Faculty Publications

Everyone has values which conflict with the sheer maximization of profit. When those conflicts occur, virtually no one will consistently choose profit over conflicting values, especially when the potential profit is small or conflicts with other economic values, promoting the common good or preserving a functioning ecosphere. This Article explores
a multi-stakeholder approach that will increase the quantum of humanity in the governance
of American large public companies in the era of social media and online communication.

While the Supreme Court has extended many constitutional
privileges to business corporations, it as not held that they have a full constitutionally protected right to practice religion comparable to that of citizens. Employment Division v. Smith long served as a barrier to Free Exercise claims for special exceptions to neutral and generally applicable laws. But as the Court moves away from Smith, the issue of corporate Free Exercise rights must be confronted. The freedom of religion is a critically important individual right in a free country. But individual rights often conflict with collective religious practice; religious freedom is the opposite of establishment of religion. We constrain governmental religious practices in order to maintain space for individual consciences. The issue raised by the collapse of Smith is whether judicial protection of business corporations' religious practices creates new spaces for individual freedom, or is more like state establishment, imposing one group's religion on others regardless of their own traditions or views. The Preamble to the Constitution invokes "We the People," not "We the Persons."

Business corporations are statutory creations, recognizably modern only from the end of the nineteenth century, if not the New Deal. The modern statutes are loosely descended from far older corporate forms. In those earlier eras, corporations were self-governing entities with claims to partial or total autonomy -- theKnights Templar, monasteries, guilds, cities, universities, or aristocracy. Startlingly, the Supreme Court’s constitutional jurisprudence continues to be deeply influenced by the feudal understanding of corporations as quasi-sovereigns entitled to something like comity. This image -- not the word “person” in the Fourteenth Amendment, the “naturalness” or “artificialness” of corporations, nor the requirements of freedom of speech or religion -- is the best explanation of both the historic and modern cases.

This semi-sovereign understanding of the corporation’s constitutional status presents two underexplored problems. First, business corporations have no defensible claim to autonomy in a post-feudal liberal democracy. Second, if they did, they would be subject to the standard liberal critiques of their unlamented predecessors: corporate officeholders wield unresponsive power unrestrained by republican or democratic norms. Rejecting this notion would allow us to begin to explore the full implications of the alternative view -- that business corporations, like our other governing agencies, “deriv[e] their just powers from the consent ofthe governed . . . [to] effect their Safety and Happiness.”

This Article summarizes and comments on a 2021 survey by the American College of Tax Counsel (ACTC) on the policies and procedures followed by law and accounting firms in drafting tax opinions. The Article provides background on the contexts in which tax opinions are issued and considerations that are relevant to the composition of such opinions; defines and distinguishes among the levels of assurance at which tax opinions are typically provided; and presents an overview of ethical rules and related considerations, including Circular 230 and the Code's preparer penalty provisions, implicated in the process of drafting and issuing tax opinions. The Article concludes by making several suggestions to professional firms that are engaged in establishing or reviewing their own opinion processes and to ACTC on how to move forward with its effort to provide useful information and materials to tax professionals.

Leading scholars from a variety of disciplines explore the future of education, including social media usage, new norms of knowledge, privacy, copyright, and MOOCs.How are widely popular social media such as Facebook, Twitter, and Instagram transforming how teachers teach, how kids learn, and the very foundations of education? What controversies surround the integration of social media in students' lives? The past decade has brought increased access to new media, and with this new opportunities and challenges for education. In this book, leading scholars from education, law, communications, sociology, and cultural studies explore the digital transformation now taking place in a variety of educational contexts. The contributors examine such topics as social media usage in schools, online youth communities, and distance learning in developing countries; the disruption of existing educational models of how knowledge is created and shared; privacy; accreditation; and the tension between the new ease of sharing and copyright laws. Case studies examine teaching media in K-12 schools and at universities; tuition-free, open education powered by social media, as practiced by the University of the People; new financial models for higher education; the benefits and challenges of MOOCS (Massive Open Online Courses); social media and teacher education; and the civic and individual advantages of teens' participatory play. Contributors Colin Agur, Jack M. Balkin, Valerie Belair-Gagnon, danah boyd, Nicholas Bramble, David Buckingham, Chris Dede, Benjamin Gleason, Christine Greenhow, Daniel J. H. Greenwood, Jiahang Li, Yite John Lu, Minhtuyen Mai, John Palfrey, Ri Pierce-Grove, Adam Poppe, Shai Reshef, Julia Sonnevend, Mark Warschauer