Volume 104

“Don’t Elect Me”: Sheriffs and the Need for Reform in County Law Enforcement

Most state constitutions require that counties have an elected sheriff who serves as the county’s chief law enforcement officer. The sheriff’s office is over a thousand years old and today has strong cultural associations with independence and populism. Ironically, however, the sheriff’s office has not been studied in the legal literature on policing as an entity separate and distinct from municipal police departments. This Note attempts to remedy that deficiency by identifying the unique pathologies of the American sheriff and proposing dramatic reforms to county law enforcement.

Although his elected status creates a perception that the sheriff is a local county officer, this Note argues that this perception is inaccurate because the sheriff is independent of the county and is actually, in many important ways, an agent of the state. The sheriff’s hybrid state-and-local status creates misalignments between different levels of government that obstruct efforts to hold the sheriff accountable.

County law enforcement is in need of reform. This Note argues that elections are not functioning as an effective accountability mechanism and that county government must be given power to act as a check on county law enforcement. This Note further argues that, although the sheriff in his current form is emphatically not the officer for the job, the county is actually the best level of government at which to provide policing. This Note discusses the merits of two models of achieving consolidation of policing to the county level, with insights gleaned from America’s experiences with sheriffs.

Fee-Shifting and Shareholder Litigation

A fee-shifting provision, in a corporate charter or bylaws, requires the plaintiff-shareholder to reimburse the litigation expenses of the defendant-corporation when the plaintiff is not successful in litigation. After the Delaware Supreme Court ruled that such a provision is enforceable in 2014, a number of corporations adopted fee-shifting bylaws, utilizing the directors’ right to unilaterally amend bylaws without express shareholder approval. In 2015, the Delaware legislature reversed course by prohibiting fee-shifting provisions in both charters and bylaws. This back-and-forth history has left an important question unanswered: should fee-shifting be allowed in shareholder litigation and, if so, in what form?

This Article first makes a theoretical claim that the optimal fee-shifting arrangement lies somewhere between the pro-defendant version adopted by the corporations and the no-fee-shifting version mandated by the Delaware legislature. A more balanced fee-shifting provision will do better in encouraging meritorious lawsuits while discouraging nonmeritorious ones, especially with respect to direct shareholder lawsuits. For derivative lawsuits, a balanced fee-shifting rule will impose a higher threshold on the merits than the traditional, no-fee-shifting rule. The Article also undertakes an empirical investigation of fee-shifting provisions that are used in commercial agreements, notably stock purchase agreements and bond indentures, that employ more balanced fee-shifting arrangements but with variation. Building upon both the theoretical and empirical analyses, the Article finally argues that, instead of a categorical ban, the law should allow fee-shifting provisions in charters and bylaws but subject them to more robust judicial oversight. This will better allow the corporations and shareholders to realize the screening benefits of fee-shifting while protecting shareholders’ right to bring suit.

Should the Rules Committees Have an Amicus Role?

Despite its formal status as promulgator of federal-court rules of practice and procedure, the Supreme Court is a suboptimal rule interpreter, as recent groundbreaking but flawed rules decisions illustrate. Scholars have proposed abstention mechanisms to constrain the Court in certain rule-interpretation contexts, but these mechanisms disable the Court from performing its core adjudicatory functions of dispute resolution and law interpretation. This Article urges a different solution: bring the rulemakers to the Court. It argues that the Rules Committees—those bodies primarily responsible for studying the rules and drafting rule amendments—should take up a modest amicus practice in rules cases to offer the Court information that may improve its decision making in rules cases. The Article explores the possible forms of such a role and articulates guiding norms for its structure, timing, and content.

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