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This chapter examines the appropriate limit of deferred prosecution agreements (DPAs) in light of the serious dangers in using any principle of corporate criminal liability. It begins with an overview of the so-called “grand inversion” and the role that the Holder, Thompson, and McNulty memos played in exploiting this grand inversion against corporations. It then considers how the unconstitutional conditions doctrine should inform the question of what types of terms should be included in DPAs. It also discusses vicarious criminal liability and the corporate criminal prosecution against the now defunct Arthur Andersen and Co. It argues that the existing standard for corporate crime is too broad and that prosecutors exercise too much power over companies. The chapter concludes with a discussion of terms requiring corporations to take certain positions in political debates over questions of social policy.

Chapter 4 considers how explicit or implicit menus of options affect behavior by defining the increments in which people can take actions. When alternatives are chunky rather than continuous, people often must produce or consume either less or more than they would prefer—with overlooked and sometimes surprisingly positive implications for behaviors that have spillovers on others. Standard economic analysis assumes that externalities, whether positive or negative, will distort behavior. But people will often behave the same way in the presence of spillovers as they would in their absence. Such irrelevant externalities can exist when choice intervals are chunky or binary in nature and the return to the actor is sufficient to induce the socially desirable choice. At other times, however, a limited choice menu can drive actors even further from the social optimum. The chapter concludes by considering the implications of adding or removing intermediate menu options for strategic or policy reasons, and considers connections to take-it-or-leave-it offers and the unconstitutional conditions doctrine.

This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.

This chapter examines the distinction between rights and privileges in American constitutional law and how it continues to exert a strong intuitive appeal on higher education. It first considers the intellectual contributions of Justice Oliver Wendell Holmes to the distinction between rights and privileges before turning to a discussion of the doctrine of “unconstitutional conditions” and how it has evolved as a partial restraint on the right–privilege argument. It then explores the relevance of the right–privilege distinction to the issue of financial assistance, one of the principal vehicles by which governments at the federal and state level seek to force universities and colleges to conform to norms imposed by the government. It also analyzes how the right–privilege distinction comes into play in disputes involving government aid and religion and concludes by noting the interrelationships among the notion of the living Constitution, the division between the public and private sphere, the right–privilege distinction, the ideal of ordered liberty, competing conceptions of equality, and the system of checks and balances.

This chapter focuses on disputes about conditions the government places on subsidies it provides for speech. The Roberts Court has issued two sharply contrasting decisions about conditional subsidies. One decision upholds a rule that government-funded universities must let the military conduct job interviews on campus. In contrast, the other decision strikes down a requirement that government-funded organizations fighting AIDS overseas must endorse the government’s opposition to sex trafficking. That decision, this chapter argues, mainly serves to mitigate the Roberts Court’s own willingness to treat certain private speech in public forums as government speech. Completing the book’s discussion of speech restrictions in government preserves, this chapter concludes that the Roberts Court’s government preserve cases overwhelmingly favor the government’s managerial authority over the interests of speakers who need government resources to convey their messages.