of police brutality in marginalized communities. Following the killing of George Floyd in Minneapolis and subsequent global protests against anti-Black violence, the conversation on how law can compel greater accountability with regards to police use of force has focused heavily on qualified immunity. Qualified immunity is a judicially created concept that emerged in the 1960s to allow government officials facing constitutional tort actions to avoid civil suits and the possibility of paying money damages when they can show that they did not violate any constitutional right or that the law they were accused of breaking was not clearly established. Qualified immunity morphed over subsequent decades to largely become a mechanism to shield police officers from enduring § 1983 lawsuits in virtually all but the most egregious instances of force.[10] Federal courts’ deferential posture towards police facing constitutional tort actions has turned qualified immunity into an exculpatory tool for law enforcement who use excessive force. As such, the post-Floyd emphasis on eliminating qualified immunity or restricting its use has become a popular public rallying point. For example, at the federal level, Representatives Justin Amash and Ayanna Pressley introduced the Ending Qualified Immunity Act in the House of Representatives in June 2020,[11] which was followed shortly by a similar bill in the Senate proposed by Senators Edward Markey, Elizabeth Warren, and Bernie Sanders.[12] Other efforts have been pursued to address the use of qualified immunity in state-level legislation. Since George Floyd’s murder in May 2020, “at least 25 states have taken up the issue and considered some form of qualified immunity reform, including Colorado, New Mexico, Connecticut and Massachusetts, which have passed legislation to end or restrict the defense.”[13] The idea behind these and other efforts at ending qualified immunity is that making police officers open to civil lawsuits for using excessive force will increase accountability and prevent officers from engaging in violence that violates constitutional rights.

Without question, qualified immunity presents unjust and unjustifiable barriers to holding police accountable. But there are deeper structural limitations placed on this type of litigation—namely, Graham’s reframing and reorientation of the entire constitutional tort endeavor. The impact of Graham deserves as much or even greater attention to the extent that the reframing of police use of force through Fourth Amendment logics has dislodged constitutional tort litigation from its foundational purpose: protecting the Black community from state violence. Yet, conversations regarding the Graham decision, its transformative impact on policing, and its role in undermining police accountability are largely absent from legal and public discussions regarding police reform. This Article uses empirical evidence to draw attention to this problem and argues for a different focus in efforts to reduce police violence.

To understand the structural limitations on police accountability beyond qualified immunity that were ushered in by the Graham decision, Part I of this Article begins with providing a brief history of § 1983 and explores the constitutional and statutory evolutions that constitute contemporary use-of-force jurisprudence. Part I also shows that legal scholars have mostly discussed the problem of police accountability for using excessive force in terms of qualified immunity. Part II examines the research literature on Graham and how existing scholarship is largely silent on how this doctrinal evolution came to limit constitutional tort actions. The impact of Graham has been discussed in legal scholarship with very little, if any, attention to what the decision to exclusively assess the constitutionality of police use of force through Fourth Amendment frameworks has meant for federal courts’ posture towards civil remedies offered by statute (§ 1983) and sought by plaintiffs. Part III describes our empirical study examining shifts in how federal courts decided § 1983 cases after Graham. We look at two periods: (a) from Monroe v. Pape in 1961 (which marks the beginning of the modern era of § 1983 litigation) through the Graham decision in 1989 and then (b) just after Graham from 1990 to 2016. Part IV discusses the results from our study. We find that there are important changes in how federal courts understand and approach § 1983 that correlate with the Graham decision. In particular, (1) references to § 1983’s descriptive titles—Ku Klux Klan Act, Enforcement Act, etc.—that reflect the racial history tied to this civil rights statute declined substantially after Graham; (2) consistent with Graham’s holding, judicial recognition of § 1983’s tight doctrinal relationship to the Fourteenth Amendment as a more race-conscious constitutional standard for excessive force claims largely ended, diminishing the potential of § 1983 civil remedies by linking them to Fourth Amendment standards of “reasonableness” that largely defer to the police; and (3) mentions of the race of plaintiffs and officers meaningfully decreased after the Graham decision. In Part V, we draw upon these empirical findings to develop a theory of colorblind constitutional torts that can at least partially explain these results as well as the persistence of police violence despite the availability of legal mechanisms designed to prevent and remedy such abuses. We then briefly conclude with a discussion of how these empirical findings and new theoretical framework can help federal courts reimagine constitutional torts in a manner that can produce greater police accountability.

The findings from our research show how the accountability problem regarding police use of force is not simply connected to individual “bad apples” in law enforcement shielded by misguided common law arguments about qualified immunity. More to the point, there are important doctrinal barriers that emerged after the Graham decision’s imposition of a Fourth Amendment framework that infused constitutional tort actions with colorblind sensibilities that undercut the entire historical project of § 1983. The empirical evidence, doctrinal reframing, and theoretical argument provided by this Article open up important new opportunities for change.

The data provided by this study raise important questions about Graham’s significance beyond matters concerning constitutional law. Graham has also had tremendous implications on how federal courts interpret and understand federal civil right statutes, particularly § 1983. By instilling a discourse of colorblindness into excessive-force litigation, Graham disrupts, if not completely undermines the connection between § 1983 and the distinct history of state-sponsored racial terror giving rise to it. By bringing colorblindness through the backdoor into judicial interpretations of this federal statutory remedy, Graham not only fundamentally contradicts the social, political, and historical forces that give meaning to § 1983, but it also frustrates § 1983’s ability to address contemporary abuses under the color of law, such as excessive force by law enforcement.

          [1].      The American Diabetes Association offers resources on how to engage with police officers. It notes that this is a particular concern for people with this medical condition, as “[l]aw enforcement officers [can fail] to identify hypoglycemia emergencies, mistaking them for intoxication or noncompliance. This can lead to the individual being seriously injured during the arrest, or even passing away because the need for medical care was not recognized in time.” Discrimination: Law Enforcement, Am. Diabetes Ass’n, https://www.diabetes.org/tools-support/know-your-rights/discrimination/rights-with-law-enforcement [https://perma.cc/RE3M-BXXR].

          [2].      Graham v. Connor, 490 U.S. 386, 389 (1989). The quoted language was originally censored by the Court in its opinion, but it appears uncensored here.

          [3].      Direct Examination of DeThorn Graham, Graham v. Connor, No. 87-6571 (W.D.N.C. Oct. 13, 1988).

          [4].      Graham, 490 U.S. at 390.

          [5].      See generally Osagie K. Obasogie & Zachary Newman, The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor, 112 Nw. U. L. Rev. 1465 (2018) (finding empirical support for that federal courts largely did not use the Fourth Amendment as a constitutional standard in § 1983 excessive-force cases prior to Graham.).

          [6].      Graham, 490 U.S. at 388.

          [7].      Graham notes that this Fourth Amendment analysis applies when the police intentionally engage in an arrest, investigatory stop, or seizure of a citizen. Instances after Graham where the police cause physical harm without this intent (such as with innocent passersby) may still be analyzed through other constitutional mechanisms. See County of Sacramento v. Lewis, 523 U.S. 833, 854 (1997). This Article only discusses excessive force that occurs in the context of an arrest or investigatory stop.

          [8].      For a discussion of how deference to law enforcement shapes the federal courts’ understanding of the constitutional boundaries of excessive force, see Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law, 104 Cornell L. Rev. 1281, 1322 (2019). For a broader assessment of the history of judicial deference to police, see Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2052 (2017).

          [9].      U.S. Const. amend. XIV, § 5 (“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”). As background,

On April 20, 1871, the Forty-Second Congress enacted the third Civil Rights Act known as the Ku Klux Klan Act. The primary purpose of the Act was to enforce the provisions of the Fourteenth Amendment. Section 1 of the Act added civil remedies to the criminal sanctions contained in the Civil Rights Act of 1866 for the deprivation of rights by an officer “under color of law.” Thus, Section 1 of the Ku Klux Klan Act was the precursor of the present day 42 U.S.C. § 1983. . . . On June 22, 1874, the statute became § 1979 of Title 24 of the Revised Statutes of the United States, and upon adoption of the United States Code on June 30, 1926, the statute became § 43 of Title 8 of the United States Code. In 1952 the statute was transferred to § 1983 of Title 42 of the United States Code, where it remains today.

Richard H.W. Maloy, “Under Color of”—What Does It Mean?, 56 Mercer L. Rev. 565, 574 (2005) (citations omitted). Charles Abernathy notes that

we have long recognized that the resurrection of § 1983 converted the fourteenth amendment from a shield into a sword by providing a civil action for vindication of constitutional rights and, to the extent that damages have gradually become the authorized remedy for § 1983 violations, we have easily come to think of such actions as constitutional torts—civil damage remedies for violations of constitutionally defined rights.

Charles Abernathy, Section 1983 and Constitutional Torts, 77 Geo. L.J. 1441, 1441 (1989) (citations omitted).

        [10].      See generally Osagie K. Obasogie & Anna Zaret, Plainly Incompetent: How Qualified Immunity Became an Exculpatory Doctrine of Police Excessive Force, 170 U. Pa. L. Rev. 407 (2022).

        [11].      H.R. 7085, 116th Cong. (2020).

        [12].      S. 492, 117th Cong. (2021).

        [13].      Emma Tucker, States Tackling ‘Qualified Immunity’ for Police as Congress Squabbles over the Issue, CNN (Apr. 23, 2021), https://www.cnn.com/2021/04/23/politics/qualified-immunity-police-reform/index.html [https://perma.cc/G8HF-WD6H].

* Haas Distinguished Chair and Professor of Law, University of California, Berkeley School of Law (joint appointment with the Joint Medical Program and School of Public Health). B.A. Yale University; J.D. Columbia Law School; Ph.D. University of California, Berkeley. Many thanks to Richard Banks, Laura Gómez, Sonia Katyal, and Gerald López for reviewing early drafts. Comments from participants at the Stanford Law School Race and Law Workshop and UCLA Critical Race Theory Seminar and Workshop were extremely helpful. Sara Jaramillo provided excellent research assistance. 

†Senior Attorney, Legal Aid Association of California. B.A. University of California, Santa Cruz; J.D. University of California, Hastings College of the Law.

Who’s on the Hook for Digital Piracy? Analysis of Proposed Changes to the Digital Millennium Copyright Act and Secondary Copyright Infringement Claims

FBI Anti-Piracy Warning: The unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by the FBI and is punishable by up to five years in federal prison and a fine of $250,000.[1]

Chances are that many Americans have seen the warning above at some point in their lives, whether they saw the words stamped on the back of a music album sleeve or displayed on a screen before viewing a film.[2] Still, despite the threat of severe liability, chances are that many of these individuals will nevertheless engage in illegal pirating activity.[3]

Prior to the rise of the internet, individuals who made illegal copies of copyright-protected works like movies and music recordings were necessarily limited by the technology available to make such copies.[4] Magnetic audio and videotape cassettes allowed individuals to record songs played on the radio or movies and television shows to create “bootleg” versions by crude processes which, by nature, hindered one’s ability to reproduce multiple copies of similar quality to the original work.[5] However, as technology progressed, the opportunities to create illegal copies of copyrighted works, specifically within the newly emerging digital landscape, expanded with ease, and digital piracy grew more and more rampant.[6] The development of compact discs (“CDs”) and MP3 compression software provided easier avenues to create impermissible copies of digital media, and access to high-speed internet coupled with the rise of peer-to-peer sharing systems streamlined opportunities for fast and simple illegal downloading.[7] Today, in the current landscape of internet ubiquity, digital piracy has become an all but inevitable obstacle that every copyright owner, be it a large established entity such as a record label or a small independent content creator, has come to anticipate.[8]

The issue of digital piracy has not gone unaddressed by Congress, as evidenced by the promulgation of the Digital Millennium Copyright Act (“DMCA”) in 1998.[9] One goal of the DMCA was to address the growing rates of digital piracy in the 1990s by providing copyright owners additional causes of action against copyright infringers, particularly infringers that impermissibly circumvented technological tools used by rights-owners to protect their works.[10] However, the drafters of the DMCA were also careful to remain consistent with the main underpinnings of copyright law, which are to maintain a balance between protecting copyright owners’ works and facilitate the constitutional charge to “promote the Progress of Science and useful Arts.”[11] Within the context of the emerging digital age, Congress applied this balance by seeking to (1) instill confidence in rightsholders that copyright protections would remain effective in a digital landscape and (2) provide assurances to new, growing online service providers (“OSPs”) that their unprecedented business models would not be decimated by imputing liability to the providers for the infringing conduct of their users.[12] Thus, Title I of the DMCA laid out “anti-circumvention provisions” that prohibit circumvention of technological measures, such as password keys and encryption codes, used to protect copyrighted works.[13] Title II of the DMCA mitigated liability for internet service providers (“ISPs”)[14] by granting “safe harbor” protections to ISPs that comply with statutory requirements—these safe harbors largely aimed to incentivize ISPs to promptly respond to reports of infringing content.[15]

Since its enactment, the DMCA has received criticism that its measures are outdated and ill-equipped to address the ongoing digital piracy problems that continue today.[16] The internet is undoubtedly a different landscape from what it was at the time the DMCA was promulgated more than two decades ago.[17] With current considerations to amend the DMCA in light of the areas of growth that were unimagined at the time the DMCA was written,[18] coupled with recent litigation seeking to hold ISPs secondarily liable for infringing conduct of their subscribers,[19] the path to reducing digital piracy is still paved with uncertainty.

Following a discussion of ongoing proposed changes to the DMCA and developing litigation concerning the potential for vicarious liability claims against ISPs, this Note will ultimately argue that the current DMCA safe harbor provisions require updated eligibility requirements for ISPs, but the availability of vicarious liability claims against “mere conduit” ISPs overreaches the scope of protection afforded to copyright owners. Part I will provide a brief history of the DMCA, including a discussion of the safe harbor provisions and the requirements therein. Part II will incorporate current discussions regarding the need for DMCA reform, address the competing policies at play, and note potential areas of reform. Part III will discuss the origins of secondary copyright infringement liability caselaw, including recent cases that have considered extending vicarious liability claims to ISPs that act as “mere conduits” to provide internet to their users. Part IV will propose clarifications in the DMCA safe harbor protection most needed in the current digital landscape while arguing that ISPs must still be properly insulated from open floodgates of liability. This Note will conclude that the DMCA should be revised to alleviate rightsholders’ burden of monitoring incidents of copyright infringement, but the DMCA should still insulate “mere conduit” ISPs from vicarious liability claims.

          [1].      FBI Anti-Piracy Warning Seal, Fed. Bureau of Investigation, https://www.fbi.
gov/investigate/white-collar-crime/piracy-ip-theft/fbi-anti-piracy-warning-seal [https://perma.cc/6HEN-PT3G].

          [2].      See id. All U.S. copyright holders are authorized by 41 C.F.R. § 128-1.5009 to use the FBI’s Anti-Piracy Warning (“APW”) Seal, the purpose of which is to deter infringement of U.S. intellectual property laws by educating the public of these laws’ existence and notifying citizens of the FBI’s authority to enforce these laws. Id.

          [3].      Maria Petrescu, John T. Gironda & Pradeep K. Korgaonkar, Online Piracy in the Context of Routine Activities and Subjective Norms, 34 J. Mktg. Mgmt. 314, 324–25 (2018). Studies have shown that although some consumers may view digital piracy as an infringement of another’s intellectual property rights, this did not impact their moral perceptions of the act of infringement. Id. Digital piracy may be regarded as a “soft crime,” as one study noted that consumers who state they would not steal a CD from a store would still consider illegally downloading the contents of the CD online, due to a lowered risk of getting caught. Id. at 325.

          [4].      Thomas J. Holt & Steven Caldwell Brown, Contextualising Digital Privacy, in Digital Piracy: A Global, Multidisciplinary Account 3, 4 (Steven Caldwell Brown & Thomas J. Holt eds., 2018).

          [5].      See id.

          [6].      See id.

          [7].      See id.

          [8].      See id. The authors note that “it is thought that millions of people engage in digital piracy every day. The true scope of piracy is, however, difficult to document as clear statistics are difficult to obtain.” Id. at 5. One report by Music Watch estimated 57 million Americans pirated digital copies of music in 2016; another report by Nera estimated the revenue loss for the global movie industry to be between $40 billion and $97.1 billion per year. Damjan Jugović Spajić, Piracy Statistics for 2021, DataProt (March 19, 2021), https://dataprot.net/statistics/piracy-statistics/ [https://perma.cc/5CMV-BH8N%5D.

          [9].      Digital Millennium Copyright Act of 1998, 17 U.S.C. §§ 512, 1201–02.

        [10].      See Holt & Caldwell Brown, supra note 4, at 189; Cyberlaw: Intellectual Property in the Digital Millennium § 1.02, Lexis [hereinafter Cyberlaw § 1.02] (database updated Oct. 2020).

        [11].      U.S. Const. art. I, § 8, cl. 8.

        [12].      See Bill D. Herman, The Fight Over Digital Rights: The Politics of Copyright and Technology 45, 48–49 (2013).

        [13].      Cyberlaw § 1.02, supra note 10.

        [14].      For the purposes of this Note, the term “ISP” will refer to service providers that merely provide internet access to their subscribers (for example, Charter Spectrum, AT&T, and Frontier). The term “OSP” will refer to all other online service providers that provide services such as user material hosting or system caching (for example, YouTube, Facebook, and Google).

        [15].      Cyberlaw § 1.02, supra note 10.

        [16].      See U.S. Copyright Off., Section 512 of Title 17: A Report of the Register of Copyrights 27–28 (2020) [hereinafter Report of the Register of Copyrights], https://
http://www.copyright.gov/policy/section512/section-512-full-report.pdf [https://perma.cc/R8Z9-JQME].

        [17].      See id.

        [18].      See id. at 10.

        [19].      Compare UMG Recordings, Inc. v. Bright House Networks, LLC, No. 8:19-CV-710, 2020 U.S. Dist. LEXIS 122774, at *5 (M.D. Fla. July 8, 2020) (declining to hold defendant ISP vicariously liable for user infringement because ISPs do not receive a direct financial benefit from ongoing infringement), with Warner Recs. Inc. v. Charter Commc’ns, Inc., 454 F. Supp. 3d 1069, 1079 (D. Colo. Oct. 21, 2019) (holding that defendant ISP may be vicariously liable for infringement because the ISP plausibly receives a financial benefit from infringing users “motivated” to use the ISP’s service due to the ISP’s lax approach to curbing infringement).

Download

The Agency Problem in SPACs: A Legal Analysis of SPAC IPO Investor Protections

The events that occurred in 2020 drastically altered the world’s financial markets,[1] contributing to an increase in Initial Public Offerings (“IPOs”) of Special Purpose Acquisition Companies (“SPACs”).[2] In particular, 2020 was a year marked by numerous records within the SPAC market, including the highest number of SPAC IPOs (248), the highest amount of proceeds raised in SPAC IPOs ($83.3 billion), the highest average SPAC IPO size ($336.2 million),[3] and the largest SPAC IPO ever ($4 billion).[4] SPAC IPO activity continued at a record pace during the first quarter of 2021, as $111.9 billion was raised through 317 SPAC IPOs, which surpassed the annual records set in 2020 in a single quarter.[5] SPAC proponents argued that SPACs provided disruptive private companies with a viable route to access capital via the public markets.[6] Furthermore, and central to this Note, SPACs caught the attention of potential investors,[7] potential SPAC sponsors,[8] and the Securities and Exchange Commission (“SEC”).[9] SPACs have become subject to an increasing amount of regulatory scrutiny and litigation risk.[10] After two years of record-breaking activity in the SPAC market, the future of the SPAC’s role in the capital markets is clouded with uncertainty.[11]

A SPAC is a publicly-held shell company created to merge with a private company and bring the private company public.[12] A shell company is a development stage company that has no physical assets (other than cash and cash equivalents) and either has no business plan or its business plan is to merge or acquire another company or entity.[13] The “merger” between the shell company and private company is commonly known as a “de-SPAC transaction,”[14] and this Note uses the terms interchangeably. First, the SPAC sponsor (“sponsor”),[15] the financiers and managers running the SPAC deal, raise a war chest of capital with the intention of pursuing a de-SPAC transaction in a process similar to the typical IPO process.[16] The sponsor has a set time limit, typically two years (the “outside date”), to find a target company, negotiate a merger or purchase agreement, and take the company public through the de-SPAC transaction or the SPAC liquidates and returns its IPO proceeds to its investors.[17] During this process, the investment proceeds raised in connection with the IPO are held in a trust account.[18] Once the target company is identified, the de-SPAC transaction is subject to shareholder approval.[19] Even if the transaction is approved, SPAC IPO investors are able to opt out of the transaction by redeeming their shares at the time of the merger, receiving a pro rata share of the trust account (plus interest).[20] At the time of the SPAC IPO, potential SPAC IPO investors do not know which company the sponsor plans to merge the SPAC with, only finding out when the potential target company is proposed to them.[21] In light of the speculative nature of investments in SPAC IPOs emerges a nuanced question of whether or not potential SPAC IPO investors are provided with sufficient disclosure at the time of the SPAC IPO.[22] Secondly, SPAC commentators have argued that the SPAC’s compensation structure can incentivize sponsors to pursue a “losing” de-SPAC transaction at the expense of some investors.[23] This Note addresses these two key concerns potential SPAC IPO investors are faced with.

The first concern that potential SPAC investors are faced with is whether they are provided with sufficient disclosure at the time of the SPAC IPO and until the target company is announced. The primary purpose of federal securities law is to ensure that investors are provided with enough information to sufficiently evaluate the merits of investment opportunities themselves.[24] If the sponsor does not provide sufficient disclosure at the time of the SPAC IPO, potential SPAC IPO investors will be forced to make a misinformed decision about whether to invest in the SPAC.[25] This Note concludes that the current regulations and applicable exchange rules demand sufficient disclosure at the time of the SPAC IPO and before the de-SPAC transaction is announced. Going forward, the SEC should ensure that investors are provided with adequate disclosure when the target company is proposed and at the time of the de-SPAC transaction.

The second concern for potential SPAC IPO investors, and the focus of this Note, is whether the regulations governing SPACs and SPAC terms provide adequate protection against the partial misalignment of incentives between the sponsor and SPAC IPO investors that stem from the SPAC’s compensation structure.[26] The sponsor is either compensated with a twenty percent stake in the target company post-merger if the sponsor completes a de-SPAC transaction or is left uncompensated if the sponsor fails to complete a deal before the outside date.[27] SPAC IPO investors want the sponsor to complete a de-SPAC transaction that will increase the value of their shares post-merger.[28] The sponsor largely shares the same goal. A successful transaction is more profitable for the sponsor and can lead to future fundraising opportunities.[29] However, if the outside date is approaching and the sponsor has yet to complete a merger, the sponsor can be incentivized to complete a de-SPAC transaction that may be value-destroying to SPAC IPO investors,[30] creating an agency problem.[31] Sponsor compensation is not substantially tied to SPAC IPO investor compensation.[32] While the sponsor would prefer a merger in which the SPAC shareholders do well, as the outside date approaches, the sponsor will favor a merger that is bad for shareholders rather than no merger at all.[33] SPAC incentives could be better aligned if the SPAC’s compensation structure closely tied sponsor compensation to SPAC IPO investor compensation.

This Note concludes that while redemption rights largely protect SPAC IPO investors against the partial misalignment of incentives created by the SPAC’s compensation structure,[34] SPAC warrants can incentivize some SPAC IPO investors to exercise their redemption rights in self-serving ways at odds with the SPAC’s ultimate goal of completing a successful de-SPAC transaction.[35] A warrant is a contract to purchase additional shares of common stock at a later time for a pre-determined price.[36] The warrants incentivize investors to invest in the SPAC IPO by providing additional compensation to investors if the target company performs well post-merger.[37] However, the warrants do not encourage SPAC IPO investors to hold onto their shares after the IPO.[38] Rather, the warrants can incentive SPAC IPO investors to redeem their shares even if they believe the target company will be successful post-merger. By redeeming their shares, these investors guarantee that they receive their initial investment back (plus interest), while retaining the potential upside the warrants provide.[39] By acting on these incentives, redeeming SPAC IPO investors harm non-redeeming SPAC IPO investors and pose a threat to the SPAC’s long-term viability as an investment vehicle. The inefficiencies prevalent in SPACs today could be mitigated if there were an incentive for SPAC IPO investors to not redeem their shares outside the protective purpose that redemption rights serve.

This Note utilizes a case study of Pershing Square Tontine Holdings, Ltd. (“Pershing Square Tontine”), the largest SPAC IPO to date,[40] to analyze its claims. In March 2021, Pershing Square Tontine had just issued its SPAC IPO, and the SPAC was being praised by commentators for its “shareholder-friendly terms” and “strong alignment” of incentives.[41] Pershing Square Tontine made a bold attempt to align sponsor and SPAC IPO investor incentives with its compensation structure and warrant structure, which significantly departed from common SPAC terms at the time.[42] Pershing Square Tontine’s shares performed exceptionally well in the months following its SPAC IPO,[43] indicating that the market valued its innovative structure.[44] Unfortunately, Pershing Square Tontine proposed an excessively complex transaction that abandoned any resemblance to a typical de-SPAC transaction to acquire a ten percent stake in Universal Music Group (“UMG”).[45] Shortly after, Pershing Square Tontine issued a letter to its shareholders canceling the transaction, noting issues raised by the SEC and investors.[46] After the failed transaction, Pershing Square Tontine faced multiple challenges that will only be touched upon briefly in this Note.[47] In July 2022, after failing to complete a merger before its outside date, Pershing Square Tontine announced that it would liquidate and return all of its capital to its investors.[48] Pershing Square Tontine will be viewed as a failure. Nonetheless, commentators still view Pershing Square Tontine’s original terms as some of the most investor-friendly SPAC terms ever introduced,[49] noting that the sponsor’s “determination to innovate and reform SPACs” was “admirable.”[50] The entire SPAC market was left to wonder what would have happened had Pershing Square Tontine succeeded in completing a de-SPAC transaction.[51]

Since January 2021, the overall sentiment of the SPAC market has steadily declined due to SPAC’s “lackluster aftermarket performance,”[52] SPAC litigation threats, and increasing regulatory scrutiny within the SPAC market.[53] While we will likely never see the SPAC deal volume of 2020 to 2021 again, the flexibility of the SPAC’s structure may enable future SPACs to “carve out specific niches” within the capital markets.[54] But doing so would require addressing the inefficiencies that were prevalent in the SPACs of 2020–2021. An analysis of Pershing Square Tontine’s original terms provides a starting point for this discussion. Future SPACs should consider replicating some of Pershing Square Tontine’s original terms to mitigate the agency problem common in SPACs.

On March 30, 2022, the SEC proposed a sweeping new set of highly criticized rules regarding SPAC IPOs and de-SPAC transactions.[55] SEC Commissioner, Hester Peirce, opposed the proposed rules, stating in a hearing that they “seem designed to stop SPACs in their tracks.”[56] The proposed rules will likely face extensive comments and the final rules will “attract close scrutiny and potential legal challenges.”[57] Given that the scope and effect of the regulation is yet to be determined, this Note narrows its analysis to the SPACs and applicable regulation of 2020–2021 before the SEC proposed new rules. The focus on the SPAC market of 2020–2021 sheds light on an unprecedented time within the capital markets. The analysis that follows will be relevant regardless of how SPAC regulation evolves and its corresponding effects within the SPAC market. If the regulation is reasonable, the proposals set forth in this Note will serve as recommendations for future SPAC sponsors to adopt, as originally intended. Similarly, if certain proposed rules are adopted, commentators argue that there will be unintended consequences that will magnify the current SPAC criticisms addressed in this Note.[58] Alternatively, in a world in which excessive regulation kills the SPAC market, these proposals will serve as an alternative solution to addressing SPAC criticisms.

Part I sets out the offsetting costs and benefits faced by SPAC IPO investors and sponsors that form the core of the SPAC’s agency problem. Part II describes the typical SPAC transaction in detail, elaborating on the mechanisms that drive this partial misalignment of incentives. Part III compares a SPAC IPO to a traditional IPO, analyzes the advantages and recent popularity SPACs have had within the capital markets, and describes the incentives that underlie the SPAC IPO process. Part IV explores the fraudulent history of shell company offerings, providing a rationale for investors and regulators to be wary of SPACs. Part IV then depicts how Rule 419 and other securities laws and regulations helped mitigate concerns posed by shell company offerings, ultimately leading to the creation of the SPAC.[59] While regulation was necessary for shell company offerings, SPACs provide many of their protections through contractual obligations, thus the looming threat of excessive regulation will likely lead to the demise of this valuable alternative to a traditional IPO. Part V describes the SPAC boom (or bubble) of 2020 to 2021 and the original terms of Pershing Square Tontine. Part VI addresses the first concern posed to SPAC IPO investors, utilizing Pershing Square Tontine’s SEC filings to argue that there is sufficient disclosure at the time of the SPAC IPO. Part VII observes how SPAC sponsor compensation has resulted in a partial misalignment of incentives in the SPAC form and the effect that investor voting rights and redemption rights have had on balancing these incentives. In light of these findings, this Note proposes modifications to common SPAC terms. Future SPACs should consider adopting some of the novel terms Pershing Square Tontine introduced in an attempt to better align sponsor and SPAC IPO investor interests.

          [1].      See infra notes 158–59 and accompanying text.

          [2].      See infra notes 160, 168–72 and accompanying text.

          [3].      SPAC Statistics, SPACInsider, http://spacinsider.com/stats [http://perma.cc/M8X7-AQZW].

          [4].      Christopher Anthony & Steven J. Slutzky, Bill Ackman and Pershing Square Launch
Largest SPAC To Date: A Harbinger of Things to Come?, Debevoise & Plimpton (July
24, 2020), http://www.debevoise.com/insights/publications/2020/07/bill-ackman-and-pershing-square-launch-largest [http://perma.cc/D8QJ-E5K4].

          [5].      PitchBook, Uncertainty Clouds Future for SPACs: SPAC Market Update Q3 2021, at 2 (2021) [hereinafter Uncertainty Clouds Future for SPACs].

          [6].      E.g., Steven Davidoff Solomon, In Defense of SPACs, N.Y. Times: Deal Book (June 12, 2021), http://www.nytimes.com/2021/06/12/business/dealbook/SPACs-defense.html [http://perma.cc/
KS79-8E7P].

          [7].      Alexander Osipovich & Dave Michaels, Investors Flock to SPACs, Where Risks Lurk and Track Records Are Poor, Wall St. J. (Nov. 13, 2020), http://www.wsj.com/articles/investors-flock-to-spacs-where-risks-lurk-and-track-records-are-poor-11605263402 [http://perma.cc/UGP2-2ECD].

          [8].      Seasoned investment professionals, industry executives, and celebrities are sponsoring SPACs. Brian DeChesare, The Great SPAC Scam: Why SPACs Are a Great Deal for Celebrity Sponsors, But Not Companies or Normal Investors, Mergers & Inquistions, http://www.mergersandinquisitions.com/
great-spac-scam [http://perma.cc/6PAP-Q59T] (noting that “Shaquille O’Neal, Gary Cohn, Bill Ackman, [and] Paul Ryan” all have sponsored SPACs).

          [9].      In September 2020, given the frenzy SPACs were causing in the capital markets, SEC Chairman Jay Clayton stated that the SEC would be taking a closer look at SPAC disclosures. Dave Michaels & Alexander Osipovich, Blank-Check Firms Offering IPO Alternative Are Under Regulatory Scrutiny, Wall St. J. (Sept. 24, 2020), http://www.wsj.com/articles/blank-check-firms-offering-ipo-alternative-are-under-regulatory-scrutiny-11600979237 [http://perma.cc/8XUE-KXTD].

        [10].      See infra notes 359–61, 432, 479 and accompanying text.

        [11].      Uncertainty Clouds Future for SPACs, supra note 5, at 6; The Daily Upside, Things Have Gone from Bad to Worse for SPACs to Round Out the Year, Motley Fool (Dec. 12, 2022, 7:00 PM), http://www.fool.com/investing/2021/12/12/things-have-gone-from-bad-to-worse-for-spacs-to-ro [http://perma.cc/3AK2-MPT4].

        [12].      Michael Klausner, Michael Ohlrogge & Emily Ruan, A Sober Look at SPACs, 39 Yale J. on Regul. 228, 235 (2022); Ramey Layne, Brenda Lenahan & Sarah Morgan, Update on Special Purpose Acquisition Companies, Harv. L. Sch. F. on Corp. Governance (Aug. 17, 2020), http://corpgov.
law.harvard.edu/2020/08/17/update-on-special-purpose-acquisition-companies [http://perma.cc/KTM9-Q3NX].

        [13].      Ramey Layne & Brenda Lenahan, Special Purpose Acquisition Companies: An Introduction, Harv. L. Sch. F. on Corp. Governance (July 6, 2018), http://corpgov.law.harvard.edu/2018/07/06/
special-purpose-acquisition-companies-an-introduction [http://perma.cc/Q8KQ-TN8Q].

        [14].      Layne et al., supra note 12. While the “A” in “SPAC” stands for acquisition, a SPAC typically merges with the target in a process similar to a reverse merger. Klausner et al., supra note 12, at 240.

        [15].      This Note considers the term “sponsor” to apply broadly. While technically, a sponsor is usually a person or an entity, see infra note 91, this Note considers “sponsor” to apply to all affiliates of that person or entity involved in the transaction, such as the investment team. This approach follows other financial literature. E.g., Milan Lakicevic & Milos Vulanovic, A Story on SPACs, 39 Managerial Fin. 384, 389 (2013).

        [16].      Layne & Lenahan, supra note 13.

        [17].      Id.

        [18].      See infra notes 106–08 and accompanying text.

        [19].      Lakicevic & Vulanovic, supra note 15, at 8–9.

        [20].      Id. at 20 (“SPAC common shareholders can redeem their shares at pro rata value . . . .”).

        [21].      Michelle Earley & Rob Evans, Special Purpose Acquisition Companies, LexisNexis
(database updated Oct. 25, 2021).

        [22].      See Russell Invs., Watching the Equity SPAC-Tacle, Seeking Alpha (Sept. 24, 2020, 8:59 PM), http://seekingalpha.com/article/4376232-watching-equity-spac-tacle [http://perma.cc/4RWD-6JLD] (“[A]re SPACs a good investment? Maybe.”).

        [23].      Klausner et al., supra note 12, at 296; James Talevich, Investors Must Understand SPACs’ Time Constraints, Wall St. J. (Jan. 19, 2021, 3:26 PM), https://www.wsj.com/articles/investors-must-understand-spacs-time-constraints-11611087968 [http://perma.cc/55AU-XCE7].

        [24].      Thomas Lee Hazen, The Law of Securities Regulation 126 (7th ed. 2016) (“[T]he primary purpose of 1933 Act registration statements is to provide full and adequate information regarding the distribution of securities . . . .”).

        [25].      See infra Section IV.A; see infra note 313 and accompanying text.

        [26].      See infra Part I.

        [27].      Andrew R. Brownstein, Andrew J. Nussbaum & Igor Kirman, The Resurgence of SPACs: Observations and Considerations, Harv. L. Sch. F. on Corp. Governance (Aug. 22, 2020), http://
corpgov.law.harvard.edu/2020/08/22/the-resurgence-of-spacs-observations-and-considerations [http://
perma.cc/F3SW-HXRV].

        [28].      Lakicevic & Vulanovic, supra note 15, at 22; see infra text accompanying note 96.

        [29].      See infra notes 379–81 and accompanying text.

        [30].      Press Release, William A. Ackman, Pershing Square Tontine Holdings, Ltd. Releases Letter to Shareholders (Aug. 19, 2021), https://pstontine.com/wp-content/uploads/2021/08/8.19.2021-Press-Release-PSTH-Letter-to-Shareholders.pdf [https://perma.cc/3TVM-2XSM] (“In a de-SPAC merger transaction, time pressure on the sponsor is the enemy of a good deal for shareholders.”).

        [31].      See infra notes 76–79 and accompanying text.

        [32].      See infra notes 74, 383–84 and accompanying text.

        [33].      Klausner et al., supra note 12, at 247; Layne & Lenahan, supra note 13.

        [34].      See infra Sections VII.C.1, VII.D.

        [35].      See infra Sections VII.C.2–3, VII.D.

        [36].      SPAC Warrants: 5 Tips to Avoid Missed Opportunities, FINRA (Aug. 30, 2021), http://www.finra.org/investors/insights/spac-warrants-5-tips [http://perma.cc/AR9N-GXY7]; Chizoba Morah, How Do Stock Warrants Differ from Stock Options?, Investopedia (May 3, 2021), http://
http://www.investopedia.com/ask/answers/08/stock-option-warrant.asp [http://perma.cc/KSM3-LUB9].

        [37].      Special Purpose Acquisition Company (SPAC), supra note 102 (“The purpose of the warrant is to provide investors with additional compensation for investing in the SPAC.”).

        [38].      Klausner et al., supra note 12, at 246, 248–49.

        [39].      SPAC Warrants: 5 Tips to Avoid Missed Opportunities, supra note 36.

        [40].      Nicholas Jasinski, Bill Ackman’s Pershing Square Files for Largest-Ever SPAC IPO, Barron’s (June 22, 2020, 4:30 PM), http://www.barrons.com/articles/bill-ackmans-pershing-square-files-for-largest-ever-spac-ipo-51592857837 [http://perma.cc/WT73-5DUX].

        [41].      Michael W. Byrne, Pershing Square’s Supersized SPAC Looks Well-Positioned to Deliver a Splash Acquisition, Seeking Alpha (Aug. 10, 2020, 3:50 PM), http://seekingalpha.com/article/4367199-pershing-squares-supersized-spac-looks-well-positioned-to-deliver-splash-acquisition [http://perma.cc/
ZJ8A-WK3N].

        [42].      See infra Sections V.B.3, VII.E.

        [43].      Pershing Square Tontine Holdings, Ltd. (PSTH): Historical Data, Yahoo! Fin., http://finance.yahoo.com/quote/PSTH/history?p=PSTH [http://perma.cc/YC3K-Z36M].

        [44].      Will Ashworth, Play Bill Ackman’s SPAC Without the Inherent Frothiness, InvestorPlace (Jan. 22, 2021, 12:37 PM), http://investorplace.com/2021/01/psth-stock-play-bill-ackmans-spac-without-frothiness [http://perma.cc/ZEQ5-CBU9]; Byrne, supra note 41.

        [45].      Stephen Wilmot, Ackman’s SPAC Deal to End All SPACs, Wall St. J. (June 4, 2021, 11:04 AM), https://www.wsj.com/articles/ackmans-spac-deal-to-end-all-spacs-11622818252?reflink=desktop
webshare_permalink [http://perma.cc/Z88G-QZJY].

        [46].      Press Release, William A. Ackman, Pershing Square Tontine Holdings, Ltd. Releases Letter to Shareholders (July 19, 2021), https://pstontine.com/wp-content/uploads/2021/07/Letter-to-Share
holders-from-PSTH-CEO-Bill-Ackman.pdf [https://perma.cc/42MM-3PZW].

        [47].      Will Ashworth, 4 Better Buys than Bill Ackman’s Failed Pershing Square SPAC, Nasdaq (Nov. 11, 2021, 6:00 AM), http://www.nasdaq.com/articles/4-better-buys-than-bill-ackmans-failed-pershing-square-spac-2021-11-11 [https://perma.cc/A6LG-KWNS] (“It now looks as though Ackman will wind up PSTH, [and] return the funds to investors . . . .”); Ian Bezek, It’s the Final Chapter for Pershing Square Tontine, InvestorPlace (Sept. 10, 2021, 6:00 AM), http://investorplace.com
/2021/09/psth-stock-its-the-final-chapter-for-pershing-square-tontine [http://perma.cc/Q38U-FQWW] (“PSTH stock represents little more than a low-interest bond at this point”).

        [48].      Julie Steinberg, Ackman to Close $4 Billion SPAC, Wall St. J. (July 12, 2022), https://www.wsj.com/articles/bill-ackman-to-close-4-billion-spac-11657629142?page=1 [https://perma.
cc/PG6U-DN55]; Marlena Haddad, Pershing Square Tontine Holdings (PSTH) to Liquidate Trust, SPACInsider (July 11, 2022), https://spacinsider.com/2022/07/11/pershing-square-tontine-holdings-to-liquidate-trust [https://perma.cc/2KWT-HKNX].

        [49].      E.g., Kristi Marvin, Pershing Square Tontine Faces Suit on Abandoned UMG Deal, SPACInsider (Aug. 19, 2021), http://spacinsider.com/2021/08/19/pershing-square-tontine-faces-suit-on-abandoned-meal [http://perma.cc/W6R7-APZB].

        [50].      Chris Bryant, Bill Ackman Was Too Clever for His Own Good, Bloomberg (July 19, 2021, 3:09 AM), http://www.bloomberg.com/opinion/articles/2021-07-19/-psth-pulls-universal-music-deal-bill-ackman-was-too-clever-for-his-own-good [http://perma.cc/3FZ9-KLMR].

        [51].      Matthew Frankel, Should Investors Stick with Pershing Square Tontine Holdings?, Motley Fool (Aug. 4, 2021, 6:22 AM), http://www.fool.com/investing/2021/08/04/should-investors-stick-with-pershing-square-tontin [http://perma.cc/YGK4-L33A] (“I’m disappointed . . . . The whole point of a SPAC is to acquire a full business. To have a business combination.”); Michelle Celarier, Bill Ackman’s Pershing Square Just Had a $1.6 Billion Payday, Institutional Inv. (Sept. 21, 2021), http://www.institutionalinvestor.com/article/b1tpd3k78fxvrb/Bill-Ackman-s-Pershing-Square-Just-Had-a-1-6-Billion-Payday [http://perma.cc/HA5C-954P] (noting the success of the sponsor’s hedge fund that completed the UMG deal).

        [52].      Uncertainty Clouds Future for SPACs, supra note 5, at 1.

        [53].      Matthew Solum & Gianni Mascioli, Legal Scrutiny for SPACs on the Rise, Kirkland & Ellis (Apr. 29, 2021), http://www.kirkland.com/publications/article/2021/04/legal-scrutiny-for-spacs [http://
perma.cc/JH6V-DYCE].

        [54].      Uncertainty Clouds Future for SPACs, supra note 5, at 2.

        [55].      Norm Champ, Sophia Hudson, Christian O. Nagler, Stefan Atkinson, Tamar Donikyan, Joshua N. Korff & Peter Seligson, The SEC Proposes New Rules Regarding SPACs, Kirkland & Ellis (Apr. 6, 2022), https://www.kirkland.com/publications/kirkland-alert/2022/03/sec-proposes-new-rules-regard
ing-spacs [https://perma.cc/2BVH-XQ6B].

        [56].      Michelle Celarier, SEC Deals a Big Blow to SPACs, Institutional Inv. (Mar. 30,
2022) (quoting SEC Commissioner Hester Peirce), https://www.institutionalinvestor.com/article/
b1xdf3qfv7sckm/SEC-Deals-a-Big-Blow-to-SPACs [https://perma.cc/8UPT-VZFJ].

        [57].      Margeaux Bergman, Katie Butler, Alain Dermarkar, Adam Hakki, Harald Halbhuber, Daniel Lewis, Jonathan Lewis, Ilya Mamin, John Menke, Ilir Mujalovic, Lona Nallengara, Bill Nelson, Sara Raisner & Pawel Szaja, SEC Proposes New SPAC Rules, JD Supra (Apr. 12, 2022), https://
http://www.jdsupra.com/legalnews/sec-proposes-new-spac-rules-6508226 [https://perma.cc/S39Y-DR2M].

        [58].      Celarier, supra note 56.

        [59].      The SPAC was created immediately after these regulations came into effect as an investment vehicle that is exempt from Rule 419 but contractually complies with many of Rule 419’s restrictions, providing investors with adequate protection while preserving an alternative route for private companies to go public. See infra Section IV.B.1.

* Senior Editor, Southern California Law Review, Volume 95; J.D. Candidate 2023, University of Southern California Gould School of Law; M.B.A. Candidate 2023, University of Southern California Marshall School of Business; B.A. Economics 2017, University of California, Santa Barbara. I would like to thank Professor Jonathan Barnett for his guidance throughout the note-writing process and Professor Michael Chasalow for his invaluable insights on the substance of my Note. In addition, thank you to the Southern California Law Review editors for their excellent work. Most importantly, thank you to my family, Arianne, and Charles for their support throughout my time in law school.

Download