Published from to
Publication Types
Categories
I. Glenn Cohen, Eli Y. Adashi, Sara Gerke, César Palacios-González & Vardit Ravitsky, The Regulation of Mitochondrial Replacement Techniques Around the World, 21 Ann. Rev. Genomics & Hum. Genetics (forthcoming Aug. 31, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Mitochondrial replacement techniques (MRTs, also referred to as mitochondrial replacement therapies) have given hope to many women who wish to have genetically related children but have mitochondrial DNA mutations in their eggs. MRTs have also spurred deep ethical disagreemensts and led to different regulatory approaches worldwide. In this review, we discuss the current regulation of MRTs across several countries. After discussing the basics of the science, we describe the current law and policy directions in seven countries: the United Kingdom, the United States, Canada, Australia, Germany, Israel, and Singapore. We also discuss the emerging phenomenon of medical tourism (also called medical travel) for MRTs to places like Greece, Spain, Mexico, and Ukraine. We then pull out some key findings regarding similarities and differences in regulatory approaches around the world.
Guhan Subramanian, Dealmaking: The New Strategy of Negotiauctions (W. W. Norton & Co., 2nd ed., forthcoming Aug. 4, 2020).
Categories:
Banking & Finance
,
Civil Practice & Procedure
Sub-Categories:
Commercial Law
,
Negotiation & Alternative Dispute Resolution
Type: Book
Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., Cambridge Univ. Press, forthcoming June 30, 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The electoral successes of right-wing populists since 2016 have unsettled world politics. The spread of populism poses dangers for human rights within each country, and also threatens the international system for protecting human rights. Human Rights in a Time of Populism examines causes, consequences, and responses to populism in a global context from a human rights perspective. It combines legal analysis with insights from political science, international relations, and political philosophy. Authors make practical recommendations on how the human rights challenges caused by populism should be confronted. This book, with its global scope, international human rights framing, and inclusion of leading experts, will be of great interest to human rights lawyers, political scientists, international relations scholars, actors in the human rights system, and general readers concerned by recent developments.
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale Univ. Press, forthcoming May 19, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
,
Courts
Type: Book
Abstract
The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved from the liberalism of the New Deal and Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore the other branches of government’s role in deciding constitutional questions.
Noah Feldman, The Arab Winter: A Tragedy (Princeton Univ. Press, forthcoming May 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Foreign Law
Type: Book
Abstract
The Arab Spring promised to end dictatorship and bring self-government to people across the Middle East. Yet everywhere except Tunisia it led to either renewed dictatorship, civil war, extremist terror, or all three. In The Arab Winter, Noah Feldman argues that the Arab Spring was nevertheless not an unmitigated failure, much less an inevitable one. Rather, it was a noble, tragic series of events in which, for the first time in recent Middle Eastern history, Arabic-speaking peoples took free, collective political action as they sought to achieve self-determination. Focusing on the Egyptian revolution and counterrevolution, the Syrian civil war, the rise and fall of ISIS in Syria and Iraq, and the Tunisian struggle toward Islamic constitutionalism, Feldman provides an original account of the political consequences of the Arab Spring, including the reaffirmation of pan-Arab identity, the devastation of Arab nationalisms, and the death of political Islam with the collapse of ISIS. He also challenges commentators who say that the Arab Spring was never truly transformative, that Arab popular self-determination was a mirage, and even that Arabs or Muslims are less capable of democracy than other peoples. Above all, The Arab Winter shows that we must not let the tragic outcome of the Arab Spring disguise its inherent human worth. People whose political lives had been determined from the outside tried, and for a time succeeded, in making politics for themselves. That this did not result in constitutional democracy or a better life for most of those affected doesn’t mean the effort didn’t matter. To the contrary, it matters for history—and it matters for the future.
Disability, Health, Law, and Bioethics (I. Glenn Cohen, Carmel Shachar, Anita Silvers & Michael Ashley Stein eds., 2020).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Bioethics
,
Disability Law
,
Health Law & Policy
Type: Book
Philosophical Foundations of the Law of Equity (Irit Samet-Porat, Henry Smith & Dennis Klimchuk eds., 2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Remedies
,
Legal Theory & Philosophy
Type: Book
Abstract
The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'.
Elizabeth Bartholet, Contested Child Protection Policies, in The Oxford Handbook of Children and the Law (James G. Dwyer ed., 2020).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Race & Ethnicity
,
Social Welfare Law
,
Children's Law & Welfare
,
Legal Guardianship
Type: Book
Abstract
This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
Richard J. Lazarus, The Rule of Five: Making Climate History at the Supreme Court (2020).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Book
Abstract
When the Supreme Court announced its ruling in Massachusetts v. EPA, the decision was immediately hailed as a landmark. But this was the farthest thing from anyone’s mind when Joe Mendelson, an idealistic lawyer working on a shoestring budget for an environmental organization no one had heard of, decided to press his quixotic case. In October 1999, Mendelson hand-delivered a petition to the Environmental Protection Agency asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act had authorized the EPA to regulate “any air pollutant” that could reasonably be anticipated to endanger public health. But could something as ordinary as carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so? Environmentalists urged Mendelson to stand down. Thinking of his young daughters and determined to fight climate change, he pressed on—and brought Sierra Club, Greenpeace, NRDC, and twelve state attorneys general led by Massachusetts to his side. This unlikely group—they called themselves the Carbon Dioxide Warriors—challenged the Bush administration and took the EPA to court. The Rule of Five tells the story of their unexpected triumph. We see how accidents, infighting, luck, superb lawyering, and the arcane practices of the Supreme Court collided to produce a legal miracle. An acclaimed advocate, Richard Lazarus reveals the personal dynamics of the justices and dramatizes the workings of the Court. The final ruling, by a razor-thin 5–4 margin, made possible important environmental safeguards which the Trump administration now seeks to unravel.
Jonathan Zittrain, A World Without Privacy Will Revive the Masquerade, Atlantic (Feb. 7, 2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
Type: Other
I. Glenn Cohen & Michelle M. Mello, HIPAA in the Era of Data Sharing—Reply, 323 JAMA 477 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Information Privacy & Security
,
Medical Technology
Type: Article
John C. P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs (2020).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
Type: Book
Abstract
Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly. Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.
I. Glenn Cohen, Commentary on Gestation, Equality and Freedom: Ectogenesis as a Political Perspective, J. Med. Ethics (Feb. 3, 2020).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Family Law
Sub-Categories:
Gender & Sexuality
,
Reproduction
,
Bioethics
,
Genetics & Reproduction
Type: Article
Guhan Subramanian & Annie Zhao, Go-Shops Revisited, 133 Harv. L. Rev. (forthcoming Feb. 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
Type: Article
Abstract
A go-shop process turns the traditional M&A deal process on its head: rather than a pre-signing market canvass followed by a post-signing “no shop” period, a go-shop deal involves a limited pre-signing market check, followed by a post-signing “go shop” process to find a higher bidder. A decade ago one of us published the first systematic empirical study of go-shop deals. Contrary to the conventional wisdom at the time, the study found that go-shops could yield a meaningful market check, with a higher bidder appearing 13% of the time during the go-shop period. In this Article, we compile a new sample of M&A deals announced between 2010 and 2018. We find that go-shops, in general, are no longer an effective tool for post-signing price discovery. We then document several reasons for this change: the proliferation of first-bidder match rights, the shortening of go-shop windows, CEO conflicts of interest, investment banker effects, and collateral terms that have the effect of tightening the go-shop window. We conclude that the story of the go-shop technology over the past ten years is one of innovation corrupted: transactional planners innovate, the Delaware courts signal qualified acceptance, and then a broader set of practitioners push the technology beyond its breaking point. In view of these developments in transactional practice, we provide recommendations for the Delaware courts and corporate boards of directors.
Jeannie Suk Gersen, What Would a Fair Impeachment Trial Look Like?, NewYorker.com (Jan. 29, 2020).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Corruption
,
Government Accountability
Type: Other
Cass R. Sunstein, Internalities, Externalities, and Fuel Economy (Jan. 28, 2020).
Categories:
Environmental Law
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Taxation
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Transportation Law
,
Energy & Utilities Law
,
Administrative Law & Agencies
,
Tax Policy
Type: Other
Abstract
It is standard to think that corrective taxes, responding to externalities, are generally or always better than regulatory mandates, but in the face of behavioral market failures, that conclusion might not be right. Fuel economy and energy efficiency mandates are possible examples. Because such mandates might produce billions of dollars in annual consumer savings, they might have very high net benefits, complicating the choice between such mandates and externality-correcting taxes (such as carbon taxes). The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of taxes that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities. An important qualification is that corrective taxes might be designed to reduce both externalities and internalities, in which case they would almost certainly be preferable to a regulatory mandate.
Sara Gerke, Serena Young & I. Glenn Cohen, Ethical and Legal Aspects of Ambient Intelligence in Hospitals, JAMA (Jan. 24, 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Medical Technology
,
Information Privacy & Security
Type: Article
Oren Bar-Gill & Christoph Engel, Property is Dummy Proof: An Experiment (MPI Collective Goods Discussion Paper, No. 2020/2, Jan. 24, 2020).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Property Rights
Type: Other
Abstract
Law is for humans. Humans suffer from cognitive limitations. Legal institutions can help humans by making these limitations irrelevant. This experiment shows that strong property rights serve this function. In theory, efficient outcomes obtain even without strong property rights. In a hypothetical world where cognitive ability is perfect, individuals would not engage in wasteful taking wars. A party would not take another’s good, if she expects that the good will ultimately be taken back. By contrast, the large majority of experimental subjects takes a token good when interacting with a computer they know to maximize profit, and that has a symmetric ability to take the good back. Experience mitigates the inefficiency, but does not eliminate it; and in the real world relevant experience is often lacking. We show that cognitive limitations prevent weak property rights – imperfectly enforced property rules and liability rules with low damages – from securing efficient outcomes. Strong property rights should be preferred, because they are dummy proof.
Louis Kaplow, A Unified Perspective on Efficiency, Redistribution, and Public Policy (NBER Working Paper No. w26683, Jan. 22, 2020).
Categories:
Disciplinary Perspectives & Law
,
Taxation
,
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Social Welfare Law
,
Law & Economics
,
Retirement Benefits & Social Security
,
Taxation - Personal Income
,
Taxation - Federal Estate & Gift
,
Taxation - Federal
,
Tax Policy
Type: Other
Abstract
Specialized theoretical and empirical research should in principle be embedded in a unified framework that identifies the relevant interactions among different phenomena, enables an appropriate matching of policy instruments to objectives, and grounds normative analysis in individuals’ utilities and a social welfare function. This article advances an approach that both provides integration across many dimensions and contexts and also identifies which tasks may be undertaken separately and how such analysis should be conducted so as to be consistent with the underlying framework. It employs the distribution-neutral methodology and welfare analysis developed in Kaplow (2008a) and related work, offering applications to income taxation, commodity taxation, tax expenditures, externalities, public goods, capital income and wealth taxation, social security and retirement savings, estate and gift taxation, and transfer programs. It also explores welfare criteria and examines how their consideration enables the normative analysis of the taxation of families, heterogeneous preferences, and tax administration and enforcement.
Eli Y. Adashi & I. Glenn Cohen, Therapeutic Germline Editing: Sense and Sensibility, Trends in Genetics (Jan. 22, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Abstract
Safe and effective heritable editing of the human genome is years away from the clinic because of formidable technical, statutory, regulatory, and societal challenges. In particular, we note the fledgling state of the science, the imperatives of editing efficiency, specificity, and uniformity, and the extant legal roadblock.
Noah Feldman, Is Trump Above the Law?, N.Y. Rev. Books, Jan. 16, 2020, at 12.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Cass R. Sunstein & Adrian Vermeule, Presidential Review: The President’s Statutory Authority Over Independent Agencies (Jan. 16, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Executive Office
,
Congress & Legislation
Type: Other
Abstract
Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review — and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes egregiously erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s directive authority over the independent agencies.
Cass R. Sunstein, A Note on Human Welfare and the Administrative State (Jan. 15, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
The American administrative state has become, in important respects, a cost-benefit state. At least this is so in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, expressivism, or interest-group power. The focus on costs and benefits is an important effort to attend to the real-world consequences of regulations – and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. In the future, however, there will be better ways to identify those consequences, by focusing directly on welfare, and not relying on imperfect proxies.
John Bowers & Jonathan Zittrain, Answering Impossible Questions: Content Governance in an Age of Disinformation, 1 Harv. Kennedy Sch. Misinformation Rev. 1 (2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
,
Communications Law
Type: Article
Abstract
The governance of online platforms has unfolded across three eras – the era of Rights (which stretched from the early 1990s to about 2010), the era of Public Health (from 2010 through the present), and the era of Process (of which we are now seeing the first stirrings). Rights-era conversations and initiatives amongst regulators and the public at large centered dominantly on protecting nascent spaces for online discourse against external coercion. The values and doctrine developed in the Rights era have been vigorously contested in the Public Health era, during which regulators and advocates have focused (with minimal success) on establishing accountability for concrete harms arising from online content, even where addressing those harms would mean limiting speech. In the era of Process, platforms, regulators, and users must transcend this stalemate between competing values frameworks, not necessarily by uprooting Rights-era cornerstones like CDA 230, but rather by working towards platform governance processes capable of building broad consensus around how policy decisions are made and implemented. Some promising steps in this direction could include delegating certain key policymaking decisions to entities outside of the platforms themselves; making platforms “information” or “content” fiduciaries; and systematically archiving data and metadata about disinformation detected and addressed by platforms.
Carol S. Steiker & Jordan M. Steiker, The Rise, Fall, and Afterlife of the Death Penalty in the United States, 3 Ann. Rev. Criminology 299 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Eighth Amendment
,
Capital Punishment
,
Sentencing & Punishment
,
Criminal Prosecution
,
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Legal History
Type: Article
Abstract
This review addresses four key issues in the modern (post-1976) era of capital punishment in the United States. First, why has the United States retained the death penalty when all its peer countries (all other developed Western democracies) have abolished it? Second, how should we understand the role of race in shaping the distinctive path of capital punishment in the United States, given our country's history of race-based slavery and slavery's intractable legacy of discrimination? Third, what is the significance of the sudden and profound withering of the practice of capital punishment in the past two decades? And, finally, what would abolition of the death penalty in the United States (should it ever occur) mean for the larger criminal justice system?
David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 748 (2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Cass R. Sunstein, Behaviorally Informed, in The State of Economics, The State of the World 349 (Kaushik Basu, David Rosenblatt & Claudia Sepúlveda eds., 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
I. Glenn Cohen & Harry Graver, A Doctor’s Touch: What Big Data in Health Care Can Teach Us About Predictive Policing, in Policing and Artificial Intelligence (John L.M. McDaniel & Ken G. Pease eds., forthcoming 2020).
Categories:
Criminal Law & Procedure
,
Health Care
,
Technology & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Health Law & Policy
,
Networked Society
,
Medical Technology
,
Information Privacy & Security
Type: Book
Abstract
We take two professions — police officers and doctors — and place their experiences with big data in dialogue. Policing and medicine, while naturally different in some obvious respects, actually both need to grapple with a lot of the same moral, social, and legal questions that come with adopting big data programs. This because, as we discuss below, both professions generally possess a monopoly over an acute societal vulnerability, be it safety or health, and have accordingly developed a set of settled internal norms to shape individual discretion in service of each respective function. We place the professions side-by-side and try to distill certain insights from the perspective of three key stakeholders — practitioners, policymakers, and the polity.
Robert H. Sitkoff & John Morley, A Taxonomy of American Trust Law: Adaptation for Private Ordering, in The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., Oxford Univ. Press forthcoming 2020).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
Oren Bar-Gill, Consumer Misperception in a Hotelling Model: With and Without Price Discrimination, J. Inst. & Theoretical Econ. (forthcoming 2020).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Corporate Law & Securities
Sub-Categories:
Consumer Protection Law
,
Antitrust & Competition Law
,
Law & Economics
Type: Article
Abstract
This paper studies the implications of consumer misperception in a market for a (horizontally) differentiated product. Two distinct type of misperceptions are considered: (i) a common misperception that leads consumers to similarly overestimate the benefit from both firms’ products; and (ii) a relative misperception that leads consumers to overestimate the relative benefit of one firm’s product as compared to the product offered by its competitor. The paper analyzes the implications of misperception for social welfare and consumer surplus. In particular, the effects of price discrimination are considered, for each type of misperception.
Naz K. Modirzadeh, Cut These Words: Passion and International Law of War Scholarship, 61 Harv. Int'l L.J. (forthcoming 2020).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
International Law
,
Laws of Armed Conflict
,
Legal Scholarship
Type: Article
Abstract
In this paper, I explore how international legal scholarship about war, written at a time of war, ought to read. Can — and should — we demand doctrinal rigor and analytical clarity, while also expecting that scholarship makes us feel something, that it connects us to the author, that it captures the intimacy and emotion that human beings experience in relation to war? I use two eras of international legal scholarship on war — namely, the Vietnam era and the War on Terror — to illustrate key moments in the field that were typified by very different kinds of writing and the corresponding differences in thinking and feeling. I argue, in part, that — in contradistinction to passion-filled Vietnam-era scholarship — a particularly influential strand of contemporary scholarship on the United States’ War on Terror adopts a view that is aridly technical, acontextual, and ahistorical. In short, it lacks passion. (I use “passion” as a composite term in an attempt to capture diverse facets of a problem that I am attempting to diagnose.) The Introduction situates this project within broader writing on law and emotions. Part I provides a list of characteristics of what I consider passionate scholarship, using the Vietnam era as an example of that approach. Part II provides a mirrored list of the characteristics of abstract and bloodless scholarship, using the latter part of the War on Terror (2009 onward). The observations compare how scholars of each period contend with the sense of crisis and urgency of their time, the understanding that they (we) were living — and writing — through moments that would be seen as history-changing and law-shifting in the future. Part III examines possible explanations for differences where we ought to see similarities, for absences of scholarly connection where they should be plentiful, and for a seismic shift in the general tone and mood of international legal scholarship on war in less than two generations. Part IV concludes by discussing why we — international lawyers, scholars who feel strongly about war and peace — ought to care about and seek to reverse this shift.
Ioannis Kalpouzos, Double Elevation: Autonomous Weapons, International Law, and the Present Future, 33 Leiden J. Int'l L. (forthcoming 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Laws of Armed Conflict
,
International Law
Type: Article
Robert H. Sitkoff, Extrinsic Fiduciary Duties, in Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding eds., Cambridge Univ. Press forthcoming 2020).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Jonathan Miller & Elora Mukherjee, Health Care for All Must Include Everyone, 174 JAMA Pediatrics 13 (2020).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Health Law & Policy
Type: Article
Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection, 62 Ariz. L. Rev. (forthcoming 2020).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
,
Education Law
Type: Article
Abstract
This article describes the rapidly growing homeschooling phenomenon, and the threat it poses to children and society. Homeschooling activists have in recent decades largely succeeded in their deregulation campaign, overwhelming legislators with aggressive advocacy. As a result, parents can now keep their children at home in the name of homeschooling free from any real scrutiny as to whether or how they are educating their children. Many homeschool precisely because they want to isolate their children from ideas and values central to our democracy. Many promote racial segregation and female subservience. Many question science. Many are determined to keep their children from exposure to views that might enable autonomous choice about their future lives. Abusive parents can keep their children at home free from the risk that teachers will see the signs of abuse and report them to child protection services. Some homeschool precisely for this reason. This article calls for a radical transformation in the homeschooling regime, and a related rethinking of child rights and reframing of constitutional doctrine. It recommends a presumptive ban on homeschooling, with the burden on parents to demonstrate justification for permission to homeschool.
Tali Sharot & Cass R. Sunstein, How People Decide What They Want to Know, 4 Nature Hum. Behav. 14 (2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Administrative Law & Agencies
Type: Article
Abstract
Immense amounts of information are now accessible to people, including information that bears on their past, present and future. An important research challenge is to determine how people decide to seek or avoid information. Here we propose a framework of information-seeking that aims to integrate the diverse motives that drive information-seeking and its avoidance. Our framework rests on the idea that information can alter people’s action, affect and cognition in both positive and negative ways. The suggestion is that people assess these influences and integrate them into a calculation of the value of information that leads to information-seeking or avoidance. The theory offers a framework for characterizing and quantifying individual differences in information-seeking, which we hypothesize may also be diagnostic of mental health. We consider biases that can lead to both insufficient and excessive information-seeking. We also discuss how the framework can help government agencies to assess the welfare effects of mandatory information disclosure.
Arnulf Becker Lorca, Keeping It Together, Universal and European: Cultural Diversity in International Law, in Culture and Order in World Politics: Diversity and its Discontents (A. Phillips & Christian Reus-Smit eds., Cambridge Univ. Press forthcoming 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
European Law
,
International Law
Type: Book
Claudia M. Landeo & Kathryn E. Spier, Optimal Law Enforcement with Ordered Leniency, J.L. & Econ. (forthcoming 2020).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
White Collar Crime
,
Criminal Defense
,
Sentencing & Punishment
,
Law & Economics
Type: Article
Abstract
This paper studies the design of enforcement policies to detect and deter harmful short-term activities committed by groups of injurers. With an ordered-leniency policy, the degree of leniency granted to an injurer who self-reports depends on his or her position in the self-reporting queue. By creating a "race to the courthouse," ordered-leniency policies lead to faster detection and stronger deterrence of illegal activities. The socially-optimal level of deterrence can be obtained at zero cost when the externalities associated with the harmful activities are not too high. Without leniency for self-reporting, the enforcement cost is strictly positive and there is underdeterrence of harmful activities relative to the first-best level. Hence, ordered-leniency policies are welfare improving. Our findings for environments with groups of injurers complement Kaplow and Shavell's (1994) results for single-injurer environments. Experimental evidence provides support for our theory.
J. Mark Ramseyer, Privatizing Police: Japanese Police, the Korean Massacre, and Private Security Firms, in The Cambridge Handbook on Privatization (Avihay Dorfman & Alon Harel eds., forthcoming 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Corruption
,
Government Benefits
,
East Asian Legal Studies
Type: Book
Abstract
Public security is often a non-excludable public good that involves economies of scale. For these obvious reasons, modern democracies provide their residents with basic security services out of the public fisc. Yet the capacity to protect overlaps with the capacity to prey. As a result, regimes in dysfunctional societies sometimes use the public security apparatus to extract benefits. Sometimes the security services use their resources to extract benefits for themselves. Public security is also a normal good: the level of security that people demand tends to increase with income. Hence, wealthier citizens often choose to purchase additional levels of security on the market. In democracies, they do this to supplement the security provided through the public police. In dysfunctional societies, they do this in part to protect themselves from the public police. I illustrate several of these simple principles with examples from Japan: the development of the modern police force, the Korean massacre after the 1923 earthquake, and the development of modern private security firms.
Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. (forthcoming, 2020).
Categories:
Property Law
,
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
First Amendment
,
Torts
,
Property Rights
,
Real Estate
Type: Article
Abstract
In cities across the country, artists, protestors, and businesses are using light projections to turn any building’s façade into a billboard, often without the owner’s consent. Examples are legion: “Believe Women” on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the courts held that because light is intangible and the projections result in no economic harm to the property, the common law affords no relief. This Article argues that property law can and should address projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability for targeted projections. Projections are forms of appropriation: they disrupt the owner’s use and control, but they also cause dignity and privacy harms by exploiting the owner’s realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article offers a pathway to mend the gap despite hurdles in both nuisance and First Amendment law. More generally, the projection cases teach broader lessons about the development of the property torts, the relationship between privacy and property, and the nature of property itself.
Thomas W. Merrill & Henry E. Smith, The Architecture of Property, in Research Handbook on Private Law Theories (Hanoch Dagan & Benjamin Zipursky eds., forthcoming 2020).
Categories:
Property Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
Type: Book
Abstract
Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additiviely simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revsit some basic questions in property theory and to capture the dyanamic reality of property law and institutions.
Benjamin Eidelson, Respect, Individualism, and Colorblindness, 129 Yale L.J. (forthcoming 2020).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Race & Ethnicity
,
Legal Theory & Philosophy
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
What principle underlies the Supreme Court’s “colorblind” or “anticlassification” approach to race and equal protection? According to the Court and many commentators, the answer lies in a kind of individualism—a conviction that people should be treated as individuals, not as instances of racial types. Yet the Court has said almost nothing about what it means to treat someone “as an individual.” This Article excavates the philosophical foundations of that idea. And in so doing, it offers a framework for understanding, and then evaluating, the Court’s assertions that the government fails to treat people as individuals when it classifies them by race. Rightly understood, the Article argues, treating people as individuals means showing respect for their individuality—a central facet of their moral standing as persons. To evaluate the claimed linkage between individualism and colorblindness, then, one first has to consider what respect for a person’s individuality involves. Drawing on the philosophical literatures on respect and autonomy, the Article offers an answer to that question: Treating someone as an individual requires taking due account of the information conveyed by her self-defining choices. But that answer entails that respect for a person’s individuality does not inherently require, or even favor, disregard of information carried by her race. The Article thus offers an internal critique of the Supreme Court’s avowedly “individualistic” approach to race and equal protection; it shows that the central moral argument for colorblindness rests on too shallow an account of what individualism itself demands. Building on that conclusion, the Article then turns to suggestions that racial distinctions—whatever their intrinsic moral status—are nonetheless stamped with social meanings that render them disrespectful of a person’s individuality. Even if such a symbolic norm might justify limiting integrative race-based state action, the Article contends, the recognition that no more basic moral wrong is at work should transform how the colorblindness project is carried out. Most fundamentally, that recognition should prompt the Court to enforce colorblindness, if it does, with regret rather than indignation. And most concretely, it should lead the Court to decide cases and write opinions in ways that avoid further entrenching respect conventions that operate as obstacles to valuable means of racial repair. In sum, with the Court poised to double-down on colorblindness in the years ahead, this Article surfaces the internal challenges that an intellectually serious form of the doctrine would need to address and charts the course that a more reflective colorblindness doctrine might take.
Thomas W. Merrill & Henry E. Smith, The Architecture of Property, in Research Handbook on Private Law Theories (Hanoch Dagan & Benjamin Zipursky eds., forthcoming 2020).
Categories:
Property Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
Type: Book
Abstract
Avoiding the reduction of property to a bundle or rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additively simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications, which can be different from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revisit some basic questions in property theory and to capture the dyanamic reality of property law and institutions.
J. Mark Ramseyer, The Japanese Judiciary, in The Oxford Handbook of Japanese Politics (Robert Pekkanen & Saadia Pekkanen, eds., forthcoming 2020).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
,
East Asian Legal Studies
Type: Book
Abstract
In this essay for the Oxford Handbook of Japanese Politics, I survey the state of (and the research into) the Japanese judiciary. Japan operates a largely honest and meritocratic judiciary. The court's administrative office (and indirectly, the ruling party) can reward and punish judge for the quality of the work they do -- and has. For the most part, the administrative office uses that capacity to reward good work. It can also use the capacity to punish opposition politics -- but self-selection into the judiciary seems to keep the (perceived) need for that political intervention to a minimum.
Daphna Renan, The President's Two Bodies, 120 Colum. L. Rev. (forthcoming 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Public Law
,
Separation of Powers
Type: Article
Abstract
The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office. The goal of this article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It illuminates both our contestations over, and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.
Daniel Tarullo, Time-Varying Measures in Financial Regulation, 83 Law & Contemp. Probs. (forthcoming 2020).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Risk Regulation
,
Banking
Type: Article
Abstract
The financial crisis considerably strengthened the case for a “macro-prudential” component in financial regulation – that is, regulatory measures developed and implemented with a view to the stability of the financial system as a whole, rather than with sole attention to the circumstances of individual financial firms. Of particular conceptual appeal are time-varying measures that would discourage the creation of excessive risk, or at least augment the resiliency of firms and markets that could suffer greater losses in periods of economic or financial stress. Unfortunately, the analytic, political and practical hurdles to imposing effective time-varying measures during good times – whether through rules or discretionary action – are substantial. And, during periods of stress, market forces may demand that firms maintain fortress balance sheets, thereby thwarting the macro-prudential aim of allowing those firms to support economic activity through new lending that reduces capital levels and draws down liquidity reserves. This short paper examines these challenges through two examples – counter-cyclical capital requirements and the liquidity coverage ratio. It also suggests an approach that might begin to overcome these challenges, tough only partially and only for macro-prudential measures that increase regulatory requirements. The problem of market constraints on macro-prudential relaxation of requirements remains a problem.
John Morley & Robert Sitkoff, Trust Law: Private Ordering and the Branching of American Trust Law, in The Oxford Handbook of New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith, eds., forthcoming 2020).
Categories:
Civil Practice & Procedure
,
Property Law
,
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Commercial Law
,
Business Organizations
,
Fiduciaries
,
Corporate Bankruptcy & Reorganization
,
Private Law
,
Trusts
,
Estate Planning
Type: Book
Abstract
In this chapter, prepared for The Oxford Handbook of New Private Law, we identify the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. We argue that in both law and function, contemporary American trust law has divided into distinct branches. In our taxonomy, one branch involves donative trusts and the other commercial trusts. The donative branch divides further to include separate sub-branches for revocable and irrevocable donative trusts. We explain the logic of this branching in both practical function and doctrinal form.
Frank I. Michelman, Legitimacy and Moral Support, 17 Int'l J. Const. L. 1059 (2019).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Political Theory
Type: Article
Martha Minow, Foreword to A Federal Right to Education: Fundamental Questions for Our Democracy (Kimberly Jenkins Robinson ed., 2019).
Categories:
Family Law
Sub-Categories:
Education Law
Type: Book
Abstract
The United States Supreme Court closed the courthouse door to federal litigation to narrow educational funding and opportunity gaps in schools when it ruled in San Antonio Independent School District v. Rodriguez in 1973 that the Constitution does not guarantee a right to education. Rodriguez pushed reformers back to the state courts where they have had some success in securing reforms to school funding systems through education and equal protection clauses in state constitutions, but far less success in changing the basic structure of school funding in ways that would ensure access to equitable and adequate funding for schools. Given the limitations of state school funding litigation, education reformers continue to seek new avenues to remedy inequitable disparities in educational opportunity and achievement, including recently returning to federal court. This book is the first comprehensive examination of three issues regarding a federal right to education: why federal intervention is needed to close educational opportunity and achievement gaps; the constitutional and statutory legal avenues that could be employed to guarantee a federal right to education; and, the scope of what a federal right to education should guarantee. A Federal Right to Education provides a timely and thoughtful analysis of how the United States could fulfill its unmet promise to provide equal educational opportunity and the American Dream to every child, regardless of race, class, language proficiency, or neighborhood.
Holger Spamann, On Inference When Using State Corporate Laws for Identification (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1024, Eur. Corp. Governance Inst. Fin. Working Paper No. 644/2019, Dec. 17, 2019).
Categories:
Corporate Law & Securities
,
Government & Politics
Sub-Categories:
Corporate Law
,
Corporate Governance
,
State & Local Government
Type: Other
Abstract
A popular research design identifies the effects of corporate governance by (changes in) state laws, clustering standard errors by state of incorporation. Using Monte-Carlo simulations, this paper shows that conventional statistical tests based on these standard errors dramatically overreject: in a typical design, randomly generated “placebo laws” are “significant” at the 1/5/10% level 9/21/30% of the time. This poor coverage is due to the extremely unequal cluster sizes, especially Delaware's concentration of half of all incorporations. Fixes recommended in the literature fail, including degrees-of-freedom corrections and the cluster wild bootstrap. The paper proposes a permutation test for valid inference.
Yochai Benkler, Power and Productivity: Institutions, Ideology, and Technology in Political Economy (Dec. 14, 2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
,
Networked Society
Type: Other
Abstract
Market democracies struggle with economic insecurity and growing inequality, presenting new threats to democracy. The revival of “political economy” offers a frame for understanding the relationship between productivity and justice in market societies. It reintegrates power and the social and material context — institutions, ideology, and technology — into our analysis of social relations of production, or how we make and distribute what we need and want to have. Organizations and individuals, alone and in networks, struggle over how much of a society’s production happens in a market sphere, how much happens in nonmarket relations, and how embedded those aspects that do occur in markets are in social relations of mutual obligation and solidarism. These struggles involve efforts to shape institutions, ideology, and technology in ways that trade off productivity and power, both in the short and long term. The outcome of this struggle shapes the highly divergent paths that diverse market societies take, from oligarchic to egalitarian, and their stability as pluralistic democracies.
Boris Babic, Sara Gerke, Theodoros Evgeniou & I. Glenn Cohen, Algorithms on Regulatory Lockdown in Medicine, 366 Science 1202 (2019).
Categories:
Health Care
,
Technology & Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Health Law & Policy
,
Bioethics
,
Science & Technology
,
Medical Technology
Type: Article
Cass R. Sunstein, Back to Mill? Behavioral Welfare Economics (Dec. 6, 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Other
Abstract
A growing body of normative work, going under the name of “behavioral welfare economics,” explores how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost-benefit analysis, and regulatory policy. The best approach adopts a working presumption in favor of respect for those choices, but only so long as they are adequately informed and sufficiently free from behavioral biases. For purposes of law, it is most helpful to emphasize that people may choose the wrong means to promote their own ends; in principle, that possibility may legitimate nudges, incentives, or mandates. But for both empirical and philosophical reasons, those interested in law and policy, or in welfare itself, should be cautious about making strong normative claims about whether people choose the right ends. Behavioral welfare economics, and behaviorally informed analysts of law, should be committed to the working presumption and its practical specifications, with humility and aware of the inevitability of taking a stand on some fundamental philosophical issues.
Justin Clark, Robert Faris, Urs Gasser, Adam Holland, Hilary Ross & Casey Tilton, Content and Conduct: How English Wikipedia Moderates Harmful Speech (Dec. 4, 2019).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Commons
,
Communications Law
Type: Other
Abstract
In this study, we aim to assess the degree to which English-language Wikipedia is successful in addressing harmful speech with a particular focus on the removal of deleterious content. We have conducted qualitative interviews with Wikipedians and carried out a text analysis using machine learning classifiers trained to identify several variations of problematic speech. Overall, we conclude that Wikipedia is largely successful at identifying and quickly removing a vast majority of harmful content despite the large scale of the project. The evidence suggests that efforts to remove malicious content are faster and more effective on Wikipedia articles compared to removal efforts on article talk and user talk pages. Over time, Wikipedia has developed a multi-layered system for discovering and addressing harmful speech. The system relies most heavily on active patrols of editors looking for damaging content and is complemented by automated tools. This combination of tools and human review of new text enables Wikipedia to quickly take down the most obvious and egregious cases of harmful speech. The Wikipedia approach is decentralized and defers much of the judgement about what is permissible or not to its many editors and administrators. Unlike some social media platforms, which strive to clearly articulate what speech is acceptable or not, Wikipedia has no concise summary of what is acceptable and not. Empowering individuals to make judgement about content, which extends to content and conduct that some would deem harmful, naturally leads to variation across editors in the way that Wikipedia’s guidelines and policies are interpreted and implemented. The general consensus among those editors interviewed for this project was that Wikipedia’s many editors make different judgement about addressing harmful speech. The interviewees also generally agreed that efforts to enforce greater uniformity in editorial choices would not be fruitful. To understand the prevalence and modalities of harmful speech on Wikipedia, it is important to recognize that Wikipedia is comprised of several distinct, parallel regimes. The governance structures and standards that shape the decisions of Wikipedia articles are significantly different from the processes that govern behavior on article talk pages, user pages, and user talk pages. Compared to talk pages, Wikipedia articles receive a majority of the negative attention from vandals and trolls. They are also the most carefully monitored. The very nature of the encyclopedia-building enterprise and the intensity of vigilance employed to fight vandals who target articles means that Wikipedia is very effective at removing harmful speech from articles. Talk pages, the publicly viewable but behind-the-scenes discussion pages where editors debate changes, are often the location of heated and bitter debates over what belongs in Wikipedia. Removal of harmful content from articles, particularly when done quickly, is most likely a deterrent for bad behavior. It is also an effective remedy for the problem. If seen by very few readers, the fleeting presence of damaging content results in proportionately small harm. On the other hand, the personal attacks on other Wikipedians — frequently on talk pages — is not as easily mitigated. Taking down the offending content is helpful but does not entirely erase the negative impact on the individual and community. Governing discourse among Wikipedians continues to be a major challenge for Wikipedia and one not fixed by content removal alone.  This study, which builds upon prior research and tools, focuses on the removal of harmful content. A related and arguably more consequential question is the effectiveness of efforts to inhibit and prevent harmful speech from occurring on the platform in the first place by dissuading this behavior ex ante rather than mopping up after the fact. Future research could adopt similar tools and approaches to this report to track the incidence of harmful speech over time and to test the effectiveness of different interventions to foster pro-social behavior. The sophisticated and multi-layer mechanisms for addressing harmful speech developed and employed by Wikipedia that we describe in this report arguably represent the most successful large-scale effort to moderate harmful content, despite the ongoing challenges and innumerable contentious debates that shape the system and outcomes we observe. The approaches and strategies employed by Wikipedia provide valuable lessons to other community-reliant online platforms. Broader applicability is limited as the decentralized decision-making and emergent norms of Wikipedia constrain the transferability of these approaches and lessons to commercial platforms.
Mark Tushnet, A Short History of European Law: The Last Two and a Half Millennia, 49 J. Interdisc. Hist. 492 (2019)(reviewing Benjamin Lieberman & Elizabeth Gordon, Climate Change in Human History (2018)).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Climate Change
,
European Law
,
Legal History
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Oren Bar-Gill, Choice Theory and the Economic Analysis of Contracts: Comments on Dagan and Heller's, The Choice Theory of Contracts, 20 Jerusalem Rev. Legal Stud. 79 (2019).
Categories:
Disciplinary Perspectives & Law
,
Banking & Finance
,
Consumer Finance
Sub-Categories:
Contracts
,
Economics
,
Consumer Contracts
,
Law & Economics
Type: Article
John H. Rex, Holly Fernandez Lynch, I. Glenn Cohen, Jonathan J. Darrow & Kevin Outterson, Designing Development Programs for Non-Traditional Antibacterial Agents, 10 Nature Comm. no. 3416 (2019).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Administrative Law & Agencies
,
Bioethics
,
Food & Drug Law
Type: Article
Abstract
In the face of rising rates of antibacterial resistance, many responses are being pursued in parallel, including ‘non-traditional’ antibacterial agents (agents that are not small-molecule drugs and/or do not act by directly targeting bacterial components necessary for bacterial growth). In this Perspective, we argue that the distinction between traditional and non-traditional agents has only limited relevance for regulatory purposes. Rather, most agents in both categories can and should be developed using standard measures of clinical efficacy demonstrated with non-inferiority or superiority trial designs according to existing regulatory frameworks. There may, however, be products with non-traditional goals focused on population-level benefits that would benefit from extension of current paradigms. Discussion of such potential paradigms should be undertaken by the development community.
Lucian A. Bebchuk & Scott Hirst, Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy, 119 Colum. L. Rev. 2029 (2019).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Investment Products
,
Shareholders
,
Securities Law & Regulation
,
Corporate Governance
,
Corporate Law
Type: Article
Abstract
Index funds own an increasingly large proportion of American public companies. The stewardship decisions of index fund managers--how they monitor, vote, and engage with their portfolio companies--can be expected to have a profound impact on the governance and performance of public companies and the economy. Understanding index fund stewardship, and how policymaking can improve it, is thus critical for corporate law scholarship. In this Article we contribute to such understanding by providing a comprehensive theoretical, empirical, and policy analysis of index fund stewardship. We begin by putting forward an agency-costs theory of index fund incentives. Stewardship decisions by index funds depend not just on the interests of index fund investors but also on the incentives of index fund managers. Our agency-costs analysis shows that index fund managers have strong incentives to (i) underinvest in stewardship and (ii) defer excessively to the preferences and positions of corporate managers. We then provide an empirical analysis of the full range of stewardship activities that index funds do and do not undertake, focusing on the three largest index fund managers, which we collectively refer to as the “Big Three.” We analyze four dimensions of the Big Three's stewardship activities: the limited personnel time they devote to stewardship regarding most of their portfolio companies; the small minority of portfolio companies with which they have any private communications; their focus on divergences from governance principles and their limited attention to other issues that could be significant for their investors; and their pro-management voting patterns. We also empirically investigate five ways in which the Big Three could fail to undertake adequate stewardship: the limited attention they pay to financial underperformance; their lack of involvement in the selection of directors and lack of attention to important director characteristics; their failure to take actions that would bring about governance changes that are desirable according to their own governance principles; their decision to stay on the sidelines regarding corporate governance reforms; and their avoidance of involvement in consequential securities litigation. We show that this body of evidence is, on the whole, consistent with the incentive problems that our agency-costs framework identifies. Finally, we put forward a set of reforms that policymakers should consider in order to address the incentives of index fund managers to underinvest in stewardship, their incentives to be excessively deferential to corporate managers, and the continuing rise of index investing. We also discuss how our analysis should reorient important ongoing debates regarding common ownership and hedge fund activism. The policy measures we put forward, and the beneficial role of hedge fund activism, can partly but not fully address the incentive problems that we analyze and document. These problems are expected to remain a significant aspect of the corporate governance landscape and should be the subject of close attention by policymakers, market participants, and scholars.
Sarah McGraw, Chris Deubert, Holly Fernandez Lynch, Alixandra Nozzolillo & I. Glenn Cohen, NFL or 'Not For Long'? Transitioning Out of the NFL, 42 J. Sport Behav. 461 (2019).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Gaming & Sports Law
,
Health Law & Policy
Type: Article
Abstract
Like many other elite athletes, National Football League (“NFL”) players typically have a short playing career, often leaving the league due to injury or lack of interest from teams before they have been able to prepare sufficiently for life after the league. This qualitative study examines the experiences of NFL players related to preparing for the transition out of professional sports. We completed interviews with a total of 25 players including both current and former players, as well as 27 family members of former and current players. Factors that affected their career preparation included features of the NFL work environment which necessitated an emphasis on football over other interests, identity foreclosure that made it difficult to consider other career options, limited exposure to other professions, and challenges with financial planning. Social contacts had both positive and negative effects on players’ preparation but family, particularly wives, provided important support. Our findings point to policies that might guide players in their preparation for life as former players including instituting mandatory training and counseling concerning these issues, beginning in a player’s rookie year, and continuing throughout players’ tenures in the league.
Annette Gordon-Reed, What Jefferson Couldn't Teach, Atlantic, Dec. 2019, at 120 (reviewing Alan Taylor, Thomas Jefferson's Education (2019)).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Executive Office
,
Legal History
Type: Article
Carol S. Steiker & Jordan M. Steiker, Comparative Capital Punishment (2019).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Capital Punishment
,
Comparative Law
Type: Book
Abstract
Comparative Capital Punishment offers a set of in-depth, critical and comparative contributions addressing death practices around the world. Despite the dramatic decline of the death penalty in the last half of the twentieth century, capital punishment remains in force in a substantial number of countries around the globe. This research handbook explores both the forces behind the stunning recent rejection of the death penalty, as well as the changing shape of capital practices where it is retained. The expert contributors address the social, political, economic, and cultural influences on both retention and abolition of the death penalty and consider the distinctive possibilities and pathways to worldwide abolition.
John C.P. Goldberg, Compensating Distress with a Stiff Upper Lip, Jotwell Torts (Nov. 21, 2019)(reviewing Eric Descheemaeker, Rationalising Recovery for Emotional Harm in Tort Law, 134 L.Q. Rev. 602 (2018)).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
Type: Article
Holger Spamann & Guhan Subramanian, Corporations: Statutory Supplement: 2019/20 (2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Securities Law & Regulation
Type: Book
Abstract
This statutory supplement (fall 2019 edition) is for the Corporations casebook by Holger Spamann and Guhan Subramanian. It contains excerpts from the Delaware General Corporation Law, the Securities Exchange Act of 1934, Rules & Regulations promulgated by the Securities Exchange Commission pursuant to authority granted under the 1934 Act, as well as short excerpts from the Restatement of the Law Third (Agency) and the Uniform Partnership Act of 1914. It is current as of August 1, 2019.
Henry J. Steiner, Prologue, Limits and their Varieties, in The Limits of Human Rights 23 (Bardo Fassbender & Knut Traisbach eds., 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
What are the limits of human rights, and what do these limits mean? This volume engages critically and constructively with this question to provide a distinct contribution to the contemporary discussion on human rights.
Nicholas Stephanopoulos, The Anti-Carolene Court (U. Chi. Pub. L. Working Paper No. 734, forthcoming 2019 Sup. Ct. Rev.).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
Once upon a time, Carolene Products provided an inspiring charter for the exercise of the power of judicial review. Intervene to correct flaws in the political process, Carolene instructed courts, but otherwise allow American democracy to operate unimpeded. In this Article, I use the Supreme Court’s recent decision in Rucho v Common Cause to argue that the current Court flips Carolene on its head. It both fails to act when the political process is malfunctioning and intercedes to block other actors from ameliorating American democracy. Rucho is the quintessential example of judicial apathy when, under Carolene, judicial engagement was sorely needed. The Court acknowledged that partisan gerrymandering offends democratic values like majoritarianism, responsiveness, and participation. But the Court didn’t take the obvious next step under Carolene and hold that extreme gerrymanders are unlawful. Instead it went in exactly the opposite direction, announcing that partisan gerrymandering claims are categorically nonjusticiable. Rucho, however, is only the tip of the current Court’s anti-Carolene spear. Past cases have compounded (and future cases will likely exacerbate) the democratic damage by preventing non-judicial institutions from addressing defects in the political process. Looking back, the Court’s campaign finance decisions have struck down regulation after regulation aimed at curbing the harms of money in politics. Looking forward, the Court may well nullify the main non-judicial response to gerrymandering: independent redistricting commissions adopted through voter initiatives. What can possibly explain this doctrinal pattern? Conventional modes of analysis — originalism, judicial restraint, respect for precedent, and so on — all fail as justifications. They’re riddled by too many exceptions to be persuasive. What does seem to run like a red thread through the current Court’s rulings, though, is partisanship. The anti-Carolene Court may spurn pro-democratic judicial review in part because, at this historical juncture, it often happens to be pro-Democratic.
Stephen E. Shay, A GILTI High-Tax Exclusion Election Would Erode the U.S. Tax Base, 165 Tax Notes Fed. 1129 (2019).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
,
Taxation - Exemptions
,
Taxation - International
,
Taxation - Corporate
Type: Article
Abstract
This article is slightly edited from a public comment letter originally submitted to Treasury and the IRS. The article argues that the proposed elective expansion of a high-tax exclusion from the reach of GILTI is inconsistent with the statute, loses revenue, and exacerbates the TCJA’s failure to allocate and disallow expenses incurred to earn foreign income exempted from U.S. taxation. The article explains that allowing a deduction for expenses incurred to earn exempt foreign income is a subsidy for the foreign investment. Taxation of the income to which the expense would be allocated by another country does not alter the character of the expense allowance, against other taxable income, as an unjustified subsidy by U.S. taxpayers of U.S. multinationals’ foreign investments.
Ruth Okediji, Navigating Access to Knowledge: Copyright, Fake News, Fair Use, and Libraries, 2018 Proc. Charleston Libr. Conf. 15 (2019).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
,
Communications Law
,
Networked Society
,
Digital Property
Type: Presentation
Abstract
New technologies have profoundly changed the way content is produced, shared, and disseminated. Some commentators argue that the ubiquity of digitized content means that libraries have become superfluous in the digital age. This presentation presents evidence to the contrary. It will discuss challenges for libraries arising from globalized copyright, including issues related to fake news and threats to fair use. The presentation will also highlight the strategic ways libraries are being embedded in the design of copyright law nationally and globally, exploring whether these developments–that are sometimes conflicting–are good for libraries and the public in the long term.
Jonathan Zittrain, A Jury of Random People Can Do Wonders for Facebook, The Atlantic (Nov. 14, 2019, 6:00 AM).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
Networked Society
,
Communications Law
Type: Other
Andrew Manuel Crespo, The Unavoidably Empirical Fourth Amendment: A Case Study of Kansas v. Glover, 1 Cts. & Just. L.J. 217 (2019).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
Type: Article
Abstract
In Kansas v. Glover, the Supreme Court will consider whether a police officer has reasonable suspicion to believe that a vehicle is being driven by its registered owner — as opposed to some other authorized driver — when the sole fact known to the officer at the time of the stop is that the registered owner is not, in fact, lawfully allowed to drive any vehicle at all. This essay, adapted from an amicus brief filed in the Glover case, argues that the proper Fourth Amendment analysis in that case is unavoidably empirical in nature: The key question in the case can and should be resolved by real-world data, which the State in Glover was well-positioned to collect and present. Because it failed to do so, the State did not satisfy its burden of proof, and injected a narrow but significant error into the case that requires suppression, even if that result would not necessarily obtain in other cases arising in similar circumstances.
Eli Adashi & I. Glenn Cohen, Heritable Genome Editing—Edited Eggs and Sperm to the Rescue?, 322 JAMA 1754 (2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
Type: Article
W. Nicholson Price, Sara Gerke & I. Glenn Cohen, Potential Liability for Physicians Using Artificial Intelligence, 322 JAMA 1765 (2019).
Categories:
Health Care
,
Technology & Law
,
Civil Practice & Procedure
Sub-Categories:
Torts
,
Bioethics
,
Health Law & Policy
,
Medical Technology
Type: Article
Lawrence Lessig, They Don't Represent Us: Reclaiming Our Democracy (2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Government Accountability
Type: Book
Abstract
With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Joseph William Singer, Persuasion: Getting to the Other Side (2019).
Categories:
Legal Profession
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Litigation & Settlement
,
Legal Education
,
Professional Responsibility
Type: Book
Abstract
Lawyers have techniques to persuade decision-makers about what the law should be. Their normative toolkit uses arguments based on common values, storytelling, and framing to help us see our own values in a new light. These tools of reasoned argument enable us to engage in civil debate about divisive issues and to justify decisions in hard cases. Persuasion: Getting to the Other Side categorizes the arguments that lawyers use in debates about ambiguous or contested legal questions. It also explains how judges justify their decisions about what the law should be when the case involves competing values and there are plausible arguments on both sides. The goal is to provide law students with a toolkit to help them engage in reasoned arguments about what the law should be.
Jed S. Rakoff & Todd D. Rakoff, Arbitration, “Pseudo-Contract,” and Objective Theory, 133 Harv. L. Rev. F. 13 (2019).
Categories:
Civil Practice & Procedure
,
Consumer Finance
,
Banking & Finance
Sub-Categories:
Contracts
,
Consumer Contracts
,
Arbitration
,
Dispute Resolution
Type: Article
Oren Bar-Gill, David Schkade & Cass R. Sunstein, Drawing False Inferences from Mandated Disclosures, 3 Behavioural Pub. Pol'y 209 (2019).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Disclosure mandates are pervasive. Though designed to inform consumers, such mandates may lead consumers to draw false inferences – for example, that a product is harmful when it is not. When deciding to require disclosure of an ingredient in or characteristic of a product, regulators may be motivated by evidence that the ingredient or characteristic is harmful to consumers. But they may also be motivated by a belief that consumers have a right to know what they are buying or by interest-group pressure. Consumers who misperceive the regulator’s true motive, or mix of motives, will draw false inferences from the mandated disclosure. If consumers think that the disclosure is motivated by evidence of harm, when in fact it is motivated by a belief in a right-to-know or by interest-group pressure, then they will be inefficiently deterred from purchasing the product. We analyze this general concern about disclosure mandates. We also offer survey evidence demonstrating that the risk of false inferences is serious and real. Our framework has implications for the ongoing debate over the labeling of food with genetically modified organisms (GMOs); it suggests that the relevant labels might prove misleading to some or many consumers, producing a potentially serious welfare loss. Under prevailing executive orders, regulators must consider that loss and if feasible, quantify it.
Dov Fox, I. Glenn Cohen & Eli Y. Adashi, Fertility Fraud, Legal Firsts, and Medical Ethics, 134 Obstetrics & Gynecology 918 (2019).
Categories:
Health Care
,
Family Law
Sub-Categories:
Reproduction
,
Bioethics
,
Genetics & Reproduction
Type: Article
Abstract
On May 5, 2019, Indiana became the first state to legislate against a doctor’s failure to obtain his fertility patient’s consent before inseminating her using his own sperm. Less than a month later, Texas passed an even stricter law against fertility fraud, as the practice is called. The explosion of at-home DNA testing has recently uncovered dozens of doctors who conceived scores of offspring using their own sperm instead of the samples provided by a spouse, an unknown donor, or a donor that the patients had selected. This revelation has upended families, revealed webs of biological half-siblings, and confounded the legal system. Fertility fraud is a pressing case study about the demands of informed consent and modern struggles between patient wellbeing and autonomy in the clinical practice of obstetric and fertility medicine. The answers to these hard questions are also giving rise to new criminal and civil penalties that are codifying those developments in medical ethics into law.
Jack Goldsmith, Jimmy Hoffa, My Stepfather, and Me, Atlantic, Nov. 2019, at 94.
Categories:
Criminal Law & Procedure
,
Labor & Employment
,
Technology & Law
Sub-Categories:
Organized Crime
,
Criminal Justice & Law Enforcement
,
Labor Law
,
Information Privacy & Security
Type: Article
Jeremy Snyder & I. Glenn Cohen, Medical Crowdfunding for Unproven Medical Treatments: Should GoFundMe Become a Gatekeeper?, 49 Hastings Ctr. Rep. 32 (2019).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Information Privacy & Security
,
Networked Society
Type: Article
Abstract
Medical crowdfunding has raised many ethical concerns, among them that it may undermine privacy, widen health inequities, and commodify health care. One motivation for medical crowdfunding has received particular attention among ethicists. Recent studies have shown that many individuals are using crowdfunding to finance access to scientifically unsupported medical treatments. Recently, GoFundMe prohibited campaigns for antivaccination groups on the grounds that they “promote misinformation about vaccines” and for treatment at a German clinic offering unproven cancer treatments due to “the need to make sure people are equipped to make well-informed decisions.” GoFundMe has not taken any additional actions to regulate the much larger presence of campaigns seeking to fund unproven medical interventions on the platform. In this article, we make the ethical case for intervention by GoFundMe and other crowdfunding platforms.
Jeannie Suk Gersen, Sex Lex Machina: Intimacy and Artificial Intelligence, 119 Colum. L. Rev. 1793 (2019).
Categories:
Technology & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Digital Property
,
Networked Society
Type: Article
Abstract
Sex robots are here. Created specifically to allow individuals to simulate erotic and romantic experiences with a seemingly alive and present human being, sex robots will soon force lawmakers to address the rise of digisexuality and the human-robot relationship. The extent to which intimacy between a human and robot can be regulated depends on how we characterize sex with robots--as a masturbatory act, an intimate relationship, or nonconsensual sexual contact-- and whether sexual activity with robots makes us see robots as more human or less human. A robot sex panic may be driven primarily by the idea that robots are servile by nature. Critics argue that an inherently nonreciprocal dynamic between humans and robots will translate into exploitative relationships that may fuel abuse of human partners, or that sex robots may further social isolation and retreat from human intimacy. Conversely, sex robots may function as safe--and otherwise unavailable--sexual and emotional outlets for those who may otherwise harm others. They may even train individuals to be more respectful in human relationships. At this point, we do not know how our relationships with robots will inform our relationships with humans, for better or for worse. This Essay explores the consequences of sex robots on society and argues that questions of how sex robots will improve or worsen humans' treatment of one another is the key to regulation to come. What is clear is that sex robots will require us to grapple with our vulnerabilities in relationships, reconsider fundamental rights, and question what it means to be intimate and to be human.
Carol S. Steiker & Jordan M. Steiker, The American Death Penalty: Alternative Model for Ordinary Criminal Justice or Exception that Justifies the Rule?, 22 New Crim. L. Rev. 359 (2019).
Categories:
Criminal Law & Procedure
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Eighth Amendment
,
Capital Punishment
,
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
,
Criminal Defense
,
Supreme Court of the United States
Type: Article
Abstract
The Supreme Court’s constitutional regulation of the American death penalty has yielded a plethora of doctrines that have shaped an alternative criminal justice process that is (mostly) limited to capital cases. Many of these doctrines offer a vision and practice of “roads not taken” in the ordinary criminal justice process that would be attractive improvements in that larger system. We consider three of these doctrines: (1) more searching review of the proportionality of sentencing outcomes; (2) imposition of a requirement of individualized sentencing that has led to the investigation and presentation of in-depth evidence in mitigation; and (3) greater regulation of the adequacy of defense counsel that has moved closer to a “checklist” model of mandated practices. Each of these doctrines was born and developed under the Court’s “death is different” regime of constitutional regulation, and each of them has to some limited extent moved beyond the strictly capital context into the broader criminal justice process. We explain how these alternative models present attractive improvements for the broader noncapital system—a view that casts the Court’s regulation of the American death penalty as a progressive laboratory that can yield alternative, more protective, and more idealized processes for the ordinary criminal justice system. Yet we also caution that the “differentness” of death—and of juvenile offenders, the noncapital context to which the Court is most likely to import its death penalty innovations—can also serve to normalize and entrench the less protective, less idealized practices that exist outside of these realms.
Laura Weinrib, The Limits of Dissent: Reassessing the Legacy of the World War I Free Speech Cases, 44 J. Sup. Ct. Hist. 278 (2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Judges & Jurisprudence
,
Military, War, & Peace
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Richard Lazarus, Two Cases Counter Trend of Less Importance to Environmental Law, 36 Envtl. F., Nov.-Dec. 2019, at 13.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Equity and Law: Fusion and Fission (John C.P. Goldberg, Henry E. Smith & Peter G. Turner eds., 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Remedies
,
Legal Theory & Philosophy
,
Comparative Law
,
Legal History
Type: Book
Abstract
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world. Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue. Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others. Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.
Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (forthcoming 2019).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Criminal Prosecution
,
Ancient Law
,
Foreign Law
,
Legal History
Type: Book
Abstract
This book explores the role of mens rea, broadly defined, as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word “felony” itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, willed in a way not constrained by necessity, and evil or wicked in its essence. Examines what factors juries weighed in sorting the guilty from the innocent in the first two centuries of the criminal trial jury. Situates the medieval English law of felony in a broader cultural, social, and religious setting. Speaks to current controversies in the field of criminal law, such as the role of intentionality in determining the bounds of criminal responsibility.
Samantha Power, Opinion, A Belated Recognition of Genocide, N.Y. Times, Oct. 30, 2019, at A29.
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Congress & Legislation
,
Foreign Relations
,
Human Rights Law
Type: News
Cass R. Sunstein, Maximin (Oct. 29, 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
For regulation, some people argue in favor of the maximin rule, by which public officials seek to eliminate the worst worst-cases. The maximin rule has not played a formal role in regulatory policy in the Unites States, but in the context of climate change or new and emerging technologies, regulators who are unable to conduct standard cost-benefit analysis might be drawn to it. In general, the maximin rule is a terrible idea for regulatory policy, because it is likely to reduce rather than to increase well-being. But under four imaginable conditions, that rule is attractive. (1) The worst-cases are very bad, and not improbable, so that it may make sense to eliminate them under conventional cost-benefit analysis. (2) The worst-case outcomes are highly improbable, but they are so bad that even in terms of expected value, it may make sense to eliminate them under conventional cost-benefit analysis. (3) The probability distributions may include “fat tails,” in which very bad outcomes are more probable than merely bad outcomes; it may make sense to eliminate those outcomes for that reason. (4) In circumstances of Knightian uncertainty, where observers (including regulators) cannot assign probabilities to imaginable outcomes, the maximin rule may make sense. (It may be possible to combine (3) and (4).) With respect to (3) and (4), the challenges arise when eliminating dangers also threatens to impose very high costs or to eliminate very large gains. There are also reasons to be cautious about imposing regulation when technology offers the promise of “moonshots,” or “miracles,” offering a low probability or an uncertain probability of extraordinarily high payoffs. Miracles may present a mirror-image of worst-case scenarios.
Alexa Hasse, Sandra Cortesi, Andres Lombana & Urs Gasser, Youth and Cyberbullying: Another Look (Berkman Klein Ctr. Res. Publ'n No. 2019-4, Oct. 29, 2019).
Categories:
Technology & Law
,
Family Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
,
Cyberlaw
Type: Other
Abstract
This spotlight presents Youth and Media’s overview of recent, primarily academic literature on youth (ages 12-18) and cyberbullying and seeks to translate scholarly work for a public audience — including parents and caregivers, schools and educators, Internet companies, and governmental entities. The paper is meant to help shape these stakeholders’ current and future endeavors that aim to address cyberbullying and provide practical, impactful guidance on preventing and responding to cyberbullying among young people.
Benjamin Eidelson, A Way Out for the Court on DACA, N.Y. Times, Oct. 28, 2019, at A23.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Immigration Law
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
Type: News
Cass R. Sunstein, Like a Dog, L.A. Rev. of Books (Oct. 24, 2019)(reviewing Lee Alan Dugatkin & Lyudmila Trut, How to Tame a Fox (and Build a Dog (2017) and Richard Wrangham, The Goodness Paradox: The Strange Relationship Between Virtue and Violence in Human Evolution (2019)).
Categories:
Environmental Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Animal Law
Type: Article
Abstract
Where do dogs come from? Where do human beings come from? Recent research suggests a single answer: domestication. The various characteristics of dogs, distinguishing them from wolves, appear to be byproducts of domestication and (as recently shown by Richard Wrangham) a reduction in “reactive aggression.” It has long been thought that human beings domesticated dogs, but it is more plausible to think that that dogs domesticated themselves. As dogs are to wolves, so is the less robust but more docile Homo sapiens to various other, now extinct human species, including Homo erectus, Neanderthals, and Denisovans. Homo sapiens can be seen as the dog of the various human species. Homo sapiens survived in part because a reduction in reactive aggression made it possible for us to display significant increases in social learning and cooperation.
Annette Gordon-Reed, The Real Texas, N.Y. Rev. Books, Oct. 24, 2019, at 20 (reviewing Larry McMurty, In a Narrow Grave: Essays on Texas (1968), Lawrence Wright, God Save Texas: A Journey into the Soul of the Lone Star State (2018), Monica Muñoz Martinez, The Injustice Never Leaves You: Anti-Mexican Violence in Texas (2018), Stephen Harrigan, Big Wonderful Thing: A History of Texas (2019) & Lucas A. Powe, Jr., America’s Lone Star Constitution: How Supreme Court Cases from Texas Shape the Nation (2018)).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
State & Local Government
Type: Article
Hasan Sheikh & Cass R. Sunstein, To Persuade As an Expert, Order Matters: 'Information First, then Opinion' for Effective Communication (Oct. 24, 2019).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
Type: Other
Abstract
As the information gap between experts and non-experts narrows, it is increasingly important that experts learn to give advice to non-experts in a way that is effective, and that respects their autonomy and agency. We surveyed 508 participants using a hypothetical medical scenario in which participants were counseled on the risks and benefits of taking antibiotics for a sore throat in circumstances in which antibiotics were inappropriate. We asked participants whether they preferred: (1) to make their own decision based on the information or, (2) to make their decision based on the doctor’s opinion, and then randomized participants to receive “information only”, “opinion only”, “information first, then opinion”, or “opinion first, then information.” Participants whose stated preference was to follow the doctor’s opinion had significantly lower rates of antibiotic requests when given “information first, then opinion” compared to “opinion first, then information.” Our evidence suggests that “information first, then opinion” is the most effective approach. We hypothesize that this is because it is seen by non-experts as more trustworthy and more respectful of their autonomy.
Yochai Benkler, Cautionary Notes on Disinformation and the Origins of Distrust, MediaWell (Oct. 17, 2019).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
National Security Law
,
Executive Office
,
Cyberlaw
,
Networked Society
,
Information Privacy & Security
,
Information Commons
Type: Other
Examining Corporate Priorities: The Impact of Stock Buybacks on Workers, Communities, and Investment: Hearing Before the H. Subcomm. on Investor Protection, Entrepreneurship, and Capital Markets of the H. Comm. on Financial Services, 116th Cong.(Oct. 17, 2019)(statement of Jesse M. Fried, Dane Professor of Law, Harvard Law School).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Investment Products
,
Financial Reform
,
Shareholders
,
Securities Law & Regulation
,
Corporate Governance
Type: Other
Abstract
This statement presents my views on buybacks and my general reactions to provisions in four pieces of legislation relating to stock buybacks. Part I describes the role of stock buybacks in the economy and offers some “investor-benign” explanations for firms’ use of repurchases rather than dividends to distribute cash to investors. Part I then explains that the overall level of shareholder payouts (that is, the total amount of dividends and repurchases) does not appear to be too high; in fact, it may well be too low. Part II describes the current regulation of buybacks, which I believe is too lax and enables their abuse by corporate executives. In particular, I will explain how current regulation can enable executives to use buybacks to enrich themselves at the expense of public investors, through (1) indirect insider trading, (2) the manipulation of the stock price and EPS metrics in compensation arrangements, and (3) “false signaling:” announcing repurchases that executives do not intend to carry out, solely to boost the stock price before executives unload shares. Part III suggests a disclosure rule that would reduce executives’ ability to engage in the above-mentioned abuses, and therefore, better protect public investors: requiring public firms (like their insiders) to disclose trades in firm stock within two business days. I also describe additional measures that could be taken if this disclosure rule turns out be insufficient. Part IV offers initial reactions to key provisions in these four pieces of legislation.
Crystal Yang & Will Dobbie, Equal Protection Under Algorithms: A New Statistical and Legal Framework (Oct. 11, 2019).
Categories:
Constitutional Law
,
Technology & Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Fourteenth Amendment
,
Criminal Justice & Law Enforcement
,
Criminal Prosecution
,
Race & Ethnicity
,
Discrimination
,
Empirical Legal Studies
,
Networked Society
,
Science & Technology
Type: Other
Abstract
In this paper, we provide a new statistical and legal framework to understand the legality and fairness of predictive algorithms under the Equal Protection Clause. We begin by reviewing the main legal concerns regarding the use of protected characteristics such as race and the correlates of protected characteristics such as criminal history. The use of race and non-race correlates in predictive algorithms generates direct and proxy effects of race, respectively, that can lead to racial disparities that many view as unwarranted and discriminatory. These effects have led to the mainstream legal consensus that the use of race and non-race correlates in predictive algorithms is both problematic and potentially unconstitutional under the Equal Protection Clause. This mainstream position is also reflected in practice, with all commonly-used predictive algorithms excluding race and many excluding non-race correlates such as employment and education. In the second part of the paper, we challenge the mainstream legal position that the use of a protected characteristic always violates the Equal Protection Clause. We first develop a statistical framework that formalizes exactly how the direct and proxy effects of race can lead to algorithmic predictions that disadvantage minorities relative to non-minorities. While an overly formalistic legal solution requires exclusion of race and all potential non-race correlates, we show that this type of algorithm is unlikely to work in practice because nearly all algorithmic inputs are correlated with race. We then show that there are two simple statistical solutions that can eliminate the direct and proxy effects of race, and which are implementable even when all inputs are correlated with race. We argue that our proposed algorithms uphold the principles of the Equal Protection doctrine because they ensure that individuals are not treated differently on the basis of membership in a protected class, in stark contrast to commonly-used algorithms that unfairly disadvantage minorities relative to non-minorities despite the exclusion of race. We conclude by empirically testing our proposed algorithms in the context of the New York City pretrial system. We show that nearly all commonly-used algorithms violate the spirit of the Equal Protection Clause by including variables that are correlated with race, generating substantial proxy effects that unfairly disadvantage blacks relative to whites. Both of our proposed algorithms substantially reduce the number of black defendants detained compared to these commonly-used algorithms by eliminating these proxy effects. These findings suggest a fundamental rethinking of the Equal Protection doctrine as it applies to predictive algorithms and the folly of relying on commonly-used algorithms.
Noah Feldman, Opinion, And Now We're in a Constitutional Crisis, N.Y. Times, Oct. 10, 2019, at A23.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Supreme Court of the United States
,
Politics & Political Theory
Type: News
Jesse M. Fried & Jeffrey N. Gordon, The Valuation and Governance Bubbles of Silicon Valley, CLS Blue Sky Blog (Oct. 10, 2019).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Venture Capital
,
Risk Regulation
,
Corporate Governance
,
Securities Law & Regulation
Type: Other
Jesse Fried, Shareholders Always Come First and That's a Good Thing, Fin. Times, Oct. 8, 2019, at 13.
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Governance
Type: News
Mark J. Roe & Michael Tröge, The 2017 Tax Act’s Potential Impact on Bank Safety and Capitalization, in After the Crash: Financial Crises and Regulatory Responses 360 (Sharyn O'Halloran & Thomas Groll eds., 2019).
Categories:
Banking & Finance
,
Taxation
Sub-Categories:
Banking
,
Financial Markets & Institutions
,
Risk Regulation
,
Tax Policy
,
Taxation - Corporate
,
Taxation - Federal
Type: Book
Dov Fox, I. Glenn Cohen & Eli Y. Adashi, The Law and Ethics of Fetal Burial Requirements for Reproductive Health Care, 322 JAMA 1347 (2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
Type: Article
Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff, The Rise of Fiduciary Law as a Field of Study, CLS Blue Sky Blog (Oct. 3, 2019).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Legal Profession
Sub-Categories:
Fiduciary Law
,
Fiduciaries
,
Legal Scholarship
Type: Other
Abstract
In recent years, the study of fiduciary law has undergone a paradigm shift. Rather than treat fiduciary principles as subsidiary elements of various fields of law, such as trust law or corporate law, a burgeoning group of scholars has undertaken to study fiduciary law as a coherent, general field of study that encompasses aspects of private and public law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field.