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John C.P. Goldberg & Benjamin C. Zipursky, Hohfeldian Analysis and the Separation of Rights and Powers, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge Univ. Press forthcoming 2018).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Private Law
,
Torts
,
Remedies
,
Legal Theory & Philosophy
,
Critical Legal Studies
Type: Book
Abstract
At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.
Jacob Gersen & Jeannie Suk Gersen, Regulating Sex Bureaucratically, in Governance Feminism: A Handbook (Janet E. Halley, Prabha Kotiswaran, Rachel Rebouche & Hila Shamir eds., forthcoming 2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Administrative Law & Agencies
Type: Book
Fernán Restrepo & Guhan Subramanian, The Effect of Prohibiting Deal Protection in M&A: Evidence from the United Kingdom, 61 J.L. & Econ. (forthcoming 2018).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Mergers & Acquisitions
,
European Law
Type: Article
Abstract
Since 2011, the U.K. has prohibited all deal protections – including termination fees – in M&A deals. Prior to 2011, the U.K. permitted termination fees up to 1% of deal value and there was no prohibition on other protection devices. We examine the effect of this regulatory change on deal volumes, the incidence of competing offers, deal jumping rates, deal premiums, and completion rates in the U.K., relative to the other European G-10 countries. We find that M&A deal volumes in the U.K. declined significantly in the aftermath of the 2011 Reforms, relative to deal volumes in the European G-10 countries. We find no countervailing benefits to target shareholders in the form of higher deal premiums or more competing bids. Completion rates and deal jumping rates also remained unchanged. We estimate that the incidence-rate ratio of U.K. deals to non-UK deals after the reform was approximately 50% the incidence-rate ratio of U.K. deals to non-U.K. deals prior to the reform. In addition, we estimate USD 19.3 billion in lost deal volumes per quarter in the U.K. relative to the control group due to the 2011 Reforms, implying a quarterly loss of USD 3.2 billion for shareholders of U.K. companies. Our results suggest that deal protections provide an important social welfare benefit by facilitating the initiation of M&A deals.
Yochai Benkler, Law, Innovation and Collaboration in Networked Economy and Society, 13 Ann. Rev. L. & Soc. Sci. (forthcoming Nov. 2017).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
,
Intellectual Property Law
Type: Article
Abstract
Over the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market based innovation focused on material self interest to interaction between market and non market practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, non compete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing market and non market models and motivations, and weaving commons with property are central to the innovation process.
John C. Coates, Mergers, Acquisitions and Restructuring: Types, Regulation, and Patterns of Practice, in The Oxford Handbook of Corporate Law and Governance (Jeffrey N. Gordon & Wolf-Georg Ringe eds. 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
,
Corporate Governance
Type: Book
Abstract
An important component of corporate governance is the regulation of significant transactions – mergers, acquisitions, and restructuring. This paper (a chapter in Oxford Handbook on Corporate Law and Governance, forthcoming) reviews how M&A and restructuring are regulated by corporate and securities law, listing standards, antitrust and foreign investment law, and industry-specific regulation. Drawing on real-world examples from the world’s two largest M&A markets (the US and the UK) and a representative developing nation (India), major types of M&A transactions are reviewed, and six goals of M&A regulation are summarized – to (1) clarify authority, (2) reduce costs, (3) constrain conflicts of interest, (4) protect dispersed owners, (5) deter looting, asset-stripping and excessive leverage, and (6) cope with side effects. Modes of regulation either (a) facilitate M&A – collective action and call-right statutes – or (b) constrain M&A – disclosure laws, approval requirements, augmented duties, fairness requirements, regulation of terms, process and deal-related debt, and bans or structural limits. The paper synthesizes empirical research on types of transactions chosen, effects of law on M&A, and effects of M&A. Throughout, similarities and differences across transaction types and countries are noted. The paper concludes with observations about what these variations imply and how law affects economic activity.
I. Glenn Cohen, Religion and Reproductive Technology, in Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., 2017).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Health Care
Sub-Categories:
Religion & Law
,
Genetics & Reproduction
,
Medical Technology
Type: Book
Abstract
This chapter will examines places where law, religion, and reproductive technology conflict. It examines four particular intersections: The first involves religiously motivated denials of service, in particular as they pertain to single and gay and lesbian couples. The second involves embryo adoption, where the largest providers of the service in the United States are religious organizations. The third is a bit of a dog that didn’t bark (at least so far): the “personhood movement” and its attempts to gain state constitutional protection for zygotes, embryos, and fetuses. Finally, the chapter will close by discussing relatively new attempts by religious organizations to bring forward objections to embryo destruction in pre-embryo disposition disputes between private individuals, in particular a recent case in Missouri that is currently being litigated.
Lucia A. Reisch, Cass R. Sunstein & Wencke Gwozdz, Beyond Carrots and Sticks: Europeans Support Health Nudges, 69 Food Pol'y 1 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Article
Abstract
All over the world, nations are using “health nudges” to promote healthier food choices and to reduce the health care costs of obesity and non-communicable diseases. In some circles, the relevant reforms are controversial. On the basis of nationally representative online surveys, we examine whether Europeans favour such nudges. The simplest answer is that majorities in six European nations (Denmark, France, Germany, Hungary, Italy, and the UK) do so. We find majority approval for a series of nudges, including educational messages in movie theaters, calorie and warning labels, store placement promoting healthier food, sweet-free supermarket cashiers and meat-free days in cafeterias. At the same time, we find somewhat lower approval rates in Hungary and Denmark. An implication for policymakers is that citizens are highly likely to support health nudges. An implication for further research is the importance of identifying the reasons for cross-national differences, where they exist.
David Arnold, Will Dobbie & Crystal S. Yang, Racial Bias in Bail Decisions (Nat'l Bureau of Econ. Research, Working Paper No. 23421, May 2017).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Race & Ethnicity
,
Discrimination
,
Empirical Legal Studies
,
Judges & Jurisprudence
Type: Other
Abstract
This paper develops a new test for identifying racial bias in the context of bail decisions – a high-stakes setting with large disparities between white and black defendants. We motivate our analysis using Becker's (1957) model of racial bias, which predicts that rates of pre-trial misconduct will be identical for marginal white and marginal black defendants if bail judges are racially unbiased. In contrast, marginal white defendants will have a higher probability of misconduct than marginal black defendants if bail judges are racially biased against blacks. To test the model, we develop a new estimator that uses the release tendencies of quasi-randomly assigned bail judges to identify the relevant race-specific misconduct rates. Estimates from Miami and Philadelphia show that bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We also find that both black and white judges are biased against black defendants. We argue that these results are consistent with bail judges making racially biased prediction errors, rather than being racially prejudiced per se.
Catherine A. MacKinnon, Butterfly Politics (Belknap Press 2017).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Law & Political Theory
Type: Book
Abstract
The minuscule motion of a butterfly’s wings can trigger a tornado half a world away, according to chaos theory. Under the right conditions, small simple actions can produce large complex effects. In this timely and provocative book, Catharine A. MacKinnon argues that the right seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.Butterfly Politics brings this incisive understanding of social causality to a wide-ranging exploration of gender relations. The pieces collected here—many published for the first time—provide a new perspective on MacKinnon’s career as a pioneer of legal theory and practice and an activist for women’s rights. Its central concerns of gender inequality, sexual harassment, rape, pornography, and prostitution have defined MacKinnon’s intellectual, legal, and political pursuits for over forty years. Though differing in style and approach, the selections all share the same motivation: to end inequality, including abuse, in women’s lives. Several mark the first time ideas that are now staples of legal and political discourse appeared in public—for example, the analysis of substantive equality. Others urge changes that have yet to be realized.The butterfly effect can animate political activism and advance equality socially and legally. Seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change. A powerful critique of the legal and institutional denial of reality that perpetuates practices of gender inequality, Butterfly Politics provides a model of what principled, effective, socially conscious engagement with law looks like.
Ashish Nanda, David B. Wilkins & Bryon Fong, Mapping India’s Corporate Law Firm Sector, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (David B. Wilkins, Vikramaditya S. Khanna & David M. Trube eds., 2017).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Law
,
Legal Services
Type: Book
J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay, Getting From Here to There: The Transition Tax Issue, 154 Tax Notes 69 (2017).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - Federal
Type: Article
Abstract
If there is fundamental U.S. international income tax reform, regardless of the reform option chosen, the United States must decide how to handle the $2.4 trillion to $2.6 trillion of previously untaxed foreign income accumulated by U.S. multinational corporations. In this report, Fleming, Peroni, and Shay argue that the proper approach is to treat the income as a subpart F inclusion in the year before the effective date of fundamental reform and to tax it at regular rates with an option to make the payments in installments that bear market-rate interest. The authors explain why the case for a low or deferred tax on this income is inferior to the case for full immediate taxation.
David W. Kennedy, A New Stream of International Legal Scholarship, in General Theory of International Law (American Classics in International Law v. 1, Siegfried Wiessner ed., 2017).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Critical Legal Studies
,
International Law
Type: Book
Norman Champ, Going Public: My Adventures Inside the SEC and How to Prevent the Next Devastating Crisis (McGraw-Hill Educ. 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Book
Abstract
Engrossing and important, this book offers critical recommendations for policy changes that will create healthy, free-functioning markets and help Americans better prepare for the inevitable next crisis.
Jack Goldsmith, Yes, We Are Holding Trump Accountable, N.Y. Times, Mar. 15, 2017, at A23.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
Type: News
Abstract
The article discusses the investigation conducted by the U.S. Federal Bureau of Investigations (FBI) with its director James B. Comey on the involvement of Russiaa in the 2016 U.S. presidential elections.
Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton Univ. Press forthcoming Mar. 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
,
Communications Law
Type: Book
Abstract
"As the Internet grows more sophisticated, it is creating new threats to democracy. Social media companies such as Facebook can sort us ever more efficiently into groups of the like-minded, creating echo chambers that amplify our views. It's no accident that on some occasions, people of different political views cannot even understand each other. It's also no surprise that terrorist groups have been able to exploit social media to deadly effect. Welcome to the age of #Republic. In this revealing book, Cass Sunstein, the New York Times bestselling author of Nudge and The World According to Star Wars, shows how today's Internet is driving political fragmentation, polarization, and even extremism—and what can be done about it. Thoroughly rethinking the critical relationship between democracy and the Internet, Sunstein describes how the online world creates "cybercascades," exploits "confirmation bias," and assists "polarization entrepreneurs." And he explains why online fragmentation endangers the shared conversations, experiences, and understandings that are the lifeblood of democracy. In response, Sunstein proposes practical and legal changes to make the Internet friendlier to democratic deliberation. These changes would get us out of our information cocoons by increasing the frequency of unchosen, unplanned encounters and exposing us to people, places, things, and ideas that we would never have picked for our Twitter feed. #Republic need not be an ironic term. As Sunstein shows, it can be a rallying cry for the kind of democracy that citizens of diverse societies most need." -- Publisher
Joseph W. Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moises Peñalver, Property Law: Rules, Policies, and Practices (Wolters Kluwer 7th ed. 2017).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Jody Freeman, Don’t Roll Back Vehicle Fuel Standards, N.Y. Times, Mar. 8, 2017, at A23.
Categories:
Environmental Law
Sub-Categories:
Climate Change
,
Oil, Gas, & Mineral Law
Type: News
Abstract
An editorial is presented on U.S. Donald Trump administration's attempt to rollback fuel efficiency standards for vehicles set by former President Obama and it states it is a retrograde step as the standards were set based on available technologies and to protect the environment.
Belinda Bennett, I. Glenn Cohen, Sara E. Davies, Lawrence O. Gostin, Peter S. Hill, Aditi Mankad, Alexandra L. Phelan, Future-proofing Global Health: Governance of Priorities, Global Pub. Health (Mar. 8, 2017).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
The year 2015 was a significant anniversary for global health: 15 years since the adoption of the Millennium Development Goals and the creation of the Global Alliance for Vaccines and Immunization, followed two years later by the Global Fund to Fight AIDS, TB and Malaria. 2015 was also the 10-year anniversary of the adoption of the International Health Regulations (May 2005) and the formal entering into force of the Framework Convention on the Tobacco Control (February 2005). The anniversary of these frameworks and institutions illustrates the growth and contribution of 'global' health diplomacy. Each initiative has also revealed on-going issues with compliance, sustainable funding and equitable attention in global health governance. In this paper, we present four thematic challenges that will continue to challenge prioritisation within global health governance into the future unless addressed: framing and prioritising within global health governance; identifying stakeholders of the global health community; understanding the relationship between health and behaviour; and the role of governance and regulation in supporting global health.
J. Mark Ramseyer, Are Reactors Like Casinos? A Culture of Dependency in Japan (Univ. Chi. Coase-Sandor Inst. for Law & Econ., Research Paper No. 798, Mar. 1, 2017).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Economics
,
East Asian Legal Studies
Type: Other
Abstract
Japanese communities with nuclear reactors have the reactors because they applied for them, and they applied for them for the money. Among Japanese municipalities, they were some of the most dysfunctional before the reactors had even arrived. Communities depend on young families for the social capital that holds them intact, and these were the communities from which those families had already begun to leave. After the reactors arrived, young families continued to disappear. Unemployment rose. Divorce rates climbed. And in time, the communities had little -- other than reactor-revenue -- to which they could turn.
Dalia Topelson Ritvo, Kira Hessekiel & Christopher Bavitz, Challenges & Opportunities Concerning Corporate Formation, Nonprofit Status, & Governance for Open Source Projects (Berkman Klein Ctr. Research Publ’n No. 2017-3, Mar. 2017).
Categories:
Corporate Law & Securities
,
Technology & Law
Sub-Categories:
Business Organizations
,
Nonprofit Organizations
Type: Other
Abstract
This report addresses a number of key considerations that those managing open source software development initiatives should take into account when thinking about structure, organization, and governance. The genesis of this project involved an investigation into anecdotal reports that companies and other institutions developing open source software were facing difficulties obtaining tax exempt nonprofit status under Section 501(c)(3) of Title 26 of the United States Code. Based on conversations with a number of constituents in the open source software development community, the authors have prepared this report to address specific questions about nonprofit status alongside questions about corporate formation and governance models more generally. Nothing in this report should be viewed as a substitute for specific legal advice on the narrow questions facing particular organizations under particular sets of factual circumstances. But, the authors are hopeful the document provides a general overview of the complex issues that open source initiatives face when balancing a need for structure and continuity with the innovative and experimental spirit at the heart of many open source development projects. The report has two primary parts: • First, it addresses some formal organizational considerations that open source software initiatives should weigh, evaluating the benefits of taking on a formal structure and the options for doing so. The report provides information about different types of corporate organization that open source projects may wish to consider. And, it delves into Internal Revenue Service policy and practice and US tax law concerning questions about the tax exemptions referenced above. • In its second half, the authors pull back to consider more broadly questions of organizational structure, offering ideas about governance models that open source organizations may wish to explore, separate from formal corporate structure, as they seek to achieve their missions. Different considerations may inform the choice of formal, legal organizational structures (on the one hand) and governance models (on the other hand). By addressing both, the authors hope that this report will be useful to the broadest possible range of managers of and contributors to open source development initiatives.
Max M. Schanzenbach & Robert H. Sitkoff, The Prudent Investor Rule and Market Risk: An Empirical Analysis, 14 J. Empirical Legal Stud. 129 (2017).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
,
Financial Markets & Institutions
Type: Article
Abstract
The prudent investor rule, enacted in every state over the last 30 years, is the centerpiece of trust investment law. Repudiating the prior law's emphasis on avoiding risk, the rule reorients trust investment toward risk management in accordance with modern portfolio theory. The rule directs a trustee to implement an overall investment strategy having risk and return objectives reasonably suited to the trust. Using data from reports of bank trust holdings and fiduciary income tax returns, we examine asset allocation and management of market risk before and after the reform. First, we find that the reform increased stockholdings, but not among banks with average trust account sizes below the 25th percentile. This result is consistent with sensitivity in asset allocation to trust risk tolerance. Second, we present evidence consistent with increased portfolio rebalancing after the reform. We conclude that the move toward additional stockholdings was correlated with trust risk tolerance, and that the increased market risk exposure from additional stockholdings was more actively managed.
Louis Kaplow, On the Relevance of Market Power, 130 Harv. L. Rev. 1303 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Article
Abstract
Market power is the most important determinant of liability in competition law cases throughout the world. Yet fundamental questions on the relevance of market power are underanalyzed, if examined at all: When and why should we inquire into market power? How much should we require? Should market power be viewed as one thing, regardless of the practice under scrutiny and independent of the pertinent anticompetitive and procompetitive explanations for its use? Does each component of market power have the same probative force? Or even influence optimal liability determinations in the same direction? This Article’s ground-up investigation of market power finds that the answers often differ from what is generally believed and sometimes are surprising — notably, higher levels of certain market power measures or particular market power components sometimes disfavor liability. This gulf between conventional wisdom and correct understanding suggests the need to redirect research agendas, agency guidance, and competition law doctrine.
Mark Tushnet, The Boundaries of Comparative Law, 13 Eur. Const. L. Rev. 13 (2017).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Critical Legal Studies
,
Comparative Law
Type: Article
Abstract
Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship.
Luke Gelinas, Robin Pierce, Sabune Winkler, I. Glenn Cohen, Holly Fernandez Lynch & Barbara E. Bierer, Using Social Media as a Research Recruitment Tool: Ethical Issues and Recommendations, 17 Am. J. Bioethics 3 (2017).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
The use of social media as a recruitment tool for research with humans is increasing, and likely to continue to grow. Despite this, to date there has been no specific regulatory guidance and there has been little in the bioethics literature to guide investigators and institutional review boards (IRBs) faced with navigating the ethical issues such use raises. We begin to fill this gap by first defending a nonexceptionalist methodology for assessing social media recruitment; second, examining respect for privacy and investigator transparency as key norms governing social media recruitment; and, finally, analyzing three relatively novel aspects of social media recruitment: (i) the ethical significance of compliance with website "terms of use"; (ii) the ethics of recruiting from the online networks of research participants; and (iii) the ethical implications of online communication from and between participants. Two checklists aimed at guiding investigators and IRBs through the ethical issues are included as appendices.
Louis Kaplow & Scott Duke Kominers, Who Will Vote Quadratically? Voter Turnout and Votes Cast Under Quadratic Voting, Public Choice (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Article
Abstract
Who will vote quadratically in large-N elections under quadratic voting (QV)? First, who will vote? Although the core QV literature assumes that everyone votes, turnout is endogenous. Drawing on other work, we consider the representativeness of endogenously determined turnout under QV. Second, who will vote quadratically? Conditional on turning out, we examine reasons that, in large-N elections, the number of votes that an individual casts may deviate substantially from that under pure, rational QV equilibrium play. Because turnout itself is driven by other factors, the same determinants may influence how voters who do turn out choose the quantity of votes to cast. Independently, the number of votes actually cast may deviate dramatically from pure QV predictions because of the complex and refined nature of equilibrium play. Most plausibly, voting behavior and outcomes would be determined predominately by social and psychological forces, would exhibit few of the features emphasized in the analysis of hyper-rational equilibrium play, and would have consequential properties that require a different research agenda to bring into focus. Some of our analysis also has implications for voting behavior under other procedures, including one person, one vote.
Dustin Lewis, Gabriella Blum & Naz Modirzadeh, Indefinite War: Unsettled International Law on the End of Armed Conflict (Harvard Law Sch. Program on Int'l Law & Armed Conflict, Legal Briefing, Feb. 27, 2017).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
National Security Law
,
Laws of Armed Conflict
,
International Humanitarian Law
Type: Other
Abstract
Can we say, definitively, when an armed conflict no longer exists under international law? The short, unsatisfying answer is sometimes: it is clear when some conflicts terminate as a matter of international law, but a decisive determination eludes many others. The lack of fully-settled guidance often matters significantly. That is because international law tolerates, for the most part, far less violent harm, devastation, and suppression in situations other than armed conflicts. Thus, certain measures governed by the laws and customs of war — including killing and capturing the enemy, destroying and seizing enemy property, and occupying foreign territory, all on a possibly large scale — would usually constitute grave violations of peacetime law. This Legal Briefing details the legal considerations and analyzes the implications of that lack of settled guidance. It delves into the myriad (and often-inconsistent) provisions in treaty law, customary law, and relevant jurisprudence that purport to govern the end of war. Alongside the doctrinal analysis, this Briefing considers the changing concept of war and of what constitutes its end; evaluates diverse interests at stake in the continuation or close of conflict; and contextualizes the essentially political work of those who design the law. In all, this Legal Briefing reveals that international law, as it now stands, provides insufficient guidance to precisely discern the end of many armed conflicts as a factual matter (when has the war ended?), as a normative matter (when should the war end?), and as a legal matter (when does the international-legal framework of armed conflict cease to apply in relation to the war?). The current plurality of legal concepts of armed conflict, the sparsity of IHL provisions that instruct the end of application, and the inconsistency among such provisions thwart uniform regulation and frustrate the formulation of a comprehensive notion of when wars can, should, and do end. Fleshing out the criteria for the end of war is a considerable challenge. Clearly, many of the problems identified in this Briefing are first and foremost strategic and political. Yet, as part of a broader effort to strengthen international law’s claim to guide behavior in relation to war and protect affected populations, international lawyers must address the current confusion and inconsistencies that so often surround the end of armed conflict.
Cass R. Sunstein, Lucia A. Reisch & Julius Rauber, Behavioral Insights All Over the World? Public Attitudes Toward Nudging in a Multi-Country Study (Feb. 21, 2017).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Comparative Law
Type: Article
Abstract
Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations with markedly lower approval ratings for nudges. We offer some speculations about the relationship between approval rates and trust.
Holger Spamann, Are Sleepy Punishers Really Harsh Punishers?: Comment (Harvard Law Sch. John M. Olin Ctr. Discussion Paper No. 898, Feb. 16, 2017).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
Type: Other
Abstract
This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.’s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.’s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992-2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.
Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (N.Y. Univ. Press 2017).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Abstract
Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.
I. Glenn Cohen & Eli Y. Adashi, Mitochondrial Replacement Therapy: Unmade in the USA, 317 JAMA 574 (2017).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Oren Bar-Gill, David Schkade & Cass R. Sunstein, Drawing False Inferences from Mandated Disclosures (Feb. 9, 2017).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Disclosure mandates are pervasive. Though designed to inform consumers, such mandates may lead consumers to draw false inferences – for example, that a product is harmful when it is not. When deciding to require disclosure of an ingredient in or characteristic of a product, regulators may be motivated by evidence that the ingredient or characteristic is harmful to consumers. But they may also be motivated by a belief that consumers have a right to know what they are buying or by interest-group pressure. Consumers who misperceive the regulator’s true motive, or mix of motives, will draw false inferences from the mandated disclosure. If consumers think that the disclosure is motivated by evidence of harm, when in fact it is motivated by a belief in a right-to-know or by interest-group pressure, then they will be inefficiently deterred from purchasing the product. We analyze this general concern about disclosure mandates. We also offer survey evidence demonstrating that the risk of false inferences is serious and real. Our framework has implications for the ongoing debate over the labeling of food with genetically modified organisms (GMOs); it suggests that the relevant labels might prove misleading to some or many consumers, producing a potentially serious welfare loss. Under prevailing executive orders, regulators must consider that loss and if feasible, quantify it.
Jesse M. Fried & Charles C.Y. Wang, Short-Termism and Capital Flows (Harvard Bus. Sch. Accounting & Mgmt. Unit Working Paper No. 17-062, European Corp. Governance Inst. (ECGI) - Law Working Paper No. 342/2017, Feb. 9, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Article
Abstract
During the period 2005-2014, S&P 500 firms distributed to shareholders more than $3.95 trillion via stock buybacks and $2.45 trillion via dividends — $6.4 trillion in total. These shareholder payouts amounted to over 93% of the firms' net income. Academics, corporate lawyers, asset managers, and politicians point to such shareholder-payout figures as compelling evidence that “short-termism" and “quarterly capitalism" are impairing firms' ability to invest, innovate, and provide good wages. We explain why S&P 500 shareholder-payout figures provide a misleadingly incomplete picture of corporate capital flows and the financial capacity of U.S. public firms. Most importantly, they fail to account for offsetting equity issuances by firms. We show that, taking into account issuances, net shareholder payouts by all U.S. public firms during the period 2005-2014 were in fact only about $2.50 trillion, or 33% of their net income. Moreover, much of these net shareholder payouts were offset by net debt issuances, and thus effectively recapitalizations rather than firm-shrinking distributions. After excluding marginal debt capital inflows, net shareholder payouts by public firms during the period 2005-2014 were only about 22% of their net income. In short, S&P 500 shareholder-payout figures are not indicative of actual capital flows in public firms, and thus cannot provide much basis for the claim that short-termism is starving public firms of needed capital. We also offer three other reasons why corporate capital flows are unlikely to pose a problem for the economy. A prior version of this paper was circulated under the title “Short-Termism and Shareholder Payouts: Getting Corporate Capital Flows Right."
Charles W. Calomiris, Douglas Holtz-Eakin, R. Glenn Hubbard, Allan H. Meltzer & Hal S. Scott, Establishing Credible Rules for Fed Emergency Lending, J. Fin. Econ. Pol’y (forthcoming 2017).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
Type: Article
Abstract
The current framework governing emergency lending – including reforms to Federal Reserve lending enacted after the recent crisis – are inadequate and not credible. We propose reforms that would establish a credible framework of rules to constrain and guide emergency lending by the Federal Reserve and by fiscal authorities during a future financial crisis. Our proposed framework follows five overarching rules, informed by history, empirical evidence and theory, which would serve as the foundation on which detailed legislation should be constructed. Adequate assistance to financial institutions would be provided in systemic crises but would be limited in its form, and by the process that would govern its provision. Our framework would serve as a basis for establishing effective rules that would be credible, and that would properly balance the moral-hazard costs of emergency lending against the gains from avoiding systemic collapse of the financial system.
Hal S. Scott & Brian A. Johnson, Controlling the Long-Term Problems of Short-Term Funding (Feb. 2017).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Financial Reform
Type: Other
Abstract
While financial crises can be triggered by a number of causes, runs on short-term liabilities are at the heart of all financial crises with the recent 2007-2009 financial crisis being no exception. Given the unpredictability of crisis triggers and the overwhelming predictability of short-term funding’s role in financial crises, legislative and regulatory responses to the recent financial crisis should focus on controlling the problem of short-term funding in the financial system. However, in addressing the problem of short-term funding in the financial system, it is important to recognize the social benefits afforded by short-term liabilities and not simply the costs. To this end, this Article provides a brief overview of short-term funding in the U.S. financial system, while also highlighting the tradeoff between the costs and benefits of short-term liabilities. The Article proceeds with an analysis of various proposals aimed at addressing the short-term funding issue.
Elizabeth Papp Kamali,The Devil's Daughter of Hell Fire: Anger's Role in Medieval English Felony Cases, 35 Law & Hist. Rev. 155 (2017).
Categories:
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Legal History
Type: Article
Abstract
During the period at issue in this paper–the thirteenth and fourteenth centuries, when trial juries were first employed in English felony cases–felonious homicide was a catch-all category, with no formal distinction drawn between murder and manslaughter. Nevertheless, juries did distinguish among different types of homicide as they sorted the guilty from the innocent, and the irremediably guilty from those worthy of pardon. Anger was one of the factors that informed this sorting process. This paper builds upon an earlier analysis of the meaning of felony, which posited that the medieval paradigm of felony was an act that involved deliberation and forethought, an exercise of a person's reasoning capacity and volition in the absence of necessity, and moral blameworthiness. Anger complicates this scenario. On the one hand, anger was seen to be a product of an ill-formed conscience. This potentially placed anger within the felonious area of moral blameworthiness. On the other hand, anger in its more extreme manifestations was seen to inhibit a person's ability to reason and to inspire behavior resembling insanity, thereby possibly pointing toward a partial excuse. This paper takes a fresh methodological approach for the study of emotion in the common law, placing legal texts within a broader cultural context in order to illuminate the concerns and priorities of jurors.
Mark J. Roe, Three Ages of Bankruptcy (Jan. 31, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Bankruptcy & Reorganization
Type: Other
Abstract
During the past century, three decisionmaking systems have arisen to accomplish a bankruptcy restructuring — judicial administration, a deal among the firm’s dominant players, and a sale of the firm’s operations in their entirety. Each is embedded in the Bankruptcy Code today, with all having been in play for more than a century and with each having had its heyday — its dominant age. The shifts, rises, and falls among decisionmaking systems have previously been explained by successful evolution in bankruptcy thinking, by the happenstance of the interests and views of lawyers that designed bankruptcy changes, and by the interests of those who influenced decisionmakers. Here I argue that these broad changes also stem from baseline market capacities, which shifted greatly over the past century; I build the case for shifts underlying market conditions being a major explanation for the shifts in decisionmaking modes. Keeping these three alternative decisionmaking types clearly in mind not only leads to better understanding of what bankruptcy can and cannot do, but also facilitates stronger policy decisions today here and in the world’s differing bankruptcy systems, as some tasks are best left to the market, others are best handled by the courts, and still others can be left to the inside parties to resolve.
Henry E. Smith, Fusing the Equitable Function in Private Law, in Private Law in the 21st Century (Kit Barker, Karen Fairweather & Ross Grantham eds., 2017).
Categories:
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
Type: Book
Chaim Saiman, One God, No State, and Many Legal Arguments: Multivalent Logic in Jewish Law, in Law and the New Logics 69 (H. Patrick Glenn & Lionel Smith eds., Camb. Univ. Press 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Jewish Law
Type: Book
Abstract
While speculating about the central message of the Hebrew Bible is dangerous, surely, proclaiming the truth of the monotheistic God and eradicating idolatrous polytheism, are some of its core themes. Viewed from the perspective of duality and multiplicity, a casual reader will likely conclude that the Bible maintains a rather bivalent view of the world. Following the God is good, worshiping idols and false gods is bad. This reflects what we might call a procedural view of bi-valence. That is, if there are two options A & B, if A is correct than B is perforce wrong. Examples of this thinking can be found in many places, including chapter 30 of Deuteronomy: See, I set before you today life and prosperity, death and destruction. For I command you today to love the LORD your God, to walk in obedience to him, and to keep his commands, decrees and laws; then you will live and increase, and the LORD your God will bless you in the land you are entering to possess. But if your heart turns away and you are not obedient, and if you are drawn away to bow down to other gods and worship them. I declare to you this day that you will certainly be destroyed. You will not live long in the land you are crossing the Jordan to enter and possess. Yet, the Biblical worldview also entails second, more substantive, version of bi-valence. This is bound up in the monotheistic claim that there is One, as opposed to many, Gods. Contrary to the prevailing view of the time, the Bible argues that there is one source of life, one source of truth, one source of meaning, and one source of revelation; claims that strongly contrast with the polytheistic view which holds there are many sources of life, meaning and truth. In broad strokes, polytheism would seem to resonate with multivalence, whereas the Bible's universal monotheism may offer the strongest form of bi-valence imaginable. This central idea is reflected in many aspects of Jewish law and life, and is neatly summarized in the havdala ceremony – a short prayer recited at the conclusion of Shabbat each Saturday night. Liturgically, this prayer gives each Jew marching orders as he exits from the holy space of Shabbat to the mundane zone of workweek.
John Armour, Henry Hansmann, Reinier Kraakman & Mariana Pargendler, Foundations of Corporate Law, in Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda, Mariana Pargendler, Georg Ringe & Edward Rock, The Anatomy of Corporate Law: A Comparative and Functional Approach ch. 1 (Oxford Univ. Press 3d ed. 2017).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
This paper is the first chapter of the third edition of The Anatomy of Corporate Law: A Comparative and Functional Approach, by Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda Mariana Pargendler, Georg Ringe, and Edward Rock (Oxford University Press, 2017). This paper is the first chapter of the third edition of The Anatomy of Corporate Law: A Comparative and Functional Approach, by Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda Mariana Pargendler, Georg Ringe, and Edward Rock (Oxford University Press, 2017). The book as a whole provides a functional analysis of corporate (or company) law in Europe, the U.S., and Japan. Its organization reflects the structure of corporate law across all jurisdictions, while individual chapters explore the diversity of jurisdictional approaches to the common problems of corporate law. In its third edition, the book has been significantly revised and expanded. As the introductory chapter to the book, this paper introduces the book’s analytic framework, which focuses on the common structure of corporate law across different jurisdictions as a response to fundamentally similar legal and economic problems. It first details the economic importance of the corporate form’s hallmark features: legal personality, limited liability, transferable shares, delegated management, and investor ownership. The major agency problems that attend the corporate form and that, therefore, must be addressed, are identified. The chapter next considers the role of law and contract in structuring corporate affairs, including the function of mandatory and default rules, standard forms, and choice of law, as well the debate about the proper role of corporate law in promoting overall social welfare. While almost all legal systems retain the core features of the corporate form, individual jurisdictions have made distinct choices regarding many other aspects of their corporate laws. The forces shaping the development of corporate law, including evolving patterns of share ownership, are examined.
Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch, Evaluating NFL Player Health and Performance: Legal and Ethical Issues, 165 U. Pa. L. Rev. 227 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Disability Rights
,
Discrimination
,
Gaming & Sports Law
,
Health Law & Policy
,
Employment Discrimination
Type: Article
Abstract
This Article follows the path of a hypothetical college football player with aspirations to play in the National Football League, explaining from a legal and ethical perspective the health and performance evaluations he will likely face throughout his career. Some of these evaluations are commonplace and familiar, while others are more futuristic — and potentially of unproven value. How much information about themselves should aspiring and current professional players be expected to provide in the employment context? What are the current legal standards for employers collecting and acting on an individual’s health- and performance-related information? Drawing on disability law, privacy law, and the law governing genetic testing, this Article seeks to answer those questions, as well as to provide recommendations to better protect the health and privacy of professional football players. The upshot of our analysis is that it appears that some of the existing evaluations of players, both at the NFL Scouting Combine (Combine) and once drafted and playing for a club, seem to violate existing federal employment discrimination laws. Specifically, (1) the medical examinations at the Combine potentially violate the Americans with Disabilities Act’s (ADA) prohibitions on pre-employment medical exams; (2) post-offer medical examinations that are made public potentially violate the ADA’s confidentiality provisions; (3) post-offer medical examinations that reveal a disability and result in discrimination — e.g., the rescission of a contract offer — potentially violate the ADA provided the player can still perform the essential job functions; (4) Combine medical examinations that include a request for a player’s family medical history potentially violate the Genetic Information Nondiscrimination Act (GINA); and (5) the preseason physical’s requirement that a player disclose his family medical history potentially violates GINA. We believe all employers — including the NFL and its clubs — should comply fully with the current law. To that end, our recommendations center around four “C”s: compliance, clarity, circumvention, and changes to existing statutory schemes as applied to the NFL (and perhaps other professional sports).
William W. Fisher, Maps of Intellectual Property v. 8.0 (Berkman Ctr. for Internet & Soc'y at Harv. Univ., Jan. 22, 2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Other
Luke Gelinas, Holly Fernandez Lynch, Barbara E. Bierer & I. Glenn Cohen, When Clinical Trials Compete: Prioritising Study Recruitment, J. Med. Ethics (forthcoming 2017).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
,
Health Law & Policy
Type: Article
Abstract
It is not uncommon for multiple clinical trials at the same institution to recruit concurrently from the same patient population. When the relevant pool of patients is limited, as it often is, trials essentially compete for participants. There is evidence that such a competition is a predictor of low study accrual, with increased competition tied to increased recruitment shortfalls. But there is no consensus on what steps, if any, institutions should take to approach this issue. In this article, we argue that an institutional policy that prioritises some trials for recruitment ahead of others is ethically permissible and indeed prima facie preferable to alternative means of addressing recruitment competition. We motivate this view by appeal to the ethical importance of minimising the number of studies that begin but do not complete, thereby exposing their participants to unnecessary risks and burdens in the process. We then argue that a policy of prioritisation can be fair to relevant stakeholders, including participants, investigators and funders. Finally, by way of encouraging and helping to frame future debate, we propose some questions that would need to be addressed when identifying substantive ethical criteria for prioritising between studies.
John Armour, Luca Enriques, Henry Hansmann & Reinier Kraakman, The Basic Governance Structure: The Interests of Shareholders as a Class, in Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda, Mariana Pargendler, Georg Ringe, and Edward Rock, The Anatomy of Corporate Law: A Comparative and Functional Approach ch. 3 (Oxford Univ. Press 3rd ed. 2017).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Shareholders
,
Corporate Governance
,
Comparative Law
Type: Book
Abstract
This paper is the third chapter of the third edition of The Anatomy of Corporate Law: A Comparative and Functional Approach, by Reinier Kraakman, John Armour, Paul Davies, Luca Enriques, Henry Hansmann, Gerard Hertig, Klaus Hopt, Hideki Kanda Mariana Pargendler, Georg Ringe, and Edward Rock (Oxford University Press, 2017). The book as a whole provides a functional analysis of corporate (or company) law in Europe, the U.S., and Japan. Its organization reflects the structure of corporate law across all jurisdictions, while individual chapters explore the diversity of jurisdictional approaches to the common problems of corporate law. In its third edition, the book has been significantly revised and expanded. Chapter 3 examines legal strategies employed in representative “core jurisdictions” to mitigate manager-shareholder conflicts. Agency problems arise from two of the core features of the corporate form: investor ownership, which often results in ultimate control being held by shareholders far removed from the firm’s day-to-day operations; and delegated management, which opens up the possibility for opportunistic behavior. This chapter describes how legal strategies outlined in Chapter 2 of the book are utilized to solve the trade-offs resulting from the interaction of investor ownership with delegated management. It describes the use of appointment rights, by which shareholders retain the right to appoint and remove directors. Next, it focuses on core decision rights and how their effectiveness is related to the problem of shareholder coordination costs. It then considers reward strategies and independent directors as a popular trusteeship strategy, while also highlighting differences in and commonalities in the regulation of executive compensation. The chapter briefly reviews legal rules and standards and disclosure as additional tools, before reflecting upon why some divergence in the basic corporate governance structure persists across our sample jurisdictions.
Jacob Gersen & Jeannie Suk Gersen, The College Sex Bureaucracy, Chron. Higher Educ., Jan. 13, 2017, Chron. Rev., at 1.
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Education Law
Type: Article
I. Glenn Cohen, George Q. Daley, and Eli Y. Adashi, Disruptive Reproductive Technologies, 9 Sci. Translational Med. (Jan. 11, 2017).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Bioethics
Type: Article
Abstract
In vitro gametogenesis raises new possibilities for reproductive and regenerative medicine as well as vexing policy challenges.
Cass R. Sunstein, ‘Don't Tell Me What I Can't Do!’ On the Intrinsic Value of Control, Introduction, in The Behavioral Economics Guide 2017 (Alain Samson ed., forthcoming June 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
For most people, control has some intrinsic value; people care about maintaining it and will pay something to do so. Whenever a private or public institution blocks choices or interferes with agency, some people will rebel, even if exercising control would not result in material benefits or might produce material harms. On the other hand, people sometimes want to relinquish control, because exercising agency is burdensome or costly. This essay explores when rational and boundedly rational people will prefer to maintain or exercise control and when they will prefer to delegate it.
Howell Jackson & Stephanie Massman, The Resolution of Distressed Financial Conglomerates, 3 RSF: Russell Sage Found. J. Soc. Sci. 48 (2017).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Financial Markets & Institutions
,
Corporate Bankruptcy & Reorganization
Type: Article
Abstract
One of the most elegant legal innovations to emerge from the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 is the FDIC’s single-point-of-entry (SPOE) initiative, whereby regulatory authorities will be in a position to resolve the failure of large financial conglomerates (corporate groups with regulated financial entities as subsidiaries) by seizing a top-tier holding company, downstreaming holding-company resources to distressed subsidiaries, wiping out holding-company shareholders while simultaneously imposing additional losses on holding-company creditors, and allowing the government to resolve the entire group without disrupting the business operations of operating subsidiaries (even those operating overseas) or risking systemic consequences for the broader economy. Although there is much to admire in the creativity underlying SPOE, the approach’s design also raises a host of novel and challenging questions of implementation. This chapter explores a number of these questions and elaborates upon the following points. First, in contrast to traditional approaches to resolving financial conglomerates, SPOE is premised on the continued support of all material operating subsidiaries, thereby potentially extending the scope of government support and thus posing the possibility of mission creep and expanded moral hazard. Second, SPOE contemplates the automatic downstreaming of resources to operating subsidiaries in distress, but effecting that support is likely to be more difficult than commonly understood. If too much support is positioned in advance, there may be inadequate reserves at the top level to support a single subsidiary that gets into an unexpectedly large amount of trouble. Alternatively, if too many reserves are retained at the holding-company level, commitments of subsidiary support may not be credible (especially to foreign authorities) and it may become difficult legally and practically to deploy those resources in times of distress. SPOE is most easy to envision operating in conjunction with the FDIC’s expanded authority under its Orderly Liquidation Authority (OLA) established under Title II of the Dodd-Frank Act. However, the act’s preferred regime for resolving failed financial conglomerates is the U.S. Bankruptcy Code (where Lehman was resolved) and not OLA. Several complexities could arise were a bankruptcy court today called upon to implement an SPOE resolution plan. While many legal experts are working on legislative proposals to amend the Bankruptcy Code to facilitate SPOE resolutions, there are a number of legal levers that federal authorities could deploy under current law to increase the likelihood that the SPOE strategy could be effected through traditional bankruptcy procedures. The task would be challenging and would require considerable advanced planning. But there are substantial benefits to be had from taking steps now to increase the likelihood that the bankruptcy option represents a viable and credible alternative for effecting SPOE transactions without resort to OLA and Title II of the Dodd-Frank Act.
Jessica L. Roberts, I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch, The Legality of Biometric Screening of Professional Athletes, 17 Am. J. Bioethics 65 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Gaming & Sports Law
,
Bioethics
,
Health Law & Policy
Type: Article
Holly Fernandez Lynch, I. Glenn Cohen & Barbara E. Bierer, Public Engagement, Notice-and-Comment Rulemaking, and the Common Rule, 39 IRB: Ethics & Hum. Res. 17 (2017).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Health Law & Policy
Type: Article
Abstract
At the federal level in the United States, development of regulations is governed by the Administrative Procedure Act (APA), the statute by which Congress authorized various federal agencies to develop rules with the force of law, under a process called “notice and comment rulemaking.” In 2011, the Department of Health and Human Services (HHS) published in the Federal Register an “Advanced Notice of Proposed Rule Making” (ANPRM) to begin the first public discussion in decades about amending the Federal Policy for the Protection of Human Subjects, also known as the “Common Rule.” Over 1,100 public comments were submitted. In 2015, HHS along with several other federal agencies issued a “Notice of Proposed Rule Making” (NPRM), the second step in the process toward revising the Common Rule. This time, the agencies received nearly 2,200 public comments. Courts have interpreted the APA to require that agencies consider public comments with an “open mind” susceptible to persuasion, although this does not require an agency to actually change what has been proposed. Given the relatively lax legal standard for engaging with public comments, it seems clear that despite widespread opposition to several key changes that have been proposed to the Common Rule, the agencies are free to finalize the rule essentially as set forth in the NPRM. In our view, this would be an extremely worrisome outcome, but one offering little to no legal recourse—and given the pace of change to the Common Rule over the past several decades, not one likely to be corrected any time soon.
Elizabeth Papp Kamali & Thomas A. Green, A Crossroads in Criminal Procedure: The Assumptions Underlying England's Adoption of Trial by Jury for Crime, in Essays in Honour of Paul Brand (Travis Baker ed., Ashgate forthcoming 2017)
Categories:
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Jury Trials
,
Legal History
Type: Book
Louis Kaplow, A Distribution-Neutral Perspective on Tax Expenditure Limitations, 31 Tax Pol’y & Econ. (forthcoming 2017).
Categories:
Taxation
Sub-Categories:
Tax Policy
Type: Article
Abstract
A recent wave of literature, partly motivated by presidential campaign tax reform plans, analyzes tax expenditure limitation proposals. These reforms are often advanced not only, or even primarily, because they reduce distortions caused by favoritism for some types of expenditures over others. Largely they are urged for a number of other reasons: on distributive grounds, because the resulting broader base enables lower marginal tax rates and hence less distortion of labor effort and other margins, and to raise revenue without requiring higher marginal tax rates. It is generally recognized that the particular results on these dimensions are heavily dependent on what sorts of rate adjustments are used to return the proceeds to taxpayers. Often, revenue neutrality is assumed. This essay advances a complementary, distribution-neutral perspective on the analysis of tax expenditure limitations. Distribution-neutral implementation provides an illuminating benchmark against which to understand prior analysts’ large number of results and, more importantly, clarifies the analysis, particularly of the distribution-distortion tradeoff. The central lessons contradict the common belief that one can have less distortion of labor supply through lower marginal tax rates while also maintaining or enhancing progressivity.
Niva Elkin-Koren & Maayan Perel, Accountability in Algorithmic Copyright Enforcement, 20 Stan. Tech. L. Rev. (forthcoming 2017).
Categories:
Technology & Law
,
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Communications Law
,
Cyberlaw
,
Digital Property
,
Intellectual Property Law
,
Networked Society
Type: Article
Abstract
Recent years echo a growing use of algorithmic law enforcement by online intermediaries. Facilitating the distribution of online content, online intermediaries offer a natural point of control for monitoring access to illegitimate content, which makes them ideal partners for performing civil and criminal enforcement. Copyright law was at the forefront of algorithmic law enforcement from the early 90’s, conferring safe harbor protection to online intermediaries who remove allegedly infringing content upon notice under the Digital Millennium Copyright Act (DMCA). Over the past two decades, the Notice and Takedown (N&TD) regime has become ubiquitous and embedded in the system design of all major intermediaries: while major copyright owners increasingly exploit robots to send immense volumes of takedown requests – a practice that was recently accredited by the 9th Circuit in Lenz v. Universal Studios – major online intermediaries, in response, use algorithms to filter, block, and disable access to allegedly infringing content automatically, with little or no human intervention. Algorithmic enforcement by online intermediaries reflects a fundamental shift in our traditional system of governance. It effectively converges law enforcement and adjudication powers, at the hands of a small number of mega platforms, profit-maximizing, and possibly biased private entities. Yet, notwithstanding their critical role in shaping access to online content and facilitating public discourse, intermediaries are hardly held accountable for algorithmic enforcement. We simply do not know which allegedly infringing material triggers the algorithms, how decisions regarding content restrictions are made, who is making such decisions and how target users might affect these decisions. Lessons drawn from algorithmic copyright enforcement by online intermediaries could offer a valuable case study for addressing these concerns. As we demonstrate, algorithmic copyright enforcement by online intermediaries lacks sufficient measures to assure accountability, namely, the extent to which decision makers are expected to justify their choices, are answerable for their actions, and are held responsible for their failures and wrongdoings. This Article proposes a novel framework for analyzing accountability in algorithmic enforcement that is based on three factors: transparency, due process and public oversight. It identifies the accountability deficiencies in algorithmic copyright enforcement and further maps the barriers for enhancing accountability, including technical barriers of non-transparency and machine learning, legal barriers that disrupt the development of algorithmic literacy and practical barriers. Finally, the Article explores current and possible strategies for enhancing accountability, by increasing public scrutiny and promoting transparency in algorithmic copyright enforcement.
Tomiko Brown-Nagin, African Americans and the Constitution, in Handbook of African American History (Leslie Brown ed., Oxford Univ. Press forthcoming 2017).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Race & Ethnicity
Type: Book
Jacob E. Gersen & Christopher Berry, Agency Design and Political Control, 126 Yale L.J. 1002 (2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Separation of Powers
Type: Article
Martha Minow, Alternatives to the State Action Doctrine in the Era of Privatization, Mandatory Arbitration, and the Internet: Directing Law to Serve Human Needs, 52 Harv. C.R.-C.L. L. Rev. 145 (2017).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Technology & Law
Sub-Categories:
Civil Rights
,
State & Local Government
,
Government Accountability
,
International Arbitration
,
Networked Society
Type: Article
Abstract
The article focuses on the alternatives to the state action doctrine in the era of privatization, mandatory arbitration, and the internet for serving human needs. Topics discussed include increased use of the internet and digital communications; increased privatization of traditionally public services; and importance of the line between governmental and nongovernmental activities.
Kristen A. Stilt & Jessica Eisen, Protection and Status of Animals, in Max Planck Encyclopedia of Comparative Constitutional Law (Oxford Univ. Press, 2017).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Animal Law
,
Comparative Law
,
International Law
Type: Book
Kristen A. Stilt, Animals, in The Oxford Handbook of Islamic Law (Anver Emon & Rumee Ahmed eds., Oxford Univ. Press, forthcoming 2017).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Islamic Law
,
Animal Law
Type: Book
Gerald L. Neuman, Arbitrary Detention and the Human Rights Committee's General Comment 35, in Mélanges in tribute to Judge Christine Chanet, (Emmanuel Decaux, Iulia Motoc & Patrice Gillibert eds., forthcoming 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The UN Human Rights Committee’s General Comment No. 35 summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay provides an overview of General Comment No. 35, and then focuses on three aspects that provoked controversy either within the Committee or outside it: the time limit for “prompt” presentation of pre-trial detainees to a judge; the standards governing security detention in non-international armed conflict; and the disagreement between the Human Rights Committee and the Committee on the Rights of Persons with Disabilities regarding whether involuntary hospitalization is ever permitted. These examples illustrate significant issues about the interaction between the Covenant and other international regimes.
Samuel Moyn, Beyond Liberal Internationalism, 64 Dissent, Winter 2017, at 116.
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
International Law
,
Foreign Relations
Type: Article
Abstract
The article discusses the issue on the liberal internationalism of the U.S. Democratic Party . Topics discussed include the consequences to foreign policy following the election of U.S. President-elect Donald Trump in the 2016 election, the influence of liberal internationalists to globalization, economic equality, and free markets, and the economic nationalism of President-elect Trump. Also discussed the political freedom in the country, the view of liberal internationalists on the military intervention of a country, and the advancement of international law through the leadership of U.S. President Barack Obama.
Niva Elkin-Koren & Maayan Perel, Black Box Tinkering: Beyond Transparency in Algorithmic Enforcement, Fla. L. Rev. (forthcoming 2017).
Categories:
Technology & Law
,
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Communications Law
,
Cyberlaw
,
Information Privacy & Security
,
Networked Society
Type: Article
Abstract
The pervasive growth of algorithmic enforcement magnifies current debates regarding the virtues of transparency. Not only does using codes to conduct robust online enforcement amplify the settled problem of magnitude, or “too-much-information,” often associated with present-day disclosures, it imposes additional practical difficulties on relying on transparency as an adequate check for algorithmic enforcement. In this Essay we explore the virtues of black box tinkering methodology as means of generating accountability in algorithmic systems of online enforcement. Given the far-reaching implications of algorithmic enforcement of online content for public discourse and fundamental rights, we advocate active public engagement in checking the practices of automatic enforcement systems. Accordingly, we explain the inadequacy of transparency in generating public oversight. First, it is very difficult to read, follow and predict the complex computer code which underlies algorithms as it is inherently non-transparent and capable of evolving according to different patterns of data. Second, mandatory transparency requirements are irrelevant to many private implementations of algorithmic governance which are subject to trade secrecy. Third, algorithmic governance is so robust that even without mandatory transparency it is impossible to review all the information already disclosed. Fourth, when algorithms are called on to replace humans in making determinations that involve discretion, transparency about the algorithms’ inputs (the facts) and outputs (the outcomes) is not enough to allow adequate oversight. This is because a given legal outcome does not necessarily yield sufficient information about the reasoning behind it. Subsequently we establish the benefits of black box tinkering as a proactive methodology that encourages social activism, using the example of a recent study of online copyright enforcement practices by online intermediaries. That study sought to test systematically how hosting websites implement copyright policy by examining the conduct of popular local image-sharing platforms and popular local video-sharing platforms. Particularly, different types of infringing, non-infringing and fair use materials were uploaded to various hosting facilities, each intended to trace choices made by the black box system throughout its enforcement process. The study’s findings demonstrate that hosting platforms are inconsistent, therefore unpredictable in detecting online infringement and enforcing copyrights: some platforms allow content that is filtered by others; some platforms strictly respond to any notice requesting removal of content despite its being clearly non-infringing, while other platforms fail to remove content upon notice of alleged infringement. Moreover, many online mechanisms of algorithmic copyright enforcement generally do very little in terms of minimizing errors and ensuring that interested parties do not abuse the system to silence legitimate speech and over-enforce copyright. Finally, the findings indicate that online platforms do not make full efforts to secure due process and allow affected individuals to follow, and promptly respond to, proceedings that manage their online submissions. Based on these findings, we conclude that black box tinkering methodology could offer an invaluable grasp of algorithmic enforcement practices on the ground. We hence evaluate the possible legal implications of this methodology and propose means to address them.
Elizabeth Bartholet, Book Review, 20 Adoption Q. (forthcoming 2017) (reviewing Rebecca J. Compton, Adoption Beyond Borders: How International Adoption Benefits Children (2016)).
Categories:
Family Law
,
International, Foreign & Comparative Law
Sub-Categories:
Children's Law & Welfare
,
International Law
Type: Article
Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State, 130 Harv. L. Rev. (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Separation of Powers
Type: Article
Abstract
What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.
Jonathan Lovvorn, Climate Change Beyond Environmentalism Part I: Intersectional Threats and the Case for Collective Action, 29 Geo. Envtl. L. Rev. 1 (2017).
Categories:
Environmental Law
,
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Public Interest Law
,
Climate Change
,
Animal Law
Type: Article
Abstract
This paper is part I of a two-part series of papers exploring the intersectional threats of climate change, its discriminatory impacts on the economically disadvantaged, people of color, women, children, and animals; and the unique role animals play as both a cause of climate change emissions and some of its front-line victims. The paper discusses the failure of regulatory institutions to provide meaningful solutions to the climate change problem, and why the 900,000,000 people living in extreme poverty, the native communities literally disappearing into the sea in Alaska and elsewhere, the 600,000,000 people living less than ten meters above sea level, and the more than 140,000,000,000 wild animals caught in climate change’s cruel grasp cannot afford to wait for incremental emissions reduction plans, carbon emission trading schemes, or other efforts to “stabilize” or normalize global warming emissions. The paper argues for the immediate engagement of the animal protection community due to the impending loss of billions of wild animals, and makes the case for reactivation of the historic alliance between animal protection and environmental advocates as a first step towards a more holistic and inclusive climate coalition effort.
Kristen Stilt & Salma Waheedi, Islamic Judicial Review, in Comparative Judicial Review (Erin Delaney & Rosalind Dixon eds., forthcoming 2017).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Islamic Law
,
Comparative Law
Type: Book
Kristen Stilt, Constitutional Innovation and Animal Protection in Egypt, Law & Soc. Inquiry (forthcoming 2017).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Animal Law
,
Foreign Law
Type: Article
Will Dobbie, Paul Goldsmith-Pinkham & Crystal S. Yang, Consumer Bankruptcy and Financial Health, Rev. Econ. & Stat. (forthcoming 2017).
Categories:
Disciplinary Perspectives & Law
,
Consumer Finance
Sub-Categories:
Consumer Bankruptcy Law
,
Empirical Legal Studies
Type: Article
Abstract
This paper estimates the effect of Chapter 13 bankruptcy protection on post-filing financial outcomes using a new dataset linking bankruptcy filings to credit bureau records. Our empirical strategy uses the leniency of randomly-assigned judges as an instrument for Chapter 13 protection. Over the first five post-filing years, we find that Chapter 13 protection decreases an index measuring adverse financial events such as civil judgments and repossessions by 0.316 standard deviations, increases the probability of being a homeowner by 13.2 percentage points, and increases credit scores by 14.9 points. Chapter 13 protection has little impact on open unsecured debt, but decreases the amount of debt in collections by $1,315.
Oren Bar-Gill, Consumer Contracts: Law, Economics and Psychology, in Law and Economics of the Mortgage Market (Fernando Gomez & Juanjo Ganuza eds., forthcoming 2017).
Categories:
Consumer Finance
Sub-Categories:
Consumer Contracts
Type: Book
J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay, Defending Worldwide Taxation With a Shareholder-Based Definition of Corporate Residence, 1016 BYU L. Rev. 1681 (2017).
Categories:
Taxation
,
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Taxation - Corporate
,
Tax Policy
,
Taxation - International
Type: Article
Cass R. Sunstein, Deliberative Democracy in the Trenches, Daedalus (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Government Accountability
,
Administrative Law & Agencies
Type: Article
Abstract
In the last decades, many political theorists have explored the idea of “deliberative democracy.” The basic claim is that well-functioning democracies combine accountability with a commitment to reflection, information acquisition, multiple perspectives, and reason-giving. Does that claim illuminate actual practices? Much of the time, the executive branch in the United States combines both democracy and deliberation, not least because it places a high premium on reason-giving and the acquisition of necessary information. It also contains a high degree of internal diversity, encouraging debate and disagreement, not least through the public comment process. These claims are illustrated with concrete, if somewhat stylized, discussions of how the executive branch often operates.
Crystal S. Yang, Designing an Optimal Bail System, N.Y.U. L. Rev. (forthcoming 2017).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
Type: Article
Crystal S. Yang, Does Public Assistance Reduce Recidivism?, Am. Econ. Rev.: Papers & Proc. (forthcoming 2017).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Poverty Law
,
Government Benefits
Type: Article
Sabrineh Ardalan, EU Border Externalization: Parallelisms with the U.S./Mexico Border Experience, in Europe's Crisis: What Future for Immigration and Asylum Law and Policy? (EU Immigr. Law Series, Brill, forthcoming 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
European Law
,
Refugee & Asylum Law
Type: Book
Cass R. Sunstein, Forcing People To Choose Is Paternalistic, 82 Mo. L. Rev. (forthcoming 2017) (Symposium on Libertarian Paternalism).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
It can be paternalistic to force people to choose. Although many people insist on drawing a bright line between active choosing and paternalism, that line is often illusory. Calling for active choosing is a form of libertarian paternalism if people are permitted to opt out of choosing in favor of a default (and in that sense not to choose). By contrast, calling for active choosing is a form of nonlibertarian paternalism insofar as people are actually required to choose. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, and insist on it, may well be overriding people’s preferences and thus running afoul of John Stuart Mill’s Harm Principle (for better or for worse).
Cass R. Sunstein, Formalism in Constitutional Theory, 32 Const. Comment. 27 (2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In law – and in many other social activities, including music, art, and literature – reasonable people can and do argue over the best conception of interpretation. Intended meaning is unquestionably one candidate, but there are others. To choose among plausible accounts of what interpretation entails, judges and lawyers need to think about the world and to look outward, rather than to pretend that definitions can solve the problem. They need to ask which approach would make our constitutional order better rather than worse.
Scott Hirst, Frozen Charters, 34 Yale J. on Reg. 91 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Corporate Governance
Type: Article
Abstract
In 2012, the New York Stock Exchange changed its policies to prevent brokers from voting shares on corporate governance proposals when they have not received instructions from beneficial owners. Although the change was intended to protect investors and improve corporate governance, it has had the opposite effect: a significant number of U.S. public companies are no longer able to amend important parts of their corporate charters, despite the support of their boards of directors and overwhelming majorities of shareholders. Their charters are frozen. This Article provides the first empirical and policy analysis of the broker voting change and its significant unintended consequences. I provide empirical evidence that the broker voting change has resulted in the failure of more than fifty charter amendments at U.S. public companies, despite board approval and overwhelming shareholder support, and that hundreds more companies have frozen charters as a result of the change. The rule change has also made it more difficult to amend corporate bylaws and given some insiders a de-facto veto in proxy voting contests. These costs substantially outweigh the negligible benefits of the broker voting change. I compare a number of solutions to address these problems and identify several that would be preferable to the current approach.
Chaim Saiman, Halakhah: The Rabbinic Idea of Law (Princeton Univ. Press forthcoming 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Jewish Law
Type: Book
Mark Wu, Indian Corporations, the Administrative State, and the Rise of Indian Trade Remedies, in The Indian Legal Profession in the Age of Globalization (David Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., forthcoming 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
,
Trade Regulation
Type: Book
Joseph W. Singer, Indian Title: Unraveling the Racial Context of Property Rights, or How to Stop Engaging in Conquest, 10 Alb. Gov’t L. Rev. 1 (2017).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Race & Ethnicity
,
Discrimination
,
Property Rights
Type: Article
Abstract
This article discusses the racial injustice faced by Native Americans, with whom land titles in the United States originated with. The author argues it is vital to interpret the Supreme Court cases of the 19th century that correctly defined Indian title, and to honor the property rights of Indian title just as we do the "fee simple of the whites".
William W. Fisher III & Talha Syed, Infection: The Health Crisis in the Developing World and What We Should Do About It (Stanford Univ. Press forthcoming 2017).
Categories:
International, Foreign & Comparative Law
,
Health Care
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Health Law & Policy
,
Food & Drug Law
,
Developing & Emerging Nations
,
Nonprofit & Nongovernmental Organizations
,
International Humanitarian Law
Type: Book
Inside Money: Re-Theorizing Liquidity (Christine A. Desan ed., Univ. Pa. Press, forthcoming 2017).
Categories:
Banking & Finance
Sub-Categories:
Finance
,
Financial Markets & Institutions
Type: Book
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, Q. J. Experimental Psychol. (forthcoming 2017) (Symposium on ‘the Foreign Language Effect’).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? In some ways, yes. There is considerable evidence to this effect, at least to the extent that they are less likely to rely on intuitions that can lead to serious errors. This finding reinforces, and makes more plausible, a central claim in regulatory policy, which involves the value of cost-benefit analysis. In a sense, cost-benefit analysis is a foreign language, and it reduces the risk that people will rely on intuitions that cause serious errors. Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Kristen A. Stilt, Law, in Critical Terms for Animal Studies (Lori Gruen ed., Univ. Chi. Press, forthcoming 2017).
Categories:
Environmental Law
Sub-Categories:
Animal Law
Type: Book
Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge Univ. Press forthcoming June 2017).
Categories:
Health Care
,
Constitutional Law
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Religion
,
Religious Rights
,
Religion & Law
,
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Book
Abstract
"While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else - patient or physician, secular or devout - interested in how US law interacts with health care and religion." -- Publisher
William W. Fisher, Lessons from CopyrightX, in Copyright Law in an Age of Limitations and Exceptions (Ruth Okediji ed., 2017).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal Education
,
Intellectual Property - Copyright
Type: Book
Crystal S. Yang, Local Labor Markets and Criminal Recidivism, 147 J. Pub. Econ. 16 (2017).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Empirical Legal Studies
,
Law & Economics
Type: Article
Abstract
This paper estimates the impact of local labor market conditions on criminal recidivism using rich administrative prison records on over four million offenders released from 43 states between 2000 and 2013. Exploiting each offender’s exact date of release, I find that being released to a county with higher low-skilled employment and higher average low-skilled wages significantly decreases the risk of recidivism. The impact of higher wages on recidivism is larger for both black offenders and first-time offenders, and in sectors that report being more willing to hire ex-offenders. These results are robust to individual and county-level controls, policing and corrections activity, and do not appear to be driven by changes in the composition of released offenders during good or bad economic times.
Kjersti Skarstad & Michael Ashley Stein, Mainstreaming Disability in the United Nations Treaty Bodies, 16 J. Hum. Rts. (forthcoming 2017).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Treaties & International Agreements
Type: Article
Abstract
As of the beginning of this century, the United Nations (UN) human rights system had comprehensively elided persons with disabilities from its purview. The Convention on the Rights of Persons with Disabilities (CRPD) responded to this lacuna in 2006. The CRPD obligates States parties to mainstream disability by protecting and promoting the human rights of persons with disabilities in all policies and programs, and intersects disability with other discriminated-against populations. This Article investigates the success of the UN in mainstreaming disability throughout its human rights treaty bodies over the period 2000–2014 by comparing the seven years before and the eight years after the CRPD's adoption for six core UN treaty bodies. In doing so, the Article provides initial and unique insight into how well the UN implements human rights norms into treaty bodies, and provides a template for future research on the inclusion of vulnerable group-based rights in the UN and beyond. Despite some significant variations between treaty bodies, we find an overall dramatic increase in the quantitative incidence of disability rights being referenced. Nevertheless, a closer look into the practices of two treaty bodies shows that the human rights of persons with disabilities, while noted by those bodies, are included fully only on occasion. For the UN to truly mainstream disability (or other) human rights, those rights must go beyond mere formal references and also be substantively integrated.
Lucian A. Bebchuk & Assaf Hamdani, Making Independent Directors Work, U. Pa. L. Rev. (forthcoming 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Shareholders
Type: Article
Abstract
Independent directors are a prominent feature of modern corporate law, and lawmakers increasingly rely on them to protect public investors from controlling shareholders' opportunism. In this Article, however, we argue that the prevailing director election regime significantly undermines the ability of independent directors to adequately perform their assigned role. Under current director election arrangements, both the election and the retention of independent directors depends on the controlling shareholder. As a result, such directors have incentives to go along with controllers’ wishes or at least inadequate incentives to protect public investors. To ensure that independent directors can be relied upon to monitor controlling shareholders, we argue, some independent directors should be accountable to public investors. This can be achieved by empowering the investors to determine or at least influence these directors’ election or retention. These “enhanced-independence” directors should play a key role in vetting “conflicted decisions” — that is, self-dealing transactions and other matters hat raise a conflict between the controller's interests and those of public investors — but not over other corporate issues. Enhancing the independence of some directors would substantially improve the protection of public investors without undermining the ability of the controller to set the firm's strategy. We explain how the Delaware courts, other U.S. regulators, and policymakers around the world can introduce enhanced-independence arrangements. Our analysis offers a framework of director election rules that allows policymakers to produce the precise balance of power between controlling shareholders and public investors that they find appropriate. We also analyze the proper role of such directors as well as respond to objections to their use. Overall, we show that enhanced-independence directors can provide a solid foundation for protecting public investors in controlled companies.
New Histories of Capitalism in America (Sven Beckert & Christine A. Desan eds., Columbia Univ. Press, forthcoming 2017).
Categories:
Banking & Finance
,
Legal Profession
Sub-Categories:
Financial Markets & Institutions
,
Banking
,
Legal History
Type: Book
Cass R. Sunstein, On the Costs and Benefits of Mandatory Labeling, with Special Reference to Genetically Modified Foods 165 U. Pa. L. Rev. (forthcoming 2017).
Categories:
Health Care
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Article
Abstract
As a result of movements for labeling food with genetically modified organisms (GMOs) Congress enacted a mandatory labeling requirement in 2016. These movements, and the legislation, raise recurring questions about mandatory product labels: whether there is a market failure, neoclassical or behavioral, that justifies them, and whether the benefits of such labels justify the costs. The first goal of this essay is to identify and to evaluate the four competing approaches that agencies now use to assess the costs and benefits of mandatory labeling in general. The second goal is to apply those approaches to the context of GM food. Assessment of the benefits of mandatory labels presents especially serious challenges. Agencies have (1) claimed that quantification is essentially impossible; (2) engaged in breakeven analysis; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious normative and empirical challenges. In principle, (4) is best, but in practice, (2) is sometimes both the most that can be expected and the least that can be demanded. Many people favor labeling GM food on the ground that it poses serious risks to human health and the environment, but with certain qualifications, the prevailing scientific judgment is that it does no such thing. In the face of that judgment, some people respond that even in the absence of evidence of harm, people have “a right to know” about the contents of what they are eating. But there is a serious problem with this response: there is a good argument that the benefits of such labels would be lower than the costs. Consumers would obtain no health benefits from which labels. To the extent that they would be willing to pay for them, the reason (for many though not all) is likely to be erroneous beliefs, which are not a sufficient justification for mandatory labels. Moreover, GMO labels might well lead people to think that the relevant foods are harmful and thus affirmatively mislead them. Some people contend that GMOs pose risks to the environment (including biodiversity), to intelligible moral commitments, or to nonquantifiable values. Many people think that the key issue involves the need to take precautions in the face of scientific uncertainty: Because there is a non-zero risk that GM food will cause irreversible and catastrophic harm, it is appropriate to be precautionary, through labels or through more severe restrictions. The force of this response depends on the science: If there is a small or uncertain risk of serious harm, precautions may indeed be justified. If the risk is essentially zero, as many scientists have concluded, then precautions are difficult to justify. The discussion, though focused on GM foods, has implications for disclosure policies in general, which often raise difficult questions about hard-to-quantify benefits, the proper use of cost-benefit balancing, and the appropriate role of precautionary thinking.
Yochai Benkler, Open Access and Information Commons, in Oxford Handbook of Law and Economics: Private and Commercial Law (Francesco Parisi ed., 2017).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Book
Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev. (forthcoming 2017).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
International Law
Type: Article
Abstract
The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results. This Article challenges that assumption. It argues instead that parochial doctrines can develop even in the absence of parochial judges. Our sometimes parochial procedure may be the unintended result of decisionmaking pressures that mount over time within poorly designed doctrines: it reflects not so much the personal views of individual judges, but the limits of institutional capacity, the realities of behavioral decisionmaking, and the path dependence of the common law. The Article shows how open-ended decisionmaking in the midst of complexity encourages the use of heuristics that tend to emphasize the local, the familiar, and the concrete. These decisionmaking shortcuts, by disfavoring the foreign, put a parochial thumb on the scale — but that tilt is not limited to individual cases. Rather, it is locked in and amplified through the accumulation of precedent, as later judges rely on existing decisions to resolve new cases. Over time, even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law. To illustrate, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The decisionmaking pressures outlined here can explain why the first two (framed as open-ended standards) are often criticized as parochial while the latter two (framed in more rule-like terms) are not. And if that account is at least plausible, it supports the primary claim of the Article: that the occasional parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.
Frank I. Michelman, Proportionality Outside the Courts (With Special Reference to Popular and Political Constitutionalism), in Proportionality: New Frontiers, New Challenges (Vicki Jackson & Mark Tushnet eds., Cambridge Univ. Press, forthcoming 2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
As used in this paper, “proportionality” names a protocol for use in deciding questions of the constitutionality of laws. The protocol is typically understood to consist of a four- or five-step order of decisional march, of which there are multiple close-kindred versions in circulation. Debates about the virtues, vices, and variations of the protocol and its deployment routinely construct the theater of action as a court of law engaged in judicial constitutional review. Adjudicative use of the protocol is what we think of as the central case. An aim of this paper is to achieve some first steps towards figuring out what relevance, if any, the protocol of proportionality might have for “extended” cases (as we may call them) of constitutional discourses outside the courts. I try here to think about the protocol’s pertinence, if any, to political-practice idealizations in which other political actors displace independent judiciaries as sole or final arbiters of constitutional compliance.
James Salzman et al., Regulating Business Innovation as Policy Disruption: From the Model T to Airbnb, 70 Vand. L. Rev. (forthcoming 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Science & Technology
Type: Article
Maggie Gardner, Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev. (forthcoming 2017).
Categories:
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
International Law
,
Treaties & International Agreements
Type: Article
Abstract
It is time for the federal courts to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to protect defendant fairness and promote international comity. But given recent developments at the Supreme Court, forum non conveniens is no longer needed to protect defendant fairness, and given flaws in the doctrine’s design, it may be doing more to hurt comity than to help it. This Article looks to the history, current use, and broader context of forum non conveniens to argue that it now causes more problems than it solves. The federal test for forum non conveniens, designed for an outdated domestic context and divorced from its historical roots, is unworkable in the transnational cases where it is used today. Efforts to fix the test are inconsistent or even counterproductive as the needed reforms only increase the test’s complexity — complexity that encourages the development of parochial biases within the test over time. Nor would an effort to redesign the test completely be worth the effort as developments at the Supreme Court have obviated the need for it: judges now have more narrowly tailored tools for addressing concerns about defendant fairness and international comity. Yet the very idea of forum non conveniens is distorting other areas of federal procedure and treaty-making. In short, the federal doctrine of forum non conveniens is unhelpful, unfixable, increasingly unnecessary, and disruptive to the development of more practical tools that would better help judges manage transnational litigation.
Scott Hirst, Social Responsibility Resolutions, 43 J. Corp. L. (forthcoming 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
Type: Article
Abstract
Shareholders exert significant influence on the social and environmental behavior of U.S. corporations through their votes on social responsibility resolutions. However, the outcomes of many social responsibility resolutions are distorted, because the largest shareholders – institutional investors, such as mutual funds and pension funds – often do not follow the interests or the preferences of their own investors. This paper presents evidence that institutions with similar investors and identical fiduciary duties vote very differently on social responsibility resolutions, suggesting that some institutional votes distort the interests of their investors. Other evidence presented suggests that institutional votes on social responsibility resolutions vary significantly from the preferences of their own investors. Whether such distortion of preferences is a problem is an open question. If such distortion is considered to be a problem, it could be addressed by institutions changing their voting policies on social responsibility resolutions to better approximate the preferences of their investors. The stakes are high: eliminating distortion could significantly influence the behavior of corporations on social and environmental matters in a way that investors, and society, would prefer.
Robert C. Clark, Speculations on the Future of Religion, in Can Religion Be Saved ch. 8 (spring 2017 working paper).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
Type: Book
Abstract
The attached paper is a draft of the concluding chapter in a book about religion in relation to other social systems (governments, economic markets, and secular social groups and entities). Prior chapters reviewed multiple theories and many empirical studies, as well as social-science scholarship, bearing on the relative advantages and costs of the four types of systems as they attempt to provide multiple kinds of benefits for human individuals and groups. The attached table of contents may give a more concrete sense of those inquires. A general theme that emerged was that the four systems not only have relative advantages and disadvantages that vary by type of benefit or cost, but also by specific context and over time, as there are changes in external factors like social scale and technological developments. Some general trends are identified in the prior chapters. The final chapter is deliberately cast as a reflective essay. It speculates about the future of religion over the next several centuries (e.g., to the year 2500), and identifies three categories of predictions: virtually complete decline; fluctuating endurance; and morphological evolution. It then considers high-level arguments for and against them. For example: (1) The virtually complete secularization model seems supported by trends in some advanced economies, e.g., in western Europe and more recently in the US, by reflection on efficiency improvements in the other social systems, and by arguments about the impact of science and reason on religious beliefs. But the better and more comprehensive global demographic evidence indicates a very different pattern of trends. The essay reflects on likely explanations of the conflict between prediction and evidence, ranging from the differential fertility rates of secular and religious groups to theological moves in all dominant world religions that aim to blunt the apparent conflict between reason and religion. (2) The fluctuating endurance model is supported by some painstaking historical accounts of the development of religions over the centuries. But it is also called into question by historical studies of the evolution of religions over the millennia, and by recent multidisciplinary work on cultural evolution. (3) The same historical and multidisciplinary work also supports the plausibility of expecting another fairly fundamental evolution in the features of those world religions, or spinoffs from them, that will be successful in the future. To explore this possibility more systematically, the paper first offers ideal-type general descriptions of three prior stages – religion for good personal fortune; religion for public goods; and religion for pro-social norms – and offers thoughts on how the later stages each involved changes along multiple but related dimensions of religion and how those changes were related to changes in the typical external human environment. Finally, the paper then speculates about a plausibly emerging fourth stage – religion for expanding circles – in which there is more emphatic, widespread, and effective emphasis on norms relating to moral concern for out-groups and future generations, and ties such shifts to mega-changes (like greater globalization and environmental sustainability challenges) in the modern human environment. It then imagines, as a thought experiment, how the seven typical mechanisms of the dominant world religions might be modified in the fourth stage.
Kristen Stilt, Salma Waheedi & Swathi Ghandhavadi Griffin, The Ambitions of Muslim Family Law Reform, Harv. J.L. & Gender (forthcoming 2017).
Categories:
Family Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Reinier Kraakman et al., The Anatomy of Corporate Law: A Comparative and Functional Approach (Oxford Univ. Press 3rd ed. Mar. 2017).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Business Organizations
,
Corporate Governance
,
Corporate Law
,
Fiduciaries
,
Mergers & Acquisitions
,
Securities Law & Regulation
,
Shareholders
,
Foreign Law
,
Comparative Law
Type: Book
Abstract
"This is the long-awaited third edition of this highly regarded comparative overview of corporate law. This edition has been comprehensively revised and updated to reflect the profound changes in corporate law and governance practices that have taken place since the previous edition. These include numerous regulatory changes following the financial crisis of 2007-09 and the changing landscape of governance, especially in the US, with the ever more central role of institutional investors as (active) owners of corporations. The geographic scope of the coverage has been broadened to include an important emerging economy, Brazil. In addition, the book now incorporates analysis of the burgeoning use of corporate law to protect the interests of "external constituencies" without any contractual relationship to a company, in an attempt to tackle broader social and economic problems." --Publisher
Christine A. Desan, The Constitutional Approach to Money: Monetary Design and the Production of the Modern World, in Money Talks (Nina Bandelj, Frederick F. Wherry & Viviana Zelizer eds., forthcoming 2017).
Categories:
Banking & Finance
,
Constitutional Law
Sub-Categories:
Banking
Type: Book
Abstract
In the modern lexicon, money is pure instrumentality, a colorless medium that transparently expresses real value. Contrary to that trope, however, we can get “inside” money: we can reconnoiter it as a structure entailing value that is engineered by certain societies. Taking a “constitutional approach” to money reveals its internal design, the architecture that creates a commensurable unit of value, enables it to travel, and enforces it as the preeminent way to pay. Seeing money’s internal design opens up new worlds. We can compare the medieval and early American methods of making money and consider how those methods shaped their markets. More remarkable still, we can locate the radical change in money’s design that institutionalized capitalism. That phenomenon arrived when the English government installed the self-interest of commercial actors as the pump at the heart of money creation. The revolutionary redesign produced unprecedented liquidity - the powerful markets and troubling pathologies of modern finance. It also produced an odd and self-protective artifact - the trope that money itself was empty, devoid of design and unworthy of our eye.
Khiara M. Bridges, The Deserving Poor, the Undeserving Poor, and Class-Based Affirmative Action, Emory L.J., (forthcoming 2017).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Poverty Law
,
Race & Ethnicity
Type: Article
Abstract
This Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives it directly to a poor person. This Article attempts to reconcile this apparent contradiction. Interestingly, engaging in this project of reconciliation reveals very little about conservatism, but a lot about class-based affirmative action. This Article proposes that class-based affirmative action enjoys widespread support from people across the political spectrum because it is imagined to benefit the “deserving poor.” Unlike the “undeserving poor,” the “deserving poor” are those who cannot be blamed for their poverty; their impoverishment is not due to individual behavioral or character flaws, but rather to structural or macro forces well outside of an individual’s control. Class-based affirmative action enjoys bipartisan political popularity because it is imagined to benefit these respectable poor people — folks who are deserving of a “leg up” in the admissions competition and deserving of programs designed to assist them, even if those programs involve a direct transfer of wealth from the wealthy to the poor. However, that political conservatives and liberals alike currently imagine class-based affirmative action to benefit the deserving poor is a reason for alarm. Alarm bells should ring because, throughout history, the categories of the deserving and undeserving poor have been racialized — and, frequently, racist. To be precise, it has been difficult for people of color — black people, particularly — to access the ranks of the deserving poor. If history is a teacher, then, we might expect that it will be difficult for society to continue to imagine that the beneficiaries of class-based affirmative action are the deserving poor if these class-conscious programs disproportionately benefit racial minorities. Indeed, if history is a teacher, then class-based affirmative action will lose its popularity if poor racial minorities — who have always figured within the cultural imaginary as the embodiment of undeservingness — are (or are imagined to be) class-based affirmative action’s primary beneficiaries. The Article explores the case of AFDC/TANF and unemployed single mothers as an example of the racist nature of deservingness. It argues that, if class-based affirmative action functions to assist people of color in disproportionate numbers, it, like AFDC/TANF before it, will be reimagined to be a program that assists the undeserving poor, and its political tenability will suffer as a result.