Faculty Bibliography
-
Type:
Categories:
Sub-Categories:
My role in this symposium, and my paper, are less academic than others’. I clerked for Justice Abe Fortas during the 1968–69 Term and worked with him on Brandenburg v. Ohio. I will describe the process by which Brandenburg was created, its per curiam status, and its meaning as seen from the perspective of its author. I also will address the theme of this conference, especially the claim that Brandenburg incorporated Learned Hand’s view of the First Amendment.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
This essay reflects on the relationship between the diffuse legal struggle to dismantle vagrancy laws during the 1960s and the larger history of twentieth-century social movement advocacy. In Vagrant Nation, Risa Goluboff persuasively links the demise of vagrancy laws to the cultural and constitutional turmoil of the 1960s. It is possible, however, to interpret that decade's upheaval, which rendered explicit social stratification increasingly vulnerable, as an impediment to a budding anti-vagrancy law consensus instead of a prerequisite for legal change. On this alternative reading, the uncoordinated legal efforts to overturn vagrancy laws in a decade dominated by more contentious litigation campaigns may have contributed to a tepid decision by the Supreme Court, which ultimately invalidated vagrancy laws on narrow legalistic grounds. Indeed, the relatively protracted dismantlement of the vagrancy law regime raises the question whether bottom-up constitutionalism lacks potency in the absence of an intermediary organization with a well-defined litigation strategy.
-
Type:
Categories:
Sub-Categories:
Links:
The debate between rational models of behavior and their systematic deviations, often referred to as “irrational behavior”, has attracted an enormous amount of research. Here, we reconcile the debate by proposing an evolutionary explanation for irrational behavior. In the context of a simple binary choice model, we show that irrational behaviors are necessary for evolution in stochastic environments. Furthermore, there is an optimal degree of irrationality in the population depending on the degree of environmental randomness. In this process, mutation provides the important link between rational and irrational behaviors, and hence the variety in evolution. Our results yield widespread implications for financial markets, corporate behavior, and disciplines beyond finance.
-
Type:
Categories:
Sub-Categories:
Regardless of whether it’s renamed for McCain, Russell’s name should not be on it.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Mark J. Roe & Robert C. Pozen, Six Months Isn’t ‘Long Term’, Wall St. J., Aug. 21, 2018, at A13.
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
How do judgments about law and morality shift? Why do we come to see conduct as egregiously wrong, when we had formerly seen it as merely inappropriate or even unobjectionable? Why do shifts occur in the opposite direction? A clue comes from the fact that some of our judgments are unstable, in the sense that they are an artifact of, or endogenous to, what else we see. This is true of sensory perception: Whether an object counts as blue or purple depends on what other objects surround it. It is also true for ethical judgments: Whether conduct counts as unethical depends on what other conduct is on people’s viewscreens. It follows that conduct that was formerly seen as ethical may come to seem unethical, as terrible behavior becomes less common, and also that conduct that was formerly seen as unethical may come to seem ethical, as terrible behavior becomes more common. In these circumstances, law (and enforcement practices) can have an important signaling effect, giving people a sense of what is normal and what is not. There is an important supplemental point, intensifying these effects: Once conduct comes to be seen as part of an unacceptable category – abusiveness, racism, lack of patriotism, microaggression, sexual harassment – real or apparent exemplars that are not so egregious, or perhaps not objectionable at all, might be taken as egregious, because they take on the stigma now associated with the category. Stigmatization by categorization can intensify the process by which formerly unobjectionable behavior becomes regarded as abhorrent. There is a relationship between stigmatization by categorization and “concept creep,” an idea applied in psychology to shifting understandings of such concepts as abuse, bullying, mental illness, and prejudice.
-
Carol S. Steiker & Jordan M. Steiker, The Fate of the Death Penalty, Time, Aug. 20, 2018, at 23.
Type:
Categories:
Sub-Categories:
The article looks at how Pope Francis' declaration that the Catholic Church deemed the death penalty inadmissible could influence the use of such punishment in authoritarian countries and the U.S.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
William A. Klein, J. Mark Ramseyer & Stephen M. Bainbridge, Agency, Partnerships, and Limited Liability Entities: Unincorporated Business Associations (Foundation Press 4th ed., 2018).
Type:
Categories:
Sub-Categories:
This book is a collection of edited cases, original text, questions, and problems designed for use in a law school level course on agency, partnerships, and limited liability entities. A key feature of this casebook is the extensive coverage of limited liability entities, especially unincorporated limited liability companies (LLCs). The authors include cases on such LLC topics as formation, interpretation of the operating agreement, piercing the LLC "veil," fiduciary obligation, expulsion of an LLC member, and dissolution. Also included is a section on the question of whether membership interests in LLCs and limited partnerships are a security. This edition has been meticulously updated with important cases and rules.
-
Cass R. Sunstein, The Cost-Benefit Revolution (MIT Press 2018).
Type:
Categories:
Sub-Categories:
Opinions on government policies vary widely. Some people feel passionately about the child obesity epidemic and support government regulation of sugary drinks. Others argue that people should be able to eat and drink whatever they like. Some people are alarmed about climate change and favor aggressive government intervention. Others don't feel the need for any sort of climate regulation. In The Cost-Benefit Revolution, Cass Sunstein argues our major disagreements really involve facts, not values. It follows that government policy should not be based on public opinion, intuitions, or pressure from interest groups, but on numbers―meaning careful consideration of costs and benefits. Will a policy save one life, or one thousand lives? Will it impose costs on consumers, and if so, will the costs be high or negligible? Will it hurt workers and small businesses, and, if so, precisely how much? As the Obama administration's "regulatory czar," Sunstein knows his subject in both theory and practice. Drawing on behavioral economics and his well-known emphasis on "nudging," he celebrates the cost-benefit revolution in policy making, tracing its defining moments in the Reagan, Clinton, and Obama administrations (and pondering its uncertain future in the Trump administration). He acknowledges that public officials often lack information about costs and benefits, and outlines state-of-the-art techniques for acquiring that information. Policies should make people's lives better. Quantitative cost-benefit analysis, Sunstein argues, is the best available method for making this happen―even if, in the future, new measures of human well-being, also explored in this book, may be better still.
-
Type:
Categories:
Sub-Categories:
Throughout the book, the authors note the cross-border implications of U.S. rules, and compare, where appropriate, the U.S. financial regulatory framework and policy choices to those in other places around the globe, especially the European ...
-
Type:
Categories:
Sub-Categories:
Links:
We are living in an age of political turbulence, social division, and resistance. The resistance that formed in reaction to the election of Donald Trump styles itself a force to defend constitutional rights, democratic norms, and the rule of law in the United States. Perhaps the New Republic best explained its advent: the Resistance had been born of partisan—that is, Democratic—fury after “liberalism had been dealt its most stunning and consequential defeat in American history.” “For the first time in decades, liberalism has been infused with a sense of energy and purpose,” with millions of people devoted to a singular cause: resisting Trump.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
In important contexts, people prefer option A to option B when they evaluate the two separately, but prefer option B to option A when they evaluate the two jointly. In consumer behavior, politics, and law, such preference reversals are often a product of the pervasive problem of "evaluability." Some important characteristics of options are difficult or impossible to assess in separate evaluation, and hence choosers disregard or downplay them; those characteristics are much easier to assess in joint evaluation, where they might be decisive. But the empirical findings do not resolve central questions: Is either mode of evaluation reliable? Which mode of evaluation is better? Some people insist that joint evaluation is more reliable than separate evaluation, because it offers more information. But that conclusion is far too simple. In joint evaluation, certain characteristics of options may receive excessive weight, because they do not much affect people's actual experience or because the particular contrast between joint options distorts people’s judgments. In joint as well as separate evaluation, people are subject to manipulation, though for different reasons. It follows that neither mode of evaluation is reliable. The appropriate approach will vary depending on the goal of the task – increasing consumer welfare, preventing discrimination, achieving optimal deterrence, or something else. Under appropriate circumstances, global evaluation would be much better, but it is often not feasible. These conclusions bear on preference reversals in law and policy, where joint evaluation is often better, but where separate evaluation might ensure that certain characteristics or features of situations do not receive excessive weight.
-
Holger Spamann, Simplified DGCL: including a guide to the federal proxy rules (2018).
Type:
Categories:
Sub-Categories:
-
Federal Rules of Civil Procedure with Resources for Study, 2018-2019 (Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra Lahav eds., Wolters Kluwer supplement ed. 2018).
Type:
Categories:
Sub-Categories:
Including excerpts from the Restaements (Second) of Judgments, U.S. Constitution, U.S. Code, Transnational Rules of Civil Procedure, State Long -Arm and Venue Statutes, and Recent Supreme Court Case Law.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
As progress in the biosciences soldiers forth, new breakthroughs can often be swept up in a common narrative, that is, the narrative of science as a disruptive threat. Responding to perceived threats, policymakers the world over have frequently overreacted to these developments by enacting shortsighted legislation. These knee-jerk reactions often entail a ban or pause on the science to be explored, thereby foregoing a dialog or term-limited oversight. In this paper, we explore the history and transparency of such moratoria.
-
Type:
Categories:
Sub-Categories:
Across Europe and the Americas, the Enlightenment brought intellectual and institutional tumult over that most basic attribute of the political economy – its medium. By the time the age was over, money operated according to a new design. It enabled a set of financial practices that were unprecedented: modern money worked synergistically with circulating public debt, capital markets, and commercial banking. Together, that quartet of innovations transformed the political economies of the West. The essay considers the themes of that change, including the depth of conceptual innovation on money and finance, the range of institutional experimentation, and the contentious nature of the debate. The essay takes a short tour of the Enlightenment quartet to suggest how interdependent was (and is) the development of those institutions.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Though redistricting has always been a problem in American politics, the outsized role of partisanship in the redistricting process has received unprecedented attention across the nation since 2010. This guide is intended to arm legislators, good government advocates, and activists with the knowledge needed to design an independent redistricting commission for state legislative or congressional districts.
-
Type:
Categories:
Sub-Categories:
Links:
In this chapter, we analyze three instances that illustrate the political economy of corporate governance. First, we examine how the politics of organizing financial institutions affects, and often determines, the flow of capital into the large firm, thereby affecting, and often determining, the power and authority of shareholder-owners. Second, we show how continental European nations have been slow in developing diffusely owned public firms in the years after World War II. The third political economy example deals with management in diffusely owned firms. The chapter also looks at the historical organization of capital ownership in the United States, noting how the country’s fragmented financial system limited the institutional blockholders and increased managerial autonomy over the years. Finally, it discusses the power of labor in postwar Europe, political explanations for the continuing power of the American executive and the board in recent decades, other political economy channels for corporate governance, and the limits of a political economy analysis.
-
Type:
Categories:
Sub-Categories:
This chapter examines how mergers, acquisitions, and restructuring are regulated, both within the formal body of corporate law and as that law interacts with other bodies of law such as securities (including listing standards), antitrust, industry-specific regulation, and regulations of cross-border transactions. It begins with an overview of relevant terminology and scope of M&A and restructuring and how they differ from other corporate transactions or activities. It then considers major types of M&A transactions, the core goals of corporate law or governance, and other bodies of law (antitrust, industry-based regulation, regulation of foreign ownership of business, and tax) that give special treatment to M&A and restructuring, and sometimes interact with corporate law and governance. It also looks at laws that constrain M&A transactions and those that facilitate them. It concludes by summarizing empirical research and discussing what variations in types and modes of regulation governing M&A and restructuring transactions imply.
-
Type:
Categories:
Sub-Categories:
This chapter examines the impact of private and public enforcement of securities regulation on the development of capital markets. After a review of the literature, it considers empirical findings related to private and public enforcement as measured by formal indices and resources, with particular emphasis on the link between enforcement intensity and technical measures of financial market performance. It then analyses the impact of cross-border flows of capital, valuation effects, and cross-listing decisions by corporate issuers before turning to a discussion of whether countries that dedicate more resources to regulatory reform behave differently in some areas of market activities. It also explores the enforcement of banking regulation and its relationship to financial stability and concludes by focusing on direct and indirect, resource-based evidence on the efficacy of the US Securities and Exchange Commission’s enforcement actions.
-
Type:
Categories:
Sub-Categories:
Links:
This chapter reviews the benefits and costs of using indices, in particular the G- and E-indices, in empirical corporate governance research. As with corporate governance itself, the widespread use of corporate governance indices have both costs and benefits. The literature has identified a number of concerns with the use of these indices including concerns over measurement error, endogeneity, reverse causation, omitted variables and proper identification of the actual mechanisms by which corporate governance might matter. On the other hand, these indices enjoy several important benefits that explain their continued and widespread use. It concludes that event study methodology and the utilization of legal shocks/regulatory discontinuities for identification will likely play an ever greater role in future research.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search. This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well-documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary-search doctrine gleaned from the Court’s drug-testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy-based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy. Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.
-
Type:
Categories:
Sub-Categories:
-
Type:
Categories:
Sub-Categories:
Links:
This chapter discusses the multiple roles played by the members of the Human Rights Committee in giving effect to the rights guaranteed by the International Covenant on Civil and Political Rights. It argues that the most important contribution the members make to the human rights project consists in their credible, professional elaboration of those rights, particularly by means of the Committee’s Views and General Comments, as emphasized by the International Court of Justice in the Diallo case. While the Committee members should be open to learning from the insights of other treaty bodies, they should resist urgings toward a simplistic harmonization. The texts and interpretations of other ‘core’ human rights treaties must be used with care in the members’ independent exercise of their own interpretive function.
-
Type:
Categories:
Sub-Categories:
-
Favorite
Type:
Categories:
Sub-Categories:
This textbook provides comprehensive coverage of international finance from policy, regulatory, and transactional perspectives.