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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.”
Benjamin Sachs, Agency Fees and the First Amendment, 131 Harv. L. Rev. (forthcoming 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.
John C.P. Goldberg & Benjamin C. Zipursky, Hohfeldian Analysis and the Separation of Rights and Powers, in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge Univ. Press forthcoming 2018).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Private Law
,
Torts
,
Remedies
,
Legal Theory & Philosophy
,
Critical Legal Studies
Type: Book
Abstract
At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III. Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.
Jacob Gersen & Jeannie Suk Gersen, Regulating Sex Bureaucratically, in Governance Feminism: A Handbook (Janet E. Halley, Prabha Kotiswaran, Rachel Rebouche & Hila Shamir eds., forthcoming 2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Administrative Law & Agencies
Type: Book
Yishai Blank & Issachar Rosen-Zvi, Reviving Federal Regions, 70 Stan. L. Rev. (forthcoming 2018).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Federalism
,
State & Local Government
Type: Article
Abstract
More than one hundred executive departments and agencies operate through systems of regional offices strategically located around the country. Currently, these regions are misguidedly viewed as mere enforcers and implementers of central policies. We propose two alternative visions of federal regions—regions as mediators and regions as coordinators. These two visions have deep roots in the rich but forgotten history of American public administration. When they live up to their potential, regions inject a much needed dose of democracy into the bureaucracy, improve the coordination among federal departments and agencies, and serve as a powerful check on presidential overreach. As mediators, federal regions mediate between central headquarters on the one hand, and state and local governments on the other hand. Their proximity to the states and regulated populations and industries enables regional offices to counter the democratic deficit that plagues American bureaucracy. Relatively insulated from Washington and state partisan politics, regional officials fuse their expertise with principled politics, and can avoid ceding to the will of the President or his appointees. Our model of federal regions as coordinators envisions them as entities that coordinate among the different departments, agencies, states and localities that operate within their territories. To support our vision of empowered federal regions that can realize their mediating and coordinating potential, we propose a set of legal doctrines and principles that, combined, constitute a new field of administrative law, what we call “the law of federal regions.” Included among these doctrines are broad subdelegation of powers to regions; greater judicial deference to regional policies and decision-making; and intergovernmental consultation and redelegation at the regional level. The Article argues that our innovative understanding of federal regions gives rise to a promising alternative to both the centralizing-national vision and the state-centered vision of the American administration.
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.
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.
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.
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
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
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
Leo E. Strine, Jr., Delaware's Constitutional Mirror Test: Our Moral Obligation to Make the Promise of Equality Real (Sept. 22, 2017).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Race & Ethnicity
,
Discrimination
,
Poverty Law
,
Education Law
Type: Other
Abstract
This lecture, delivered as the 2017 James R. Soles Lecture on the Constitution and Citizenship at the University of Delaware, addresses whether Delaware has lived up to the constitutional principles of equality. Delaware, although a part of the Union, was a slave state, and after the Civil War, a Jim Crow state. It was slow to embrace the ruling in Brown v. Board of Education, although Delaware Chancellor Collins J. Seitz had ruled for the black plaintiffs in Belton v. Delaware and ordered their admission to the formerly all-white schools. Ultimately, a metropolitan desegregation remedy was put in place by the federal courts in the late 1970s, after state officials dragged their feet and failed to implement an effective plan for desegregation. The Court’s remedy effectively desegregated the New Castle County schools and prevented the creation of schools with high concentrations of poverty. In the 1990s, the State sought and obtained freedom from court supervision, arguing that it had gone beyond the court’s mandate in desegregating schools and could be trusted to ensure the rights of all children. Now, it is 2017. What has happened? Delaware’s major city, Wilmington, remains divided among four school districts with a majority suburban voting base, created by the State to implement the court-ordered desegregation plan, but these school districts no longer seek to create racial balance in their schools. Wilmington now has elementary schools that are overwhelmingly high-minority and high-poverty. Middle schools of the same kind exist, and persistent economic and educational gaps between white and black children exist. During this period of resegregation, crime has grown in northern New Castle County to the point where Wilmington has a murder rate among the highest in the nation. Drop-out rates and youth crime rates among black kids far exceed those among white kids. Yet, no extra resources have been given to the schools that face the greatest challenges and, in fact, in terms of the most important resource—teachers—the staff in urban schools have less experience than the staff in suburban schools with high income and low minority populations. In this lecture, Chief Justice Strine asks whether Delawareans, having said we could protect the rights of our black children, are prepared to face the constitutional mirror test, and to recognize that kids who have less, need more—especially kids and families who have been victimized by hundreds of years of discrimination. Rather than just identify the problem, Chief Justice Strine outlines a potential reform plan that would reorganize the New Castle County schools so that Wilmington was part of one well-resourced and geographically compact Northern New Castle County school district. This would allow for the selection of a high quality educational leader who could put in place a coherent plan to address the needs of poor children. The Chief Justice also suggests the following: a 220-day school year; a full day, including an early arrival option with breakfast, after-school homework time, nutritious snacks, and activities; and a requirement that students grade seven and up engage in an after-school activity year round. Because this plan is focused on poverty, it addresses racial inequality in a race-neutral way—nearly 60% of black families in Delaware are at or below 200% of the federal poverty level, as compared to 26% of white families. The plan also addresses the needs of all twenty-first century families as the extended school year would reduce the need for expensive summer camps and tutors; the extended school day and added extracurricular activities would reduce before and after-care costs for working parents; and the addition of nutritious meals during the school day would reduce the burden on impoverished families. Further, the plan can be scaled up and implemented across the state, cutting redundancies and inefficient overhead costs throughout Delaware school districts and providing a coherent district-wide approach to classroom instruction. In terms of how it can be financed, Chief Justice Strine points out that Delawareans pay far lower tax rates than they did when the state was more prosperous. He notes that failing to invest in education will continue to cost Delawareans in terms of crime, lost jobs, and hopelessness, finally asking, “[H]ow can we afford not to if we really care about our constitutional commitment to equality?”
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.
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.
Louis Kaplow, Optimal Regulation with Exemptions (NBER Working Paper No. 23887, Sept. 2017).
Categories:
Corporate Law & Securities
,
Taxation
,
Government & Politics
Sub-Categories:
Business Organizations
,
Administrative Law & Agencies
,
Taxation - Exemptions
Type: Other
Abstract
Despite decades of research on mechanism design and on many practical aspects of cost-benefit analysis, one of the most basic and ubiquitous features of regulation as actually implemented throughout the world has received little theoretical attention: exemptions for small firms. These firms may generate a disproportionate share of harm due to their being exempt and because exemption induces additional harmful activity to be channeled their way. This article analyzes optimal regulation with exemptions where firms have different productivities that are unobservable to the regulator, regulated and unregulated output each cause harm although at different levels, and the regulatory regime affects entry as well as the output choices of regulated and unregulated firms. In many settings, optimal schemes involve subtle effects and have counterintuitive features: for example, higher regulatory costs need not favor higher exemptions, and the incentives of firms to drop output to become exempt can be too weak as well as too strong. A final section examines the optimal use of output taxation alongside regulation, which illustrates the contrast with the mechanism design approach that analyzes the optimal use of instruments of a type that are not in widespread use.
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
Louis Kaplow, Optimal Design of Private Litigation (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 928, Aug. 15, 2017).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Litigation & Settlement
,
Private Law
,
Law & Economics
,
Courts
Type: Other
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.
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.
Adrian Vermeule, Uses of Dignity, First Things, Aug.- Sept. 2017, at 3 (response to Samuel Moyn, Restraining Populism, First Things, May 2017, at 43).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Religion & Law
Type: Article
Adriaan Lanni (with Joshua Kleinfeld, Laura Appleman, Richard A. Bierschbach, Kenworthey Bilz, Josh Bowers, John Braithwaite, Robert P. Burns, R. A. Duff, Albert W. Dzur, Thomas F. Geraghty, Marah Stith McLeod, Janice Nadler, Anthony O'Rourke, Paul H. Robinson, Jonathan Simon, Jocelyn Simonson, Tom R. Tyler & Ekow N. Yankah), White Paper of Democratic Criminal Justice, 111 Nw. U.L. Rev. 1693 (2017).
Categories:
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
Legal Reform
Type: Article
Abstract
This white paper is the joint product of nineteen professors of criminal law and procedure who share a common conviction: that the path toward a more just, effective, and reasonable criminal system in the United States is to democratize American criminal justice. In the name of the movement to democratize criminal justice, we herein set forth thirty proposals for democratic criminal justice reform.
Eli Y. Adashi & I. Glenn Cohen, Mitochondrial Replacement Therapy: Born in the USA: the Untold Story of a Conceptual Breakthrough, Am. J. Obstetrics & Gynecology (July 29, 2017).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: Article
Jeannie Suk Gersen, Trump’s Tweeted Transgender Ban is Not a Law, NewYorker.com (July 27, 2017).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Technology & Law
Sub-Categories:
Discrimination
,
LGBTQ Rights Law
,
Executive Office
,
Military & Veterans Law
,
Government Benefits
,
Networked Society
Type: Other
Allen Ferrell & John Morley, New Special Study of the Securities Markets: Institutional Intermediaries (Yale L. & Econ. Res. Paper No. 580, July 19, 2017).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Investment Products
,
Securities Law & Regulation
Type: Other
Abstract
This essay, written for the Conference on the New Special Study of Securities Markets at Columbia Law School, identifies the key regulatory challenges posed by institutional intermediaries in America’s capital markets. We survey existing legal and economic research and suggest new areas for regulatory reform and scholarly inquiry. We cover registered investment companies (such as mutual funds), private investment funds (such as hedge funds and private equity funds), credit-rating agencies, and broker-dealers.
D. James Greiner, Dalié Jiménez & Lois R. Lupica, Self-Help, Reimagined, 92 Ind. L.J. 1119 (2017).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Public Interest Law
,
Poverty Law
,
Legal Services
,
Clinical Legal Education
Type: Article
Abstract
We will never have enough lawyers to serve the civil legal needs of all low- and moderate-income (LMI) individuals who must navigate civil legal problems. A significant part of the access to justice toolkit must include self-help materials. That much is not new; indeed, access to justice commissions across the country have been actively developing pro se guides and forms for decades. But the community has hamstrung its creations in two major ways. First, by focusing these materials on educating LMI individuals about formal law, and second, by considering the task complete once the materials are available to self-represented individuals. In particular, modern self-help materials fail to address many psychological and cognitive barriers that prevent LMI individuals from successfully deploying their contents. This Article makes two contributions. First, we develop a theory of the obstacles LMI individuals face when attempting to deploy professional legal knowledge. Second, we apply learning from fields as varied as psychology, public health, education, artificial intelligence, and marketing to develop a framework for how courts, legal aid organizations, law school clinics, and others might re-conceptualize the design and delivery of civil legal materials for unrepresented individuals. We illustrate our framework with examples of reimagined civil legal materials.
Jeannie Suk Gersen, The Trump Administration’s Fraught Attempt to Address Campus Sexual Assault, NewYorker.com (July 15, 2017).
Categories:
Government & Politics
,
Family Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Education Law
,
Administrative Law & Agencies
,
Executive Office
,
Politics & Political Theory
Type: Other
Cass R. Sunstein & Lisa Randall, Political Control Over Public Communications by Government Scientists (July 4, 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Administrative Law & Agencies
,
Science & Technology
Type: Other
Abstract
In recent years, there has been a great deal of controversy over political control of communications by government scientists. Legitimate interests can be found on both sides of the equation. This essay argues for adoption and implementation of a framework that accommodates those interests—a framework that allows advance notice to political officials, including the White House, without hindering the free flow of scientific information.
Annette Gordon-Reed & Peter S. Onuf, Thomas Jefferson’s Bible Teaching, N.Y. Times, July 4, 2017, at A21.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Religion & Law
,
Executive Office
,
Legal History
Type: News
Abstract
The article focuses on bible teaching of former U.S. President Thomas Jefferson according to which faith that no government should interfere in anyone's private religious belief and mentions how educating citizen to avoid violent disagreement over trivial doctrinal distinction could ensure peace.
I. Glenn Cohen, Artificial Wombs and Abortion Rights, Hastings Ctr. Rep., Jul. 1, 2017, at inside back cover.
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Genetics & Reproduction
,
Bioethics
Type: Article
Abstract
In a study published in late April in Nature Communications, the authors were able to sustain 105- to 115-day-old premature lamb fetuses—whose level of development was comparable to that of a twenty-three-week-old human fetus—for four weeks in an artificial womb, enabling the lambs to develop in a way that paralleled age-matched controls. The oldest lamb of the set, more than a year old at the time the paper came out, appeared completely normal. This kind of research brings us one step closer to providing excellent quality of life for premature newborns, but it also portends major legal and ethical questions, especially for abortion rights in America.
Rebecca Tushnet, Fixing Incontestability: The Next Frontier?, 23 B.U. J. Sci. & Tech. L. 434 (2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
Incontestability is a nearly unique feature of American trademark law, with a unique American implementation. The concept of incontestability allows a trademark registrant to overcome arguments that a symbol is merely descriptive of features or qualities of the registrant’s goods or services—for example, “Juicy” for apples. Incontestability provides a nearly irrebuttable presumption of trademark meaning, which is a powerful tool for trademark owners. Unfortunately, incontestability is not granted as carefully as its power would counsel. Courts may misunderstand either the prerequisites for, or the meaning of incontestability, allowing trademark claimants to assert rights that they don’t actually have. Incontestability needs clearer signals about what it is and when it is available. In the absence of serious substantive examination of incontestability at the PTO—which seems unlikely to materialize any time soon—changes designed to increase the salience of incontestability’s requirements to filers and to courts could provide some protection against wrongful assertions. Incontestability can only serve the trademark system if it is granted properly and consistently.
Russell A. Spivak, I. Glenn Cohen & Eli Y. Adashi, Germ-Line Gene Editing and Congressional Reaction in Context: Learning From Almost 50 Years of Congressional Reactions to Biomedical Breakthroughs, 30 J.L. & Health 20 (2017).
Categories:
Health Care
,
Government & Politics
,
Technology & Law
Sub-Categories:
Congress & Legislation
,
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
,
Medical Technology
Type: Article
Abstract
On December 18, 2015, President Obama signed into law a policy rider forestalling the therapeutic modification of the human germ line. The rider, motivated by the science’s potential unethical ends, is only the most recent instance in which the legislature cut short the ongoing national conversation on the acceptability of a developing science. This essay offers historical perspective on what bills were proposed and passed surrounding four other then-developing scientific breakthroughs—Recombinant DNA, in vitro fertilization, Cloning, Stem Cells—to better analyze how Congress is, and should, regulate this exciting and promising science.
Mark Tushnet, The Lawyer/Judge as Republican Hero, 70 Stan. L. Rev. Online 29 (2017) (reviewing Amalia D. Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877 (2017)).
Categories:
Legal Profession
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Arbitration
,
Litigation & Settlement
,
Mediation
,
Practice & Procedure
,
Courts
,
Judges & Jurisprudence
,
Legal Services
,
Legal History
Type: Article
Jessica S. Burniske, Naz K. Modirzadeh & Dustin A. Lewis, Armed Non-State Actors and International Human Rights Law: An Analysis of the Practice of the U.N. Security Council and U.N. General Assembly (Harvard Law Sch. Program on Int’l Law & Armed Conflict, June 29, 2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Laws of Armed Conflict
,
International Law
,
Treaties & International Agreements
Type: Other
Abstract
Several significant legal, policy, and practical concerns are at issue in whether armed non-state actors (ANSAs) will ultimately be recognized—by all relevant institutions and actors—as bearing human-rights obligations in general under international law in a manner previously reserved primarily for states. In considering this set of issues, it is important to clarify what obligations, if any, the United Nations (U.N.) Security Council and the U.N. General Assembly recognize ANSAs as possessing under IHRL. This June 2017 Briefing Report with Annexes provides an overview of research conducted by HLS PILAC concerning modalities in which the U.N. Security Council and the U.N. General Assembly have addressed ANSAs with respect to human rights; ways in which these U.N. principal organs have distinguished between different types of ANSAs; and the consequences of these organs possibly establishing responsibility of ANSAs in relation to the protection and fulfillment—or, at least, the non-abuse—of human rights. While it is incontrovertible that the U.N. Security Council and the U.N. General Assembly have recognized, at a minimum, that the conduct of at least some ANSAs can amount to violations or abuses of human rights, it is not currently possible to state that either of these principal U.N. organs has taken sufficient steps to formally endow ANSAs with human-rights obligations in general under international law.
Janet Halley, Paranoia, Feminism, Law: Reflections on the Possibilities for Queer Legal Studies, in New Directions in Law and Literature 123 (Elizabeth S. Anker & Bernadette Meyler eds., 2017).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Feminist Legal Theory
Type: Book
Jeannie Suk Gersen, Why Racially Offensive Trademarks Are Now Legally Protected, NewYorker.com (June 22, 2017).
Categories:
Constitutional Law
,
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Race & Ethnicity
,
Intellectual Property - Patent & Trademark
Type: Other
Cass R. Sunstein, “Better Off, as Judged by Themselves”: A Comment on Evaluating Nudges, Int’l Rev. Econ. (June 22, 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Many nudges are designed to make people better off, as judged by themselves. This criterion, meant to ensure that nudges will increase people’s welfare, contains some ambiguity. It is useful to distinguish among three categories of cases: (1) those in which choosers have clear antecedent preferences, and nudges help them to satisfy those preferences (often by increasing “navigability”); (2) those in which choosers face a self-control problem, and nudges help them to overcome that problem; and (3) those in which choosers would be content with the outcomes produced by two or more nudges, or in which ex post preferences are endogenous to nudges, so that without additional clarification or work, the “as judged by themselves” criterion does identify a unique solution for choice architects. Category (1) is self-evidently large. Because many people agree that they suffer self-control problems, category (2) is large as well. Cases that fall in category (3) create special challenges, which may lead us to make direct inquiries into welfare or to explore what informed, active choosers typically select.
Jeannie Suk Gersen, The Legal Meaning of the Cosby Mistrial, NewYorker.com (June 18, 2017).
Categories:
Criminal Law & Procedure
Sub-Categories:
Jury Trials
,
Criminal Prosecution
Type: Other
Oren Bar-Gill & Ariel Porat, Disclosure Rules in Contract Law (Harvard Law Sch. John M. Olin Ctr. Discussion Paper No. 907, June 14, 2017).
Categories:
Banking & Finance
Sub-Categories:
Contracts
Type: Other
Abstract
How does the prospect of sale affect the seller’s incentive to investigate — to acquire socially valuable information about the asset? How do the disclosure rules of contract law influence the investigation decision? Shavell (1994) showed that, if sellers and buyers are symmetrically informed, at the pre-investigation stage, then a mandatory disclosure rule leads to a first-best outcome, and a voluntary disclosure rule leads to a suboptimal outcome. But in many real-world cases owners of assets have better information about their assets, even before they investigate. In such asymmetric information settings, we show, mandatory disclosure no longer attains a first-best outcome. And, under certain conditions, voluntary disclosure is the more efficient rule. We further enrich the analysis by introducing a third rule: the mandatory post-disclosure rule, which requires disclosure of material information, but only after the contract is concluded. We show that this rule can be more efficient than both voluntary disclosure and mandatory (pre-contract) disclosure.
Einer Elhauge, The Growing Problem of Horizontal Shareholding, Competition Pol’y Int’l, Antitrust Chron., v. 3 (June 14, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Other
Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995 (2017).
Categories:
Criminal Law & Procedure
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Judges & Jurisprudence
Type: Article
Abstract
This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained, experienced officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. That presumption has been widely criticized in Fourth Amendment analysis. Yet the Fourth Amendment is in fact part of a much broader constellation of deference, one that begins outside criminal procedure and continues past it. Drawing on judicial opinions, appellate records, trial transcripts, police periodicals, and other archival materials, this Article argues that courts in the mid-twentieth century invoked police expertise to expand police authority in multiple areas of the law. They certified policemen as expert witnesses on criminal habits; they deferred to police insights in evaluating arrests and authorizing investigatory stops; and they even credited police knowledge in upholding criminal laws challenged for vagueness, offering the officer’s trained judgment as a check against the risk of arbitrary enforcement. Complicating traditional accounts of judicial deference as a largely instrumental phenomenon, this Article argues that courts in the midcentury in fact came to reappraise police work as producing rare and reliable “expert” knowledge. And it identifies at least one explanation for that shift in the folds and interconnections between the courts’ many diverse encounters with the police in these years. From trials to suppression hearings to professional activities outside the courtroom, judges experienced multiple sites of unique exposure to the rhetoric and evidence of the police’s expert claims. These encounters primed judges to embrace police expertise not only through their deliberative content, but also their many structural biases toward police knowledge. This development poses important and troubling consequences for the criminal justice system, deepening critiques of police judgment in criminal procedure and raising novel concerns about the limits of judicial reasoning about police practices.
Mark J. Roe & Travis G. Coan, Financial Markets and the Political Center of Gravity 2 J.L Fin. & Acct. 125 (2017).
Categories:
Corporate Law & Securities
,
Banking & Finance
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Financial Markets & Institutions
,
Securities Law & Regulation
,
Corporate Governance
,
Empirical Legal Studies
,
Law & Economics
,
Politics & Political Theory
Type: Article
Abstract
In recent decades, academics across multiple disciplines and policymakers in multiple institutions have searched for the economic, political, and institutional foundations for financial market strength. Promising theories and empirics have developed, including major explanations from differences in nations’ political economy. A common view among multiple academic observers is that, particularly because many pro-market corporate reforms occurred in Europe during the 1990s, when social democratic parties governed and financial markets deepened, basic left-right explanations fail to explain financial market depth. Hence, more complex political explanations are in play, and the correlation of left governments, market-oriented reforms and financial deepening presents an unexpected paradox. This finding might be interpreted to indicate that left-right orientation is unimportant in affecting financial development and that either nonpolitical institutional issues or different political considerations are more central. We show here, first, that conceptually it’s not relative local placement of the governing coalition on the nation’s left-right spectrum that counts, but whether the polity as a whole — i.e., its political center of gravity or its dominant governing coalition — is left or right on economic issues. If interests and opinion shift in a nation, such that its political center of gravity is no longer statist and anti-market, then even locally left parties could and would often implement pro-market reforms. (And conversely, in an earlier era when interests and opinions were statist and anti-market, one should not expect to see even locally right parties pushing pro-market financial reforms forward.) Second, we bring forward data showing substantial movement over recent decades of political parties and governing coalitions; these shifts must be accounted for in assessing the impact of left-right divisions on financial and securities markets. In large measure, these political shifts correlate with financial markets shifts. Leftright matters not only in the fixed-in-time cross-section, but also the left-right economic shifts over time make an often significant empirical difference. The result from this data and study, in our view, leads to results and correlations that comport with most observers’ intuitions about the impact of left-right politics on financial market depth. The results thereby further buttress the importance of a nation’s basic left-right political orientation in explaining financial market outcomes.
Shlomo Benartzi, John Beshears, Katherine L. Milkman, Cass R. Sunstein, Richard H. Thaler, Maya Shankar, Will Tucker-Ray, William J. Congdon, Steven Galing, Should Governments Invest More in Nudging?, 28 Psychol. Sci. 1041 (2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
Governments are increasingly adopting behavioral science techniques for changing individual behavior in pursuit of policy objectives. The types of “nudge” interventions that governments are now adopting alter people’s decisions without coercion or significant changes to economic incentives. We calculated ratios of impact to cost for nudge interventions and for traditional policy tools, such as tax incentives and other financial inducements, and we found that nudge interventions often compare favorably with traditional interventions. We conclude that nudging is a valuable approach that should be used more often in conjunction with traditional policies, but more calculations are needed to determine the relative effectiveness of nudging.
Jeannie Suk Gersen, How Trump Has Stoked the Campus Debate on Speech and Violence, NewYorker.com (June 4, 2017).
Categories:
Constitutional Law
,
Family Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Education Law
,
Executive Office
,
Politics & Political Theory
Type: Other
Lucian A. Bebchuk, Alma Cohen & Scott Hirst, The Agency Problems of Institutional Investors (June 1, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Governance
Type: Other
Abstract
We analyze how the rise of institutional investors has transformed the governance landscape. While corporate ownership is now concentrated in the hands of institutional investors that can exercise stewardship of those corporations that would be impossible for dispersed shareholders, the investment managers of these institutional investors have agency problems vis-à-vis their own investors. We develop an analytical framework for examining these agency problems and apply it to study several key types of investment managers. We analyze how the investment managers of mutual funds - both index funds and actively managed funds - have incentives to under-spend on stewardship and to side excessively with managers of corporations. We show that these incentives are especially acute for managers of index funds, and that the rise of such funds has system-wide adverse consequences for corporate governance. Activist hedge funds have substantially better incentives than managers of index funds or active mutual funds, but their activities do not provide a complete solution for the agency problems of institutional investors. Our analysis provides a framework for future work on institutional investors and their agency problems, and generates insights on a wide range of policy questions. We discuss implications for disclosure by institutional investors; regulation of their fees; stewardship codes; the rise of index investing; proxy advisors; hedge funds; wolf pack activism; and the allocation of power between corporate managers and shareholders.
Sebastian Bobadilla-Suarez, Cass R. Sunstein & Tali Sharot, The Intrinsic Value of Choice: The Propensity to Under-Delegate in the Face of Potential Gains and Losses, 54 J. Risk & Uncertainty 187 (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Human beings are often faced with a pervasive problem: whether to make their own decision or to delegate the decision task to someone else. Here, we test whether people are inclined to forgo monetary rewards in order to retain agency when faced with choices that could lead to losses and gains. In a simple choice task, we show that participants choose to pay in order to control their own payoff more than they should if they were to maximize monetary rewards and minimize monetary losses. This tendency cannot be explained by participants’ overconfidence in their own ability, as their perceived ability was elicited and accounted for. Nor can the results be explained by lack of information. Rather, the results seem to reflect an intrinsic value for choice, which emerges in the domain of both gains and of losses. Moreover, our data indicate that participants are aware that they are making suboptimal choices in the normative sense, but do so anyway, presumably for psychological gains.
Scott A. Westfahl & David B. Wilkins, The Leadership Imperative: A Collaborative Approach to Professional Development in the Global Age of More for Less, 69 Stan. L. Rev. 1667 (2017).
Categories:
Corporate Law & Securities
,
Legal Profession
Sub-Categories:
Legal Education
,
Legal Services
Type: Article
Abstract
Notwithstanding the increasing importance of technology, the practice of corporate law is—and is likely to remain for the foreseeable future—a human capital business. As a result, law firms must continue to attract, develop, and retain talented lawyers. Unfortunately, the traditional approach, which divides responsibility for professional development among law schools, which are supposed to teach students to think like a lawyer; law firms, which are expected to train associates to “be” lawyers; and corporate clients, whose job it is to foot the bill, is no longer well aligned to the current realities of the marketplace. In this Article, we document the causes for this misalignment and propose a new model of professional development in which law schools, law firms, and corporate clients collaborate to train lawyers to be lifelong learners in the full range of technical, professional, and network-building skills they will need to flourish throughout their careers. We offer specific proposals for how to achieve this realignment and confront the resistance that will inevitably greet any attempt to do so.
Jonathan L. Zittrain (with Robert Faris, Helmi Noman, Justin Clark, Casey Tilton & Ryan Morrison-Westphal), The Shifting Landscape of Global Internet Censorship (Berkman Klein Ctr. Res. Publ’n No. 2017-4, June 2017).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Communications Law
,
Networked Society
Type: Other
Abstract
A sharp increase in web encryption and a worldwide shift away from standalone websites in favor of social media and online publishing platforms has altered the practice of state-level Internet censorship and in some cases led to broader crackdowns, the Internet Monitor project at the Berkman Klein Center for Internet & Society at Harvard University finds. This study documents the practice of Internet censorship around the world through empirical testing in 45 countries of the availability of 2,046 of the world’s most-trafficked and influential websites, plus additional country-specific websites. The study finds evidence of filtering in 26 countries across four broad content themes: political, social, topics related to conflict and security, and Internet tools (a term that includes censorship circumvention tools as well as social media platforms). The majority of countries that censor content do so across all four themes, although the depth of the filtering varies. The study confirms that 40 percent of these 2,046 websites can only be reached by an encrypted connection (denoted by the "HTTPS" prefix on a web page, a voluntary upgrade from "HTTP"). While some sites can be reached by either HTTP or HTTPS, total encrypted traffic to the 2,046 sites has more than doubled to 31 percent in 2017 from 13 percent in 2015, the study finds. Meanwhile, and partly in response to the protections afforded by encryption, activists in particular and web users in general around the world are increasingly relying on major platforms, including Facebook, Twitter, Medium, and Wikipedia.
Lucian A. Bebchuk & Kobi Kastiel, The Untenable Case For Perpetual Dual-Class Stock, 103 Va. L. Rev. 585 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Shareholders
Type: Article
Abstract
The desirability of a dual-class structure, which enables founders of public companies to retain a lock on control while holding a minority of the company’s equity capital, has long been the subject of a heated debate. This debate has focused on whether dual-class stock is an efficient capital structure that should be permitted at the time of initial public offering (“IPO”). By contrast, we focus on how the passage of time since the IPO can be expected to affect the efficiency of such a structure. Our analysis demonstrates that the potential advantages of dual-class structures (such as those resulting from founders’ superior leadership skills) tend to recede, and the potential costs tend to rise, as time passes from the IPO. Furthermore, we show that controllers have perverse incentives to retain dual-class structures even when those structures become inefficient over time. Accordingly, even those who believe that dual-class structures are in many cases efficient at the time of the IPO should recognize the substantial risk that their efficiency may decline and disappear over time. Going forward, the debate should focus on the permissibility of finite-term dual-class structures — that is, structures that sunset after a fixed period of time (such as ten or fifteen years) unless their extension is approved by shareholders unaffiliated with the controller. We provide a framework for designing dual-class sunsets and address potential objections to their use. We also discuss the significant implications of our analysis for public officials, institutional investors, and researchers.
Mark Tushnet, Book Review: Alfred L. Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War (2016), J. Interdisciplinary Hist. 102 (2017).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Legal History
Type: Article
Abstract
Brophy expands the literature about pro-slavery thought by analyzing the “ideas in circulation” at southern colleges and literary societies before turning to the pro-slavery thought of several well-known southern jurists. These popular ideas are more fugitive, less formal, but probably more widely available in the aggregate and thus more influential than systematic treatises. Brophy’s theme is that as the years passed, slavery’s defenders were increasingly attracted to a utilitarian defense of the institution as beneficial for masters and slaves alike. Important to the utilitarian defense was an emphasis on the importance of attending to the specific circumstances of society, in contrast to what Brophy’s subjects described as the sterile abstractions of Enlightenment thought. Much of the pro-slavery thought that Brophy describes will be familiar to specialists, but his work’s strength lies in bringing to historians’ attention a set of previously neglected materials. Brophy’s discussion of cases dealing with the legal limits to masters’ power to free their slaves supplements the attention typically given to Thomas Ruffin’s opinion in State v. Mann. Two of his chapters—one about Brown University’s president Francis Wayland and one about the travails of Frederick A. P. Bernard at the University of Mississippi—may be of greater interest to historians of education than to historians of pro-slavery thought. The discussion of Wayland brings to the surface concerns about how to evaluate past actions known today to be evil that are only implicit elsewhere the book. Brophy’s discussion of Thomas R. R. Cobb of Georgia, author of a major pro-slavery legal treatise, counterposes “cold legal reasoning” in slavery’s defense to the “passionate … sympathy” expressed in anti-slavery arguments (227). These “cold calculations of utility … derived from a perception of hierarchy … evidenced by nature” (231). That juxtaposition also appears in Brophy’s discussion of Ruffin, William Gaston of North Carolina, and Joseph Henry Lumpkin, the first justice of Georgia’s Supreme Court. Again, the formulation is familiar in previous work about the law of slavery, but Brophy valuably brings it to a new set of readers. Brophy notes in passing that slavery’s defenders sometimes also relied on sympathy, especially in their arguments that slave owners treated the human beings that they owned better than capitalist employers treated the human beings who worked for them. A more complete discussion of pro-slavery thought, even in its watered-down form in faculty lectures and literary addresses, might lead to some tempering of Brophy’s characterization of such arguments as utilitarian. His stress on the importance of taking local conditions into account is one area in which he might have deepened his analysis. Yet, even as it stands, Brophy’s book is a well-crafted introduction to pro-slavery thought as expressed in venues that historians have not visited often enough.
Louis Kaplow & Scott Duke Kominers, Who Will Vote Quadratically? Voter Turnout and Votes Cast Under Quadratic Voting, 172 Public Choice 125 (2017).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Article
Abstract
Who will vote quadratically in large-N elections under quadratic voting (QV)? First, who will vote? Although the core QV literature assumes that everyone votes, turnout is endogenous. Drawing on other work, we consider the representativeness of endogenously determined turnout under QV. Second, who will vote quadratically? Conditional on turning out, we examine reasons that, in large-N elections, the number of votes that an individual casts may deviate substantially from that under pure, rational QV equilibrium play. Because turnout itself is driven by other factors, the same determinants may influence how voters who do turn out choose the quantity of votes to cast. Independently, the number of votes actually cast may deviate dramatically from pure QV predictions because of the complex and refined nature of equilibrium play. Most plausibly, voting behavior and outcomes would be determined predominately by social and psychological forces, would exhibit few of the features emphasized in the analysis of hyper-rational equilibrium play, and would have consequential properties that require a different research agenda to bring into focus. Some of our analysis also has implications for voting behavior under other procedures, including one person, one vote.
David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek, An Introduction to Globalization, Lawyers, and Emerging Economics: The Case of India, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 3 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Developing & Emerging Nations
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek, An Introduction to Globalization, Lawyers, and Emerging Economics: The Case of India, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 3 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
David B. Wilkins & Vikramaditya S. Khanna, Globalization and the Rise of the In-House Counsel Movement in India, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 114 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
David B. Wilkins & Vikramaditya S. Khanna, Globalization and the Rise of the In-House Counsel Movement in India, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 114 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
Ashish Nanda, David B. Wilkins & Bryon Fong, Mapping India’s Corporate Law Firm Sector, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 69 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
Arpita Gupta, Vikramaditya S. Khanna & David B. Wilkins, Overview of Legal Practice in India and the Indian Legal Profession, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 40 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
Arpita Gupta, Vikramaditya S. Khanna & David B. Wilkins, Overview of Legal Practice in India and the Indian Legal Profession, in The Indian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 40 (David B. Wilkins, Vikramaditya S. Khanna & David M. Trubek eds., 2017).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Foreign Law
,
Global Lawyering
,
Legal Services
Type: Book
Abstract
This book provides the first comprehensive analysis of the impact of globalization on the Indian legal profession.
I. Glenn Cohen, Religion and Reproductive Technology, in Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., 2017).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Health Care
Sub-Categories:
Religion & Law
,
Genetics & Reproduction
,
Medical Technology
Type: Book
Abstract
This chapter will examines places where law, religion, and reproductive technology conflict. It examines four particular intersections: The first involves religiously motivated denials of service, in particular as they pertain to single and gay and lesbian couples. The second involves embryo adoption, where the largest providers of the service in the United States are religious organizations. The third is a bit of a dog that didn’t bark (at least so far): the “personhood movement” and its attempts to gain state constitutional protection for zygotes, embryos, and fetuses. Finally, the chapter will close by discussing relatively new attempts by religious organizations to bring forward objections to embryo destruction in pre-embryo disposition disputes between private individuals, in particular a recent case in Missouri that is currently being litigated.
Timothy M. Mulvaney & Joseph W. Singer, Move Along to Where? Property in Service of Democracy (A Tribute to André van der Walt), (Texas A&M Univ. Sch. of Law Legal Studies Research Paper No. 17-39, May 28, 2017).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Housing Law
,
Poverty Law
,
Personal Property
Type: Other
Abstract
When the police in cities that prohibit sleeping in public spaces command that people on the streets “move along,” advocacy groups for the homeless have started a campaign that pointedly asks “move along to where?” This question seeks to highlight the reality that homeless persons are being subjected to an order with which they have no capacity to comply. In this instance, the state is defining and rigidly enforcing property rights without concern for the consequences of its doing so; it apparently is only after this exercise in definition and enforcement that the state can move to respect fundamental democratic values — such as dignity and equality — in the space that remains. Inspired by the work of André van der Walt, we here present the alternate thesis that property exists in service of the values that characterize our democracy. We advance this thesis through the lens of two stories of eviction — the leading cause of homelessness in the U.S. — in which our democratic values seemingly and, in our view, unacceptably are taking a backseat to property.
Janet Halley, Anti-Trafficking and the New Indenture, in Revisiting the Law and Governance of Trafficking, Forced Labor and Modern Slavery 179 (Prabha Kotiswaran ed., 2017).
Categories:
Labor & Employment
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Gender & Sexuality
,
Immigration Law
,
Treaties & International Agreements
,
International Law
,
Labor Law
Type: Book
Cass R. Sunstein, Default Rules Are Better Than Active Choosing (Often), 21 Trends Cognitive Sci. 600 (2017).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
In recent years, governments have become keenly interested in behavioral science; new findings in psychology and behavioral economics have led to bold initiatives in areas that involve poverty, consumer protection, savings, health, the environment, and much more. Private institutions have used behavioral findings as well. But there is a pervasive and insufficiently explored question: when is it best to ask people to make active choices, and when is it best to use a default rule, which means that people need not make any choice at all? The answer depends on a form of cost–benefit analysis, which means that it is necessary to investigate whether choosing is a burden or a pleasure, whether learning is important, and whether a default rule would satisfy the informed preferences or all of most people.
Cass R. Sunstein, The American Nondelegation Doctrine (May 23, 2017).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Administrative Law & Agencies
,
Executive Office
,
Statutory Interpretation
Type: Other
Abstract
An American nondelegation doctrine is flourishing. Contrary to the standard account, it does not forbid Congress from granting broad discretion to executive agencies. Instead it is far narrower and more targeted. It says, very simply, that executive agencies cannot make certain kinds of decisions unless Congress has explicitly authorized them to do so. In so saying, the American nondelegation doctrine promotes the central goals of the standard doctrine, by preventing Congress from shirking and by requiring it to focus its attention on central questions, and also by protecting liberty. The abstract idea of “certain kinds of decisions” is currently filled in by, among other things, the canon of constitutional avoidance; the rule of lenity; and the presumptions against retroactivity and extraterritoriality. More recent nondelegation canons, not yet firmly entrenched, require agencies to consider costs and forbid them from interpreting statutes in a way that produces a large-scale increase in their regulatory authority. The cost-consideration canon makes a great deal of sense, especially as a way of disciplining the modern regulatory state; the “major questions doctrine,” as it is sometimes called, is less obviously correct. and its proper provenance depends on the nature of the relevant statute.
Sabrineh Ardalan, Vetting Refugees: Is Our Screening Process Adequate, Humane, Culturally Appropriate?, Fed. Law., May 2017, at 56.
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Immigration Law
,
National Security Law
,
Refugee & Asylum Law
Type: Article
Abstract
As President Trump acknowledged in his February 16, 2017, press conference, the United States has robust procedures in place to vet refugees and asylum seekers. Any changes to the asylum and refugee processing system should thus promote the rule of law, safeguard the consistent application of screening measures, and ensure the fair and equitable treatment of applications for protection, without regard to an individual’s country of origin. The March 6, 2017 Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” however, attempts to suspend the refugee resettlement program and reduce the number of refugees admitted to the United States in direct contravention of U.S. legal and moral obligations to protect those fleeing persecution and fearing return to torture. This article first provides a brief history of this country’s long-standing commitment to refugee protection. Next, it describes the legal standard applied in determining whether an individual is eligible for refugee protection, including bars to protection under U.S. law. The article then provides an overview of the extensive screening procedures already in place to address national security concerns. Finally, the article concludes with a discussion of challenges related to credibility and corroboration, including issues with trust, translation, trauma, time, resources, and other hurdles, all of which must be considered as part of any effort to change the system.
Duncan Kennedy, A Left of Liberal Interpretation of Trump’s ‘Big’ Win, Part One: Neoliberalism, 1 Nev. L.J. F. 98 (2017).
Categories:
Government & Politics
Sub-Categories:
Federalism
,
Elections & Voting
,
Politics & Political Theory
,
Executive Office
Type: Article
Abstract
The question of interpreting Donald Trump’s election, in liberal discourse, is mainly “how can he have won, given that he is racist and sexist?” The answer of many of my friends is that he won because his racism and sexism appealed to a shockingly large part of the electorate, confirming that “our whole society is sexist and racist.” According to the liberal conception, this is particularly true of the non-college part of the electorate, which had more “traditional” (racist and sexist) values and less cognitive ability to figure out that he was going to screw them. If they were not racist and sexist, they would have rejected him outright, no matter how much they didn’t like Hillary. I think class, race and sex were key to everything, but in a different way than in that account.
I. Glenn Cohen, Christopher R. Deubert & Holly Fernandez Lynch, Comparing Health-Related Policies and Practices in Sports: The NFL and Other Professional Leagues, 8 Harv. J. Sports & Ent. L. 1 (2017).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Gaming & Sports Law
,
Health Law & Policy
Type: Article
Abstract
This comprehensive report, published as part of the Football Players Health Study at Harvard University, highlights areas in which the player health related policies and practices of the NFL could potentially be improved by considering steps taken by other professional sports leagues. While the report concludes that the NFL’s player health provisions are generally the most protective of player health among the relevant comparators, there are still important opportunities for improvement. The report is unprecedented both in scope and focus. This is the first comprehensive comparison of the health-related policies and practices of elite professional sports leagues: the National Football League (NFL); Major League Baseball (MLB); National Basketball Association (NBA); National Hockey League (NHL); Canadian Football League (CFL); and, Major League Soccer (MLS). After analyzing the leagues, the report compares each one to the NFL on the following health-related issues: (1) Club Medical Personnel (including discussion of conflicts of interest); (2) Injury Rates and Policies (including detailed comparisons of concussion rates); (3) Health-Related Benefits (including health insurance and retirement benefits for current and former players); (4) Drug and Performance-Enhancing Substance Policies; (5) Compensation (including guaranteed compensation); and, (6) Eligibility Rules (including discussion of the “readiness” of athletes for professional play). The areas in which the NFL can potentially learn from other leagues are: 1. Pre-season physicals performed by a neutral physician (CFL). 2. Concussion-specific short-term injury list (MLB). 3. Injury reporting policies that do not require disclosure of the location of a player’s injury (MLB, NHL, and CFL). 4. Health insurance to players for life (MLB, NBA, and NHL). 5. Retirement plan payments higher than the NFL (MLB, NBA, and NHL). 6. Players vested in pension plans on their first day in the league (MLB and NHL). 7. Treatment for players who violated performance-enhancing substance policies (NBA and CFL). 8. More guaranteed compensation than in the NFL (MLB, NBA, and NHL). 9. Less restrictive eligibility rules (MLB, NBA, NHL, and MLS).
Hal S. Scott, To Grow, First Free the Banks, N.Y. Times, May 15, 2017, at A19.
Categories:
Banking & Finance
Sub-Categories:
Banking
,
Financial Markets & Institutions
,
Financial Reform
Type: News
David W. Kennedy, It’s not about facts. It’s about politics, First 100 Days (May 11, 2017).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Other
Justin Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (2017).
Categories:
Criminal Law & Procedure
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Jury Trials
,
Criminal Justice & Law Enforcement
,
Courts
,
Public Law
Type: Article
Abstract
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice. The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future. I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.