Popular discourse portrays marriage as a source of innumerable public and private benefits: happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used—and, importantly, continues to be used—as state-imposed sexual discipline. Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who “seduced and had sexual intercourse with an unmarried female of previously chaste character” under a “promise of marriage.” Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws. The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are na¨ıve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality. With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.

Neither scholars nor the derivatives industry have fully explored the question of how the treatment of derivatives and repos in bankruptcy would change if their exemption from a number of bankruptcy’s core provisions was removed. This Essay tries to fill the gap and to develop a more general theory about the importance of “transaction consistency”—that is, equivalent treatment of similar transactions—in bankruptcy. The effect of transaction consistency on repos would be limited, because repos would automatically be terminated as of the bankruptcy filing and thus could not be reinstated by the debtor. Derivatives have more at stake, but the nondebtor’s right of setoff would reduce many of the adverse effects. The special treatment should not simply be removed, however. Given the distinctive attributes of these contracts, the Essay argues that repo lenders should be able to immediately sell some kinds of collateral and that the automatic stay should be limited to three days for derivatives. The Essay also explains how transaction consistency can be integrated with the Dodd-Frank Act, and might make Dodd-Frank’s resolution rules unnecessary in most cases.

The international community has become increasingly concerned with deterring global bribery. While the Foreign Corrupt Practices Act of 1977 (FCPA) serves as the dominant public enforcement mechanism, international arbitration tribunals function as the primary private enforcement mechanism, refusing to enforce contracts that were obtained by paying bribes. Although both enforcement mechanisms share the goal of deterring bribery, the overlap between them may frustrate that goal. Specifically, this overlap occurs in situations where private companies doing business abroad pay bribes in order to obtain contracts with foreign governments or individuals. U.S. enforcement agencies may charge these private companies with violations of the FCPA, yielding an extensive government investigation into the companies’ conduct and possibly a settlement agreement. However, an FCPA settlement enables foreign contracting parties to obtain concrete evidence of bribery with which to void their contracts in the case of an alleged breach. The leverage to the foreign contracting parties at the expense of the FCPA-violating companies constitutes an additional penalty for the violators. This Note argues that the overlap between the enforcement schemes frustrates the goals of the FCPA in two ways: First, FCPA-violating companies experience higher penalties than public enforcement agencies otherwise expect, which reduces the companies’ incentives to voluntarily disclose their misconduct, and second, FCPA violations increase the payoffs to foreign contracting parties who are also bribe receivers. To reduce the extent to which these private consequences interfere with the FCPA’s goal of deterring global bribery, this Note proposes a two-pronged solution. The Department of Justice should offset the heightened penalties imposed on violating companies due to private multijurisdictional enforcement, and arbitral tribunals should take a tempered approach to voiding contracts obtained by bribery.

The Supreme Court’s 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for “public use” under the Takings Clause of the Fifth Amendment. Kelo’s many critics have yet to clearly articulate a constitutionally grounded rationale for why homes should receive special protection from condemnation. This Note argues that the Third Amendment’s solicitude for the home provides a constitutional basis for distinguishing between homes and the other forms of “private property” covered by the Takings Clause. The Amendment, which provides that “[n]o Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law,” shares both historical and textual links with the Clause. These connections suggest the judiciary should apply a form of heightened scrutiny similar to the “meaningful” review standard proposed by Justice Kennedy’s concurring opinion in Kelo when determining whether the government’s seizure of an owner-occupied home is for “public use.”