Note

A Line in the Sand: Implementing Scene of the Crime Stay-Away Orders as a Condition of Pretrial Release in Community Prosecution

The goal of community prosecution is to improve quality of life as defined by each neighborhood’s residents. The presence of ongoing drug and prostitution markets harms victimized neighborhoods far more than the sum of the individual impacts of each transaction would suggest. One of the most effective tools available to community prosecutors is the exclusion of offenders from crime-prone areas, for two reasons. First, drug and prostitution offenses rely on the presence of an identifiable market, which can be disrupted by the exclusion of potential buyers and sellers. Second, the impact a single criminal has on quality of life is multiplied by the presence of other offenders.

This Note examines one potent form of exclusion which has received almost no appellate review or scholarly examination, scene of the crime stay-away orders as a condition of pretrial release, showing that pretrial exclusion is an effective means of improving quality of life in crime-plagued neighborhoods. This proposal raises immediate questions: Is it legal? Does it infringe on the defendant’s constitutional rights? Does it punish a defendant before conviction? The Note answers each question in turn. First, it demonstrates how pretrial stay-away orders serve the purposes of pretrial release conditions, ensuring appearance at trial and protecting the community from harm. Next, it demonstrates how the orders avoid likely constitutional challenges based on right to travel, right of free association, double-jeopardy, and vagueness. Finally, the Note presents a four-pronged approach to implementing scene of the crime stay-away orders that limits the punitive effect of the orders and ensures that the orders meet the associated policy goals while complying with statutory and constitutional requirements.

An Efficiency Model of Section 363(B) Sales

Section 363(b) of the Bankruptcy Code allows a corporation to sell assets outside of the ordinary course of business without undergoing the rigorous process of confirming a Chapter 11 reorganization plan. Such a side door may encourage efficiency—enabling a quicker sale of assets that would diminish in value during the lengthy plan confirmation process—but may also encourage waste—enabling managers or creditors to advocate a hurried sale of assets at a sub-optimal price without the protection of confirmation procedures. These sales have become ubiquitous in large corporate reorganizations, but are largely under-theorized.

This Note offers a theoretical approach, deriving a framework analyzing the features of efficient sales. The framework demonstrates that the level and quality of court analysis of such sales drives whether a Section 363(b) sale is efficient or inefficient. Too much intervention increases the costs of a sale such that its value is less than that recoverable under a reorganization plan. Too little or poorly tuned intervention enables under-valuation and agency shirking which likewise reduces the value below the reorganization plan baseline. The framework provides a theoretical calculus from which to determine the optimal level of court intervention and which factors should matter to the decision-making process both by the court and the seller. Among others, the driving factors are the agency costs and the anticipated fluctuation in the value of the asset. This Note finally questions whether there may be a more efficient mechanism to perform the functions of valuation and minimization of agency costs.

Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887

How did nineteenth-century federal legislators imagine Mormon polygamy as they debated and adopted harsh anti-polygamy enforcement laws? Republican anti-polygamists in the Reconstruction era called polygamy and slavery the “twin relics of barbarism,” analogizing polygamous husbands to Southern slaveholders. By the 1880s anti-polygamists in Congress rooted their arguments in Chinese Exclusionism and avoided divisive references to Southern slavery. They compared Mormon polygamy to “despotic” cultural practices popularly associated with Chinese immigrants, like concubinage, prostitution, and “coolieism.” White cultural nationalism mobilized support for the first effective anti-polygamy statutes in 1882 and 1887. These changing representations of polygamy illustrate how the Republican party came to terms with the South’s legacy of slavery and rebellion by embracing a unified white cultural identity. Metaphorical comparisons to Southern slavery and “oriental paganism” not only vilified polygamy, they also justified federal intervention into local affairs. The these vivid metaphors arose from the Republican party’s shifting ideology, not the lived experience of polygamy’s perceived “victims”: the plural wives.

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