Faculty Bibliography

For five straight cycles (the 1970s through the 2010s), Section 5 of the Voting Rights Act dominated redistricting in states covered by the provision. In these states, district plans had to be precleared with federal authorities before they could be implemented. Preclearance was granted only if plans wouldn’t retrogress, that is, reduce minority representation. Thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder, Section 5 is no longer operative. So what happened to minority representation in formerly covered states after Section 5’s protections were withdrawn? This Article is the first to tackle this important question. We examine all states’ district plans before and after the 2020 round of redistricting at the congressional, state senate, and state house levels. Our primary finding is that there was little retrogression in formerly covered states. In sum, the number of minority ability districts in these states actually rose slightly. We also show that formerly covered states were largely indistinguishable from formerly uncovered states in terms of retrogression. If anything, states unaffected by Shelby County retrogressed marginally more than did states impacted by the ruling. Lastly, we begin to probe some of the factors that might explain this surprising pattern. One possible explanation is the status quo bias of many mapmakers, which is reflected in their tendency to keep minority representation constant. Another potential driver is many line-drawers’ reluctance to use retrogression as a partisan weapon. This reluctance is evident in the similar records of all redistricting authorities with respect to retrogression, as well as in the absence of any relationship between retrogression and change in plans’ partisan performance.

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially in cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate; it assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity level x to another, earlier song was created without copying from the earlier song. Until the state of the underlying art changes, it is reasonable for experts to testify about the existence of similarities between works, but it is unsupported and unreasonable for them to testify about the likelihood that those similarities came about from copying. We don’t know that likelihood in the absence of evidence about base rates: how common it is for a song to have similarity level x with some other song in the corpus of existing songs, and how common it is for that similarity to come from copying or from independent creation (or from both songs copying a shared antecedent). Until that knowledge is available, testimony about the probability of copying should be deemed inadmissible under Federal Rule of Evidence 702.

This Article presents evidence that some state prosecutors use their discretion to reduce racial disparities in criminal sentences. This finding challenges the prevailing view that prosecutors compound disparities. Given prosecutors' positions as mediators in a sequential system, this Article analyzes how prosecutors respond to disparities they inherit from the past--and interprets their impacts in light of the accumulated disparities that already exist when they first open their case files. Specifically, I estimate how the sentencing penalty for prior convictions differs by defendant race using North Carolina state court records from 2010 to 2019. I find that the increase in the likelihood of a prison sentence for an additional prior conviction was 25% higher for white than Black defendants with similar arrests and criminal records. While Black and white defendants without criminal records were incarcerated at similar rates, white defendants with records were incarcerated at significantly higher rates. And the longer the record, the greater the divergence. To understand this finding, I link an original survey of 203 prosecutors to their real-world cases. This survey-to-case linkage helps reveal how prosecutors' beliefs about past racial bias influence their decision-making. I find that the subset of prosecutors who attribute racial disparities in the criminal legal system to racial bias have lower prison rates for Black defendants with criminal records than facially similar white defendants, thereby offsetting past disparities. In concrete terms, racial disparities in North Carolina prison rates in 2019 would have increased by 20% had the state mandated equal treatment of defendants with similar case files. These findings should lead reformers to exercise caution when considering calls to limit or eliminate prosecutorial discretion. Blinding prosecutors to defendant race--a policy that jurisdictions are increasingly implementing--may inadvertently increase disparities by neutralizing the offsetting effects of some prosecutors. While race-blind charging ensures that prosecutors do not introduce new bias, it also ensures that any past bias is passed through to current (and future) decisions.

Special purpose acquisition companies (SPACs) were the financial-legal hit of 2021, before they weren't. Breaking records and displacing, to an extent, conventional initial public offerings (C-IPOs), even as C-IPOs also boomed, SPACs spiked, in part, because-in addition to myths about their financial attributes, which others have de-bunked several myths about SPAC law circulated widely and persistently. SPAC promoters claimed that (1) securities regulations ban projections from being used in C-IPOs, (2) liability related to projections was lower and more certain in SPACs than it was (and is), (3) the Securities and Exchange Commission (SEC) registration process delays C-IPOs more than SPACs, (4) the SEC changed SPAC accounting rules in early 2021, (5) this "change" was the primary reason the SPAC wave slowed and peaked, and (6) the Investment Company Act clearly does not apply to SPACs. Consistent with these being myths, de-SPACs from 2021 are experiencing significant levels of litigation-even higher than in C-IPOs. These myths were aimed primarily not at unsophisticated retail investors, but business journalists, sophisticated SPAC sponsors, and owner-managers of SPAC targets. They illustrate a broader and under-appreciated fact that complex financial-legal innovation permits promoters to exploit the "credence good" character of professional advice, perpetuate "deep fraud," and distort markets and asset prices more and longer than conventional theory assumes. To moderate deep fraud's market distortions, proposed SEC reforms should be finalized to improve SPAC disclosure, enhance investor understanding of their risks, and reduce regulatory uncertainties that contribute to legal myths about SPACs, but the inherent complexity of the product may require an ongoing role for regulators to speak clearly about SPAC law and its uncertainties.

This Article tests the claims of supporters of stakeholder capitalism (“stakeholderism”) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, and broad expressions of commitment to, stakeholderism from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced from April 2020 to March 2022, totaling 122 acquisitions with an aggregate consideration exceeding $800 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant post-deal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives not to benefit stakeholders beyond what would serve shareholder interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings have significant implications for long-standing debates on the corporate treatment of stakeholders. In particular, our findings are inconsistent with the implicit-promises/team-production view that corporate leaders of an acquired company should and do look after stakeholder interests; on this view, fulfilling implicit promises to protect stakeholder interests serves shareholders’ ex-ante interest in inducing the stakeholder cooperation and investment that are essential to corporate success. Our work also supports the agency critique of stakeholder capitalism which suggests that, due to their incentives, corporate leaders cannot be relied upon to look after stakeholder interests and to live up to pro-stakeholder rhetoric.

This Essay analyzes and assesses the approach of governmental entities to the bankruptcy filings of large, regulated companies. Regulated firms often enter Chapter 11 seeking to exploit bankruptcy law provisions that allow them to take actions that their regulators could block outside of bankruptcy, thereby undermining regulatory enforcement and oversight. As a result, governmental entities often react defensively to a bankruptcy filing, asserting that bankruptcy law does not displace their power over the regulated firm. This tactic is often unsuccessful, as we show by describing the doomed efforts of the Federal Energy Regulatory Commission (FERC) to maintain their statutory authority over Chapter 11 firms. We argue that governments would fare better - and the public interest would be better served - if they participated in, instead of resisting, the bankruptcy process, including by acquiring expertise in bankruptcy law and providing financial support to distressed companies. We illustrate this argument with a case study contrasting the approaches of the California State Attorney General's Office and the County of Santa Clara to the 2019 bankruptcy filing of a hospital system, Verity Health System of California. The County of Santa Clara succeeded in achieving its policy goals where the California Attorney General (like FERC) failed, because the County retained bankruptcy lawyers and took bankruptcy law on its own terms, acting in bankruptcy instead of against bankruptcy.

West Virginia v. Environmental Protection Agency1 is the Supreme Court’s most important administrative law decision in decades. The opinion’s significance is due principally to the Court’s embrace of an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia Court claims that this strong MQD is based on longstanding precedent, and that its use has salutary effects on the policymaking process. Neither claim is accurate. In Part I of this Article, we show that the strong version of the MQD embraced by the West Virginia Court is in fact relatively new; the extent of the doctrinal innovation is obscured by the fact that the MQD label has been unhelpfully attached to several related but distinct interpretive techniques, which we disentangle. In Part II, we turn to the impact of this new MQD on the policymaking process, focusing in particular on democratic accountability. While the MQD’s proponents claim that this doctrine protects separation-of-powers principles and the prerogatives of Congress, in fact the new MQD is more likely to weaken democratic accountability by shifting power from the elected branches to the courts, undermining transparency, and exacerbating the already excessive tendency toward minoritarian obstruction in Congress. The West Virginia Court’s aggressive MQD would likely have other effects; perhaps most importantly, this version of the MQD makes it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. For purposes of this Article, though, our critique of the MQD focuses less on its impact on policy outcomes (though we think this is very important), and more on the impact of the MQD on the policymaking process, especially the extent to which the MQD makes that process less democratic.

The American death penalty finds itself in an unusual position. On the ground, the practice is weaker than at any other time in our history. Eleven jurisdictions have abandoned the death penalty over the past fifteen years, almost doubling the number of states without the punishment (twenty-three). Executions have declined substantially, totaling twenty-five or fewer a year nationwide for the past six years, compared to an average of seventy-seven a year during the six-year span around the millennium (1997-2002). Most tellingly, death sentences have fallen off a cliff, with fewer the fifty death sentences a year nationwide over the past six years – compared to highs of over three hundred per year in the mid-1990s. The last two years have seen only eighteen death sentences per year nationwide – fewer than two per capital jurisdiction. This article examines the dynamics underlying this great decline of the American death penalty and assesses the likelihood of its continued diminution. At the same time capital punishment is withering in practice, the prospects for constitutional abolition via judicial decree have also decreased substantially, as the U.S. Supreme Court has shown marked hostility toward constitutional regulation of the death penalty. This new hostility replaces a jurisprudence that was increasingly hospitable to extensive regulation – even judicial abolition – of American capital punishment. The Court’s recent decisions threaten to jettison the jurisprudential commitment to “evolving standards of decency” as the touchstone for interpreting the Eighth Amendment in favor of a more limited originalist approach to gauging “cruel and unusual” punishments. The Court also appears eager to discourage end-stage litigation and to remove obstacles to both state and federal executions. The simultaneous decline of public support for the death penalty and judicial regulation of the death penalty has produced “abolition in waiting” – a marginalized practice that will remain on the books until changes in the composition of the Court permit reassessment of the death penalty’s constitutionality.

Neoclassical and credit approaches to money represent dramatically different theories of value. Within the neoclassical tradition, the market exists as a conceptual prior, a place where independent agents compare real goods, exchanging them afterwards to accord with their preferences. That theory identifies value as a pre-existing quality ranked by individual choice. To operate, the theory relies on an approach to money that is oddly self-contradictory: money as a unit of account antedates exchange while money as a medium follows from exchange. By contrast, credit approaches suggest that markets only emerge once commensurability in value exists. To create a unit of account that enables comparison, groups restructure their internal relationships to create money. Members then use money for exchange, producing what is understood as monetary value. Credit theories of money thus imply a dramatically different “market,” one that turns on disparities within an exchanging group rather than the autonomy of individuals to produce “value.”

According to the “portfolio primacy” theory, large asset managers, and in particular large index funds, can and will undertake the role of “climate stewards” and will push corporations to reduce their carbon footprint. This theory is based on the view that index fund portfolios mirror the entire market and therefore have strong financial incentives to reduce market-wide threats, such as climate change. But how much can we rely on portfolio primacy to mitigate the effects of climate change? In this Article, I provide a conceptual and empirical assessment of the potential impact of portfolio primacy on climate change mitigation by examining the scope of action, economic incentives, and fiduciary conflicts of index fund managers. The analysis reveals three major limits, each reinforcing the others, that undermine the promise of portfolio primacy. First, the potential scope of index fund stewardship is narrow, as most companies around the world, including most carbon emitters, are private or controlled companies. Second, index funds internalize only a fraction of the social cost of climate change and therefore have very weak incentives to engage in ambitious climate stewardship. Third, index fund managers advise dozens of index funds with conflicting interests with respect to climate mitigation and therefore face serious fiduciary conflicts that would hamper any ambitious mitigation strategy. This analysis shows that we should have very modest expectations about the role of portfolio primacy in the fight against climate change.

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

The Original Scalia Adrian Vermeule* What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program…

At the most general descriptive level constitution-making processes can be understood as bargains struck among groups each of which sees advantages in establishing a (temporarily) stable governing order. This essay, a contribution to a handbook on the politics of constitutional law, seeks to identify some more granular processes. Section 1 describes three prominent approaches to theorizing about the politics of constitution-making Ackerman’s theory of “constitutional moments”; Elster’s identification of “upstream” and “downstream” constraints on constitution-making; and studies of post-conflict, post-crisis, and “imposed” constitution making, with a brief discussion of constitution-making in “normal” times. Section 3 offers a sequential account of the politics of constitution-making, beginning with the proposal stage, then turning to the selection of the process by which the constitution will be made before addressing some specific issues associated with constitution-making by constituent assemblies. A discussion of the politics of the drafting process follows, after which the essay considers the politics of adoption/ratification or rejection. The discussion concludes with what some have identified as the “afterlife” of constitutional processes that do not produce a new ratified constitution.

In State Regulation of Online Behavior: The Dormant Commerce Clause and Geolocation, we argued that the validity of state laws regulating internet activity should turn in part on the feasability of geolocation--the extent to which online services can reliably determine the state in which a user is located so that they can comply with the law of that state. The article was published before the Supreme Court decided National Pork Producers Council v. Ross, an important Dormant Commerce Clause (DCC) decision, in May 2023. This brief essay explains how Ross supports our central arguments.

With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. Responding to the constitutional crisis of 1876, the Electoral Count Act of 1887 ("ECA") attempted to offer more specific rules. The ECA was a major advance, but in important ways, it was exceedingly complicated and ambiguous, leaving important puzzles and gaps. The Electoral Count Reform Act of 2022 ("ECRA"), amending the ECA in response to the horrors of January 6, 2022, is a phenomenal achievement; on essentially all questions, it offers a great deal of clarity. The signal virtue of the ECRA is that it vindicates the rule of law by sharply cabining the discretion of both Congress and the states. For the first time in U.S. history, the ECRA requires the rule of law in presidential elections, by limiting the risk of on-the-spot, ex post maneuvering in either Congress or the states.

The European Union's Digital Services Act (DSA) offers a new model for regulating online services that allow users to post things. It uses size-based tiers to delineate the different levels of obligation imposed on various services. Despite the tiers of regulation in the DSA, and very much in its copyright-specific companion Article 17, it's evident that the broad contours of the new rules were written with insufficient attention to variation. Instead, regulators assumed that "the internet" largely behaved like Youtube and Facebook. Using three examples of how that model is likely to be bad for a thriving online ecosystem--counting users, providing due process, and implementing copyright-specific rules--this Article concludes that, to improve policymaking, regulators should use test suites of differently situated services to ensure that they are at least considering existing diversity and properly identifying their targets.

This Article offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific interests showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects of the COVID crisis in 2020. The COVID virus had characteristics that made it difficult to develop policies to limit its spread until a vaccine was available, and some of those characteristics went directly to the claim that the administrative state could respond flexibly to rapidly changing conditions. The relevant administrative agencies were bureaucracies with scientific staff members, though, and what those bureaucracies regard as "the science" was shaped in part by bureaucratic and political considerations, and the parts that were so shaped were important components of the overall policy response. Part II describes policy-relevant characteristics of knowledge about the COVID virus and explains why those characteristics made it quite difficult for more than a handful of democratic nations to adopt policies that would effectively limit its penetration of their populations. Part III begins with a short presentation of the aspects of the science and technology studies (STS) critique of claims about disinterested science that have some bearing on policy responses to the pandemic. It then provides an examination shaped by that critique of the structures of the Food and Drug Administration and the Centers for Disease Control, showing how those structural features contributed to policy failures. Part IV concludes by sketching how the STS critique might inform efforts to reconstruct--rather than deconstruct--the administrative state, proposing the creation of Citizen Advisory Panels in science-based agencies.

It’s well-known that the federal Voting Rights Act is reeling. The Supreme Court nullified one of its two central provisions in 2013. The Court has also repeatedly weakened the bite of the statute’s other key section. Less familiar, though, is the recent rise of state voting rights acts (SVRAs): state-level enactments that provide more protection against racial discrimination in voting than does federal law. Eight states have passed SVRAs so far—five since 2018. Several more states are currently drafting SVRAs. Yet even though these measures are the most promising development in the voting rights field in decades, they have attracted little scholarly attention. They have been the subject of only a handful of political science studies and no sustained legal analysis at all. In this Article, then, we provide the first descriptive, constitutional, and policy assessment of SVRAs. We first taxonomize SVRAs. That is, we catalogue how they diverge from, and build on, federal protections against racial vote denial, racial vote dilution, and retrogression. Second, we show that SVRAs are constitutional in that they don’t violate any branch of equal protection doctrine. They don’t constitute (or compel) racial gerrymandering, nor do they classify individuals on the basis of race, nor are they motivated by invidious racial purposes. Finally, while existing SVRAs are quite potent, we present an array of proposals that would make them even sharper swords against racial discrimination in voting. One suggestion is for SVRAs simply to mandate that localities switch to less discriminatory electoral laws—not to rely on costly, time-consuming, piecemeal litigation. Another idea is for SVRAs to allow each plaintiff to specify the benchmark relative to which racial vote dilution should be measured—not to stay mute on the critical issue of baselines.

Sludge—excessive time consumed in performing a task—imposes a burden on society. Administrative burdens, reporting requirements, paperwork requirements, waiting time, in-person appearances, and much more operate as a kind of an essential between human beings and something that connects their life. Sludge imposes time-tax (opportunity cost), monetary cost, and psychological costs upon society. There should be a sludge audit to quantify the magnitude of such costs—knowledge of the sludge magnitude would provide the basis for the efforts aimed at sludge-reduction One of the many ways to reduce sludge would be to nudge people into doing something. Nudges, however, are a function of human behaviour, therefore, it is important to understand human behaviour regarding what motivates a person to do something or refrain from another. Human beings suffer from cognitive scarcity, and they have a limited processing capacity in their mind. If we are sick, elderly, or suffering from incapacity, the cognitive ability will be reduced further. We have spent a great deal of time debating economic scarcity over the last hundred years. Now, we need to spend a great deal of time in the next hundred years debating cognitive scarcity.

After the Dobbs decision, soul-searching about the rule of law has rarely been as cynical or as fundamental.

Should there be a right not to be manipulated? On Kantian grounds, manipulation, lies and paternalistic coercion are moral wrongs, and for similar reasons; they deprive people of agency, insult their dignity, and fail to respect personal autonomy. On welfarist grounds, manipulation, lies and paternalistic coercion share a different characteristic; they displace the choices of those whose lives are directly at stake, and who are likely to have epistemic advantages, with the choices of outsiders, who lack critical information. Kantians and welfarists should be prepared to endorse a (moral) right not to be manipulated, though on very different grounds. At the same time, the creation of a legal right not to be manipulated raises hard questions, in part because of definitional challenges. With welfarist considerations in mind, it is best to start by prohibiting the most egregious instances of manipulation, while emphasizing that they may not count as fraud or deception. The basic goal should be to build on the claim that in certain cases, manipulation is a form of theft; the law should forbid theft, whether it occurs through force, lies, or manipulation.

Knowledge institutions—understood as ongoing entities with a central purpose of creating or disseminating knowledge according to disciplinary standards—are central to the workings of a constitutional democracy. The press is made up of knowledge institutions that should be recognized as such. Moreover, and contrary to the suggestions of some jurists, the press can be reasonably defined, without suspect content discrimination, in light of its special role in seeking and reporting knowledge; different definitions may be appropriate for different purposes, such as limited access to physical press briefings as compared to privileges for confidential sources. Finally, knowledge institutions, including the press, are interdependent on each other, which means that all knowledge institutions have stakes in the well-being of others.

Media narratives are based on radical proposals. But the final rules always prioritize risk and return.

This chapter addresses the law and academic literature about partisan gerrymandering: crafting districts with the intent and effect of benefiting the line-drawing party. With respect to the law, the chapter covers the depressing arc of federal anti-gerrymandering legislation as well as the somewhat more encouraging record of state constitutional litigation. The chapter further discusses enacted state and proposed federal redistricting reforms, in particular, requirements that districts be designed by independent commissions. With respect to the academic literature, the chapter surveys four live debates: whether gerrymandering should be conceived in terms of intent or effect; whether the impact of gerrymandering should be assessed using absolute or relative measures; what the main drivers of district plans’ partisan biases are; and how these biases affect broader democratic values. The ongoing contributions to these and other debates show that, while gerrymandering may no longer be justiciable in federal court, it remains an active topic of legal and political science scholarship.

Justice Ginsburg’s opinions challenge us to rethink the role of statutes in American constitutional democracy, and how to interpret the authority of the people to innovate on the lawmaking process itself. Her legacy includes a body of opinions that comprises a forceful rebuttal to the Court’s current interpretive dogma. Justice Ginsburg’s writing poses an alternative vision of American public law—a “republican” jurisprudence that puts the power to make law back in the hands of the people. This Symposium Essay elucidates three aspects of that jurisprudence: what work it understands legislation to do in the polity, how it understands the authority of Congress to make law, and how it interprets the authority of the people to innovate on the lawmaking process itself.

Perennial agriculture refers to agricultural systems in which perennial crops are a central strategy for producing farm products and ecosystem services. Perennial agriculture offers a range of ecosystem services, including improved soil health and biodiversity, high carbon sequestration rates, agroecosystems better adapted to climate change, improved water quality, and economically viable products. Shifting U.S. agriculture to be perennial-focused will require a range of support structures, including federal policy changes. Federal policymakers should support perennial agriculture by establishing safety nets like those available for annual crops, centering perennial practices in cost-sharing conservation programs, facilitating market opportunities, and investing in perennial agriculture research and development.

This document is an appendix to our article, Stakeholder Capitalism in the Time of COVID, 40 YALE J. REG. (forthcoming, 2022). Although the article reports our overall findings with respect to the full sample of 112 acquisitions, the article provides full details of our analysis of particular cases only with respect to the 24 acquisitions above $10 billion in our sample. This Appendix supplements this reporting by providing full details of our analysis with respect to each of the particular cases of the 98 acquisitions in our sample with a consideration between $1 billion and $10 billion. The Article tests the claims of supporters of stakeholder capitalism (“stakeholderism”) in the context of the COVID pandemic. Supporters of stakeholderism advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for, and broad expressions of commitment to, stakeholderism from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced from April 2020 to March 2022, totaling 122 acquisitions with an aggregate consideration exceeding $800 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant post-deal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives not to benefit stakeholders beyond what would serve shareholder interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings have significant implications for long-standing debates on the corporate treatment of stakeholders. In particular, our findings are inconsistent with the implicit-promises/team-production view that corporate leaders of an acquired company should and do look after stakeholder interests; on this view, fulfilling implicit promises to protect stakeholder interests serves shareholders’ ex-ante interest in inducing the stakeholder cooperation and investment that are essential to corporate success. Our work also supports the agency critique of stakeholder capitalism which suggests that, due to their incentives, corporate leaders cannot be relied upon to look after stakeholder interests and to live up to pro-stakeholder rhetoric.

A new subpoena is the latest step showing that the DOJ’s man in charge is aggressively pursuing his target.

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws. The proposition that property—a social institution—generated the extant mismatch between incomes and wealth, on one hand, and critical expenses, on the other, is frightening: it reveals that we, the people, collectively and over time fashioned this staggering predicament out of whole cloth. But this same proposition is also cause for hope. If property laws helped create this predicament, perhaps property laws can help solve it. Against this backdrop, the Article charts a justice-inspired course for the reformation of property’s background rules. This course is centered on a series of norms appropriate for property governance in a free and democratic society, including circumstance sensitivity, anti-discrimination, realistic opportunity, and legal interdependence.

Bob Dylan celebrates “songs about roses growing out of people’s brains and lovers who are really geese and swans that turn into angels.” He thinks that “museums are vulgar,” because “they’re all against sex.” He proclaims,“Folk music is a bunch of fat people.” He notes, “Just because someone mentions the word ‘bomb,’ I’m not going to go ‘Aalee!’ and start clapping.” These remarks about lovers who are really geese, museums, folk music, and protest songs capture Dylan’s distaste for whatever is rote or routine, and help explain his refusal to identify with the social movements of the 1960s. The remarks also tell us something about the central themes of “Desolation Row” and “The Philosophy of Modern Song,” and also about why “Like A Rolling Stone” is not a finger-pointing song but a celebration of movement and rootlessness. Dylan’s work is dishabituating, and he cherishes the dishabituating power of music and art in general.

What power lets Congress exempt harassment allegations from NDAs?