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Scott Hirst, The Case for Investor Ordering, 8 Harv. Bus. L. Rev. (forthcoming June 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
,
Corporate Law
Type: Article
Abstract
Whether corporate arrangements should be mandated by public law or "privately ordered" by corporations themselves has been a foundational question in corporate law scholarship. State corporation laws are generally privately ordered. But a significant and growing number of arrangements are governed by "corporate regulations" created by the Securities and Exchange Commission (SEC). SEC corporate regulations are invariably mandatory. Whether they should be is the focus of this paper. The paper contributes to the ongoing debate by showing that whether mandatory or privately-ordered rules are optimal depends on the nature of investors, and their incentives in choosing corporate arrangements. The rise of institutional investors means that investors can now be relied on to choose optimal arrangements, because institutional investors will make informed decisions about corporate arrangements, and will internalize their effects on the capital markets. The paper thus makes the case for a third alternative: "investor ordering." For all but a few corporate regulations, investor ordering will result in the same or greater aggregate net benefit as mandatory regulations. The optimality of investor ordering of SEC corporate regulations has important implications. First, the D.C. Circuit’s jurisprudence on cost-benefit analysis will require the SEC to consider investor ordering. In the many cases where investor ordering would be superior to mandatory regulation, were the SEC to nevertheless implement a mandatory regulation, it would be susceptible to invalidation by the D.C. Circuit under the Administrative Procedure Act. Second, investor ordering substantially reduces the burden of the D.C. Circuit’s recent requirements for SEC cost-benefit analysis. This reduces the overall cost of SEC rule making, or permits the SEC to promulgate more regulations on its fixed budget. It also sidesteps the considerable academic debate about the value of cost-benefit analysis for corporate regulations. Third, investor ordering reduces the need for retrospective analysis. To the extent retrospective analysis remains necessary, investor ordering makes it more straightforward, and also permits lower-cost regulatory experimentation. Investor ordering therefore allows for a more dynamic regulatory system. These benefits mean that the SEC should implement investor ordering as its default approach for new corporate regulations, and for deregulating existing regulations. The paper considers a number of promising candidates for investor ordering among potential and proposed SEC regulations, and for deregulation of contentious existing SEC regulations. Investor ordering also has important implications for state corporation laws and for federal legislation.
Scott Hirst, Universal Proxies, 35 Yale J. on Reg. (forthcoming June 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Corporate Law
Type: Article
Abstract
Contested director elections are a central feature of the corporate landscape, and underlie shareholder activism. Shareholders vote by unilateral proxies, which prevent them from “mixing and matching” among nominees from either side. The solution is universal proxies. The Securities and Exchange Commission has proposed a universal proxy rule, which has been the subject of heated debate and conflicting claims. This paper provides the first empirical analysis of universal proxies, allowing evaluation of these claims. The paper’s analysis shows that unilateral proxies can lead to distorted proxy contest outcomes, which disenfranchise shareholders. By removing these distortions, universal proxies would improve corporate suffrage. Empirical analysis shows that distorted proxy contests are a significant problem: 12% of proxy contests at large U.S. corporations between 2008 and 2015 can be expected to have had distorted outcomes, with as many as 22% of contests possibly distorted. Contrary to the claims of most commentators, removing distortions can most often be expected to favor management nominees, by a significant margin (9% of contests, versus 3% for dissident nominees). A universal proxy rule is therefore unlikely to lead to more proxy contests, or to greater success by special interest groups. Given that the arguments made against a universal proxy rule are not valid, the SEC should implement proxy regulation. A rule permitting corporations to opt-out of universal proxies would be superior to the SEC’s proposed mandatory rule. If the SEC chooses not to implement a universal proxy regulation, investors could implement universal proxies through private ordering to adopt “nominee consent policies.”
James K. Sebenius, R. Nicholas Burns & Robert H. Mnookin, Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level (2018).
Categories:
Civil Practice & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Politics & Political Theory
,
Biography & Tribute
Type: Book
Abstract
"In this groundbreaking, definitive guide to the art of negotiation, three Harvard professors offer a comprehensive examination of one of the most successful dealmakers of all time, Henry Kissinger, and some of his most impressive achievements, including the Paris Peace Accords for which he won the 1973 Nobel Peace Prize. Political leaders, diplomats, and business executives around the world—including every President from John F. Kennedy to Donald J. Trump—have sought the counsel of Henry Kissinger, a brilliant diplomat and political scientist whose unprecedented achievements as a negotiator have been universally acknowledged. Now, Kissinger the Negotiator provides a groundbreaking analysis of Kissinger’s overall approach to making deals and his skill in resolving conflicts—expertise that holds powerful and enduring lessons. Based on in-depth interviews with Kissinger himself about some of his most difficult negotiations and an extensive study of his writings, James K. Sebenius of Harvard Business School, R. Nicholas Burns of the Kennedy School of Government, and Robert H. Mnookin of Harvard Law School crystallize the key elements of the former Secretary of State’s approach. Taut and instructive, Kissinger the Negotiator mines the long and fruitful career of this elder statesman and shows how his strategies not only apply to contemporary diplomatic challenges but also to other realms of negotiation, including business, public policy, and law. Essential reading for current and future leaders, Kissinger the Negotiator is an invaluable guide to reaching agreements." -- Harper Collins
Adriaan Lanni, From Anthropology to Sociology: New Directions in Ancient Greek Law Research, in Ancient Greek Law in the 21st Century (Paula Perlman ed., 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Ancient Law
Type: Book
Annette Gordon-Reed, Female Trouble, N.Y. Rev. Books, Feb. 8, 2018, at 12 (reviewing Hillary Rodham Clinton, What Happened (2018)).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Article
Can It Happen Here?: Authoritarianism in America (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
With the election of Donald J. Trump, many people on both the left and right feared that America’s 240-year-old grand experiment in democracy was coming to an end, and that Sinclair Lewis’ satirical novel, It Can’t Happen Here, written during the dark days of the 1930s, could finally be coming true. Is the democratic freedom that the United States symbolizes really secure? Can authoritarianism happen in America? Acclaimed legal scholar, Harvard Professor, and New York Times bestselling author Cass R. Sunstein queried a number of the nation’s leading thinkers. In this thought-provoking collection of essays, these distinguished thinkers and theorists explore the lessons of history, how democracies crumble, how propaganda works, and the role of the media, courts, elections, and "fake news" in the modern political landscape—and what the future of the United States may hold.
Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (Harv. Univ. Press 2018).
Categories:
Government & Politics
,
Constitutional Law
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Political Theory
,
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Legal & Political Theory
,
Legal Scholarship
Type: Book
Abstract
"Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy. Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate. Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed." -- publisher
Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201 (2018).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
,
Empirical Legal Studies
Type: Article
Abstract
Over 20 percent of prison and jail inmates in the United States are currently awaiting trial, but little is known about the impact of pre-trial detention on defendants. This paper uses the detention tendencies of quasi-randomly assigned bail judges to estimate the causal effects of pre-trial detention on subsequent defendant outcomes. Using data from administrative court and tax records, we find that being detained before trial significantly increases the probability of a conviction, primarily through an increase in guilty pleas. Pre-trial detention has no detectable effect on future crime, but decreases pre-trial crime and failures to appear in court. We also find suggestive evidence that pre-trial detention decreases formal sector employment and the receipt of employment- and tax-related government benefits. We argue that these results are consistent with (i) pre-trial detention weakening defendants' bargaining position during plea negotiations, and (ii) a criminal conviction lowering defendants' prospects in the formal labor market.
Jeannie Suk Gersen, Donald Trump’s Brain is a Catch-22, NewYorker.com (Jan. 26, 2018, 12:36 PM).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
Government Accountability
,
Psychology & Psychiatry
Type: Other
Louis Kaplow, Price-Fixing Policy, Int’l J. Indus. Org. (forthcoming 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Article
Abstract
The prohibition against price fixing is competition law's most important and least controversial provision. Yet there is far less consensus than meets the eye on what constitutes price fixing, and prevalent understandings cannot be reconciled with principles of oligopoly theory. This article (1) presents a fundamental reconceptualization of our understanding of horizontal agreements, (2) develops a systematic analysis of price-fixing policy that focuses on its deterrence benefits and chilling costs, and (3) compares this direct approach to commentators’ favored formulations that typically involve some sort of formalistic communications-based prohibition. By targeting a subset of means rather than the illicit ends, conventional formulations tend to impose liability in cases with lower deterrence benefits and greater chilling costs than those reached under a direct approach and to incur greater administrative costs as well.
Einer Elhauge, New Evidence, Proofs, and Legal Theories on Horizontal Shareholding (Jan. 4, 2018).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Antitrust & Competition Law
,
Corporate Governance
,
Shareholders
,
Empirical Legal Studies
,
Law & Economics
,
Executive Compensation
Type: Other
Abstract
This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment. I also provide new analysis demonstrating that critiques of earlier empirical studies showing adverse price effects for airlines and banking are generally invalid and that addressing the valid subset of those critiques actually increases the estimated price effects. I further demonstrate that the various excuses for delaying enforcement action are meritless. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102.
Annette Gordon-Reed, America’s Original Sin: Slavery and the Legacy of White Supremacy, Foreign Aff., Jan. 1, 2018, at 2.
Categories:
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Discrimination
,
Race & Ethnicity
Type: Article
Annette Gordon-Reed, Hot Ticket: The Biggest Show in Washington 150 Years Ago was President Andrew Johnson's Impeachment Hearings, Smithsonian, Jan. 2018, at 22.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Politics & Political Theory
Type: Article
Abstract
The article examines U.S. President Andrew Johnson's impeachment hearings in 1868. It describes the impeachment proceedings initiated by the House of Representatives and the Senate against Johnson for violating the Tenure of Office Act and other offenses. It also discusses the actions taken by Johnson that indicated his hatred for African Americans and the political and social impact of his impeachment.
Benjamin Sachs, Agency Fees and the First Amendment, 131 Harv. L. Rev. 1046 (2018).
Categories:
Constitutional Law
,
Labor & Employment
Sub-Categories:
First Amendment
,
Labor Law
Type: Article
Abstract
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.
Robert C. Bordone, Building Conflict Resilience: It’s Not Just About Problem-Solving, 2018 J. Disp. Resol. 65.
Categories:
Civil Practice & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Politics & Political Theory
,
Clinical Legal Education
,
Legal Education
Type: Article
Gerald L. Neuman, Detention As a Last Resort: The Implications of General Comment No. 35, in Protecting the Migrant Child (Mary Crock & Lenni Bensons eds., forthcoming 2018).
Categories:
Discrimination & Civil Rights
,
Family Law
,
International, Foreign & Comparative Law
Sub-Categories:
Immigration Law
,
Children's Law & Welfare
,
Human Rights Law
Type: Book
Abstract
Improper confinement of children in migration contexts – unnecessary, prolonged, or in harmful conditions – is a severe and troubling phenomenon. In that regard, the UN Human Rights Committee’s General Comment No. 35 (2014) 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 describes the Human Rights Committee’s approach to detention of migrants, including child migrants. It explains why General Comment No. 35 employs a broad definition of “detention,” and the resulting need for a nuanced and non-absolutist approach to the “detention” of children in migration contexts. Such “detention” is not invariably arbitrary, but rather should be used only as a measure of last resort, and for the shortest appropriate period of time.
Cass R. Sunstein & Lucia A. Reisch, Greener by Default, Trinity C. L. Rev. (forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
Type: Article
Abstract
Careful attention to choice architecture promises to open up new possibilities for reducing greenhouse gas emissions – possibilities that go well beyond, and that may supplement or complement, the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between climate-friendly products or services and alternatives that are potentially damaging to the climate but less expensive? The answer may well depend on the default rule. Indeed, climate-friendly default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, climate-friendly defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. In deciding whether to establish climate-friendly defaults, choice architects (subject to legal constraints) should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of climate-friendly defaults, particularly when both economic and environmental considerations point in their direction. Notably, surveys in the United States and Europe show that majorities in many nations are in favor of climate-friendly defaults.
Cass R. Sunstein, Growing Outrage, Behavioural Pub. Pol’y (forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
Type: Article
Abstract
Why and when does outrage grow? This essay explores two potential answers. The first points to a revision or weakening of social norms, which leads people to express outrage that they had previously suppressed. The second points to a revision or weakening of social norms, which leads people to express outrage that they had not previously felt (and may or may not now feel). The intensity of outrage is often a product of what is most salient. It is also a product of “normalization”; people compare apparently outrageous behavior to behavior falling in the same category in which it is observed, and do not compare it to other cases, which leads to predictable incoherence in judgments. These points bear on the #MeToo movement of 2017 and 2018 and the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity).
John C.P. Goldberg & Benjamin C. Zipursky, Hohfeldian Analysis and the Separation of Rights and Powers, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge Univ. Press forthcoming 2018).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Private Law
,
Torts
,
Remedies
,
Legal Theory & Philosophy
,
Critical Legal Studies
Type: Book
Abstract
At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.
Eric R. Claeys, Intellectual Property and Practical Reason, Jurisprudence (forthcoming 2018).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
,
Property Rights
Type: Article
Abstract
In scholarship on intellectual property (‘IP’), nonconsequentialist justifications for IP rights seem to suffer from one of two flaws. To some, such justifications seem indeterminate; they seem not to offer concrete guidance about how rights should be structured in practice. To others, such justifications seem dogmatic; they seem to mandate certain conclusions without letting decision makers consider the relevant context or consequences of different proposals to regulate IP. Both impressions neglect an important dimension of reasoning about rights—practical reason. In perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for rights are implemented in specific decisions in politics and ethics. This article introduces practical reason to IP scholarship, and it shows how practical reason facilitates reasoning about the design of different legal IP rights. The article illustrates with patent’s novelty requirement, copyright’s originality requirement, copyright’s idea–expression distinction, and the duration limits for various forms of intellectual property.
Chelsea Barabas, Karthik Dinakar, Joichi Ito, Madars Virza & Jonathan Zittrain, Interventions Over Predictions: Reframing the Ethical Debate for Actuarial Risk Assessment, 81 Proc. Machine Learning Res. (forthcoming 2018).
Categories:
Technology & Law
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
Legal Ethics
,
Science & Technology
,
Cyberlaw
Type: Article
Abstract
Actuarial risk assessments might be unduly perceived as a neutral way to counteract implicit bias and increase the fairness of decisions made at almost every juncture of the criminal justice system, from pretrial release to sentencing, parole and probation. In recent times these assessments have come under increased scrutiny, as critics claim that the statistical techniques underlying them might reproduce existing patterns of discrimination and historical biases that are reflected in the data. Much of this debate is centered around competing notions of fairness and predictive accuracy, resting on the contested use of variables that act as "proxies" for characteristics legally protected against discrimination, such as race and gender. We argue that a core ethical debate surrounding the use of regression in risk assessments is not simply one of bias or accuracy. Rather, it's one of purpose. If machine learning is operationalized merely in the service of predicting individual future crime, then it becomes difficult to break cycles of criminalization that are driven by the iatrogenic effects of the criminal justice system itself. We posit that machine learning should not be used for prediction, but rather to surface covariates that are fed into a causal model for understanding the social, structural and psychological drivers of crime. We propose an alternative application of machine learning and causal inference away from predicting risk scores to risk mitigation.
Curtis Bradley & Jack Landman Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. (forthcoming 2018).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Government Accountability
,
Government Transparency
,
Separation of Powers
,
Congress & Legislation
,
National Security Law
,
International Law
,
Treaties & International Agreements
,
Foreign Relations
Type: Article
Abstract
Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to: (a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law; (b) make increasingly consequential political commitments for the United States on practically any topic; (c) interpret these obligations and commitments; and (d) terminate or withdraw from these obligations and commitments. While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years. In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory or judicial apparatus to guide or review the exercise of presidential discretion in this context. This is true even though international law often plays a significant role in the U.S. legal system and has direct and indirect effects on U.S. institutions and persons. After presenting a descriptive account of the rise of presidential control over international law, the Article turns to normative issues. It argues that, although much of this practice has a plausible legal foundation, some recent presidential actions relating to international agreements, and some supportive claims made by commentators, are questionable in light of generally accepted principles relating to the separation of powers. It also explains why presidential control over international law should become significantly more transparent, and it considers the costs and benefits of additional accountability reforms.
Cass R. Sunstein, Radicals, Democratic and Technocratic, Mich. L. Rev. (forthcoming 2018).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Abstract
What kinds of radicalism, if any, turn out to be appealing? Do radicals from former eras speak to us – perhaps as cautionary tales, perhaps as models? Jeremy McCarter has written a magnificent book about five young radicals, who did their most important early work about a century ago, when the United States experienced an outpouring of left-wing thought. McCarter’s radicals were idealists, revolutionaries; they thought that society should and could be remade in fundamental ways. They were exploding with energy, humor, and wit. They loved drama, satire, and sex. Some of the largest and most intriguing lessons involve the tensions among the drama-chasing, principle-free, where-the-action-is radicalism of John Reed, who loved the Russian Revolution; the democratic radicalism of Alice Paul, who fought for women’s suffrage and objected to the subordination of women; and the technocratic radicalism of Walter Lippmann, who emphasized the role of “fake news” and the inevitability of epistemic gaps on the part of the citizenry, and who prized knowledge and expertise. Paul and Lippmann emerge as very different heroes of the period.
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
Meirav Furth-Matzkin & Cass R. Sunstein, Social Influences on Policy Preferences: Conformity and Reactance, 102 Minn. L. Rev. 101 (2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Article
Abstract
Social norms have been used to nudge people toward specified outcomes in various domains. But can people be nudged to support, or to reject, proposed government policies? How do people’s views change when they learn that the majority approves of a particular policy, or that the majority opposes it? To answer these questions, we conducted a series of experiments. We find that in important contexts, learning about the majority’s opinion causes a significant shift toward support for or opposition to particular policies. At the same time, we find that when people’s views are fixed and firm, they are unlikely to conform to the majority’s view and that they might even show reactance. We show this pattern of results with respect to people’s support for or opposition to governmental policies in a wide range of substantive areas — and also to the use of paternalistic tools, such as nudges or bans.
Peter L. Strauss, Todd D. Rakoff, Gillian E. Metzger, David J. Barron & Anne Joseph O'Connell, Gellhorn and Byse's Administrative Law: Cases and Comments (Found. Press 12th ed. 2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Book
Randall Kennedy, The Forgotten Origins of the Constitution on Campus, Am. Prospect, Dec. 28, 2017, at 1.
Categories:
Constitutional Law
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Civil Rights
,
Race & Ethnicity
,
Discrimination
,
Education Law
Type: Article
Abstract
Recent conflicts on campus have featured as antagonists proponents of racial justice versus proponents of civil liberties. Many in both camps identify as liberals. A dose of recollection might help dissipate this avoidable and politically destructive strife.
Jeannie Suk Gersen, The Transformation of Sexual-Harassment Law Will Be Double-Faced, NewYorker.com (Dec. 20, 2017).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Discrimination
,
Employment Discrimination
,
Labor Law
Type: Other
Kristen Stilt, Trading in Sacrifice, 111 Am. J. Int'l L. Unbound 397 (2017).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
,
Animal Law
,
International Law
,
Trade Regulation
,
International Trade
Type: Article
Abstract
The international trade of live animals, especially animals sold for slaughter, creates significant challenges for international law. Nonhuman animals do not fit neatly into the legal world created by humans. In nearly every jurisdiction, animals are property, but they are not like all other property. The sentience of animals has been widely recognized and it forms the basis of anticruelty laws where they exist. You may destroy your toaster any way you like, but the laws of most jurisdictions protect how you treat your dog. This fractured point in the law, animals as property and yet not exactly property, is the source of confusion in national laws, leading to unsatisfactory answers to questions such as what damages should be paid when a companion animal is negligently killed or whether individuals should own wildlife as “pets.”
Scott Brewer, Agonophobia (Fear of Contest) In the Theory of Argument?: The Case of Gary Lawson’s Evidence of the Law, 97 B.U. L. Rev. 2303 (2017).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
,
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Evidence
,
Legal Theory & Philosophy
Type: Article
Abstract
I begin by commending my friend Gary Lawson for his important treatment of the nature of evidence and proof in his book Evidence of the Law. I write, very much, I think, in the spirit of his book and his own agonophilic (I shall explain this concept) style, to question whether his theory of proof hinders its explanatory power by omitting to recognize virtues of arguments other than the one on which he (and, for that matter, most philosophers--he is in good company) focuses, namely, argumentative proofs that produce true or probabilistically warranted propositions. To make my argument I draw on my own theory of the nature of argument and method of analyzing the virtues and vices of argument. I call this method and its supporting theory the Logocratic Method (“LM”). My task in this Lecture is to present enough of the LM-- including two of its concepts central to my critique, “agonophilia” and “agonophobia”--and enough of a re-presentation of what I understand Gary's argument about the nature of proof to be, to raise my question about the explanatory adequacy of Gary's theory.
Richard H. Fallon Jr., Arguing in Good Faith about the Constitution: Ideology, Methodology, and Reflective Equilibrium, 84 U. Chi. L. Rev. 123 (2017).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
Nearly all of us who participate in constitutional argument in subjective good faith share a second-order methodology of constitutional decision-making—that is, an approach to working out both our first-order theories of constitutional interpretation and our judgments about appropriate results in particular cases. That shared method involves a search for reflective equilibrium between our prior or intuitive methodological assumptions (which sometimes may be vague or indeterminate) and our intuitive judgments concerning the appropriate results in particular cases. If our ex ante methodological theories are underdeterminate, reflection on new cases’ facts will lead us to specify our premises more fully. Moreover, in instances of initial conflict between judgments of desirable case-specific outcomes and previously adopted methodological commitments, the Reflective Equilibrium Hypothesis advanced in this Essay holds that adjustment can occur on either end. If we argue about constitutional issues in good faith, normally we will adapt our judgments concerning correct results to methodological premises that we have previously endorsed. But sometimes reflection on new cases will provoke an elaboration, qualification, or rethinking of methodological commitments. After advancing the Reflective Equilibrium Hypothesis as an explanatory theory of the main currents of constitutional argumentation, this Essay offers a brief normative defense.
Luke Gelinas, Holly Fernandez Lynch, Barbara Bierer & I. Glenn Cohen, Institutions as an Ethical Locus of Research Prioritisation, 43 J. Med. Ethics 816 (2017).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Alma Cohen & Crystal S. Yang, Judicial Politics and Sentencing Decisions (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 943, Dec. 2017).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Empirical Legal Studies
,
Judges & Jurisprudence
,
Courts
,
Politics & Political Theory
Type: Other
Abstract
Racial and gender disparities are prevalent in the criminal justice system, but the sources of these disparities remain largely unknown. This paper investigates whether judge political affiliation contributes to these disparities using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.1 fewer months than similar males, compared to Democratic appointed judges. Disparities by judge political affiliation cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.
Eric A. Posner & Cass R. Sunstein, Moral Commitments in Cost-Benefit Analysis, 103 Va. L. Rev. 1809 (2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Law & Public Policy
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that welfare loss is through eliciting private willingness to pay. Of course, it is true that some moral commitments cannot be counted in cost-benefit analysis because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about those values. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims raise fundamental issues in legal and political theory about welfarism and its limits, and they also bear on a wide variety of issues, including protection of foreigners, of victims of mass atrocities, of children, of rape victims, of disabled people, of future generations, and of animals.
Henry E. Smith, Property as Complex Interaction, 13 J. Inst. Econ. 809 (2017).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Property Rights
Type: Article
Abstract
In his important article, Benito Arruñada draws out the significance of sequential exchange for property rights and traces inadequacies in the economics of property rights to its overly contractual focus, to the exclusion of multiple transactions on the same asset. In this comment, I argue that although Arruñada's problem is a genuine one, it is part of a larger inadequacy in the economic analysis of property rights: property institutions have to manage complexity stemming from many kinds of interactions, making it problematic to focus solely on local interactions. Modular structures in property, including legal ‘things’ themselves, serve to manage this complexity. The larger problem of complexity allows us to set sequential exchange in its proper context.
Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, in Justice and Leadership in Early Islamic Courts 23 (Intisar A. Rabb & Agigail Krasner Balbale eds., 2017).
Categories:
Disciplinary Perspectives & Law
,
Property Law
,
Government & Politics
Sub-Categories:
Islamic Law
,
Judges & Jurisprudence
,
Property Rights
Type: Book
Abstract
During the lifetime of the Prophet Muḥammad and the expansion of the young Islamic empire immediately after his death, a number of land tracts were distributed to his Companions and Family members. One of them was a fertile farm called Yanbuʿ, located northwest of Medina. Having acquired the land, the Prophet’s cousin, son-and-law, caliph-to-be ʿAlī b. Abī Ṭālib discovered a spring that he named Bughaybigha, which fed what was to become a much-coveted date-palm orchard. He immediately turned it into a charitable endowment to be managed by his heirs. But when ʿAlī was killed in a struggle for the caliphate, chaos and confusion ensued—one feature of which was a generations-long battle over the land. For the next one hundred fifty years, Umayyad and ʿAbbāsid rulers episodically wrested the land from ʿAlī’s descendants each time the latter succeeded in securing its return. At one point in the midst of the political contestation, the affair ended up in court. There, the case turned on the judge’s creative interpretation of and choice between conflicting procedural rules. The outcome was a split decision that gave only a partial win to the caliph and a partial win to the ʿAlid descendant who had been cultivating the land. Judicial discretion and procedure, it turns out, was instrumental to resolving hotly contested issues of Islamic law, land, and legitimate rule. In fact, the case vividly displays how judges like the one at the center of this case helped construct Islamic law through their interpretive approaches to such issues that lay at the heart of disputes like Bughaybigha.
Robert H. Sitkoff, The Rise of Trust Decanting in the United States, 23 T. & T. 976 (2017).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Article
Abstract
In a trust decanting, a trustee who under the terms of a trust (the first trust) has a discretionary power over distribution uses that power to distribute the trust property to a new trust (the second trust) with updated provisions, leaving behind the sediment of the first trust’s stale provisions. This article canvasses the rise of trust decanting in American trust practice, taking notice of its common law origins, its contrast with traditional American doctrine on trust modification and termination, the proliferation of state trust decanting statutes, and several areas of doctrinal divergence across the states.
Luke Gelinas, Holly Fernandez Lynch, Barbara E. Bierer & I. Glenn Cohen, When Clinical Trials Compete: Prioritising Study Recruitment, 43 J. Med. Ethics 803 (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.
Jack Goldsmith & Adrian Vermeule, Opinion, Elite Colleges are Making it Easy for Conservatives to Dislike Them, Wash. Post, Nov. 30, 2017.
Categories:
Family Law
,
Legal Profession
,
Government & Politics
,
Taxation
Sub-Categories:
Education Law
,
Congress & Legislation
,
Politics & Political Theory
,
Legal Education
,
Tax Policy
,
Taxation - Federal
Type: News
Rebecca Tushnet, From Status Update to Social Media Contract, JOTWELL (Nov. 29, 2017)(reviewing Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. (forthcoming 2018)).
Categories:
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Communications Law
,
Cyberlaw
,
Networked Society
Type: Other
Urs Gasser & Virgilio A.F. Almeida, A Layered Model for AI Governance, IEEE Internet Computing, Nov. 20, 2017, at 58.
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Networked Society
,
Science & Technology
,
Information Privacy & Security
Type: Article
Abstract
AI-based systems are "black boxes," resulting in massive information asymmetries between the developers of such systems and consumers and policymakers. In order to bridge this information gap, this article proposes a conceptual framework for thinking about governance for AI.
T. Keith Fogg, Diana L. Leyden & Craig D. Bell, Resolving Identity Theft Issues, 63 Ann. Tax Conf. 401 (2017).
Categories:
Taxation
,
Technology & Law
Sub-Categories:
Taxation - Federal
,
Taxation - Personal Income
,
Information Privacy & Security
Type: Article
Finale Doshi-Velez, Mason Kortz, Ryan Budish, Christopher Bavitz, Samuel J. Gershman, David O'Brien, Stuart Shieber, Jim Waldo, David Weinberger & Alexandra Wood, Accountability of AI Under the Law: The Role of Explanation (Berkman Klein Ctr. Research Publ'n, Nov. 6, 2017).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Information Privacy & Security
,
Networked Society
,
Science & Technology
Type: Other
Abstract
The ubiquity of systems using artificial intelligence or "AI" has brought increasing attention to how those systems should be regulated. The choice of how to regulate AI systems will require care. AI systems have the potential to synthesize large amounts of data, allowing for greater levels of personalization and precision than ever before|applications range from clinical decision support to autonomous driving and predictive policing. That said, common sense reasoning [McCarthy, 1960] remains one of the holy grails of AI, and there exist legitimate concerns about the intentional and unintentional negative consequences of AI systems [Bostrom, 2003, Amodei et al., 2016, Sculley et al., 2014]. There are many ways to hold AI systems accountable. In this work, we focus on one: explanation. Questions about a legal right to explanation from AI systems was recently debated in the EU General Data Protection Regulation [Goodman and Flaxman, 2016, Wachter et al., 2017], and thus thinking carefully about when and how explanation from AI systems might improve accountability is timely. Good choices about when to demand explanation can help prevent negative consequences from AI systems, while poor choices may not only fail to hold AI systems accountable but also hamper the development of much-needed beneficial AI systems. Below, we briefly review current societal, moral, and legal norms around explanation, and then focus on the different contexts under which explanation is currently required under the law. We find that there exists great variation around when explanation is demanded, but there also exists important consistencies: when demanding explanation from humans, what we typically want to know is how and whether certain input factors affected the final decision or outcome. These consistencies allow us to list the technical considerations that must be considered if we desired AI systems that could provide kinds of explanations that are currently required of humans under the law. Contrary to popular wisdom of AI systems as indecipherable black boxes, we find that this level of explanation should often be technically feasible but may sometimes be practically onerous|there are certain aspects of explanation that may be simple for humans to provide but challenging for AI systems, and vice versa. As an interdisciplinary team of legal scholars, computer scientists, and cognitive scientists, we recommend that for the present, AI systems can and should be held to a similar standard of explanation as humans currently are; in the future we may wish to hold an AI to a different standard.
Alan Dershowitz, Original Intent: The Many Arguments of Justice Antonin Scalia, N.Y. Times Book Rev., Nov. 5, 2017, at 10 (reviewing Scalia Speaks (Christopher J. Scalia & Edward Whelan eds., 2017)).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: News
Bruce L. Hay, Nazi-Looted Art and the Law: The American Cases (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Arts & Entertainment Law
Type: Book
Abstract
This book offers a clear, accessible account of the American litigation over the restitution of works of art taken from Jewish families during the Holocaust. For the past two decades, the courts of the United States have been an arena of conflict over this issue that has recently captured widespread public attention. In a series of cases, survivors and heirs have come forward to claim artworks in public and private collections around the world, asserting that they were seized by the Nazis or were sold under duress by owners desperate to escape occupied countries. Spanning two continents and three-quarters of a century, the cases confront the courts with complex problems of domestic and international law, clashes among the laws of different jurisdictions, factual uncertainties about the movements of art during and after the war, and the persistent question whether restitution claims have been extinguished by the passage of time.Through individual case studies, the book examines the legal questions these conflicts have raised and the answers the courts have given. From the internationally celebrated “Woman in Gold” lawsuit against Austria to lesser-known claims against Germany, Hungary, Spain, and museums and private collections in the United States, the book synthesizes the legal and evidentiary materials and judicial rulings in each case, creating a coherent narrative of proceedings that are often labyrinthine in complexity. Written by a leading authority on litigation and procedure, the book will be of interest to readers in various fields of the humanities and social sciences as well as law, and to anyone interested in the fate of artworks that have been called the “last prisoners” of the Second World War.
Robert H. Sitkoff, Book Review, 76 Cambridge L.J. 674 (2017) (reviewing Birke Häcker & Charles Mitchell, Current Issues in Succession Law (2016) & Passing Wealth on Death: Will-Substitutes in Comparative Perspective (Alexandra Braun & Anne Röthel eds., 2016).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Foreign Law
,
Property Rights
,
Trusts
,
Estates
,
Estate Planning
,
Probate
,
Personal Property
Type: Article
Robert H. Sitkoff, Book Review, 76 Cambridge L.J. 674 (2017) (reviewing Birke Häcker & Charles Mitchell, Current Issues in Succession Law (2016) & Passing Wealth on Death: Will-Substitutes in Comparative Perspective (Alexandra Braun & Anne Röthel eds., 2016).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Foreign Law
,
Property Rights
,
Trusts
,
Estates
,
Estate Planning
,
Probate
,
Personal Property
Type: Article
Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley, 117 Colum. L. Rev. 1691 (2017).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Empirical Legal Studies
,
Judges & Jurisprudence
,
Courts
,
Biography & Tribute
,
Legal History
Type: Article
Justice and Leadership in Early Islamic Courts (Intisar A. Rabb & Abigail Krasner Balbale eds., Harvard Series in Islamic Law, Nov. 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
Abstract
This book presents an in-depth exploration of the administration of justice during Islam’s founding period, 632–1250 CE. Inspired by the scholarship of Roy Parviz Mottahedeh and composed in his honor, this volume brings together ten leading scholars of Islamic law to examine the history of early Islamic courts. This approach draws attention to both how and why the courts and the people associated with them functioned in early Islamic societies: When a dispute occurred, what happened in the courts? How did judges conceive of justice and their role in it? When and how did they give attention to politics and procedure? Each author draws on diverse sources that illuminate a broader and deeper vision of law and society than traditional legal literature alone can provide, including historical chronicles, biographical dictionaries, legal canons, exegetical works, and mirrors for princes. Altogether, the volume offers both a substantive intervention on early Islamic courts and on methods for studying legal history as social history. It illuminates the varied and dynamic legal landscapes stretching across early Islam, and maps new approaches to interdisciplinary legal history.
Yochai Benkler, Law, Innovation and Collaboration in Networked Economy and Society, 13 Ann. Rev. L. & Soc. Sci. 231(2017).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
,
Intellectual Property Law
Type: Article
Abstract
Over the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market based innovation focused on material self interest to interaction between market and non market practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, non compete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing market and non market models and motivations, and weaving commons with property are central to the innovation process.
Louis Kaplow, Optimal Design of Private Litigation, J. Pub. Econ., Nov. 2017, at 64.
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Litigation & Settlement
,
Private Law
,
Law & Economics
,
Courts
Type: Article
Abstract
This article translates and extends Becker (1968) from public law enforcement to private litigation by examining optimal legal system design in a model with private suits, signals of case strength, court error, and two types of primary behavior: harmful acts that may be deterred and benign acts that may be chilled. The instruments examined are filing fees or subsidies that may be imposed on either party, damage awards and payments by unsuccessful plaintiffs (each of which may be decoupled), and the stringency of the evidence threshold (burden of proof). With no constraints, results arbitrarily close to the first best can be implemented. Prior analyses of optimal damage awards, decoupling, and fee shifting are shown to involve special cases. More important, previous results change qualitatively when implicit assumptions are relaxed. For example, introducing a filing fee can make it optimal to minimize what losing plaintiffs pay winning defendants and to reduce the evidence threshold as much as possible — even though the direct effect of these adjustments is to chill desirable behavior, a key feature absent in prior work.
Louis Kaplow, Optimal Multistage Adjudication, 33 J.L. Econ. & Org. 613 (2017).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Jury Trials
,
Litigation & Settlement
,
Law & Economics
,
Courts
Type: Article
Abstract
In many settings, there are preliminary or interim decision points at which legal cases may be terminated: e.g., motions to dismiss and for summary judgment in U.S. civil litigation, grand jury decisions in criminal cases, and agencies’ screening and other exercises of discretion in pursuing investigations. This article analyzes how the decision whether to continue versus terminate should optimally be made when (A) proceeding to the next stage generates further information but at a cost to both the defendant and the government and (B) the prospect of going forward, and ultimately imposing sanctions, deters harmful acts and also chills desirable behavior. This subject involves a mechanism design analogue to the standard value of information problem, one that proves to be qualitatively different and notably more complex. Numerous factors enter into the optimal decision rule – some expected, some subtle, and some counterintuitive. The optimal rule for initial or intermediate stages is also qualitatively different from that for assigning liability at the final stage of adjudication.
Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399 (2017).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
,
Criminal Prosecution
,
Discrimination
,
Race & Ethnicity
,
Social Welfare Law
,
Law & Public Policy
,
Empirical Legal Studies
Type: Article
Abstract
Few decisions in the criminal justice process are as consequential as the determination of bail. Indeed, recent empirical research finds that pre-trial detention imposes substantial long-term costs on defendants and society. Defendants who are detained before trial are more likely to plead guilty, less likely to be employed, and less likely to access social safety net programs for several years after arrest. Spurred in part by these concerns, critics of the bail system have urged numerous jurisdictions to adopt bail reforms, which have led to growing momentum for a large-scale transformation of the bail system. Yet supporters of the current system counter that pre-trial detention reduces flight and pre-trial crime—recognized benefits to society—by incapacitating defendants. Despite empirical evidence in support of both positions, however, advocates and critics of the current bail system have generally ignored the real trade-offs associated with detention. This Article provides a broad conceptual framework for how policymakers can design a better bail system by weighing both the costs and benefits of pre-trial detention—trade-offs that are historically grounded in law, but often disregarded in practice. I begin by presenting a simple taxonomy of the major categories of costs and benefits that stem from pre-trial detention. Building from this taxonomy, I conduct a partial cost-benefit analysis that incorporates the existing evidence, finding that the current state of pre-trial detention is generating large social losses. Next, I formally present a framework that accounts for heterogeneity in both costs and benefits across defendants, illustrating that detention on the basis of “risk” alone can lead to socially suboptimal outcomes. In the next part of the Article, I present new empirical evidence showing that a cost-benefit framework has the potential to improve accuracy and equity in bail decision-making, where currently bail judges are left to their own heuristics and biases. Using data on criminal defendants and bail judges in two urban jurisdictions, and exploiting variation from the random assignment of cases to judges, I find significant judge differences in pre-trial release rates, the assignment of money bail, and racial gaps in release rates. While there are any number of reasons why judges within the same jurisdiction may vary in their bail decisions, these results indicate that judges may not be all setting bail at the socially optimal level. The conceptual framework developed in this Article also sheds light on the ability of recent bail reforms to increase social welfare. While the empirical evidence is scant, electronic monitoring holds promise as a welfare-enhancing alternative to pre-trial detention. In contrast, application of the conceptual framework cautions against the expanding use of risk-assessment instruments. These instruments, by recommending the detention of high-risk defendants, overlook the possibility that these high-risk defendants may also be “high-harm” such that they are most adversely affected by a stay in jail. Instead, I recommend that jurisdictions develop “net benefit” assessment instruments by predicting both risk and harm for each defendant in order to move closer toward a bail system that maximizes social welfare.
Noah Feldman, The Three Lives of James Madison Genius, Partisan, President (2017).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Executive Office
,
Biography & Tribute
,
Legal History
Type: Book
Abstract
Over the course of his life, James Madison changed the United States three times: First, he designed the Constitution, led the struggle for its adoption and ratification, then drafted the Bill of Rights. As an older, cannier politician he co-founded the original Republican party, setting the course of American political partisanship. Finally, having pioneered a foreign policy based on economic sanctions, he took the United States into a high-risk conflict, becoming the first wartime president and, despite the odds, winning. In The Three Lives of James Madison, Noah Feldman offers an intriguing portrait of this elusive genius and the constitutional republic he created—and how both evolved to meet unforeseen challenges. Madison hoped to eradicate partisanship yet found himself giving voice to, and institutionalizing, the political divide. Madison’s lifelong loyalty to Thomas Jefferson led to an irrevocable break with George Washington, hero of the American Revolution. Madison closely collaborated with Alexander Hamilton on the Federalist papers—yet their different visions for the United States left them enemies. Alliances defined Madison, too. The vivacious Dolley Madison used her social and political talents to win her husband new supporters in Washington—and define the diplomatic customs of the capital’s society. Madison’s relationship with James Monroe, a mixture of friendship and rivalry, shaped his presidency and the outcome of the War of 1812. We may be more familiar with other Founding Fathers, but the United States today is in many ways Madisonian in nature. Madison predicted that foreign threats would justify the curtailment of civil liberties. He feared economic inequality and the power of financial markets over politics, believing that government by the people demanded resistance to wealth. Madison was the first Founding Father to recognize the importance of public opinion, and the first to understand that the media could function as a safeguard to liberty.
Cass R. Sunstein, Impeachment: A Citizen's Guide (2017).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Congress & Legislation
,
Government Accountability
,
Corruption
Type: Book
Abstract
As Benjamin Franklin famously put it, Americans have a republic, if we can keep it. Preserving the Constitution and the democratic system it supports is the public’s responsibility. One route the Constitution provides for discharging that duty—a route rarely traveled—is impeachment. Cass R. Sunstein provides a succinct citizen’s guide to an essential tool of self-government. He illuminates the constitutional design behind impeachment and emphasizes the people’s role in holding presidents accountable. Despite intense interest in the subject, impeachment is widely misunderstood. Sunstein identifies and corrects a number of misconceptions. For example, he shows that the Constitution, not the House of Representatives, establishes grounds for impeachment, and that the president can be impeached for abuses of power that do not violate the law. Even neglect of duty counts among the “high crimes and misdemeanors” delineated in the republic’s foundational document. Sunstein describes how impeachment helps make sense of our constitutional order, particularly the framers’ controversial decision to install an empowered executive in a nation deeply fearful of kings. With an eye toward the past and the future, Impeachment: A Citizen’s Guide considers a host of actual and imaginable arguments for a president’s removal, explaining why some cases are easy and others hard, why some arguments for impeachment have been judicious and others not. In direct and approachable terms, it dispels the fog surrounding impeachment so that Americans of all political convictions may use their ultimate civic authority wisely.
Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State, 130 Harv. L. Rev. 2463 (2017).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Separation of Powers
,
Legal History
Type: Article
Abstract
What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.
Martha Minow, Marking 200 Years of Legal Education: Traditions of Change, Reasoned Debate, and Finding Differences and Commonalities, 130 Harv. L. Rev. 2279 (2017).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Scholarship
Type: Article
Abstract
What is the significance of legal education? “Plato tells us that, of all kinds of knowledge, the knowledge of good laws may do most for the learner. A deep study of the science of law, he adds, may do more than all other writing to give soundness to our judgment and stability to the state.” So explained Dean Roscoe Pound of Harvard Law School in 1923, and his words resonate nearly a century later. But missing are three other possibilities regarding the value of legal education: To assess, critique, and improve laws and legal institutions; To train those who pursue careers based on legal training, which may mean work as lawyers and judges; leaders of businesses, civic institutions, and political bodies; legal academics; or entrepreneurs, writers, and social critics; and To advance the practice in and study of reasoned arguments used to express and resolve disputes, to identify commonalities and differences, to build institutions of governance within and between communities, and to model alternatives to violence in the inevitable differences that people, groups, and nations see and feel with one another. The bicentennial of Harvard Law School prompts this brief exploration of the past, present, and future of legal education and scholarship, with what I hope readers will not begrudge is a special focus on one particular law school in Cambridge, Massachusetts.
Vicki C. Jackson, Thayer, Holmes, Brandeis: Conceptions of Judicial Review, Factfinding, and Proportionality, 130 Harv. L. Rev. 2348 (2017).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Judges & Jurisprudence
,
Comparative Law
,
Legal History
Type: Article
Abstract
Three Harvard Law School alumni — James Bradley Thayer, Oliver Wendell Holmes, Jr., and Louis D. Brandeis — have had outsized impacts on judicial review, how it is conducted and conceived. Part I of this Essay provides a brief overview of Thayer’s theories of judicial deference, Holmes’s value skepticism and deference to “dominant opinion,” and Brandeis’s efforts, through improved understandings of facts, to bring “legal justice” closer to “social justice.” Their influences endure in (at least) rhetorical commitments to judicial deference to legislatures and a certain “value skepticism” that, as Part II suggests, help explain why “proportionality review,” though widely used in other constitutional democracies, has not been adopted here. Part III argues that proportionality review, in some areas, would improve the transparency of constitutional analysis and enable constitutional law to better approach constitutional justice. It further argues that, in an age of “truthiness,” “fake news,” and “kabuki theater” in legislative hearings, courts are most likely, among major institutions of government, to provide publicly transparent and impartial decisionmaking about facts relevant to the constitutionality of laws, whether under proportionality review or other doctrines. Deference may be appropriate, as Thayer, Holmes, and Brandeis in different ways urged, but it should be deployed in ways responsive to the social facts about different governmental decisionmaking processes.
Jeannie Suk Gersen, The Socratic Method in the Age of Trauma, 130 Harv. L. Rev. 2320 (2017).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Abstract
When I was a young girl, the careers I dreamed of — as a prima ballerina or piano virtuoso — involved performing before an audience. But even in my childhood ambitions of life on stage, no desire of mine involved speaking. My Korean immigrant family prized reading and the arts, but not oral expression or verbal assertiveness — perhaps even less so for girls. Education was the highest familial value, but a posture of learning anything worthwhile seemed to go together with not speaking. My incipient tendency to raise questions and arguments was treated as disrespect or hubris, to be stamped out, sometimes through punishment. As a result, and surely also due to natural shyness, I had an almost mute relation to the world. It was 1L year at Harvard Law School that changed my default mode from “silent” to “speak.” Having always been a student who said nothing and preferred a library to a classroom, I was terrified and scandalized as professors called on classmates daily to engage in back-and-forth dialogues of reasons and arguments in response to questions, on subjects of which we knew little and on which we had no business expounding. What happened as I repeatedly faced my unwelcome turn, heard my voice, and got through with many stumbles was a revelation that changed my life. A light switched on. Soon, I was even volunteering to engage in this dialogue, and I was thinking more intensely, independently, and enjoyably than I ever had before. Eventually, learning through speaking, reasoning, questioning, and revising in conversation with others became a way of life that I treasure and try to cultivate in students. As a law professor over the past decade, I have seen students experience their own epiphanies and transformations in relation to the law school classroom. But I know that some students viscerally dislike the pedagogy that typifies law school, viewing it as outdated and oppressive, and even reporting ill effects on their sense of equality, identity, and well-being. And critiques of law school teaching that point to a disproportionate adverse impact on the educational experience of women and minorities are of special concern to me — as a feminist, a teacher, and the first Asian woman to have been tenured at the school that formed my legal mind and opened my greatest opportunities. This Essay on the occasion of Harvard Law School’s bicentennial is a reflection on the present connections and contradictions between our inherited pedagogical traditions, the desires and needs of students in a diverse law school, and aspirations for law graduates in a changing world today.
John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397 (2017).
Categories:
Government & Politics
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Congress & Legislation
,
Statutory Interpretation
,
Legal History
Type: Article
Adrian Vermeule, Chevron as a Legal Framework, JOTWELL (Oct. 24, 2017) (reviewing Kristin Hickman & Nicholas R. Bednar, Chevron's Inevitability, 85 Geo. Wash. L. Rev. 5 (2017)).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Supreme Court of the United States
Type: Other
John C.P. Goldberg, The Curious Case of the Disclaimer That Didn’t Bark, JOTWELL (Oct. 19, 2017)(reviewing Victor P. Goldberg, The MacPherson-Henningsen Puzzle, Colum. L. & Econ. Working Paper No. 570, Aug. 20, 2017).
Categories:
Civil Practice & Procedure
,
Consumer Finance
Sub-Categories:
Consumer Contracts
,
Torts - Product Liability
,
Torts
Type: Other
I. Glenn Cohen, Sharona Hoffman & Eli Y. Adashi, Your Money or Your Patient's Life? Ransomware and Electronic Health Records, 167 Annals Internal Med. 587 (2017).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Digital Property
,
Information Privacy & Security
,
Medical Technology
,
Networked Society
Type: Article
Jeannie Suk Gersen, How Anti-Trump Psychiatrists Are Mobilizing Behind the Twenty-Fifth Amendment, NewYorker.com (Oct. 16, 2017, 12:40 PM).
Categories:
Constitutional Law
,
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
Government Accountability
,
Psychology & Psychiatry
Type: Other
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.
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: Article
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.
Jeannie Suk Gersen, Why Didn’t the Manhattan D.A. Cyrus Vance Prosecute the Trumps or Harvey Weinstein?, NewYorker.com (Oct. 13, 2017).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Government Accountability
Type: Other
Directions for International Tax Reform: Hearing Before the U.S. Senate Committee on Finance, Hearing on International Tax Reform, 115th Cong. (Oct. 3, 2017)(statement of Stephen E. Shay).
Categories:
Taxation
Sub-Categories:
Taxation - International
,
Tax Policy
Type: Other
Abstract
Testimony before the U.S. Senate Committee on Finance Hearing on International Tax Reform, October 3, 2017. Objectives for Tax Reform Tax reform should maintain or enhance our tax system’s current level of progressivity in distributing tax burdens and benefits. The most significant social welfare fact today is that the income of middle and lower income workers has stagnated in recent decades and a disproportionate share of income growth has accrued to those with highest incomes—the top 1%. While we have recovered from the recession and middle and lower income workers have made some gains, the disparity between high-income and middle- and lower-income has grown substantially and income mobility is more constrained than for prior generations. The taxation of cross-border income of U.S. MNCs should be analyzed under the same fairness standards that apply to any other income. In particular, as I discuss later in this testimony, a reduced “holiday” tax rate on U.S. MNCs’ pre-effective date offshore earnings will overwhelmingly benefit high-income Americans (and foreigners) and is not justified on any policy ground. Its sole purpose is to provide a one-time source of revenue that disguises the future revenue loss from shifting to a weak territorial system. Tax reform should be revenue neutral or increase net revenues. The central importance of our tax system to national competitiveness and growth is to fund public goods, such as education, basic research, infrastructure, healthcare and income security transfers, and national defense. These government services and capital expenditures support a high standard of living, income security, and physical security for all Americans. It is the job of the tax system to raise the necessary revenue to fund needed public expenditure and not add trillions to the national debt as proposed in the Senate Budget proposal and the GOP Tax Reform Plan. Objectives for International Tax Reform International tax reform should maintain or increase, not reduce, the aggregate tax on U.S. MNCs’ foreign income. There is no policy justification to advantage international business income of multinational corporations (MNCs) beyond allowing a credit for foreign income taxes. Moreover, evidence does not support claims that U.S. MNCs are overtaxed or are non-competitive as a consequence of U.S. tax rules. The U.S. Treasury Department found that the average tax paid by U.S. companies from 2007–2011 on their book earnings plus foreign dividends was 22%. The most recent publicly available Statistics of Income data for 2012 shows that foreign subsidiaries of U.S. MNCs in the aggregate paid an average foreign tax rate of 12%. Foreign income should be taxed currently or, if that is not politically feasible, under a per country minimum tax regime that is effective in discouraging tax avoidance through transfer pricing and related techniques that shift and indirectly erode the U.S. tax base. International tax reform should assure that the tax rules for foreign multinational companies on U.S. business activity does not provide them an advantage in relation to U.S. companies. Tax reform should undertake a fundamental review of U.S. source taxation of cross-border activity having a U.S. destination including remote digital sales into the United States. In addition, tax reform should strengthen U.S. corporate residence and earnings stripping rules. Taxation of international portfolio income should be fundamentally re-examined. Under current rules, there are U.S. tax advantages for portfolio investment by U.S. investors in foreign stock over domestic stock. Similarly, foreign pension funds that benefit principally foreign workers receive exemptions and reliefs from U.S. tax that are not reciprocated by foreign countries on U.S. pension funds benefitting U.S. workers. A fundamental tax reform effort should re-examine from scratch the U.S. rules for taxing cross-border portfolio income, however, the treatment of portfolio income is a subject for development on another occasion.
J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay, Incorporating a Minimum Tax in a Territorial System, 157 Tax Notes 73 (2017).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - International
,
Taxation - Corporate
Type: Article
Abstract
In this report, Fleming, Peroni, and Shay analyze the effects of including a final, low-rate minimum tax on U.S. multinational corporations in a territorial system. They continue to prefer a real worldwide international tax system, but see a final, low-rate minimum tax as a second-best measure to reduce the revenue loss of a territorial system.
Mark Wu, China's Export Restrictions and the Limits of WTO Law, 16 World Trade Rev. 673 (2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Trade Regulation
,
International Trade
Type: Article
Abstract
In recent years, China has enacted export restrictions on a range of minerals and other raw materials. They include export quotas, export duties, export licenses, and other administrative actions. Although such export restrictions have already been found to be inconsistent with China's WTO obligations, the practice persists. This article advances an explanation for why this is the case. It argues that the problem lies with the lack of retrospective remedies in WTO dispute settlement. Consequently, China is able to breach its WTO obligations temporarily with minimal consequence. Although such restrictions may have negative consequences for upstream extraction firms, China is able to implement the restrictions because several upstream firms are state-owned enterprises. As a result, China is able to utilize export restrictions on minerals and other raw materials effectively to foster the development of strategic emerging industries downstream. Given existing negotiating standoffs and domestic political constraints, this article suggests that it is unlikely that any potential WTO legal reforms will be enacted any time soon to address this problem.
Cass R. Sunstein (with Anne Thorndike), Obesity Prevention in the Supermarket--Choice Architecture and the Supplemental Nutrition Assistance Program, 107 Am. J. Pub. Health 1582 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Food & Drug Law
,
Health Law & Policy
Type: Article
Abstract
The article discusses obesity-related health care costs in America in relation to a debate about whether the U.S. government should allow consumers to purchase sugar-sweetened beverages (SSBs) and other unhealthy food products through food assistance programs such as the Supplemental Nutrition Assistance Program (SNAP) as of 2017. A choice architecture concept involving decision making by consumers is examined, along with supermarkets and American public health.
Robert H. Mnookin, Tales of a True Mensch, 33 Negotiation J. 351 (2017).
Categories:
Legal Profession
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Biography & Tribute
Type: Article
Samantha Bates, Christopher Bavitz & Kira Hessekiel, Zero Rating & Internet Adoption: The Role of Telcos, ISPs & Technology Companies in Expanding Global Internet Access: Workshop Paper & Research Agenda (Berkman Klein Ctr. Research Publ’n No. 2017-9, Oct. 1, 2017).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Communications Law
,
Networked Society
,
Information Privacy & Security
Type: Other
Abstract
Zero rating, which allows users to access select Internet services and content without incurring mobile data charges, is not a new concept. But it has become an object of debate as mobile carriers and major app providers have used it in the developing world to attract customers, with the goal of increasing Internet access and adoption. While some feel these programs violate net neutrality and create the potential for a two-tiered Internet, others argue that zero rating programs bring the developing world online and could be modified to uphold, rather than violate, net neutrality principles. At the same time, little research evaluating zero rating programs exists, and many different program formulations are lumped under the term “zero rating,” some of which are more compatible with net neutrality than others. In March of 2016, the Berkman Klein Center for Internet & Society gathered a diverse group of stakeholders from academia, the media, the government sector, industry, and the open software community to discuss the use of zero rating as a means to improve Internet adoption in the developing world and how and when it could be an effective tool, if at all. This paper captures the resulting dialogue and recommendations. The workshop summary is followed by a collection of briefing papers representing the viewpoints of many of the workshop participants. Key Findings: Many different models of industry initiatives currently fall into the loose definition of zero rating. Creating a better defined taxonomy of program parameters, technical mechanisms, and impacts may allow for greater nuance and understanding in the field, as well as more targeted regulatory responses. Universal Internet access and adoption is a common goal but one that requires significant investment in global infrastructure. Some assert that zero rating programs may serve as a helpful stopgap measures to increase access, while others argue that these programs contribute to the creation of a tiered Internet ecosystem without providing meaningful benefits to the targeted beneficiaries. Zero rating initiatives may be employed in pursuit of goals other than Internet adoption, such as an emergency services messaging system or security updates. The goals of a particular zero rating program may make it more or less controversial. More empirical research is required to fully assess the impact of specific zero rating initiatives, as well as zero rating generally, on Internet adoption in the developing world. This research will sometimes require access to usage information held by mobile carriers and zero rating service providers that should be handled with user privacy in mind.
Noah Feldman & Jacob Weisberg, What Are Impeachable Offenses?, N.Y. Rev. Books, Sept. 28, 2017, at 16 (reviewing Allan J. Lichtman, The Case for Impeachment (2017) and Cass R. Sunstein, Impeachment: A Citizen’s Guide (2017)).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Annette Gordon-Reed, Sally Hemings, Thomas Jefferson and the Ways We Talk About Our Past, N.Y. Times Book Rev., Sept. 24, 2017, at 20.
Categories:
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Legal History
Type: Article
Proportionality: New Frontiers, New Challenges (Vicki C. Jackson & Mark Tushnet eds., 2017).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Judges & Jurisprudence
,
Courts
,
Administrative Law & Agencies
,
Statutory Interpretation
,
Comparative Law
Type: Book
Abstract
"With contributions from leading scholars in constitutional law, this volume examines how carefully designed and limited doctrines of proportionality can improve judicial decision-making, how it is applied in different jurisdictions, its role on constitutionalism outside the courts, and whether the principle of proportionality actually advances or detracts from democracy. Contributions from some of the seminal thinkers on the development of scholarship on proportionality (e.g. Alexy, Barak, and Beatty) extend their prior work and engage in an important dialogue on the topic. Some offer substantial critiques, others defend the doctrine and offer important clarifications and extensions of their prior work. Throughout, the authors engage not only with case law from around the world but also with existing scholarly treatments of the subject. Mathematical treatments are avoided, making the book accessible to readers from both 'soft' and hard' social science backgrounds"-- Provided by publisher.
Randall Kennedy, Despair is Not an Option, Am. Prospect, Sept. 20, 2017, at 1.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Politics & Political Theory
Type: Article
Abstract
A great many Americans, especially African Americans, are in a mood of despair upon witnessing a president of the United States winking at neo-Confederates, neo- Nazis, and Ku Klux Klansmen, and doing everything in his power to expunge the achievements of his predecessor, a man who came to be known less for his race than for his decency, dignity, and honor. Far too little notice, for example, was given to the remarkable May 19 speech by Mayor Mitch Landrieu explaining the decision of the New Orleans municipal government to remove from places of public honor three monuments celebrating Confederate generals and one celebrating the violent overthrow of the state's multiracial Reconstruction government. Folks numbering in the millions and of all complexions are selfconsciously engaging in countless acts of protest: marching, organizing study groups, volunteering legal expertise, donating money to institutions dedicated to the preservation of threatened values-the NAACP, the ACLU, the Southern Coalition for Social Justice-and resolving in numberless diverse ways to become more active, informed, influential.
Jeannie Suk Gersen, Laura Kipnis’s Endless Trial by Title IX, NewYorker.com (Sept. 20, 2017, 12:42 PM).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Education Law
Type: Other
Abstract
In 2015, Laura Kipnis, a film-studies professor at Northwestern University, published a polemic in The Chronicle of Higher Education titled “Sexual Paranoia Strikes Academe.” Kipnis argued that students’ sense of vulnerability on campus was expanding to an unwarranted degree, partly owing to new enforcement policies around Title IX, which prohibits sex discrimination at educational institutions that receive federal funds. The new Title IX policies on sexual misconduct which were then sweeping campuses perpetuated “myths and fantasies about power,” Kipnis wrote, which enlarged the invasive power of institutions while undermining the goal of educating students in critical thinking and resilience. “If you wanted to produce a pacified, cowering citizenry, this would be the method,” she concluded.
Samantha Power, Foreword, The Inexorable Joyfulness of Elie Wiesel, in Elie Wiesel, Night: A Memoir at xiii (Hill & Wang Commemorative ed. Sept. 12, 2017)(1960).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
A memorial edition of Elie Wiesel’s seminal memoir of surviving the Nazi death camps, with tributes by President Obama and Samantha Power.
Samantha Power, Why Elie Wiesel’s ‘Night’ Still Matters So Much To Me — And All Of Us (Forward, Sept. 12, 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Other
Jeannie Suk Gersen, Betsy DeVos, Title IX, and the “Both Sides” Approach to Sexual Assault, NewYorker.com (Sept. 8, 2017).
Categories:
Family Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Education Law
,
Politics & Political Theory
,
Executive Office
,
Administrative Law & Agencies
Type: Other
Abstract
An essay by Jeannie Suk Gersen. Over the summer, anticipation over what the Education Department might do about campus sexual assault heightened as the Education Secretary, Betsy DeVos, held high-profile meetings with groups advocating for the interests of universities, sexual-assault victims, and accused students—including one men’s-rights group accused of harassing women online. DeVos’s civil-rights head, Candace Jackson, alarmingly, told the Times that “90 percent” of campus accusations are over drunk or breakup sex. As the new school year began in earnest, widespread fears of a “rollback” of Title IX enforcement accompanied DeVos’s long-awaited policy speech, which was delivered on Thursday, at George Mason University.
J. Mark Ramseyer & Eric Bennett Rasmusen, Outcaste Politics and Organized Crime in Japan: The Effect of Terminating Ethnic Subsidies (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 932, Kelley Sch. of Bus. Res. Paper No. 17-68, Sept. 7, 2017).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Organized Crime
,
Race & Ethnicity
,
East Asian Legal Studies
Type: Other
Abstract
In 1969, Japan launched a massive subsidy program for the "burakumin" outcastes. The subsidies attracted the mob, and the higher incomes now available through organized crime compensated those burakumin who abandoned the legal sector for criminal careers. In the process, the subsidies gave new support to the tendency many Japanese already had to equate the burakumin with the mob. The government ended the subsidies in 2002. We explore the effect of the termination by merging 30 years of municipality data with a long-suppressed 1936 census of burakumin neighborhoods. First, we find that outmigration from municipalities with more burakumin increased after the end of the program. Apparently, the higher illegal income generated by the subsidies had restrained young burakumin from joining mainstream society. Second, we find that once the mob-tied corruption and extortion associated with the subsidies neared its end, real estate prices rose in municipalities with burakumin neighborhoods. With the subsidies gone and the mob in retreat, other Japanese found the formerly burakumin communities increasingly attractive places to live.
Cass R. Sunstein, Misconceptions About Nudges (Sept. 6, 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
Some people believe that nudges are an insult to human agency; that nudges are based on excessive trust in government; that nudges are covert; that nudges are manipulative; that nudges exploit behavioral biases; that nudges depend on a belief that human beings are irrational; and that nudges work only at the margins and cannot accomplish much. These are misconceptions. Nudges always respect, and often promote, human agency; because nudges insist on preserving freedom of choice, they do not put excessive trust in government; nudges are generally transparent rather than covert or forms of manipulation; many nudges are educative, and even when they are not, they tend to make life simpler and more navigable; and some nudges have quite large impacts.
Mark Tushnet, Book Review: Constitutional and Political Theory: Selected Writings, Ernst-Wolfgag Böckenförde (Mirjam Kunkler & Tine Stein eds., 2017), 24 Constellations 480 (2017).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Comparative Law
,
European Law
Type: Article
Spencer Phillips Hey, I. Glenn Cohen, Eli Y. Adashi & Aaron S. Kesselheim, Influence, Integrity, and the FDA: An Ethical Framework, 357 Science 876 (2017).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
,
Health Law & Policy
Type: Article
Abstract
Among the core missions of the U.S. Food and Drug Administration (FDA) are protecting public health by assuring the safety and efficacy of drugs, biologics, and medical devices and advancing public health by promoting scientific research and medical innovation (1). According to its mandate, the decisions made by the FDA in fulfilling these missions should be guided by scientific considerations, not economic or political ones. However, several recent, high-profile episodes have highlighted the fact that the FDA is buffeted by many external influences (2, 3). Such controversies require us to distinguish between legitimate influences that would improve the FDA or enhance its regulatory mission, illegitimate influences that seek to corrupt or undermine the agency, and influences that may be legitimate but nevertheless harm public health or patient outcomes. We present a decision framework to assist regulators, policy-makers, judges, physicians, and the public in evaluating the legitimacy and value of external influences on the FDA.
Normal Rationality: Decisions and Social Order (Edna Ullmann-Margalit, Cass R. Sunstein & Avishai Margalit eds., 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
Type: Book
Abstract
Normal Rationality is a selection of the most important work of Edna Ullmann-Margalit, presenting some influential and widely admired essays alongside some that are not well known. She was an unorthodox and deeply original philosopher whose work illuminated the largest mysteries of human life. Much of her writing focuses on two fundamental questions. (1) How do people proceed when they cannot act on the basis of reasons, or project likely consequences? (2) How is social order possible? Ullmann-Margalit's answers, emphasizing what might be called biased rationality, are important not only for philosophy, but also for political science, psychology, sociology, cognitive science, economics (including behavioral economics), law, and even public policy. Ullmann-Margalit demonstrates that people have identifiable strategies for making difficult decisions, whether the question is small (what to buy at a supermarket) or big (whether to transform one's life in some large-scale way). She also shows that social dilemmas are solved by norms; that invisible-hand explanations take two identifiable (and dramatically different) forms; that trust can emerge in seemingly unpromising situations; and that considerateness is the foundation on which our relationships are organized in both the thin context of the public space and the intimate context of the family. One of the distinguishing features of Ullmann-Margalit's work is its close attention to the details of human experience, and its use of those details to offer fresh understandings of social phenomena. Her essays cast new light on a diverse assortment of problems in philosophy, social science, and individual lives.
Alma Cohen & Charles C.Y. Wang, Reexamining Staggered Boards and Shareholder Value 125 J. Fin. Econ. 637 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Article
Abstract
Cohen and Wang (2013) (CW2013) provide evidence consistent with market participants perceiving staggered boards to be value reducing. Amihud and Stoyanov (2016) (AS2016) contests these findings, reporting some specifications under which the results are not statistically significant. We show that the results retain their significance under a wide array of robustness tests that address the concerns expressed by AS2016. Our empirical findings reinforce the conclusions of CW2013.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, Q.J. Experimental Psychol. (Aug. 31, 2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Mark Tushnet, Law As a Crisis for the Rule of Law: A Speculative Essay (Aug. 30, 2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Corruption
,
Politics & Political Theory
Type: Other
Abstract
This brief essay, for a collection edited by Carolina Deik, “Crisis of the Rule of Law,” to be published in Colombia, describes some ways in which too much law can be as problematic as too little law. After noting that law’s complexity can introduce some of the arbitrariness that the rule of law seeks to overcome, the essay uses the example of anti-corruption law to suggest how enforcing the law at the retail level might weaken the overall system of the rule of law by eroding public confidence in public institutions, and, sometimes, by weakening those institutions themselves.
Rebecca Tushnet, Copyright Law, Fan Practices, and the Rights of the Author, in Fandom: Identities and Communities in a Mediated World 77 (Jonathan Gray, Cornel Sandvoss & C. Lee Harrington eds., 2nd ed. 2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Book
Jeannie Suk Gersen, Will Trump Be the Death of the Goldwater Rule?, NewYorker.com (Aug. 23, 2017).
Categories:
Government & Politics
,
Constitutional Law
,
Health Care
Sub-Categories:
First Amendment
,
Other Amendments
,
Executive Office
,
Psychology & Psychiatry
Type: Other
Cass R. Sunstein, Unleashed (Aug. 22, 2017).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Religious Rights
,
Race & Ethnicity
,
Social Welfare Law
,
Law & Behavioral Sciences
,
Law & Social Change
,
Executive Office
,
Elections & Voting
Type: Other
Abstract
Significant social change often comes from the unleashing of hidden preferences; it also comes from the construction of novel preferences. Under the pressure of social norms, people sometimes falsify their preferences. They do not feel free to say or do as they wish. Once norms are weakened or revised, through private efforts or law, it becomes possible to discover preexisting preferences. Because those preferences existed but were concealed, large-scale movements are both possible and exceedingly difficult to predict; they are often startling. But revisions of norms can also construct rather than uncover preferences. Once norms are altered, again through private efforts or law, people come to hold preferences that they did not hold before. Nothing has been unleashed. These points bear on the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity). They also help illuminate the dynamics of social cascades and the effects of social norms on diverse practices and developments, including smoking, drinking, police brutality, protest activity, veganism, drug use, crime, white nationalism, “ethnification,” considerateness, and the public expression of religious beliefs.
Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie Suk Gersen, Fairness For All Students Under Title IX (Aug. 21, 2017).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Education Law
Type: Other
Abstract
Four feminist law professors at Harvard Law School have called on the U.S. Department of Education to revise the previous Administration’s policies on sexual harassment and sexual assault on campus. In a memo submitted to the Education Department yesterday, they set out an agenda of fairness for all students, accusers and accused. In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers. Janet Halley and Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner are professors at Harvard Law School who have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were four of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.” Janet Halley said “The college process needs legitimacy to fully address campus sexual assault. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.” The professors submitted to the Education Department a memorandum entitled “Fairness for All Students under Title IX.”
Jonathan Zittrain, “Netwar”: The Unwelcome Militarization of the Internet Has Arrived, 73 Bull. Atomic Scientists 300 (2017).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Military, War, & Peace
,
National Security Law
,
Cyberlaw
,
Networked Society
Type: Article
Abstract
The architecture and offerings of the Internet developed without much steering by governments, much less operations by militaries. That made talk of “cyberwar” exaggerated, except in very limited instances. Today that is no longer true: States and their militaries see the value not only of controlling networks for surveillance or to deny access to adversaries, but also of subtle propaganda campaigns launched through a small number of wildly popular worldwide platforms such as Facebook and Twitter. This form of hybrid conflict – launched by states without state insignia, on privately built and publicly used services – offers a genuine challenge to those who steward the network and the private companies whose platforms are targeted. While interventions by one state may be tempered by defense by another state, there remain novel problems to solve when what users see and learn online is framed as organic and user-generated but in fact it is not.
Annette Gordon-Reed, Our Trouble with Sex: A Christian Story?, N.Y. Rev. Books, Aug. 17, 2017, at 33 (reviewing Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (2017)).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Religion
,
LGBTQ Rights Law
,
Discrimination
,
Gender & Sexuality
,
Religion & Law
Type: Article
Gabriella Blum, The Dispensable Lives of Soldiers, in Weighing Lives in War (Jens David Ohlin, Larry May & Claire Finkelstein eds., 2017).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Military, War, & Peace
,
Human Rights Law
Type: Book
Abstract
This chapter challenges the status-based distinction of the laws of war, calling instead for revised targeting doctrines that would place further limits on the killing of enemy soldiers. The chapter argues that the changing nature of wars and militaries casts doubts on the necessity of killing all enemy combatants indiscriminately. The chapter proposes two amendments. The first is a reinterpretation of the principle of distinction, suggesting that the status-based classification be complemented by a test of threat. The second is a reinterpretation of the principle of military necessity, introducing a least-harmful-means test, under which, whenever feasible, an alternative of capture or disabling of the enemy would be preferred to killing.
John C. Coates, IV, Darius Palia & Ge Wu, Reverse Termination Fees in M&A: Design, Signals, and Bidder Returns (Aug. 11, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
Type: Other
Abstract
Reverse termination fees (RTFs) are required payments for bidders to “walk away” from a merger or acquisition, and vary significantly in size and design, even within apparently similar deals. Using a large sample of manually collected U.S. deal contracts involving publicly traded bidders and targets, we examine the impact of different types of RTFs. Consistent with efficient contract theory, we find that inefficient RTF sizes and triggers correlate with significantly lower bidder abnormal returns, while efficient RTF sizes and triggers correlate with significantly higher bidder abnormal returns. Consistent with signaling theory, we also find evidence that the inclusion of some RTF triggers in the merger agreements reveals private information to the market, correlating with significant abnormal returns. Our findings have implications for how practitioners approach the design and negotiation of RTFs.
Interview with Adrian Vermeule, The Catholic Constitution, First Things (Aug. 11, 2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Religion
,
Religion & Law
Type: Other
Abstract
Adrian Vermeule speaks with First Things assistant editor Connor Grubaugh about three books on constitutionalism from a Catholic perspective.
Jeannie Suk Gersen, The Uncomfortable Truth About Affirmative Action and Asian-Americans, NewYorker.com (Aug. 10, 2017).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Education Law
Type: Other
Abstract
Since the nineties, the share of Asians in Harvard’s freshman class has remained stable, while the percentage of Asians in the U.S. population has more than doubled.
Albert W. Alschuler, Laurence H. Tribe, Norman L. Eisen & Richard W. Painter, Why Limits on Contributions to Super PACS Should Survive Citizens United (Univ. Chi. Pub. L. Working Paper No. 626, Aug. 8, 2017).
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Abstract
Soon after the Supreme Court decided Citizens United v. FEC, the D.C. Circuit held all limits on contributions to super PACs unconstitutional. Its decision in SpeechNow.org v. FEC created a regime in which contributions to candidates are limited but in which contributions to “independent expenditure committees” urging votes for these candidates are unbounded. No legislator ever voted in favor of this system of campaign financing, and the thought that the Constitution requires it is odd. Forty-one years ago, Buckley v. Valeo held that Congress could prohibit a $1001 contribution to a candidate because this contribution was corrupting or created an appearance of corruption. According to the D.C. Circuit, however, Congress may not prohibit a $20 million contribution to a super PAC because this contribution does not create even an appearance of corruption. The D.C. Circuit declared that a single sentence of the Citizens United opinion compelled its result. The Supreme Court wrote, “[I]ndependent expenditures . . . do not give rise to corruption or the appearance of corruption,” and the D.C. Circuit declared, “In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption.” This Article contends that, contrary to the D.C. Circuit’s reasoning, contributions to super PACs can corrupt even when expenditures by these groups do not. Moreover, the statement that the D.C. Circuit took as its premise was dictum, and the Supreme Court apparently did not mean this statement to be taken in the highly literal way the D.C. Circuit took it. The Supreme Court distinguishes between contribution limits, which it usually upholds, and expenditure limits, which it invariably strikes down. This distinction does not rest on the untenable proposition that candidates cannot be corrupted by funds paid to and spent on their behalf by others. Rather, Buckley v. Valeo noted five differences between contributions and expenditures. A review of these differences makes clear that contributions to super PACs cannot be distinguished from the contributions to candidates whose limitation the Court upheld. The ultimate question posed by Buckley is whether super PAC contributions create a sufficient appearance of corruption to justify their limitation. This Article describes opinion polls, the views of Washington insiders, and the statements of candidates of both parties in the 2016 Presidential election. It shows that SpeechNow has sharpened class divisions and helped to tear America apart. The Justice Department did not seek Supreme Court review of the SpeechNow decision. In a statement that belongs on a historic list of wrong predictions, Attorney General Holder explained that the decision would “affect only a small subset of federally regulated contributions.” Although seven years have passed since SpeechNow, the Supreme Court has not decided whether the Constitution guarantees the right to give $20 million to a super PAC. A final section of this Article describes the efforts of the Article’s authors, other lawyers, Members of Congress, candidates for Congress, and the public interest organization Free Speech For People to bring that question before the Court. The Federal Election Commission is opposing their efforts on grounds that, if successful, could keep the Court from ever deciding the issue.