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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
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
Kristen A. Stilt & Jessica Eisen, Animal Protection, in Max Planck Encyclopedia of Comparative Constitutional Law (Oxford Univ. Press, forthcoming 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
Samuel Moyn, Beyond Liberal Internationalism, 64 Dissent116 (2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
Type: Article
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.
Jacob E. Gersen & Christopher Berry, Dollars & Sense: Agency Design and Political Control of Administrative Agencies, 126 Yale L.J. (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Separation of Powers
Type: Article
Chaim Saiman, Halakhah: The Rabbinic Idea of Law (Princeton Univ. Press forthcoming).
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 et al. eds., forthcoming 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
,
Trade Regulation
Type: Book
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
Crystal S. Yang, Local Labor Markets and Criminal Recidivism, J. Pub. Econ. (forthcoming 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.
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.
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.
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.
Elizabeth Papp Kamali,The Devil's Daughter of Hell Fire: Anger's Role in Medieval English Felony Cases, 35 Law & Hist. Rev. (forthcoming 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 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 et al., eds., forthcoming 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Law
,
International Trade
Type: Book
Jacob E. Gersen & Jeannie Suk, Timing of Consent, in The Timing of Lawmaking (Frank Fagan & Saul Levmore eds., forthcoming 2017).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
Type: Book
Laurence H. Tribe, Donald Trump Will Violate the US Constitution on Inauguration Day, Guardian, Dec. 19, 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: News
Carlos A. Ball, Jane S. Schacter, Douglas NeJaime & William B. Rubenstein, Cases and Materials on Sexuality, Gender Identity, and the Law (West Acad. Pub. 6th ed. 2017).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
LGBTQ Rights Law
Type: Book
Abstract
This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBT persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decisions on marriage equality in Obergefell and Windsor, and the growing set of religious liberty claims asserted by opponents of LGBT equality measures. Gender identity issues are covered throughout the book.
Jeannie Suk Gersen, Gavin Grimm's Transgender Rights Case and the Problem with Informal Executive Action, NewYorker.com (Dec. 6, 2016).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
LGBTQ Rights Law
,
Discrimination
,
Civil Rights
,
Executive Office
Type: Article
Mark Tushnet, "Parents Involved" and the Struggle for Historical Memory, 91 Ind. L.J. 493 (2016).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Race & Ethnicity
,
Law & Social Change
Type: Article
Cass R. Sunstein, Beyond Cheneyism and Snowdensim, 83 U. Chi. L. Rev. 271 (2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Law & Economics
,
Legal Theory & Philosophy
,
National Security Law
Type: Article
Abstract
In the domain of national security, many people favor some kind of Precautionary Principle, insisting that it is far better to be safe than sorry, and hence that a range of important safeguards, including widespread surveillance, are amply justified to prevent loss of life. Those who object to the resulting initiatives, and in particular to widespread surveillance, respond with a Precautionary Principle of their own, seeking safeguards against what they see as unacceptable risks to privacy and liberty. The problem is that as in the environmental context, a Precautionary Principle threatens to create an unduly narrow view screen, focusing people on a mere subset of the risks at stake. What is needed is a principle of risk management, typically based on some form of cost-benefit balancing. For many problems in the area of national security, however, it is difficult to specify either costs or benefits, creating a severe epistemic difficulty. Considerable progress can nonetheless be made with the assistance of four ideas, calling for (1) breakeven analysis; (2) the avoidance of gratuitous costs (economic or otherwise); (3) a prohibition on the invocation or use of illicit grounds (such as punishment of free speech or prying into people’s private lives); and (4) maximin, which counsels in favor of eliminating, or reducing the risk of, the very worst of the worst-case scenarios. In the face of incommensurable goods, however, the idea of maximin faces particular challenges.
Guhan Subramanian, Deal Process Design in Management Buyouts, 130 Harv. L. Rev. 590 (2016).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Secured Transactions
,
Corporate Law
,
Shareholders
,
Corporate Governance
,
Mergers & Acquisitions
,
Transactional Law
Type: Article
Abstract
Management buyouts (MBOs) are an economically and legally significant class of transaction: not only do they account for more than $10 billion in deal volume per year, on average, but they also play an important role in defining the relationship between inside and outside shareholders in every public company. Delaware courts and lawyers in transactional practice rely heavily on “market-check” processes to ensure that exiting shareholders receive fair value in MBOs. This Article identifies four factors that create an unlevel playing field in that market check: information asymmetries, valuable management, management financial incentives to discourage overbids, and the “ticking-clock” problem. This taxonomy of four factors allows special committees and their advisors to assess the degree to which the playing field is level in an MBO, and (by extension) the extent to which a market canvass can provide a meaningful check on the buyout price. This Article then identifies more potent deal process tools that special committees can use to level the playing field: for example, contractual commitments from management that allow the board to run the process; pre-signing rather than post-signing market checks; information rights rather than match rights; ex ante inducement fees; and approval from a majority of the disinterested shares. This Article also identifies ways that the Delaware courts can encourage the use of these more potent devices when appropriate: through the threat of entire fairness review, the application of Revlon duties, and the weight given to the deal price in appraisal proceedings. The result would be improved deal process design in MBOs and improved capital formation in the economy overall.
Allen Ferrell, Hao Liang & Luc Renneboog, Socially Responsible Firms, 122 J. Fin. Econ. 585 (2016).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Governance
Type: Article
Abstract
In the corporate finance tradition, starting with Berle and Means (1932), corporations should generally be run to maximize shareholder value. The agency view of corporate social responsibility (CSR) considers CSR an agency problem and a waste of corporate resources. Given our identification strategy by means of an instrumental variable approach, we find that well-governed firms that suffer less from agency concerns (less cash abundance, positive pay-for-performance, small control wedge, strong minority protection) engage more in CSR. We also find that a positive relation exists between CSR and value and that CSR attenuates the negative relation between managerial entrenchment and value. (C) 2016 Published by Elsevier B.V.
Laurence H. Tribe, Neoliberal Agenda Has Set Democrats Back, Bos. Globe, Nov. 27, 2016.
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Elections & Voting
Type: News
I. Glenn Cohen, Holly Fernandez Lynch & Christoper T. Robertson, Nudging Health: Health Law and Behavioral Economics (Johns Hopkins Univ. Press 2016).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Book
Abstract
Behavioral nudges are everywhere: calorie counts on menus, automated text reminders to encourage medication adherence, a reminder bell when a driver's seatbelt isn't fastened. Designed to help people make better health choices, these reminders have become so commonplace that they often go unnoticed. In Nudging Health, forty-five experts in behavioral science and health policy from across academia, government, and private industry come together to explore whether and how these tools are effective in improving health outcomes. Behavioral science has swept the fields of economics and law through the study of nudges, cognitive biases, and decisional heuristics-but it has only recently begun to impact the conversation on health care. Nudging Health wrestles with some of the thorny philosophical issues, legal limits, and conceptual questions raised by behavioral science as applied to health law and policy. The volume frames the fundamental issues surrounding health nudges by addressing ethical questions. Does cost-sharing for health expenditures cause patients to make poor decisions?Is it right to make it difficult for people to opt out of having their organs harvested for donation when they die? Are behavioral nudges paternalistic? The contributors examine specific applications of behavioral science, including efforts to address health care costs, improve vaccination rates, and encourage better decision-making by physicians.
Christopher R. Deubert, I. Glenn Cohen & Holly Fernandez Lynch, Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations (The Petrie-Flom Ctr. for Health L. Pol’y, Biotechnology, & Bioethics at Harv. L. Sch., Nov. 17, 2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Other
Laurence H. Tribe, The Trumpet Summons Us Again: A Post-election Call to Action, Bos. Globe, Nov. 17, 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: News
Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Administrative Law & Agencies
Type: Book
Abstract
Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons. In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action. As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.
Cass R. Sunstein, Listen, Economists!, 63 N.Y. Rev. of Books 53 (2016)(reviewing Guido Calabresi, Future of Law and Economics: Essays in Reform and Recollection (2016)).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Law & Economics
,
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (Harvard Univ. Press 2016).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Eighth Amendment
,
Fifth Amendment
,
Capital Punishment
,
Supreme Court of the United States
Type: Book
Abstract
"Unique among Western democracies in refusing to eradicate the death penalty, the United States has attempted instead to reform and rationalize state death penalty practices through federal constitutional law. Courting Death traces the unusual and distinctive history of top-down judicial regulation of capital punishment under the Constitution and its unanticipated consequences for our time. In the 1960s and 1970s, in the face of widespread abolition of the death penalty around the world, provisions for capital punishment that had long fallen under the purview of the states were challenged in federal courts. The U.S. Supreme Court intervened in two landmark decisions, first by constitutionally invalidating the death penalty in Furman v. Georgia (1972) on the grounds that it was capricious and discriminatory, followed four years later by its restoration in Gregg v. Georgia (1976). Since then, by neither retaining capital punishment in unfettered form nor abolishing it outright, the Supreme Court has created a complex regulatory apparatus that has brought executions in many states to a halt, while also failing to address the problems that led the Court to intervene in the first place. While execution chambers remain active in several states, constitutional regulation has contributed to the death penalty's new fragility. In the next decade or two, Carol Steiker and Jordan Steiker argue, the fate of the American death penalty is likely to be sealed by this failed judicial experiment. Courting Death illuminates both the promise and pitfalls of constitutional regulation of contentious social issues"-- Provided by publisher.
I. Glenn Cohen, Travis G. Coan, Michelle Ottey & Christina Boyd, Sperm Donor Anonymity and Compensation: An Experiment with American Sperm Donors, 2016 J.L. & Biosciences lsw052 (Nov. 4, 2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Most sperm donation that occurs in the USA proceeds through anonymous donation. While some clinics make the identity of the sperm donor available to a donor-conceived child at age 18 as part of ‘open identification’ or ‘identity release programs,’ no US law requires clinics to do so, and the majority of individuals do not use these programs. By contrast, in many parts of the world, there have been significant legislative initiatives requiring that sperm donor identities be made available to children after a certain age (typically when the child turns 18). One major concern with prohibiting anonymous sperm donation has been that the number of willing sperm donors will decrease leading to shortages, as have been experienced in some of the countries that have prohibited sperm donor anonymity. One possible solution, suggested by prior work, would be to pay current anonymous sperm donors more per donation to continue to donate when their anonymity is removed. Using a unique sample of current anonymous and open identity sperm donors from a large sperm bank in the USA, we test that approach. As far as we know, this is the first attempt to examine what would happen if the USA adopted a prohibition on anonymous sperm donation that used the most ecologically valid population, current sperm donors. We find that 29% of current anonymous sperm donors in the sample would refuse to donate if the law changed such that they were required to put their names in a registry available to donor-conceived children at age 18. When we look at the remaining sperm donors who would be willing to participate, we find that they would demand an additional $60 per donation (using our preferred specification). We also discuss the ramifications for the industry.
Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533 (2016).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Law & Mind Sciences
Type: Article
Eric A. Posner & Adrian Vermeule, The Votes of Other Judges, 105 Geo. L.J. 159 (2016).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings. We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.
David J. Barron, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS (Simon & Schuster 2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Military, War, & Peace
,
Executive Office
,
Congress & Legislation
,
Separation of Powers
,
Legal History
Type: Book
Abstract
A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war. The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress. Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.
Kim Lane Scheppele, Enforcing the Basic Principles of EU Law through Systemic Infringement Procedures, in Reinforcing the Rule of Law Oversight in the European Union 105 (Dimitry Kochenov & Carlos Closa, eds., 2016).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
European Law
Type: Book
Abstract
This book provides an analysis of key approaches to rule of law oversight in the EU and identifies deeper theoretical problems.
Cass R. Sunstein, People Prefer System 2 Nudges (Kind Of), 66 Duke L.J. 121 (2016).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In the United States, the United Kingdom, Australia, and many other nations, those involved in law and policy have been exploring choice-preserving approaches, or “nudges,” informed by behavioral science and with the purpose of promoting important public policy goals, such as improved health and safety. But there is a large and insufficiently explored difference between System 1 nudges, which target or benefit from automatic processing, and System 2 nudges, which target or benefit from deliberative processing. Graphic warnings and default rules are System 1 nudges; statistical information and factual disclosures are System 2 nudges. On philosophical grounds, it might seem tempting to prefer System 2 nudges, on the assumption that they show greater respect for individual dignity and promote individual agency. A nationally representative survey in the United States finds evidence that in important contexts, majorities do indeed prefer System 2 nudges. At the same time, that preference is not fixed and firm. If people are asked to assume that the System 1 nudge is significantly more effective, then large numbers of them will move in its direction. In a range of contexts, Republicans, Democrats, and independents show surprisingly similar responses. The survey findings, and an accompanying normative analysis, offer lessons for those involved in law and policy who are choosing between System 1 nudges and System 2 nudges.
John C. Coates, Ronald A. Fein, Kevin P. Crenny & Li Wei Vivian Dong, Quantifying Institutional Block Ownership, Domestic and Foreign, at Publicly Traded U.S. Corporations (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 888, 2016).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Business Organizations
Type: Article
Abstract
This short technical report provides an empirical analysis of the level of institutional block ownership overall, and of foreign block ownership, at a broad set of publicly traded corporations. Disclosed institutional blockholders of every company in the Standard & Poor’s 500 index are analyzed, and the distribution of blockholders is presented. Blockholders are identified as domestic or foreign entities, and whether they were majority owned or controlled by foreign entities. Roughly one in three companies in the S&P 500 has one or more block holders with 20 % ownership, and one in eleven (9%) has one or more foreign institutions each owning five percent or more blocks of stock. The descriptive data reported here may assist lawmakers, analysts, and investors in assessing the effects of globalization of capital markets and the interaction of country and governance risk, and in developing policies. Among other things, these data may inform debates on the degree to which domestic political spending by U.S. corporations conveys any potential for foreign influence through governance, and the likely costs and benefits of disclosure laws regarding such influence.
Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument (Cambridge Univ. Press 2d ed. 2016).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Legal Theory & Philosophy
,
Legal Education
Type: Book
Abstract
"[This book] describes and explains analogical reasoning, the distinctive feature of legal argument. It challenges the prevailing view that analogical reasoning is a logically flawed, defective form of deductive reasoning. Drawing on work in epistemology and cognitive psychology, the book shows that analogical reasoning in the law is the same as that used by everyone routinely in ordinary life, and that it is a valid form of reasoning, derived from the innate human capacity to recognize the general in the particular. The use of analogical reasoning in law is dictated by the nature of law, which calls for the application of general rules to particular facts. Critiques of the first edition of the book are addressed directly and objections answered in a new chapter."-- Back cover.
Laurence H. Tribe, Classrooms With Rats Instead of Teachers: Is Detroit Denying Children of Color Their Right to an Education?, L.A. Times, Sept. 22, 2016.
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Law & Public Policy
,
Education Law
,
Children's Law & Welfare
Type: News
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).
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.
Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution (Oxford Univ. Press 2016).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Constitutional History
,
Legal History
Type: Book
Abstract
"Based on prodigious research and told largely through the voices of the participants, Michael Klarman's The Framers' Coup narrates how the Framers' clashing interests shaped the Constitution--and American history itself. … Not only does Klarman capture the knife's-edge atmosphere of the convention, he populates his narrative with riveting and colorful stories. … The Framers' Coup is more than a compendium of great stories, however, and the powerful arguments that feature throughout will reshape our understanding of the nation's founding. Simply put, the Constitutional Convention almost didn't happen, and once it happened, it almost failed. And, even after the convention succeeded, the Constitution it produced almost failed to be ratified. Just as importantly, the Constitution was hardly the product of philosophical reflections by brilliant, disinterested statesmen, but rather ordinary interest group politics. Multiple conflicting interests had a say, from creditors and debtors to city dwellers and backwoodsmen. The upper class overwhelmingly supported the Constitution; many working class colonists were more dubious. Slave states and nonslave states had different perspectives on how well the Constitution served their interests. Ultimately, both the Constitution's content and its ratification process raise troubling questions about democratic legitimacy. The Federalists were eager to avoid full-fledged democratic deliberation over the Constitution, and the document that was ratified was stacked in favor of their preferences. And in terms of substance, the Constitution was a significant departure from the more democratic state constitutions of the 1770s. Definitive and authoritative, The Framers' Coup explains why the Framers preferred such a constitution and how they managed to persuade the country to adopt it. We have lived with the consequences, both positive and negative, ever since"-- Publisher's website.
Susan P. Crawford & Laura Adler, Culture Change and Digital Technology: The NYPD Under Commissioner William Bratton, 2014-2016 (Berkman Klein Ctr. Res. Pub. No. 2016-13, Sept. 12, 2016).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Networked Society
,
Science & Technology
Type: Other
Abstract
New Yorkers are now safer in the city than they have been in years. Yet tensions between police officers and the communities in which they work have continued to mount in New York, as in other cities across the country. Just this past summer, racial violence erupted in Milwaukee and Baton Rouge in response to the fatal shooting of Philando Castile and Alton Sterling. Milwaukee joined other cities like Baltimore and Ferguson, Mo., in which police killings have been seen as brutal evidence of the disrespect that many African Americans say the police show them. The challenge facing the NYPD today is to maintain safe streets while ushering in a new era of mutual respect between officers and local communities. At this early stage of digital technology adoption, the NYPD’s attempt under Commr. William Bratton (2014-2016) to change the culture of policing by enriching communications between police and neighborhoods holds lessons for public agencies across the U.S. during a period of intense volatility. This white paper explores NYPD’s adoption of Twitter and an ideation platform called IdeaScale that was aimed at allowing community members to nominate “quality of life” issues for resolution by the police. It examines the department's pivot to Facebook as an interactive communications platform following its experience with IdeaScale. It connects these initiatives to the NYPD’s overall push for Neighborhood Coordination Officers throughout the city. Finally, it pulls together information about NYPD’s revisions to its training and recruitment programs and the department’s ongoing efforts to upgrade its basic digital assets, from precinct Internet access to smartphones. These programs, all made possible by Commr. Bratton’s strong leadership, were designed to create a virtuous cycle: The NYPD’s social media, neighborhood policing, and new recruiting and training programs aimed to increase mutual respect by helping officers understand and enhance their responsibility to serve and protect New York City communities — and help community members see police officers as human beings. Stronger community relations may, in turn, support crime prevention. Shifting from a confrontational to a collaborative approach may encourage community members to come forward when they learn about crime. And all of these steps are designed to lead policing away from an exclusive focus on crime reduction and towards a balanced strategy of crime prevention and community outreach — an effort, in Commr. Bratton’s words, to move from a “warrior” to a “guardian” policing mindset.
Hal S. Scott, Kristin Ricci & Aaron Sarfatti, SRISK as a Measure of Systemic Risk for Insurers: Oversimplified and Inappropriate (Harv. L. Sch., Sept. 12, 2016).
Categories:
Banking & Finance
Sub-Categories:
Finance
,
Economics
Type: Article
Abstract
The SRISK measure has been used to measure the relative systemic risk for financial institutions, ranking some insurers as vulnerable as banks to large capital shortfalls in stressed macroeconomic environments. This paper argues that the assumptions underpinning the SRISK measure are inappropriate for insurers and hence do not depict an accurate representation of insurer systemic risk.
Frank I. Michelman, A Constitutional Horizon?, 42 Phil. & Soc. Criticism 640 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’, shows us to be facing.
Urs Gasser & Sandra Cortesi, Children’s Rights and Digital Technologies: Introduction to the Discourse and Some Meta-Observations, in Handbook of Children’s Rights: Global and Multidisciplinary Perspectives (M. Ruck, M. Peterson-Badali & M. Freeman eds., 2016).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
,
Information Privacy & Security
Type: Book
Abstract
This volume constitutes a comprehensive treatment of critical perspectives concerning children s rights in their various forms.
Michael J. Graetz & Alvin C. Warren, Jr., Integration of Corporate and Shareholder Taxes, 69 Nat'l Tax J. 677 (2016).
Categories:
Taxation
,
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Taxation - Corporate
,
Taxation - Personal Income
,
Tax Policy
Type: Article
Abstract
Integration of the corporate and individual income taxes can be achieved by providing shareholders a credit for corporate taxes paid with respect to corporate earnings distributed as dividends. When such integration was previously considered in the United States, proponents emphasized that it could reduce or eliminate many of the familiar distortions of a classical corporate income tax. Integration would also provide a framework for addressing current concerns for tax incentives for U.S. companies to shift income to foreign affiliates in lower-taxed countries or to expatriate in "inversion" transactions. A recent Congressional proposal for a corporate dividend deduction coupled with withholding on dividends could achieve equivalent results, while also reducing effective U.S. corporate tax rates.
Gabriella Blum, Dustin A. Lewis & Naz K. Modirzadeh, War-Algorithm Accountability (Harv. L. Sch. Prog. on Int’l L. & Armed Conflict (PILAC), Aug. 31, 2016).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
Military, War, & Peace
,
National Security Law
,
International Law
,
Laws of Armed Conflict
,
International Humanitarian Law
,
Science & Technology
Type: Other
Abstract
In this briefing report, we introduce a new concept—war algorithms— that elevates algorithmically-derived “choices” and “decisions” to a, and perhaps the, central concern regarding technical autonomy in war. We thereby aim to shed light on and recast the discussion regarding “autonomous weapon systems.” In introducing this concept, our foundational technological concern is the capability of a constructed system, without further human intervention, to help make and effectuate a “decision” or “choice” of a war algorithm. Distilled, the two core ingredients are an algorithm expressed in computer code and a suitably capable constructed system. Through that lens, we link international law and related accountability architectures to relevant technologies. We sketch a three-part (non-exhaustive) approach that highlights traditional and unconventional accountability avenues. By not limiting our inquiry only to weapon systems, we take an expansive view, showing how the broad concept of war algorithms might be susceptible to regulation—and how those algorithms might already fit within the existing regulatory system established by international law.
Sheila S. Jasanoff, The Ethics of Invention: Technology and the Human Future (W.W. Norton 2016).
Categories:
Technology & Law
Sub-Categories:
Science & Technology
Type: Book
Abstract
Technology rules us as much as laws do. It shapes the legal, social, and ethical environments in which we act. Every time we cross a street, drive a car, or go to the doctor, we submit to the silent power of technology. Yet, much of the time, the influence of technology on our lives goes unchallenged by citizens and our elected representatives. In The Ethics of Invention, renowned scholar Sheila Jasanoff dissects the ways in which we delegate power to technological systems and asks how we might regain control. Our embrace of novel technological pathways, Jasanoff shows, leads to a complex interplay among technology, ethics, and human rights. Inventions like pesticides or GMOs can reduce hunger but can also cause unexpected harm to people and the environment. Often, as in the case of CFCs creating a hole in the ozone layer, it takes decades before we even realize that any damage has been done. Advances in biotechnology, from GMOs to gene editing, have given us tools to tinker with life itself, leading some to worry that human dignity and even human nature are under threat. But despite many reasons for caution, we continue to march heedlessly into ethically troubled waters. As Jasanoff ranges across these and other themes, she challenges the common assumption that technology is an apolitical and amoral force. Technology, she masterfully demonstrates, can warp the meaning of democracy and citizenship unless we carefully consider how to direct its power rather than let ourselves be shaped by it. The Ethics of Invention makes a bold argument for a future in which societies work together—in open, democratic dialogue—to debate not only the perils but even more the promises of technology.
Jack L. Goldsmith & Curtis Bradley, Obama’s AUMF Legacy (Aug. 24, 2016).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Military, War, & Peace
,
National Security Law
,
International Law
Type: Article
Abstract
Despite massive changes in the geographical scope of the conflict that began on 9/11, the strategy and tactics employed, and the identity of the enemy, the 2001 Authorization for Use of Military Force (“AUMF”) remains the principal legal foundation under U.S. domestic law for the President to use force against and detain members of terrorist organizations. For many years, President Obama proclaimed that he wanted to repeal the AUMF and end the AUMF-authorized conflict. By the closing year of his presidency, however, his administration had established the AUMF as the legal foundation for an indefinite conflict against Al Qaeda and associated groups and extended that foundation to cover a significant new conflict against the Islamic State. This transformation of the AUMF is one of the most remarkable legal developments in American public law in the still-young twenty-first century, and it will stand as one of President Obama’s primary legal legacies. In addition to establishing this descriptive claim, this Essay considers how the Obama administration has invoked international law in making arguments about the scope of the AUMF. As the Essay explains, although the Obama administration often maintained that international law was an important constraint on its actions, on a range of issues where international law was unsettled it interpreted it in ways that supported presidential discretion and flexibility under the AUMF.
Cass R. Sunstein, The Ethics of Influence: Government in the Age of Behavioral Science (Cambridge Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
,
Legal Ethics
Type: Book
Abstract
"In recent years, 'nudge units' or 'behavioral insights teams' have been created in the United States, the United Kingdom, Germany, and other nations. All over the world, public officials are using the behavioral sciences to protect the environment, promote employment and economic growth, reduce poverty, and increase national security. In this book, Cass R. Sunstein, the eminent legal scholar and best-selling co-author of Nudge (2008), breaks new ground with a deep yet highly readable investigation into the ethical issues surrounding nudges, choice architecture, and mandates, addressing such issues as welfare, autonomy, self-government, dignity, manipulation, and the constraints and responsibilities of an ethical state. Complementing the ethical discussion, The Ethics of Influence: Government in the Age of Behavioral Science contains a wealth of new data on people's attitudes towards a broad range of nudges, choice architecture, and mandates." --Publisher
Allen Ferrell & Andrew Roper, Price Impact, Materiality, and Halliburton II, 93 Wash. U. L. Rev. 93 (2015).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Securities Law & Regulation
Type: Article
Abstract
The Supreme Court decision in Halliburton Co. v. Erica P. John Fund, Inc., 134 S. Ct. 2398 (2014), reaffirmed the availability of the fraud-on-the-market presumption of “reliance” for purposes of a Rule 10b-5 class certification. At the same time, the Court held that defendants could rebut the presumption if they could provide “direct evidence” that the alleged misrepresentations did not in fact impact the price of the security (i.e., a lack of price impact). In this Article we discuss various issues that have arisen in lower court rulings that have addressed Halliburton price impact arguments. These issues include the relationship between materiality and price impact, the distinction between hypothetical versus actual changes in the total mix of information made available to the market, the use of event studies, and some lower courts’ refusal to consider certain types of economic evidence in the context of price impact arguments.
Lloyd L. Weinreb, Leading Constitutional Cases on Criminal Justice (Foundation Press 2016).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Type: Book
Jesse Choper, Richard Fallon, Jr., Yale Kamisar, Steven Shiffrin, Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2016).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
Legal Education
Type: Book
Abstract
An annually-revised paperback designed for a single-semester course on constitutional law, this book is roughly half the length of many hardcover casebooks.
Andrew S. Gold & Henry E. Smith, Sizing up Private Law (Aug. 10, 2016).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Law & Economics
,
Legal Theory & Philosophy
Type: Other
Adriaan M. Lanni, Law and Order in Ancient Athens (Cambridge Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Ancient Law
,
Law & Political Theory
,
Legal History
Type: Book
Abstract
This book draws on contemporary legal scholarship to explain why Athens was a remarkably well-ordered society.
Jeannie Suk Gersen, College Students Go to Court Over Sexual Assault, NewYorker.com (Aug. 5, 2016).
Categories:
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Education Law
Type: Other
I. Glenn Cohen & Eli Y. Adashi, The FDA is Prohibited From Going Germline, 353 Science 545 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Food & Drug Law
Type: Article
Abstract
A potentially renewable provision of the Consolidated Appropriation Act of 2016 forestalling the prospect of human germline modification was signed into law on 18 December 2015 (1). The provision, also known as a rider (an amendment extraneous to the main purpose of the bill to which it is attached), stipulates that “none of the funds made available by this Act [to the FDA] may be used to review or approve an application for an exemption for investigational use of a drug or biological product… in which a human embryo is intentionally created or modified to include a heritable genetic modification” (1). Destined to expire at the conclusion of this fiscal year (30 September 2016), the rider has since been incorporated yet again into the House and Senate appropriation bills for the fiscal year ending 30 September 2017 (2, 3). Subject to ongoing annual renewal, this congressionally legislated ban undermines ongoing conversations on the possibility of human germline modification, its likely distant time horizon notwithstanding (4). Also affected are ongoing efforts of the FDA to review the prevention of mitochondrial DNA diseases through germline modification of human zygotes or oocytes at risk (5).
Robert H. Sitkoff & Max M. Schanzenbach, Financial Advisers Can't Overlook the Prudent Investor Rule, 29 J. Fin. Plan. 28 (Aug. 2016).
Categories:
Taxation
,
Property Law
Sub-Categories:
Retirement Security
,
Taxation - Personal Income
Type: Article
Abstract
The article reports on the rule imposed by the U.S. Department of Labor (DOL) which imposes the trust law duty of care or the prudent investor rule under the Employee Retirement Income Security Act (ERISA) on investment advisors of individual retirement account (IRA) owners or to retirement plan beneficiaries. Topics discussed include duties of trustees under the trust law duty of loyalty, and the role of an investment policy statement in sound fiduciary investment practice.
I. Glenn Cohen, Review of Paul Knoepfler, GMO Sapiens: The Life-Changing Science of Designer Babies, 16 Am. J. Bioethics W1 (2016)(book review).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
Matthew T. Bodie, Employment Law in the Roberts Court: Public Goals, Private Enforcement, in Business and the Roberts Court (Jonathan H. Adler ed., Oxford Univ. Press 2016).
Categories:
Labor & Employment
Sub-Categories:
Employment Practice
Type: Book
Abstract
In recent years, the Supreme Court appears to have taken a greater interest in "business" issues. Does this reflect a change in the Court's orientation, or is it the natural outcome of the appellate process? Is the Court "pro-business"? If so, in what ways do the Court's decisions support business interests and what does that mean for the law and the American public? Business and the Roberts Court provides the first critical analysis of the Court's business-related jurisprudence. In this volume, prominent academics examine the Roberts Court's handling of business-related cases, through a series of empirical and doctrinal analyses. Issues covered include securities law, antitrust, labor law, preemption, and environmental law, among others. Business law and regulatory cases touch on many important legal doctrines and can have far-reaching effects. Understanding the bases upon which the Supreme Court decides business-related cases is of tremendous importance to practitioners and academics. It can also further greater understanding of one of the nation's most important government institutions. These issues are of interest to academics, but also of practical importance to Supreme Court and business practitioners.
I. Glenn Cohen & Eli Y. Adashi, Preventing Mitochondrial DNA Diseases: One Step Forward, Two Steps Back, 316 JAMA 273 (2016).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Laurence H. Tribe, Transcending the Youngstown Triptych: A Multidimensional Reappraisal of Separation of Powers Doctrine, 126 Yale L.J. F. 86 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Congress & Legislation
,
Executive Office
,
Federalism
,
Separation of Powers
Type: Article
John G. Palfrey & Urs Gasser, Born Digital: How Children Grow Up in a Digital Age (Basic Books rev. ed. 2016).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
Type: Book
Abstract
The first generation of children who were born into and raised in the digital world are coming of age and reshaping the world in their image. Our economy, our politics, our culture, and even the shape of our family life are being transformed. But who are these wired young people? And what is the world they’re creating going to look like? In this revised and updated edition, leading Internet and technology experts John Palfrey and Urs Gasser offer a cutting-edge sociological portrait of these young people, who can seem, even to those merely a generation older, both extraordinarily sophisticated and strangely narrow. Exploring a broad range of issues—privacy concerns, the psychological effects of information overload, and larger ethical issues raised by the fact that young people’s social interactions, friendships, and civic activities are now mediated by digital technologies—Born Digital is essential reading for parents, teachers, and the myriad of confused adults who want to understand the digital present and shape the digital future.
Mark J. Roe & Michael Troege, Degradation of the Financial System Due to the Structure of Corporate Taxation (Eur. Corp. Governance Inst. (ECGI) – Law Working Paper No. 317/2016, July 3, 2016).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Taxation
Sub-Categories:
Commercial Law
,
Finance
,
Financial Reform
,
Financial Markets & Institutions
,
Business Organizations
,
Corporate Governance
,
Taxation - Corporate
,
Taxation - Federal
Type: Other
Abstract
egulators have sought since the 2008 financial crisis to further strengthen the financial system. Yet a core source of weakness and a powerful additional instrument for strengthening the financial system persists unchanged and absent from the regulatory agenda — namely the relentless impact of the corporate tax on the choice between risky debt and safer equity. The tax penalty for equity and the concomitant boost for debt undermines the capital adequacy efforts that have been central to the post-crisis reform agenda. Yet this result is not inevitable. By repurposing tax tools used elsewhere in the world, we show how the safety-undermining impact of the current corporate tax can be ended or even reversed. The best trade-off of goals and practical potential is, first, to reduce the corporate income tax burden on bank equity levels above the required minimum, by according an imputed deduction for the cost of equity capital above the regulatory-required amount. This tax benefit can then, second, be made revenue-neutral to the finances by offsetting it, such as by decreasing the tax deductibility of the riskiest classes of financial system liabilities. That offsetting tax rate can, we show, be quite low, because the financial system’s debt base is wide while its equity base is narrow. Standard bank regulation is command-and-control style. Regulators order what banks can and cannot do; banks resist, lobby to reverse and undermine the commands, find transactional alternatives, and distort their behavior when approaching regulatory constraints. Regulators cannot in many areas know as much as the regulated; with a tax instrument, they do not need to know as much. Existing cross-country and cross-state data show the tremendous potential from this reform to incentivize more safely capitalized banks. The magnitude of the safety benefit should rival the size of all the post-crisis regulation to date. Thus the main thesis we bring forward is not a small or technical claim but a call for a major shift in regulatory style. Authors
Vicki C. Jackson, Comparative Constitutional Law, Legal Realism, and Empirical Legal Science, 96 B.U. L. Rev. 1359 (2016).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Empirical Legal Studies
,
Legal Theory & Philosophy
,
Comparative Law
Type: Article
Lucia A. Reisch & Cass R. Sunstein, Do Europeans Like Nudges?, 11 Judgment & Decision Making 310 (2016).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
European Law
Type: Article
I. Glenn Cohen & Eli Y. Adashi, Embryo Disposition Disputes: Controversies and Case Law, 46 Hastings Ctr. Rep. 13 (2016).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Genetics & Reproduction
Type: Article
Norman Champ, An Iniquitous Raid on Private Equity, Wall St. J., June 29, 2016.
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: News
Constitutionalism Across Borders in the Struggle Against Terrorism (Federico Fabbrini & Vicki C. Jackson eds., Edward Elgar Publ'g 2016).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Terrorism
,
International Law
,
Foreign Relations
Type: Book
Abstract
This edited collection explores the topic of constitutionalism across borders in the struggle against terrorism, analyzing how constitutional rules and principles relevant in the field of counter-terrorism move across borders.
Laurence H. Tribe & Scott Greytak, Get Foreign Political Money Out of US Elections, Bos. Globe, June 22, 2016.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: News
Frank I. Michelman, The Ghost of the Declaration Present: The Legal Force of the Declaration of the Declaration of Independence Regarding Acts of Congress, 89 S. Cal. L. Rev. 575 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
Type: Article
Abstract
I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.
Cass R. Sunstein, Conspiracy Theories and Other Dangerous Ideas (Simon & Schuster 2014).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
,
Administrative Law & Agencies
Type: Book
Yochai Benkler, Peer Production, the Commons, and the Future of the Firm, Strategic Org., June 7, 2016.
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Article
Abstract
From free and open source software, through Wikipedia to video journalism, peer production plays a more significant role in the information production environment than was theoretically admissible by any economic model of motivation and organization that prevailed at the turn of the millennium. Its sustained success for a quarter of a century forces us to reevaluate three core assumptions of the standard models of innovation and production. First, it places intrinsic and social motivations, rather than material incentives, at the core of innovation, and hence growth. Second, it challenges the centrality of property, as opposed to the interaction of property and commons, to growth. And third, it questions the continued centrality of firms to the innovation process.
Daniel L. Smail, Legal Plunder: Households and Debt Collection in Late Medieval Europe (Harv. Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Banking & Finance
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Commercial Law
,
Law & Humanities
,
European Law
,
Legal History
Type: Book
Abstract
As Europe began to grow rich during the Middle Ages, its wealth materialized in the well-made clothes, linens, and wares of ordinary households. Such items were indicators of one’s station in life in a society accustomed to reading visible signs of rank. In a world without banking, household goods became valuable commodities that often substituted for hard currency. Pawnbrokers and resellers sprang up, helping to push these goods into circulation. Simultaneously, a harshly coercive legal system developed to ensure that debtors paid their due. Focusing on the Mediterranean cities of Marseille and Lucca, Legal Plunder explores how the newfound wealth embodied in household goods shaped the beginnings of a modern consumer economy in late medieval Europe. The vigorous trade in goods that grew up in the fourteenth and fifteenth centuries entangled households in complex relationships of credit and debt, and one of the most common activities of law courts during the period was debt recovery. Sergeants of the law were empowered to march into debtors’ homes and seize belongings equal in value to the debt owed. These officials were agents of a predatory economy, cogs in a political machinery of state-sponsored plunder.
Laurence H. Tribe & Moshua Matz, Will Eight Justices Be the New Normal?, Wash. Post, June 3, 2016.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Spamann, Holger & Lars Kloehn, Justice is Less Blind, and Less Legalistic, Than We Thought: Evidence from an Experiment with Real Judges, J. Legal Stud. 255 (2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Empirical Legal Studies
,
Judges & Jurisprudence
Type: Article
Abstract
We experimentally investigate the determinants of judicial decisions in a setting resembling real-world judicial decision-making. U.S. federal judges (N=32) spend 55 minutes judging a real appeals case from an international tribunal, with minor modifications to accommodate the experimental treatments. The fictitious briefs focus on one easily understandable issue of law. Our 2×2 between-subject factorial design crosses a weak precedent and legally irrelevant defendant characteristics. In a survey, law professors predicted that the precedent would have a stronger effect than the defendant characteristics. In actuality, the precedent has no detectable effect on the judges’ decisions, whereas the two defendants’ affirmance rates differ by 45% (p<.01). Judges’ written reasons, on the other hand, do not mention defendant characteristics at all, focusing instead on the precedent and other legalistic and policy considerations.
Cass R. Sunstein, Nonsectarian Welfare Statements, 10 Reg. & Governance 126 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
Type: Article
Abstract
How can we measure whether national institutions in general, and regulatory institutions in particular, are dysfunctional? A central question is whether they are helping a nation’s citizens to live good lives. A full answer to that question would require a great deal of philosophical work, but it should be possible to achieve an incompletely theorized agreement on a kind of nonsectarian welfarism, emphasizing the importance of five variables: subjective well-being, longevity, health, educational attainment, and per capita income. In principle, it would be valuable to identify the effects of new initiatives (including regulations) on all of these variables. In practice, it is not feasible to do so; assessments of subjective well-being present particular challenges. In their ideal form, Regulatory Impact Statements should be seen as Nonsectarian Welfare Statements, seeking to identify the consequences of regulatory initiatives for various components of welfare. So understood, they provide reasonable measures of regulatory success or failure, and hence a plausible test of dysfunction. There is a pressing need for improved evaluations, including both randomized controlled trials and ex post assessments.
Claudia M. Landeo & Katheryn E. Spier, Stipulated Damages as a Rent-Extraction Mechanism: Experimental Evidence, 172 J. Inst. & Theoretical Econ. 235 (2016).
Categories:
Banking & Finance
Sub-Categories:
Contracts
Type: Article
Abstract
This paper experimentally studies stipulated damages as a rent-extraction mechanism. We demonstrate that contract renegotiation induces the sellers to propose the lowest stipulated damages and the entrants to offer the highest price more frequently. We show that complete information about the entrant's cost lowers exclusion of high-cost entrants. Unanticipated findings are observed. The majority of sellers make more generous offers than expected. Rent extraction also occurs in renegotiation environments. Our findings from the dictatorial-seller and buyer–entrant communication treatments suggest the presence of social preferences.
Jack L. Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Separation of Powers
,
Supreme Court of the United States
Type: Article
Adrian Vermeule, The Third Bound, 164 U. Pa. L. Rev. 1949 (2016).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Supreme Court of the United States
,
Congress & Legislation
Type: Article
Abstract
This paper was prepared for a conference about constraints on executive discretion. In addition to law and politics (to whatever extent they do or do not constrain the executive), there is also a distinct third bound on executive discretion: conventions, roughly understood as unwritten but obligatory rules of the political game. Debates over executive discretion should take account of distinctions between contingent politics and conventions; between intragovernmental conventions and extragovernmental conventions; and between conventions against doing things and conventions against saying things. The last distinction, in particular, illuminates the strong resistance, in contexts such as immigration, to executive policy statements that make explicit a pattern of enforcement discretion, one that would otherwise remain only implicit. Even holding legal authority constant, making that authority explicit through general policy statements may trigger the normatively-inflected political sanctions that are characteristic of conventions.
Frank I. Michelman, The Unbearable Lightness of Tea Leaves: Constitutional Political Economy in Court, 94 Tex. L. Rev. 1403 (2016).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Courts
Type: Article
Abstract
Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New Deal settlement, and a return of what Holmes called “economic theory” to the work of the courts. And finally, he questions why the argument contains much talk of the Constitution, but relatively little talk of constitutional rights.
Cass R. Sunstein, The World According to Star Wars (Harper Collins 2016).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Humanities
Type: Book
Abstract
"In this fun, erudite, and often moving book, Cass R. Sunstein explores the lessons of Star Wars as they relate to childhood, fathers, the Dark Side, rebellion, and redemption. As it turns out, Star Wars also has a lot to teach us about constitutional law, economics, and political uprisings. Sunstein tells the story of the films’ wildly unanticipated success and explores why some things succeed while others fail. Ultimately, Sunstein argues, Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down. Written with buoyant prose and considerable heart, The World According to Star Wars shines a bright new light on the most beloved story of our time."--Adapted from dust jacket.