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.
Yochai Benkler, Law, Innovation and Collaboration in Networked Economy and Society, 13 Ann. Rev. L. & Soc. Sci. (forthcoming Nov. 2017).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
,
Intellectual Property Law
Type: Article
Abstract
Over the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market based innovation focused on material self interest to interaction between market and non market practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, non compete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing market and non market models and motivations, and weaving commons with property are central to the innovation process.
John C. Coates, Mergers, Acquisitions and Restructuring: Types, Regulation, and Patterns of Practice, in The Oxford Handbook of Corporate Law and Governance (Jeffrey N. Gordon & Wolf-Georg Ringe eds. 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
,
Corporate Governance
Type: Book
Abstract
An important component of corporate governance is the regulation of significant transactions – mergers, acquisitions, and restructuring. This paper (a chapter in Oxford Handbook on Corporate Law and Governance, forthcoming) reviews how M&A and restructuring are regulated by corporate and securities law, listing standards, antitrust and foreign investment law, and industry-specific regulation. Drawing on real-world examples from the world’s two largest M&A markets (the US and the UK) and a representative developing nation (India), major types of M&A transactions are reviewed, and six goals of M&A regulation are summarized – to (1) clarify authority, (2) reduce costs, (3) constrain conflicts of interest, (4) protect dispersed owners, (5) deter looting, asset-stripping and excessive leverage, and (6) cope with side effects. Modes of regulation either (a) facilitate M&A – collective action and call-right statutes – or (b) constrain M&A – disclosure laws, approval requirements, augmented duties, fairness requirements, regulation of terms, process and deal-related debt, and bans or structural limits. The paper synthesizes empirical research on types of transactions chosen, effects of law on M&A, and effects of M&A. Throughout, similarities and differences across transaction types and countries are noted. The paper concludes with observations about what these variations imply and how law affects economic activity.
Jeannie Suk Gersen, The Socratic Method in the Age of Trauma, 131 Harv. L. Rev. (forthcoming Oct. 2017).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Article
Rebecca Tushnet, Copyright Law, Fan Practices, and the Rights of the Author, in Fandom: Identities and Communities in a Mediated World (Jonathan Gray, Cornel Sandvoss & C. Lee Harrington eds., 2nd ed. 2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Book
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.
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
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
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
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
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
Alma Cohen & Charles C.Y. Wang, Reexamining Staggered Boards and Shareholder Value (Harvard Law Sch. John M. Olin Ctr. Discussion Paper No. 908, June 13, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Other
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?, Psychol. Sci. (June 5, 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
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 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.
Lucian A. Bebchuk, Alma Cohen & Scott Hirst, The Agency Problems of Institutional Investors (June 1, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
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.
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.
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), Trends Cognitive Sci. (May 25, 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.
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.
Lucia A. Reisch, Cass R. Sunstein & Wencke Gwozdz, Beyond Carrots and Sticks: Europeans Support Health Nudges, 69 Food Pol'y 1 (2017).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Article
Abstract
All over the world, nations are using “health nudges” to promote healthier food choices and to reduce the health care costs of obesity and non-communicable diseases. In some circles, the relevant reforms are controversial. On the basis of nationally representative online surveys, we examine whether Europeans favour such nudges. The simplest answer is that majorities in six European nations (Denmark, France, Germany, Hungary, Italy, and the UK) do so. We find majority approval for a series of nudges, including educational messages in movie theaters, calorie and warning labels, store placement promoting healthier food, sweet-free supermarket cashiers and meat-free days in cafeterias. At the same time, we find somewhat lower approval rates in Hungary and Denmark. An implication for policymakers is that citizens are highly likely to support health nudges. An implication for further research is the importance of identifying the reasons for cross-national differences, where they exist.
Crystal S. Yang, Does Public Assistance Reduce Recidivism?, 107 Am. Econ. Rev. 551 (2017).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Poverty Law
,
Government Benefits
Type: Article
Abstract
Under the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, individuals convicted of drug-related felonies were permanently banned from receiving welfare and food stamps. Since then, over 30 states have opted out of the federal ban. In this paper, I estimate the impact of public assistance eligibility on recidivism by exploiting both the adoption of the federal ban and subsequent passage of state laws that lifted the ban. Using administrative prison records on five million offenders and a triple-differences research design, I find that public assistance eligibility for drug offenders reduces one-year recidivism rates by 10 percent.
Cass R. Sunstein, Nudges That Fail, 1 Behavioural Pub. Pol’y 4 (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Why are some nudges ineffective, or at least less effective than choice architects hope and expect? Focusing primarily on default rules, this essay emphasizes two reasons. The first involves strong antecedent preferences on the part of choosers. The second involves successful “counternudges,” which persuade people to choose in a way that confounds the efforts of choice architects. Nudges might also be ineffective, and less effective than expected, for five other reasons. (1) Some nudges produce confusion on the part of the target audience. (2) Some nudges have only short-term effects. (3) Some nudges produce “reactance” (though this appears to be rare) (4) Some nudges are based on an inaccurate (though initially plausible) understanding on the part of choice architects of what kinds of choice architecture will move people in particular contexts. (5) Some nudges produce compensating behavior, resulting in no net effect. When a nudge turns out to be insufficiently effective, choice architects have three potential responses: (1) Do nothing; (2) nudge better (or different); and (3) fortify the effects of the nudge, perhaps through counter-counternudges, perhaps through incentives, mandates, or bans.
David Arnold, Will Dobbie & Crystal S. Yang, Racial Bias in Bail Decisions (Nat'l Bureau of Econ. Research, Working Paper No. 23421, May 2017).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Race & Ethnicity
,
Discrimination
,
Empirical Legal Studies
,
Judges & Jurisprudence
Type: Other
Abstract
This paper develops a new test for identifying racial bias in the context of bail decisions – a high-stakes setting with large disparities between white and black defendants. We motivate our analysis using Becker's (1957) model of racial bias, which predicts that rates of pre-trial misconduct will be identical for marginal white and marginal black defendants if bail judges are racially unbiased. In contrast, marginal white defendants will have a higher probability of misconduct than marginal black defendants if bail judges are racially biased against blacks. To test the model, we develop a new estimator that uses the release tendencies of quasi-randomly assigned bail judges to identify the relevant race-specific misconduct rates. Estimates from Miami and Philadelphia show that bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We also find that both black and white judges are biased against black defendants. We argue that these results are consistent with bail judges making racially biased prediction errors, rather than being racially prejudiced per se.
Lucian A. Bebchuk & Alma Cohen, Recent Board Declassifications: A Response to Cremers and Sepe (May 1, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Other
Abstract
This note offers an initial response to a study released earlier this month by Martijn Cremers and Simone Sepe, “Board Declassification Activism: The Financial Value of the Shareholder Rights Project.” Putting aside methodological questions about their analysis and accepting their results “as is,” we show that the results of this study do not provide a basis for opposing board declassifications. Appropriately interpreted, the results provide some significant evidence that declassifications are beneficial and no evidence that they are value-reducing. The results obtained for preceding years in prior published work by the authors either do not hold or are substantially reversed in the period examined by the current study. Overall, the results of the current study contradict and undermine the conclusions in the authors’ earlier published work in support of staggered boards.
Mihir A. Desai, The Debate on Corporate Tax Reform Just Started for Real, HBR.org (May 1, 2017).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - Corporate
Type: Other
Cass R. Sunstein, The Statements I Most Regret, 14 Econ J. Watch 294 (2017).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Legal Scholarship
Type: Article
Jonathan R. Bruno, Vigilance and Confidence: Jeremy Bentham, Publicity, and the Dialectic of Political Trust and Distrust, Am. Pol. Sci. Rev. 295 (2017).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Government Accountability
Type: Article
Abstract
Distrust of public authorities is a mainstay of democratic politics. In recent decades, however, concern with surging civic suspicion has led political scientists to emphasize the value of trust for good government. This article advances a novel reading of Jeremy Bentham's political theory to shed light on the promise and perils of these two dispositions. Trust and distrust go together, in Bentham's account. In making this case, I reexamine Bentham's reflections on publicity, and distinguish between two perspectives implicit in his theory—the perspective of institutional design, and the perspective of popular oversight. This distinction brings clarity to Bentham's surprising recommendation: sober distrust toward public authorities generally, together with particularized trust in those (and only those) institutions or officials who prove themselves worthy of it.
Leo E. Strine, Jr., Corporate Power is Corporate Purpose I: Evidence from My Hometown, 33 Oxford Rev. Econ. Pol’y 176 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Fiduciaries
,
Shareholders
,
Securities Law & Regulation
,
Corporate Law
,
Corporate Governance
Type: Article
Abstract
This paper considers a rather tired argument in corporate governance circles, that corporate laws only giving rights to stockholders somehow implicitly empower directors to regard other constituencies as equal ends in governance. By continuing to suggest that corporate boards themselves are empowered to treat the best interests of other corporate constituencies as ends in themselves, no less important than stockholders, scholars and commentators obscure the need for legal protections for other constituencies. As a case study, this paper examines what happened when an activist investor came to DuPont, illustrating how its board knew that they were expected to make their end investors’ best interests, even if that hurt other constituencies. This isn’t a story about bad people, but a reminder to those genuinely concerned for non-shareholder constituencies to face reality and support changes in the power dynamics affecting corporate governance that make regard for non-shareholder constituencies an obligation for business.
Cass R. Sunstein, Lucia A. Reisch & Julius Rauber, A World-Wide Consensus on Nudging? Not Quite, But Almost, Reg. & Governance (forthcoming 2017).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Comparative Law
Type: Article
Abstract
Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations that usually show majority approval, but markedly reduced approval rates. We offer some speculations about the relationship between approval rates and trust.
Catherine A. MacKinnon, Butterfly Politics (Belknap Press 2017).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Law & Political Theory
Type: Book
Abstract
The minuscule motion of a butterfly’s wings can trigger a tornado half a world away, according to chaos theory. Under the right conditions, small simple actions can produce large complex effects. In this timely and provocative book, Catharine A. MacKinnon argues that the right seemingly minor interventions in the legal realm can have a butterfly effect that generates major social and cultural transformations.Butterfly Politics brings this incisive understanding of social causality to a wide-ranging exploration of gender relations. The pieces collected here—many published for the first time—provide a new perspective on MacKinnon’s career as a pioneer of legal theory and practice and an activist for women’s rights. Its central concerns of gender inequality, sexual harassment, rape, pornography, and prostitution have defined MacKinnon’s intellectual, legal, and political pursuits for over forty years. Though differing in style and approach, the selections all share the same motivation: to end inequality, including abuse, in women’s lives. Several mark the first time ideas that are now staples of legal and political discourse appeared in public—for example, the analysis of substantive equality. Others urge changes that have yet to be realized.The butterfly effect can animate political activism and advance equality socially and legally. Seemingly insignificant actions, through collective recursion, can intervene in unstable systems to produce systemic change. A powerful critique of the legal and institutional denial of reality that perpetuates practices of gender inequality, Butterfly Politics provides a model of what principled, effective, socially conscious engagement with law looks like.
Susan Crawford, Trump’s Big Telecom Giveaway, N.Y. Times, Apr. 17, 2017, at A17.
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Administrative Law & Agencies
,
Communications Law
Type: News
Alex Whiting, An Investigation Mechanism for Syria: The General Assembly Steps into the Breach, 15 J. Int’l Crim. Just. 231 (2017).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Evidence
,
Criminal Prosecution
,
International Law
,
Treaties & International Agreements
,
International Humanitarian Law
,
Human Rights Law
Type: Article
Abstract
On 21 December 2016, the United Nations General Assembly took a historic step in establishing a Mechanism to investigate and preserve evidence of international crimes in Syria, the first time the Assembly has established such a body. This essay assesses the General Assembly’s legal authority to create such an organ, and situates the move in the larger story of the international criminal justice project. The establishment of the Mechanism at the same time highlights the political fragility of the justice project — the Mechanism’s creation was necessitated by the political stalemate blocking accountability for crimes in Syria — and underscores the creativity and ingenuity in the development of institutions, cases and the law that have marked the international criminal law movement over the last decades.
I. Glenn Cohen, Medical Tourism, Medical Migration, and Global Justice: Implications for Biosecurity in a Globalized World, 25 Med. L. Rev. 200 (2017).
Categories:
Health Care
,
Government & Politics
,
Technology & Law
Sub-Categories:
National Security Law
,
Bioethics
,
Health Law & Policy
,
Medical Technology
Type: Article
Abstract
We live in the age of globalization. In medicine, that globalization has brought many benefits such as the diffusion of technology and the spread of health care training, but it has also brought threats to biosecurity. This article examines how medical tourism and medical migration pose risks to biosecurity. It also argues that designing legal responses to these risks requires not only technical competence but also a theory of global justice to guide that design.
Lucian A. Bebchuk (with Alon Brav, Wei Jiang & Thomas Keusch), Dancing with Activists (Columbia Bus. Sch. Research Paper No. 17-44, Apr. 10, 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Mergers & Acquisitions
Type: Other
Abstract
An important milestone often reached in the life of an activist engagement is the entering into a “settlement” agreement between the activist and the target’s board. Using a comprehensive hand-collected data set, we provide the first systematic analysis of the drivers, nature, and consequences of such settlement agreements. We identify the determinants of settlements, showing that settlements are more likely when the activist has a credible threat to win board seats in a proxy fight. We argue that, due to incomplete contracting, settlements can be expected to contract not directly on the operational or leadership changes that activists seek but rather on board composition changes that can facilitate operational and leadership changes down the road. Consistent with the incomplete contracting hypothesis, we document that settlements focus on boardroom changes and that such changes are subsequently followed by increases in CEO turnover, increased payout to shareholders, and higher likelihood of a sale or a going-private transaction. We find no evidence to support concerns that settlements enable activists to extract significant rents at the expense of other investors by introducing directors not supported by other investors or by facilitating “greenmail.” Finally, we document that stock price reactions to settlement agreements are positive and that the positive reaction is higher for “high-impact” settlements. Our analysis provides a look into the “black box” of activist engagements and contributes to understanding how activism brings about changes in its targets.
Samuel Moyn & Stephen Wertheim, The Road to Trump’s War N.Y. Times, Apr. 10, 2017, at A21.
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Military, War, & Peace
,
Politics & Political Theory
Type: News
Luke Gelinas, Holly Fernandez Lynch, Barbara Bierer & I. Glenn Cohen, Institutions as an Ethical Locus of Research Prioritisation, J. Med. Ethics (Apr. 6, 2017).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
Ensuring that clinical trials, once launched, successfully complete and generate useful knowledge is an important and indeed ethically imperative goal, given the risks and burdens borne by research participants. Since there are insufficient willing research participants to power all the trials that are currently undertaken,1 addressing underenrolment will require prioritisation decisions that reduce the number of trials competing for participants. While there are multiple levels at which research priority-setting can and does take place, competition between trials often plays out in real time at the institutional or site level, where complex decisions must be made about how to manage overlapping trials in ways that balance different considerations, including the risk of non-completion. We sought to explore what research institutions in particular might ethically do to mitigate the risk that competition between trials will contribute to recruitment shortfalls. Against this backdrop, we appreciate the thoughtful replies to our article and are especially encouraged that all three respondents acknowledge the importance and indeed necessity of setting research priorities in ways that respect the rights and interests of various parties. The key question raised by the commentaries primarily concerns not whether research prioritisation should take place but rather how it is best accomplished. In what follows, we clarify our argument in the original article, and then focus on several points raised in the commentaries regarding the role of institutions in research priority-setting. Our approach is animated by the risk that competition between clinical trials for the same population of participants can be a cause of underenrolment when there are insufficient participants to meet the statistical needs of all open studies. In such situations, one or more of the competing studies will fail to meet recruitment targets, reducing their statistical ability to answer the research question. There are strong ethical reasons to avoid …
Thomas J. Brennan, Taxation of Corporations and Shareholders: A Discussion of Dean Schizer’s Recent Proposal, 117 Colum L. Rev. Online 90 (2017).
Categories:
Taxation
,
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Law
,
Taxation - Corporate
Type: Article
Henry E. Smith, Economics of Property Law, in The Oxford Handbook of Law and Economics v. 2: Private and Commercial Law 148 (Francesco Parisi ed., 2017).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Economics
Type: Book
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:
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Law
,
Legal Services
Type: Book
John C. Coates, John D. Dionne & David S. Scharfstein, GE Capital After the Crisis (Harvard Bus. Sch. Case 217-071, Apr. 2017).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Risk Regulation
Type: Other
Abstract
Keith Sherin, CEO of GE Capital, faced a decision on which hinged billions of dollars and the fate of one of America’s most storied companies. On his desk sat two secret analyses: Project Beacon, a proposal to spin off most of GE Capital to GE shareholders, and Project Hubble, a proposal to sell off GE Capital in parts. A third document sketched out the implications should GE “stay the course” on its present strategy: a continued, massive build-up of regulatory and compliance personnel to meet GE Capital’s obligations as a “SIFI”—systemically important financial institution—in the wake of the 2010 Dodd-Frank Act. No path forward was clear. A divestiture, either through a spin-off or sell-off, would reduce GE’s size and financial connectedness and address market unease about GE’s position as the seventh-largest U.S. financial institution. It would also unlock substantial value not currently reflected in the stock. Each faced major obstacles and execution risks, however. In particular, no one knew the precise cut-off for a SIFI designation or the time required to shed the designation. If the process took too long, or generated unexpected costs, a divestiture might destroy more value than it would create. Retaining GE Capital was risky, too, of course. Which set of risks was the right one to propose that the GE board accept?
Oren Bar-Gill & Christoph Engel, How to Protect Entitlements: An Experiment, (MPI Collective Goods Preprint, No. 2017/05, Apr. 1, 2017).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Economics
,
Property Rights
Type: Other
Abstract
In a full-information, zero transactions costs world, the degree of protection afforded to an entitlement does not affect the likelihood of efficient trade. In reality, imperfect information is often inevitable. Specifically, a party will usually have incomplete information about fairness norms held by the other party – fairness norms that affect the other party’s willingness to pay (WTP) or willingness to accept (WTA). Importantly, these fairness norms may depend on how strongly the entitlement is protected. We experimentally test the effect of the degree of protection on the parties’ WTP and WTA and on the likelihood of efficient trade by varying the legal remedy for infringing upon the owner’s entitlement. We show that our participants can be divided into three groups corresponding to three different fairness norms: negative types whose WTP and WTA are decreasing in the strength of the legal remedy; positive types whose WTP and WTA are increasing in the strength of the legal remedy; and flat types whose WTP and WTA do not depend on the strength of the legal remedy. We find that type is role-dependent, such that a higher WTP and a lower WTA – the combination most conducive to efficient trade – is obtained with a weaker legal remedy.
Lucian A. Bebchuk & Assaf Hamdani, Independent Directors and Controlling Shareholders, 165 U. Pa. L. Rev. 1271 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Article
Abstract
Independent directors are an important feature of modern corporate law. Courts and lawmakers around the world increasingly rely on these directors to protect investors from controlling shareholder opportunism. In this Article, we argue that the existing director-election regime significantly undermines the ability of independent directors to effectively perform their oversight role. Both the election and retention of independent directors normally depend on the controlling shareholders. As a result, these directors have incentives to go along with controllers’ wishes, or, at least, inadequate incentives to protect public investors. To induce independent directors to perform their oversight role, we argue, some independent directors should be accountable to public investors. This can be achieved by empowering investors to determine or at least substantially influence the election or retention of these directors. These “enhanced-independence” directors should play a key role in vetting “conflicted decisions,” where the interests of the controller and public investors substantially diverge, but not have a special role with respect to other corporate issues. Enhancing the independence of some directors would substantially improve the protection of public investors without undermining the ability of the controller to set the firm’s strategy. We explain how the Delaware courts, as well as other lawmakers in the United States and around the world, can introduce or encourage enhanced-independence arrangements. Our analysis offers a framework of director election rules that allows policymakers to produce the precise balance of power between controlling shareholders and public investors that they find appropriate. We also analyze the proper role of enhanced-independence directors as well as respond to objections to their use. Overall, we show that relying on enhanced-independence directors, rather than independent directors whose election fully depend on the controller, can provide a better foundation for investor protection in controlled companies.
John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747 (2017)(reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)).
Categories:
Government & Politics
,
Constitutional Law
,
Legal Profession
Sub-Categories:
Statutory Interpretation
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Biography & Tribute
,
Legal History
Type: Article
Fernán Restrepo & Guhan Subramanian, The New Look of Deal Protection, 69 Stan. L. Rev. 1013 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Mergers & Acquisitions
Type: Article
Abstract
Deal protection in mergers and acquisitions (M&A) deals evolves in response to Delaware case law and the business goals of acquirers and targets. We construct a new sample of M&A deals from 2003 to 2015 to identify four such areas of evolution in current transactional practice: (1) termination fee “creep,” which was pervasive in the 1980s and 1990s, seems to have gone away by the 2000s; (2) match rights, which were unheard of in the 1990s, became ubiquitous by the 2010s; (3) asset lockups, which disappeared from the landscape for thirty years, have reemerged, though in a “new economy” variation; and (4) practitioners have begun implementing side agreements to the deal that have a commercial purpose along with a deal protection effect. We offer three recommendations for how the Delaware courts should approach this “new look” to the deal protection landscape. First, courts should clarify that lockups must survive Unocal /Unitrin “preclusive” or “coercive” analysis in addition to Revlon “reasonableness” review. Second, Delaware courts should apply basic game theory to identify the deterrent effect of match rights and new economy asset lockups. And third, Delaware courts should take a functional approach to deal protection, meaning that collateral provisions that have a deal protection effect should be scrutinized under deal protection doctrine, even if these agreements have a colorable business purpose as well.
Copyright Law in an Age of Limitations and Exceptions (Ruth L. Okediji ed., Cambridge Univ. Press 2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Book
Abstract
Copyright Law in an Age of Limitations and Exceptions brings together leading copyright scholars and the field's foremost authorities to consider the critical role of copyright law in shaping the complex social, economic, and political interaction critical for cultural productivity and human flourishing. The book addresses defining issues facing copyright law today, including justifications for copyright law's limitations and exceptions (L&Es), the role of authors in copyright, users' rights, fair use politics and reform, the three-step test in European copyright law, the idea/expression principle with respect to functional works, limits on the use of L&Es in scientific innovation, and L&Es as a tool for economic development in international copyright law. The book also presents case studies on the historical development of the concept of 'neighboring rights' and on Harvard Law School's pioneering model of global copyright education, made possible by the exercise of L&Es across national borders.
Ruth L. Okediji, Reframing International Copyright Exceptions and Limitations as Development Policy, in Copyright Law in an Age of Exceptions and Limitations 429 (Ruth L. Okediji ed., Cambridge Univ. Press 2017).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Developing & Emerging Nations
,
International Trade
,
Intellectual Property - Copyright
Type: Book
Constantine Boussalis, Yuval Feldman & Henry E. Smith, An Experimental Analysis of the Effect of Standards on Compliance and Performance, Reg. & Governance (Mar. 30, 2017).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Legal Ethics
,
Legal Scholarship
Type: Article
Abstract
Legal directives – whether laws, regulations, or contractual provisions – can be written along a spectrum of specificity, about which behavioral and legal scholarship present conflicting views. We hypothesized that the combination of specificity and monitoring promotes compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people's sense of commitment. To test these hypotheses, we used a 2x2x2 experimental design in which participants were instructed to edit a document with either general or detailed instructions, with a reference to good faith or without it, and with a review of the work or without it. Participants could engage in various levels and kinds of editing, allowing us to distinctly measure both compliance and performance. When participants require information and guidance, as in the case of editing, we found that specificity increases performance relative to the vague standard condition. We discuss the characteristics of the regulatory frameworks in which our findings are especially relevant.
Michael Greenstone, Cass R. Sunstein & Sam Ori, The Next Generation of Transportation Policy (Mar. 29, 2017).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Oil, Gas, & Mineral Law
,
Administrative Law & Agencies
Type: Other
Abstract
Motor vehicle fuel-economy standards have long been a cornerstone of U.S. policy to reduce fuel consumption in the light-duty vehicle fleet. In 2011 and 2012 these standards were significantly expanded in an effort to achieve steep reductions in oil demand and greenhouse gas emissions through 2025, consistent with long-term U.S. policy goals. As a policy approach, however, standards that focus on efficiency alone, as opposed to lifetime consumption, impose unnecessarily high costs and do not deliver guaranteed petroleum savings. On the basis of a commitment to cost-benefit analysis, defining U.S. regulatory policy for more than 30 years, we propose a novel policy solution that would implement a cap-and-trade system in transportation. Acknowledging that the very idea of cap and trade has become controversial, we show that this approach would increase the certainty of reductions in fuel consumption in transportation and do so at a far lower cost per gallon avoided. Such an approach is consistent with the regulatory authority existing at key federal agencies.
J. Clifton Fleming, Jr., Robert J. Peroni & Stephen E. Shay, Getting From Here to There: The Transition Tax Issue, 154 Tax Notes 69 (2017).
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - Federal
Type: Article
Abstract
If there is fundamental U.S. international income tax reform, regardless of the reform option chosen, the United States must decide how to handle the $2.4 trillion to $2.6 trillion of previously untaxed foreign income accumulated by U.S. multinational corporations. In this report, Fleming, Peroni, and Shay argue that the proper approach is to treat the income as a subpart F inclusion in the year before the effective date of fundamental reform and to tax it at regular rates with an option to make the payments in installments that bear market-rate interest. The authors explain why the case for a low or deferred tax on this income is inferior to the case for full immediate taxation.
David W. Kennedy, A New Stream of International Legal Scholarship, in General Theory of International Law (American Classics in International Law v. 1, Siegfried Wiessner ed., 2017).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Critical Legal Studies
,
International Law
Type: Book
Norman Champ, Going Public: My Adventures Inside the SEC and How to Prevent the Next Devastating Crisis (McGraw-Hill Educ. 2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Book
Abstract
Engrossing and important, this book offers critical recommendations for policy changes that will create healthy, free-functioning markets and help Americans better prepare for the inevitable next crisis.
Jack Goldsmith, Yes, We Are Holding Trump Accountable, N.Y. Times, Mar. 15, 2017, at A23.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
Type: News
Abstract
The article discusses the investigation conducted by the U.S. Federal Bureau of Investigations (FBI) with its director James B. Comey on the involvement of Russiaa in the 2016 U.S. presidential elections.
Cass R. Sunstein, #Republic: Divided Democracy in the Age of Social Media (Princeton Univ. Press forthcoming Mar. 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
,
Communications Law
Type: Book
Abstract
"As the Internet grows more sophisticated, it is creating new threats to democracy. Social media companies such as Facebook can sort us ever more efficiently into groups of the like-minded, creating echo chambers that amplify our views. It's no accident that on some occasions, people of different political views cannot even understand each other. It's also no surprise that terrorist groups have been able to exploit social media to deadly effect. Welcome to the age of #Republic. In this revealing book, Cass Sunstein, the New York Times bestselling author of Nudge and The World According to Star Wars, shows how today's Internet is driving political fragmentation, polarization, and even extremism—and what can be done about it. Thoroughly rethinking the critical relationship between democracy and the Internet, Sunstein describes how the online world creates "cybercascades," exploits "confirmation bias," and assists "polarization entrepreneurs." And he explains why online fragmentation endangers the shared conversations, experiences, and understandings that are the lifeblood of democracy. In response, Sunstein proposes practical and legal changes to make the Internet friendlier to democratic deliberation. These changes would get us out of our information cocoons by increasing the frequency of unchosen, unplanned encounters and exposing us to people, places, things, and ideas that we would never have picked for our Twitter feed. #Republic need not be an ironic term. As Sunstein shows, it can be a rallying cry for the kind of democracy that citizens of diverse societies most need." -- Publisher
Jeannie Suk Gersen, A New Phase of Chaos on Transgender Rights, NewYorker.com (Mar. 13, 2017).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Supreme Court of the United States
Type: Other
Gerald E. Frug, The City: Private or Public? (LSE Cities Working Papers, Mar. 13, 2017).
Categories:
Government & Politics
Sub-Categories:
State & Local Government
Type: Article
Abstract
This article analyzes the privatization of city governments in the United States. The focus is not on the contracting out of city services or the selling of city property to the private sector. The focus instead is on the conceptual,financial, and structural privatization of city governments themselves. The article describes this privatization by focusing on three aspects of city governance: city services, economic development, and the design of the city population. It presents two contrasting ways to conceptualize and structure these city functions, one embraced by the private city and the other by the public city. By doing so, it seeks to emphasize the different kinds of choices facing state governments when they empower and disempower city governments and to suggest what is at stake, both for individuals and American society as a whole, when these choices are made.
Oren Bar-Gill & Kevin E. Davis, (Mis)perceptions of Law in Consumer Markets, Am. L. & Econ. Rev. (Mar. 11, 2017).
Categories:
Consumer Finance
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Consumer Protection Law
Type: Article
Abstract
There are good reasons to believe that consumers’ behavior is sometimes influenced by systematic misperceptions of legal norms that govern product quality. Consumers might misperceive specific rules, such as those found in food safety regulations, as well as more general standards, such as the unconscionability doctrine or limitations on waivers of default substantive or procedural rights. When demand is affected by systematic misperceptions of legal norms, lawmakers may be able to maximize welfare by deviating from the legal standard that would be optimal in the absence of misperception. We use a formal model to characterize these optimal deviations under different legal regimes (with different types and magnitudes of sanctions). In particular, should the legal standard be adjusted to correct or confirm the misperception? For instance, if consumers under-estimate the level of legal protection is it desirable to raise the legal standard to correct the misperception? Or should lawmakers lower the legal standard to confirm the misperception?
Joseph W. Singer, Bethany R. Berger, Nestor M. Davidson & Eduardo Moises Peñalver, Property Law: Rules, Policies, and Practices (Wolters Kluwer 7th ed. 2017).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Mark Tushnet, Enforcement of National Law against Subnational Units in the US, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance 316 (András Jakab & Dimitry Kochenov eds., 2017).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Federalism
,
Congress & Legislation
,
Courts
Type: Book
Abstract
This chapter is primarily an exposition of the applicable constitutional doctrine on the enforcement of national law against subnational units in the US. It also offers some general observations about the underlying theory of federalism that generates US constitutional doctrine. In the US the question of the enforceability of national law against state governments is a matter of some theoretical interest but relatively little practical importance. The reasons for that situation are a combination of institutional and historical conditions, which the chapter refers to in more detail. For those outside the US, however, the primary message here is that the constitutional doctrine dealing with this sort of enforcement is quite limited in scope and importance, in contrast to its importance in systems whose constitutions create a less centralized version of constitutional federalism.
A. Mitchell Polinsky & Steven Shavell, Subrogation and the Theory of Insurance When Suits Can Be Brought for Losses Suffered (Stanford Law & Econ. Olin Working Paper No. 506, Harvard Pub. Law Working Paper No. 17-04, Mar. 9, 2017).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Insurance Law
,
Torts
,
Litigation & Settlement
Type: Other
Abstract
The theory of insurance is considered here when an insured individual may be able to sue another party for the losses that the insured suffered—and thus when an insured has a potential source of compensation in addition to insurance coverage. Insurance policies reflect this possibility through so-called subrogation provisions that give insurers the right to step into the shoes of insureds and to bring suits against injurers. We show that subrogation provisions are a fundamental feature of optimal insurance contracts because they relieve litigation-related risks and result in lower premiums—financed by the litigation income of insurers. This income includes earnings from suits that insureds would not otherwise have brought. We also characterize optimal subrogation provisions in the presence of loading costs, moral hazard, and non-monetary losses.
Jody Freeman, Don’t Roll Back Vehicle Fuel Standards, N.Y. Times, Mar. 8, 2017, at A23.
Categories:
Environmental Law
Sub-Categories:
Climate Change
,
Oil, Gas, & Mineral Law
Type: News
Abstract
An editorial is presented on U.S. Donald Trump administration's attempt to rollback fuel efficiency standards for vehicles set by former President Obama and it states it is a retrograde step as the standards were set based on available technologies and to protect the environment.
Belinda Bennett, I. Glenn Cohen, Sara E. Davies, Lawrence O. Gostin, Peter S. Hill, Aditi Mankad, Alexandra L. Phelan, Future-proofing Global Health: Governance of Priorities, Global Pub. Health (Mar. 8, 2017).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
The year 2015 was a significant anniversary for global health: 15 years since the adoption of the Millennium Development Goals and the creation of the Global Alliance for Vaccines and Immunization, followed two years later by the Global Fund to Fight AIDS, TB and Malaria. 2015 was also the 10-year anniversary of the adoption of the International Health Regulations (May 2005) and the formal entering into force of the Framework Convention on the Tobacco Control (February 2005). The anniversary of these frameworks and institutions illustrates the growth and contribution of 'global' health diplomacy. Each initiative has also revealed on-going issues with compliance, sustainable funding and equitable attention in global health governance. In this paper, we present four thematic challenges that will continue to challenge prioritisation within global health governance into the future unless addressed: framing and prioritising within global health governance; identifying stakeholders of the global health community; understanding the relationship between health and behaviour; and the role of governance and regulation in supporting global health.
Eric A. Posner & Cass R. Sunstein, Moral Commitments in Cost-Benefit Analysis (Univ. of Chicago Coase-Sandor Inst. for Law & Econ. Research Paper No. 802, Univ. of Chicago, Pub. Law Working Paper No. 620, Mar. 8, 2017).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that loss is through eliciting private willingness to pay. Of course it is true that some moral commitments cannot be counted in cost-benefit analysis, because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about them. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims bear on a wide variety of issues, including protection of foreigners, of children, of rape victims, of future generations, and of animals.
Jonathan F. Will, I. Glenn Cohen & Eli Y. Adashi, Personhood Seeking New Life with Republican Control, Ind. L.J.. (forthcoming 2017).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Just three days prior to the inauguration of Donald J. Trump as president of the United States, Rep. Jody B. Hice (R-GA) introduced the Sanctity of Human Life Act (H.R. 586), which, if enacted, would provide that the rights associated with legal personhood begin at fertilization. While often touted as a means to outlaw abortion, protecting the “lives” of single-celled zygotes may also have implications for the practice of reproductive medicine and research. Indeed, such personhood efforts stand apart and distinct from more incremental attempts to restrict abortion that target the abortion procedure and those who would perform it. While personhood efforts have not been successful to date at either the state or federal levels, abortion opponents may find a friend in President Trump and his Supreme Court nominees. What is more, because the recent decision by the Court in Whole Woman’s Health v. Hellerstedt makes it more difficult for states to impose incremental restrictions on the abortion procedure, restrictions focused on the status of the unborn may assume increasing importance. Personhood rhetoric is often seen in proceedings involving the disposition of unused embryos and in laws that restrict access to abortion on the basis of gender, race, or disability. Laws outlawing abortion on the basis of fetal pain are also on the rise. With so much uncertainty surrounding the political landscape, this essay places the personhood movement in historical context with other anti-abortion strategies. This essay further explores the theoretical underpinnings of the personhood movement and considers its future prospects with regard to abortion and other reproductive services.
Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-led right-wing media ecosystem altered broader media agenda, Colum. Journalism Rev. (Mar. 3, 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Elections & Voting
,
Communications Law
Type: Other
Intisar A. Rabb, Confession, in Encyclopaedia of Islam, Three (Kate Fleet, Gudrun Krämer, Denis Matringe, John Nawas & Everett Rowson eds., Brill 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Book
William Alford, A Book Review of Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma (Chang-Fa Lo, Nigel Li & Tsai-Yu Lin eds., 2016), 12 Asian J. WTO & Int’l Health L. & Pol’y 201 (2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
Type: Article
William Alford, A Book Review of Legal Thoughts between the East and the West in the Multilevel Legal Order: A Liber Amicorum in Honour of Professor Herbert Han-Pao Ma (Chang-Fa Lo, Nigel Li & Tsai-Yu Lin eds., 2016), 12 Asian J. WTO & Int’l Health L. & Pol’y 201 (2017).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
Type: Article
J. Mark Ramseyer, Are Reactors Like Casinos? A Culture of Dependency in Japan (Univ. Chi. Coase-Sandor Inst. for Law & Econ., Research Paper No. 798, Mar. 1, 2017).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Economics
,
East Asian Legal Studies
Type: Other
Abstract
Japanese communities with nuclear reactors have the reactors because they applied for them, and they applied for them for the money. Among Japanese municipalities, they were some of the most dysfunctional before the reactors had even arrived. Communities depend on young families for the social capital that holds them intact, and these were the communities from which those families had already begun to leave. After the reactors arrived, young families continued to disappear. Unemployment rose. Divorce rates climbed. And in time, the communities had little -- other than reactor-revenue -- to which they could turn.
Frank I. Michelman, At the Liberal Edge in Prague, 43 Phil. & Soc. Criticism 254 (2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
Type: Article
Dalia Topelson Ritvo, Kira Hessekiel & Christopher Bavitz, Challenges & Opportunities Concerning Corporate Formation, Nonprofit Status, & Governance for Open Source Projects (Berkman Klein Ctr. Research Publ’n No. 2017-3, Mar. 2017).
Categories:
Corporate Law & Securities
,
Technology & Law
Sub-Categories:
Business Organizations
,
Nonprofit Organizations
Type: Other
Abstract
This report addresses a number of key considerations that those managing open source software development initiatives should take into account when thinking about structure, organization, and governance. The genesis of this project involved an investigation into anecdotal reports that companies and other institutions developing open source software were facing difficulties obtaining tax exempt nonprofit status under Section 501(c)(3) of Title 26 of the United States Code. Based on conversations with a number of constituents in the open source software development community, the authors have prepared this report to address specific questions about nonprofit status alongside questions about corporate formation and governance models more generally. Nothing in this report should be viewed as a substitute for specific legal advice on the narrow questions facing particular organizations under particular sets of factual circumstances. But, the authors are hopeful the document provides a general overview of the complex issues that open source initiatives face when balancing a need for structure and continuity with the innovative and experimental spirit at the heart of many open source development projects. The report has two primary parts: • First, it addresses some formal organizational considerations that open source software initiatives should weigh, evaluating the benefits of taking on a formal structure and the options for doing so. The report provides information about different types of corporate organization that open source projects may wish to consider. And, it delves into Internal Revenue Service policy and practice and US tax law concerning questions about the tax exemptions referenced above. • In its second half, the authors pull back to consider more broadly questions of organizational structure, offering ideas about governance models that open source organizations may wish to explore, separate from formal corporate structure, as they seek to achieve their missions. Different considerations may inform the choice of formal, legal organizational structures (on the one hand) and governance models (on the other hand). By addressing both, the authors hope that this report will be useful to the broadest possible range of managers of and contributors to open source development initiatives.
Max M. Schanzenbach & Robert H. Sitkoff, The Prudent Investor Rule and Market Risk: An Empirical Analysis, 14 J. Empirical Legal Stud. 129 (2017).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
,
Financial Markets & Institutions
Type: Article
Abstract
The prudent investor rule, enacted in every state over the last 30 years, is the centerpiece of trust investment law. Repudiating the prior law's emphasis on avoiding risk, the rule reorients trust investment toward risk management in accordance with modern portfolio theory. The rule directs a trustee to implement an overall investment strategy having risk and return objectives reasonably suited to the trust. Using data from reports of bank trust holdings and fiduciary income tax returns, we examine asset allocation and management of market risk before and after the reform. First, we find that the reform increased stockholdings, but not among banks with average trust account sizes below the 25th percentile. This result is consistent with sensitivity in asset allocation to trust risk tolerance. Second, we present evidence consistent with increased portfolio rebalancing after the reform. We conclude that the move toward additional stockholdings was correlated with trust risk tolerance, and that the increased market risk exposure from additional stockholdings was more actively managed.
Louis Kaplow, On the Relevance of Market Power, 130 Harv. L. Rev. 1303 (2017).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Article
Abstract
Market power is the most important determinant of liability in competition law cases throughout the world. Yet fundamental questions on the relevance of market power are underanalyzed, if examined at all: When and why should we inquire into market power? How much should we require? Should market power be viewed as one thing, regardless of the practice under scrutiny and independent of the pertinent anticompetitive and procompetitive explanations for its use? Does each component of market power have the same probative force? Or even influence optimal liability determinations in the same direction? This Article’s ground-up investigation of market power finds that the answers often differ from what is generally believed and sometimes are surprising — notably, higher levels of certain market power measures or particular market power components sometimes disfavor liability. This gulf between conventional wisdom and correct understanding suggests the need to redirect research agendas, agency guidance, and competition law doctrine.
Mark Tushnet, The Boundaries of Comparative Law, 13 Eur. Const. L. Rev. 13 (2017).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Critical Legal Studies
,
Comparative Law
Type: Article
Abstract
Boundaries: between public and private law – Political dimensions of private and public law – Boundaries between domestic law and transnational and international law – Boundaries between law and other disciplines, including economics, comparative politics, normative political theory, and hermeneutic disciplines – National styles of comparative law scholarship – Analytic and pragmatic traditions in comparative law scholarship.
Luke Gelinas, Robin Pierce, Sabune Winkler, I. Glenn Cohen, Holly Fernandez Lynch & Barbara E. Bierer, Using Social Media as a Research Recruitment Tool: Ethical Issues and Recommendations, 17 Am. J. Bioethics 3 (2017).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
The use of social media as a recruitment tool for research with humans is increasing, and likely to continue to grow. Despite this, to date there has been no specific regulatory guidance and there has been little in the bioethics literature to guide investigators and institutional review boards (IRBs) faced with navigating the ethical issues such use raises. We begin to fill this gap by first defending a nonexceptionalist methodology for assessing social media recruitment; second, examining respect for privacy and investigator transparency as key norms governing social media recruitment; and, finally, analyzing three relatively novel aspects of social media recruitment: (i) the ethical significance of compliance with website "terms of use"; (ii) the ethics of recruiting from the online networks of research participants; and (iii) the ethical implications of online communication from and between participants. Two checklists aimed at guiding investigators and IRBs through the ethical issues are included as appendices.