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Publication Types
Categories
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
Richard J. Lazarus, The Rule of Five: Making Climate History at the Supreme Court (Belknap Press, forthcoming 2020).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Book
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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.
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.
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.
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
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.
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
W. Nicholson Price, Sara Gerke & I. Glenn Cohen, Potential Liability for Physicians Using Artificial Intelligence, JAMA (Oct. 4, 2019).
Categories:
Health Care
,
Technology & Law
,
Civil Practice & Procedure
Sub-Categories:
Torts
,
Bioethics
,
Health Law & Policy
,
Medical Technology
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.
Laura M. Weinrib, From Left to Rights: Civil Liberties Lawyering Between the World Wars, 15 Law, Culture & Human. 622 (2019).
Categories:
Constitutional Law
,
Legal Profession
,
Government & Politics
,
Labor & Employment
Sub-Categories:
First Amendment
,
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Labor Law
,
Legal History
Type: Article
Abstract
In the formative years of the modern First Amendment, civil liberties lawyers struggled to justify their participation in a legal system they perceived as biased and broken. For decades, they charged, the courts had fiercely protected property rights even while they tolerated broad-based suppression of the “personal rights,” such as expressive freedom, through which peaceful challenges to industrial interests might have proceeded. This article focuses on three phases in the relationship between the American Civil Liberties Union (ACLU) and the courts in the period between the world wars: first, the ACLU’s attempt to promote worker mobilization by highlighting judicial hypocrisy; second, its effort to induce incremental legal reform by mobilizing public opinion; and third, its now-familiar reliance on the judiciary to insulate minority views against state intrusion and majoritarian abuses. By reconstructing these competing approaches, the article explores the trade-offs – some anticipated and some unintended – entailed by the ACLU’s mature approach.
Mateo Aboy, Kathleen Liddell, Cristina Crespo, I. Glenn Cohen, Johnathon Liddicoat, Sara Gerke & Timo Minssen, How Does Emerging Patent Case Law in the US and Europe Affect Precision Medicine?, 37 Nature Biotechnology 1118 (2019).
Categories:
International, Foreign & Comparative Law
,
Technology & Law
,
Health Care
,
Property Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
European Law
,
Comparative Law
,
Intellectual Property - Patent & Trademark
,
Intellectual Property Law
,
Medical Technology
Type: Article
I. Glenn Cohen, Organ Donor Intervention Trials and Risk to Bystanders: An Ethical Analysis, 16 Clinical Trials 463 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Abstract
There are two distinct problems about bystander effects raised by organ donor intervention research. The first is the problem of “bystander organs”—sometimes called “non-target organs”—which Kimmelman discusses in his case presentation. How do we treat the recipients of organs that are not the subject of the intervention research but nonetheless might be directly affected by the research? The second problem is not about altering the organ but the pattern of distribution of organs. Each of these cases shows bystander effects that matter for real people. This article examines how research ethics should approach each of these cases.
Randall Kennedy, The Apparatchik, The Nation, Oct. 29, 2019, at 35 (reviewing Corey Robin, The Enigma of Clarence Thomas (2019)).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Article
Vicki C. Jackson, US Constitutional Law and History, in The Cambridge Companion to Comparative Constitutional Law 113 (Roger Masterman & Robert Schütze ed., 2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Congress & Legislation
,
Courts
,
Executive Office
,
Federalism
,
State & Local Government
,
Supreme Court of the United States
Type: Book
Abstract
Although the US Constitution is quite short, it is also quite old. The structures it called forth – including the presidency, the bicameral Congress, the Supreme Court – survive, even as their relationships have evolved. Its brief provisions have also spawned a complex body of jurisprudence on many issues that has shifted over more than two centuries; there are now more than 560 volumes of the official ‘US Reports’, that is, of cases decided by the US Supreme Court.
Cass R. Sunstein, Behaviorally Informed Policy: A Brisk Progress Report (Sept. 29, 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
The goal of this essay is to offer a brisk progress report about behaviorally informed policy and law, while also providing some conceptual clarifications. It identifies a diverse range of initiatives, focusing largely on experience in the United States, that involve nudging and uses of behavioral science. It also explores prominent objections, coming both from those who believe that nudges are unduly aggressive, and should be avoided, and from those who believe that they are too weak and timid, and should be replaced or supplemented with mandates and bans.
Jack Goldsmith, In Hoffa's Shadow: A Stepfather, A Disappearance in Detroit, and my Search for the Truth (Farrar, Straus & Giroux, forthcoming Sept. 24, 2019).
Categories:
Criminal Law & Procedure
,
Labor & Employment
,
Legal Profession
Sub-Categories:
Organized Crime
,
Labor Law
,
Biography & Tribute
Type: Book
Abstract
As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration and questioning its misuse of surveillance and other powers, that he began to reconsider his stepfather, and to understand Hoffa’s true legacy. In Hoffa’s Shadow tells the moving story of how Goldsmith reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it. Along the way, Goldsmith explores Hoffa’s rise and fall and why the golden age of blue-collar America came to an end, while also casting new light on the century-old surveillance state, the architects of Hoffa’s disappearance, and the heartrending complexities of love and loyalty.
Martha Minow, When Should Law Forgive? (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Jonathan Zittrain, Three Eras of Digital Governance (Sept. 23, 2019).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Networked Society
,
Communications Law
Type: Other
Abstract
To understand where digital governance is going, we must take stock of where it’s been, because the timbre of mainstream thinking around digital governance today is dramatically different than it was when study of “Internet governance” coalesced in the late 1990s. Perhaps the most obvious change has been from emphasizing networked technologies’ positive effects and promise – couched around concepts like connectivity, innovation, and, by this author, “generativity” – to pointing out their harms and threats. It’s not that threats weren’t previously recognized, but rather that they were more often seen in external clamps on technological development and upon the corresponding new freedoms for users, whether government intervention to block VOIP services like Skype to protect incumbent telco revenues, or in the shaping of technology to effect undue surveillance, whether for government or corporate purposes. The shift in emphasis from positive to negative corresponds to a change in the overarching frameworks for talking about regulating information technology. We have moved from a discourse around rights – particularly those of end-users, and the ways in which abstention by intermediaries is important to facilitate citizen flourishing – to one of public health, which naturally asks for a weighing of the systemic benefits or harms of a technology, and to think about what systemic interventions might curtail its apparent excesses. Each framework captures important values around the use of technology that can both empower and limit individual freedom of action, including to engage in harmful conduct. Our goal today should be to identify where competing values frameworks themselves preclude understanding of others’ positions about regulation, and to see if we can map a path forward that, if not reconciling the frameworks, allows for satisfying, if ever-evolving, resolutions to immediate questions of public and private governance.
L.A. Paul & Cass R. Sunstein, 'As Judged By Themselves': Transformative Experiences and Endogenous Preferences (Sept. 17, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
One way to evaluate various interventions in people’s lives is to ask whether they make choosers better off, “as judged by themselves.” This criterion can be understood to borrow from the liberal political tradition insofar as it makes the judgments of choosers authoritative. Giving ultimate authority to choosers might be taken to respect their autonomy and also promote their welfare (insofar as people are uniquely situated to know whether choices make them better off). But for certain decisions, the “as judged by themselves” criterion is indeterminate. In such cases, what people care about shifts, depending on their choice. Some choices change people’s preferences and values, and in this sense, change their identity. In these situations, sometimes involving transformative experiences, the criterion does not offer a unique solution. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability. Considerations of autonomy are also relevant to choice-influencing interventions that promote transformative experiences.
David B. Wilkins, David M. Trubek & Bryon Fong, Globalization, Lawyers, and Emerging Economies: The Rise, Transformation, and Significance of the New Corporate Legal Ecosystem in India, Brazil, and China (HLS Center on the Legal Profession Research Paper No. 2019-1, Sept. 14, 2019).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Comparative Law
,
Developing & Emerging Nations
,
Legal Services
,
Legal Education
Type: Other
Abstract
Beginning in the 1990s, India, Brazil, and China have each developed a distinct corporate legal "ecosystem," comprised of new (or newly repurposed) domestic "corporate" law firms, foreign law firms competing (on the ground or virtually) to serve both foreign and domestic clients, general counsel offices of both domestic and multinational companies, and law schools either designed or retooled to supply lawyers qualified to practice corporate law. In this Article, we utilize data from an unprecedented set of empirical studies to document the rise of this new corporate ecosystem in these three important emerging economies, and to develop grounded theory about the forces that have produced this transformation, and that help to explain differences among the three jurisdictions. Specifically, we argue that differences in what we call the "micro-level gearing" in the relative importance of the three key elements in the corporate legal ecosystems that have developed in India, Brazil, and China – law firms, clients, and legal education – can be explained, in part, by differences in what we will call the "macro-level gearing" in the relative power of the state, the market, and the bar – both between all three countries and the United States, and among the three jurisdictions. This difference has been most pronounced in China, where the dominance of the "state gear" in shaping the corporate legal market contrasts sharply with both the U.S. "market" driven model, and the influence of the "bar" in shaping the micro-level corporate ecosystems in India and Brazil. We conclude by offering some tentative thoughts about the implications of our findings for a rapidly globalizing corporate legal services market in which a growing number of states are beginning to exert greater control at the macro-level.
Samantha Power, The Education of an Idealist: A Memoir (2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Human Rights Law
,
Biography & Tribute
Type: Book
Steven Shavell, On the Redesign of Accident Liability for the World of Autonomous Vehicles (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1014, NBER Working Paper No. w26220, Sept. 9, 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Litigation & Settlement
,
Torts
,
Torts - Product Liability
,
Torts - Negligence
,
Remedies
,
Transportation Law
,
Law & Economics
Type: Other
Abstract
This article proposes a scheme of liability that would desirably control accident risks in the coming world in which motor vehicles will be autonomous. In that world, travelers will not be drivers, rendering liability premised on driver fault irrelevant as a means of reducing accident dangers. Moreover, no other conventional principle of individual or of manufacturer liability would serve well to do so. Indeed, strict manufacturer liability, recommended by many commentators, would actually tend to leave accident risks unchanged from their levels in the absence of liability. However, a new form of strict liability – the hallmark of which is that damages would be paid to the state – would be superior to conventional rules of liability in alleviating accident risks and would be easy to implement.
Andrew Manuel Crespo, Brief of Professor Andrew Manuel Crespo as Amicus Curiae in Support of Affirmance, Kansas v. Glover (No. 18-556), 2019 WL 4256217 (U.S., Sept. 6, 2019).
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Fourth Amendment
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
Type: Other
Abstract
In Kansas v. Glover, the United States 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 is that the registered owner has a suspended license. Professor Crespo authored this amicus brief on his own behalf urging affirmance of the Kansas Supreme Court.
Leandra Lederman, Susan C. Morse, Stephen E. Shay, Clint Wallace, Reuven S. Avi-Yonah, Lily L. Batchelder, Jeremy Bearer-Friend, Joshua D. Blank, Leslie Book, Bryan Camp, Noel B. Cunningham, Victor Fleischer, J. Clifton Fleming, Keith Fogg, David Gamage, Ari D. Glogower, Mitchell Kane, Ariel Jurow Kleiman, Edward D. Kleinbard, Rebecca M. Kysar, Zachary D. Liscow, Ruth Mason, Omri Y. Marian, Robert J. Peroni, Darien Shanske, Daniel Shaviro, John P. Steines, Bret Wells & Eric M. Zolt, Ninth Circuit Brief of Law Academics and Professors as Amici Curiae in Opposition to the Petition for Rehearing En Banc in Altera v. Commissioner (Sept. 6, 2019).
Categories:
Taxation
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Taxation - Corporate
,
Taxation - Federal
Type: Other
Abstract
The purpose of this brief is to correct and respond to two arguments in Petitioner-Appellee Altera’s petition for rehearing en banc and briefs of amici supporting the petition for rehearing. First, Treasury’s regulation requiring cost sharing of stock-based compensation and the Ninth Circuit panel’s decision are entirely consistent with longstanding precedents, practices and understandings regarding the meaning of the arm’s length standard. Second, reversal of the U.S. Tax Court by a Court of Appeals is an ordinary occurrence that reflects the federal courts’ hierarchy and is not a basis for granting en banc review.
Alan M. Dershowitz, Defending Israel: The Story of My Relationship with My Most Challenging Client (2019).
Categories:
Legal Profession
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Services
Type: Book
Richard Lazarus, Analytics Reveal Key Trends and Themes in Environmental Litigation, 36 Envtl. F., Sept.-Oct. 2019, at 13.
Categories:
Environmental Law
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Litigation & Settlement
,
Courts
,
Supreme Court of the United States
Type: Article
Leo Strine, Eric Talley, Mark Roe, Jill Fisch & Bruce Kogut, Session IV: The Law, Corporate Governance, and Economic Justice, 31 Applied Corp. Fin. 44 (2019) (Columbia Law School Symposium on Corporate Governance “Counter‐Narratives”: On Corporate Purpose and Shareholder Value(s)).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
The Chief Justice of the Delaware Supreme Court begins by invoking the New Deal, and expressing admiration for the way its goals and some of its social programs have been put into practice by Northern European social democracies. Most important are their protections for workers and the unemployed—protections the Judge finds deplorably absent in U.S. law and corporate labor practices. Nevertheless, when contemplating how corporate boards in the U.S. might respond to the growing demand for U.S. public companies to address social problems like the environment and economic inequality, the Delaware judge falls back on the prescription of Adolph Berle, who, though one of the framers of the New Deal, insisted that companies “stick to their knitting” by putting shareholders first as the only way of ensuring the accountability of corporate managements and boards. Harvard Law's Mark Roe responds with a defense of corporate America against the charge of corporate short‐termism by noting that, although U.S. capital expenditures have declined in the past 15–20 years, corporate investment in R&D and other intangible assets have both grown sharply. Corporate distributions in the form of dividends and stock buybacks are rising, but so have the net borrowings of the companies making the distributions, leaving the cash balances of U.S. companies also near record levels. And the remarkably high valuations of successful high tech companies are themselves forceful rebuttals of the idea that pressure from the stock market for current earnings is a serious deterrent to investment and innovation. The University of Pennsylvania's Jill Fisch follows Roe's dismissal of the short‐termism argument with even more forceful questioning of whether corporate America in fact has a major governance problem. U.S. companies have been taking voluntary measures to address environmental problems—in some cases even in the face of federal deregulatory initiatives—and many have raised their workers’ wages, without any challenges (and often with encouragement) from their shareholders. And echoing Justice Strine's concerns, Fisch also ends up questioning the premise that companies can be asked to define a single social purpose (other than maximizing shareholder value) that would be appropriate for, and end up satisfying, all their different stakeholders. Columbia Business School's Bruce Kogut closes with the suggestion that our greatest problems today may be coming not from the shortsightedness and other failings of corporations and corporate law, but from “deep distrust of the competence of the state.” Kogut's main prescription is that to take advantage of the enormous potential gains from effective arm's‐length collaboration between business and the public sector, governments at all levels should find ways to strike “Coasian bargains” with the private sector that makes the best possible uses of the core competencies and resources of each.
I. Glenn Cohen, Changing Conception, 365 Science 872 (2019)(reviewing Margaret S. Marsh & Wanda Ronner, The Pursuit of Parenthood (2019)).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Henry E. Smith, Governing Intellectual Property, in Research Handbook on the Economics of Intellectual Property Law 47 (Ben Depoorter, Peter Menell & David Schwartz eds., 2019).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
,
Intellectual Property - Copyright
Type: Book
Daniel M. Klerman & Holger Spamann, Law Matters -- Less Than We Thought (USC CLASS Research Paper No. CLASS19-25, Aug. 19, 2019).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Choice of Law
,
Conflict of Laws
,
Empirical Legal Studies
,
Judges & Jurisprudence
Type: Other
Abstract
In a pre-registered 2×2×2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. The judges were given realistic materials and a relatively long period of time (50 minutes) to decide a run-of-the-mill auto accident case. We find weak evidence for the law effect, stronger evidence that rules constrain more than standards, and no evidence of a sympathy effect. Unexpectedly, we find that judges were more likely to choose the law that fully compensates an injured plaintiff.
Jesse Choper, Richard Fallon, Jr., Yale Kamisar, Steven Shiffrin, Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2019).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Phillip Areeda, Louis Kaplow, Aaron S. Edlin & C. Scott Hemphill, 2019 Professor's Update to Antitrust Analysis: Problems, Text, and Cases (Aug. 13, 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Other
Abstract
This update applies to the Seventh Edition (2013) of Areeda, Kaplow & Edlin, Antitrust Analysis: Problems, Text, and Cases.
Mark Tushnet, Epistemic Closure and the Schechter Case (Aug. 13, 2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Religion
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Government Accountability
Type: Other
Abstract
In Gundy Justice Gorsuch offered two characterizations of the facts in the Schechter case: (1) “Kosher butchers such as the Schechters had a hard time following [the rules that required ‘straight-killing’ of chickens].” (2) “Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers.” Justice Gorsuch relied upon Amity Shlaes’s book The Forgotten Man to support these assertions. In a blog post I criticized Shlaes’s account, and used Justice Gorsuch’s reliance upon it to illustrate what I called epistemic closure in the construction of the law – by which I meant the reliance upon a closed set of sources written by authors who generally shared a specific outlook on the way the world works. Josh Blackman and Shlaes responded to my criticism. But, as I show here, their responses are largely mistaken and (or perhaps because) undertheorized because of their failure (or perhaps inability – an inability that may be intrinsic to the process) to recognize the existence of epistemic closure.
Alex Dimitrief, Employee Reporting is Best Line of Defense Against Corporate Misconduct, Bloomberg Law Insight (Aug. 8, 2019, 4:01 AM).
Categories:
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Corporate Governance
,
Whistleblowers
Type: Other
Abstract
Anger and distrust over corporate missteps is rising, with even presidential candidates jumping in to offer solutions. Alex Dimitrief, former GC at General Electric, explains that providing clear and open internal communication lines for employees to report potential integrity lapses without fear of reprisals is the best first step to prevent corporate malfeasance.
Richard H. Fallon, Jr., Jack L. Goldsmith, John F. Manning, David L. Shapiro & Amanda L. Tyler, Hart and Wechsler's The Federal Courts and the Federal System (7th ed., 2019 Supp.).
Categories:
Government & Politics
,
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Jurisdiction
,
Courts
,
Federalism
,
Supreme Court of the United States
,
Separation of Powers
,
Legal Education
Type: Book
Abstract
This supplement brings the principal text current with recent developments in the law.
Cass R. Sunstein, Should Public Figures Apologize? Preliminary Evidence and Speculations (Aug. 7, 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
,
Elections & Voting
,
Government Accountability
,
Executive Office
Type: Other
Abstract
In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.
Jean-Christophe Bélisle-Pipon, Effy Vayena, Robert C. Green & I. Glenn Cohen, Genetic Testing, Insurance Discrimination and Medical Research: What the United States Can Learn From Peer Countries, 25 Nature Med. 1198 (2019).
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Comparative Law
Type: Article
Abstract
While genetic testing may be the gateway to the future of medicine, it also poses challenges for individuals, especially in terms of differentiated treatments on the basis of their genetic characteristics. The fear of unwanted disclosure to insurers and the possibility of genetic discrimination can hamper the recruitment of individuals for clinical research that involves genetic testing. Precision medicine initiatives, such as All of Us, are proliferating in the United States. In order to succeed, however, they must ensure that the millions of Americans recruited to share their genetic data are not penalized with regard to life, disability and long-term insurance coverage. In this Perspective, we discuss several initiatives adopted by countries around the world, such as the United Kingdom and France, that better balance the interests of insurers and research subjects, and explain how the United States might learn from them. We call for regulatory and industry leadership to come together to establish a voluntary moratorium on insurance pricing with the aim of protecting research participants.
Alan M. Dershowitz, Opinion, A Yellow Light for Red-Flag Laws, Wall St. J. (Aug. 6, 2019, 6:55 PM).
Categories:
Constitutional Law
Sub-Categories:
Second Amendment
Type: News
Henry E. Smith, Complexity and the Cathedral: Making Law and Economics More Calabresian, 48 Eur. J.L & Econ. 43 (2019).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Economics
,
Property Rights
Type: Article
Abstract
This article argues that Calabresi and Melamed’s “Cathedral” framework of property rules, liability rules, and inalienability rules needs to be extended using the tools of complex systems theory in order to capture important institutional features of the law. As an applied field, law and economics looks to law in choosing the appropriate analytical tools from economics—something that Calabresi has identified (in strong form) as law and economics as opposed to economic analysis of law. Recognizing law as a complex system requires a rethinking of some Realist-inspired assumptions that underpin economically inspired analysis of law. These assumptions include a preference for narrow, concrete concepts and a skepticism about traditional doctrines and baselines—and ultimately Legal Realism’s extreme nominalism and the strong bundle of rights picture of property. The article shows how the Calabresi and Melamed (C&M) framework exhibits gaps that can be addressed by systems theory; these include narrow entitlements to engage in specific activities, liability rules that allow an affected party to buy out an activity (Rule 4), opportunistic behavior by parties that destabilizes liability rules, and the role of equity as an institutional response. Extending the C&M framework to treat it as a system helps prevent the C&M framework from flattening the law out. If we supplement the C&M framework to take account of law as a system, we can bring it closer to Calabresian law and economics.
Sara Gerke, Timo Minssen, Helen Yu & I. Glenn Cohen, Ethical and Legal Issues of Ingestible Electronic Sensors, 2 Nature Electronics 329 (2019).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Food & Drug Law
,
Health Law & Policy
,
Medical Technology
Type: Article
Abstract
Ingestible electronic sensors are a promising technology for improving health outcomes that may, for example, be useful in monitoring and promoting the taking of medication. However, these sensors also raise ethical and legal challenges that need to be considered by all stakeholders—notably, the creators of such products—at the earliest stages of the development process. Here, we examine selected ethical and legal issues related to ingestible electronic sensors. We first briefly describe sensors that are already available on the US and European markets as well as potential future sensor combinations. We then focus on ethical aspects, discussing patient, provider, and social issues. Finally, we provide a comparative analysis of legal regulation of ingestible electronic sensors in the US and Europe.
Ross Zafonte, Alvaro Pascual‐Leone, Aaron Baggish, Marc G. Weisskopf, Herman A. Taylor, Ann Connor, Jillian Baker, Sarah Cohan, Chelsea Valdivia, Theodore K. Courtney, I. Glenn Cohen, Frank E. Speizer & Lee M. Nadler, The Football Players' Health Study at Harvard University: Design and Objectives, 62 Am. J. Indus. Med. 643 (2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
The Football Players Health Study at Harvard University (FPHS) is a unique transdisciplinary, strategic initiative addressing the challenges of former players’ health after having participated in American style football (ASF). The whole player focused FPHS is designed to deepen understanding of the benefits and risks of participation in ASF, identify risks that are potentially reversible or preventable, and develop interventions or approaches to improve the health and wellbeing of former players. We are recruiting and following a cohort of former professional ASF players who played since 1960 (current n = 3785). At baseline, participants complete a self‐administered standardized questionnaire, including initial reporting of exposure history and physician‐diagnosed health conditions. Additional arms of the initiative are addressing targeted studies, including promising primary, secondary, and tertiary interventions; extensive in‐person clinical phenotyping, and legal and ethical concerns of the play. This paper describes the components of the FPHS studies undertaken and completed thus far, as well as those studies currently underway or planned for the near future. We present our initiatives herein as a potential paradigm of one way to proceed (acknowledging that it is not the only way). We share what we have learned so that it may be useful to others, particularly in regard to trying to make professional sports meet the needs of multiple stakeholders ranging from players to owners, to fans, and possibly even to parents making decisions for their children.
Noah R. Feldman & Kathleen M. Sullivan, Constitutional Law (20th ed. 2019).
Categories:
Constitutional Law
Type: Book
Cass R. Sunstein Opinion, Apologies are for Losers, N.Y. Times, July 28, 2019, at SR8.
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Elections & Voting
,
Politics & Political Theory
Type: News
Hal S. Scott, John Gulliver & Hillel Nadler, Cloud Computing in the Financial Sector: A Global Perspective (Program on International Financial Systems, July 26, 2019).
Categories:
Banking & Finance
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Risk Regulation
,
International Monetary Systems
,
Networked Society
,
Information Privacy & Security
Type: Other
Abstract
As financial institutions move their operations, including core functions, to the cloud, financial regulators have begun to issue regulations and informal guidance addressing the use of cloud services in the financial sector. These are typically based on the regulator’s existing framework for outsourcing by a financial institution to third-party technology providers, under which the risks associated with outsourcing and the supervision of third-party providers are primarily the responsibility of the financial institution. This report provides background on the use of cloud computing in the financial sector, reviews existing regulatory and supervisory frameworks for cloud use by financial institutions, and recommends improvements to those frameworks that could reduce obstacles to more widespread cloud adoption by financial institutions.
A. Mitchell Polinsky & Steven Shavell, Deterrence and the Adjustment of Sentences During Imprisonment (Stanford L. & Econ. Olin Working Paper No. 535, July 25, 2019).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Prison Law & Prisoners' Rights
,
Sentencing & Punishment
,
Law & Economics
,
Law & Behavioral Sciences
Type: Other
Abstract
The prison time actually served by a convicted criminal depends to a significant degree on decisions made by the state during the course of imprisonment — on whether to grant parole or other forms of sentence reduction. In this article we study a model of the adjustment of sentences assuming that the state’s objective is the optimal deterrence of crime. In the model, the state can lower or raise the sentence based on deterrence-relevant information that it obtains about a criminal during imprisonment. Our focus on sentence adjustment as a means of promoting deterrence stands in contrast to the usual emphasis in sentence adjustment policy on reducing recidivism.
Cass R. Sunstein, Falsehoods and the First Amendment (July 25, 2019).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Politics & Political Theory
,
Supreme Court of the United States
,
Communications Law
,
Networked Society
Type: Other
Abstract
What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.
Rebecca Tushnet, The Constant Trash Collector: Platforms and the Paradoxes of Content Moderation, Jotwell, July 25, 2019 (reviewing Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions that Shape Social Media (2018)).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Cyberlaw
Type: Other
Jonathan Zittrain, The Hidden Costs of Automated Thinking, NewYorker.com (July 23, 2019).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Medical Technology
Type: Other
Jack Weinstein, Norman Abrams, Scott Brewer & Daniel Medwed, Evidence, 2019 Rules and Statute Supplement (2019).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Evidence
Type: Book
Dustin A. Lewis, Naz K. Modirzadeh & Gabriella Blum, Quantum of Silence: Inaction and Jus ad Bellum (Harv. L. Sch. Program on Int’l L. & Armed Conflict (PILAC), July 16, 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Laws of Armed Conflict
,
International Law
,
Treaties & International Agreements
Type: Other
Abstract
In this paper, we examine the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines. We submit that there is no quantum of silence that has clear doctrinal force. We argue that, at least in relation to jus ad bellum, only certain forms of qualified silence — whether of States or of the Security Council — may be capable of contributing to legal effects. We further contend that, due in part to the nature and status of the norms underlying this field, those forms of qualified silence ought not to be lightly presumed. Arguably, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a jus ad bellum claim. Still, States and other international actors should be aware of the possible role that their silence could play in the identification and development of this field. We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.
Oren Bar-Gill, Smart Disclosure: Promise and Perils, Behavioural Public Policy (July 11, 2019).
Categories:
Disciplinary Perspectives & Law
,
Consumer Finance
,
Government & Politics
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Government Transparency
,
Administrative Law & Agencies
Type: Article
Abstract
The move to smart disclosure promises to revitalize disclosure mandates and save them from a fate of ignored verbiage. But by making disclosure relevant and effective, this shift to smart disclosure also raises several concerns. Specifically, simple disclosures like genetically modified food disclosures, restaurant hygiene grades, annual percentage rate disclosures, etc., can result in market distortions and inefficiencies as: (1) consumers might draw false inferences from the disclosure; and (2) disclosing one dimension will elevate this dimension relative to other dimensions, and thus distort demand for the product and even alter the product itself. Relatedly, System 1 disclosures, like graphic cigarette labels, might influence behavior by triggering an emotional response rather than through informed deliberation, thus abandoning traditional justifications for disclosure mandates. In light of these concerns, it is more difficult to view disclosure mandates as minimally paternalistic. Government, by tweaking disclosure design, wields substantial power over markets and consumers.
Eli Y. Adashi & I. Glenn Cohen, Heritable Genome Editing: Is a Moratorium Needed?, 322 JAMA 104 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Randall Kennedy, Contracts: Happiness and Heartbreak (2019).
Categories:
Banking & Finance
Sub-Categories:
Contracts
Type: Book
Joseph Marks, Eloise Copland, Eleanor Loh, Cass R. Sunstein & Tali Sharot, Epistemic Spillovers: Learning Others’ Political Views Reduces the Ability to Assess and Use Their Expertise in Nonpolitical Domains, 188 Cognition 74 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
Type: Article
Abstract
On political questions, many people are especially likely to consult and learn from those whose political views are similar to their own, thus creating a risk of echo chambers or information cocoons. Here, we test whether the tendency to prefer knowledge from the politically like-minded generalizes to domains that have nothing to do with politics, even when evidence indicates that person is less skilled in that domain than someone with dissimilar political views. Participants had multiple opportunities to learn about others’ (1) political opinions and (2) ability to categorize geometric shapes. They then decided to whom to turn for advice when solving an incentivized shape categorization task. We find that participants falsely concluded that politically like-minded others were better at categorizing shapes and thus chose to hear from them. Participants were also more influenced by politically like-minded others, even when they had good reason not to be. The results demonstrate that knowing about others’ political views interferes with the ability to learn about their competency in unrelated tasks, leading to suboptimal information-seeking decisions and errors in judgement. Our findings have implications for political polarization and social learning in the midst of political divisions.
Cass R. Sunstein, Rear Visibility and Some Problems for Economic Analysis (With Particular Reference to Experience Goods) (July 1, 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
Type: Other
Abstract
In 2014, the National Highway Traffic Safety Administration finalized its rear visibility regulation, which requires cameras in all new vehicles, with the goal of allowing drivers to see what is behind them and thus reducing backover accidents. In 2018, the Trump administration embraced the regulation. The rear visibility initiative raises numerous puzzles. First: Congress’ grant of authority was essentially standardless – perhaps the most open-ended in all of federal regulatory law. Second: It is not easy to identify a market failure to justify the regulation. Third: The monetized costs of the regulation greatly exceeded the monetized benefits, and yet on welfare grounds, the regulation can plausibly be counted as a significant success. Rearview cameras produce a set of benefits that are hard to quantify, including increased ease of driving, and those benefits might have been made a part of “breakeven analysis,” accompanying standard cost-benefit analysis. In addition, rearview cameras significantly improve the experience of driving, and it is plausible to think that in deciding whether to demand them, many vehicle purchasers did not sufficiently anticipate that improvement. This is a problem of limited foresight; rearview cameras are “experience goods.” A survey conducted in 2019 strongly supports this proposition, finding that about 56 percent of consumers would demand at least $300 to buy a car without a rearview camera, and that fewer than 6 percent would demand $50 or less. Almost all of that 6 percent consists of people who do not own a car with a rearview camera. (The per-person cost is usually under $50.) These conclusions may have general implications for other domains in which regulation has the potential to improve people’s lives, even if it fails standard cost-benefit analysis; the defining category involves situations in which people lack experience with a good whose provision might have significant welfare effects.
Jane McAdam & Fiona Chong, Refugee Rights and Policy Wrongs: A Frank, Up-to-Date Guide by Experts (2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Refugee & Asylum Law
,
Human Rights Law
Type: Book
Abstract
Most of us cannot imagine how intolerable the circumstances must be when risking your life on a dangerous boat journey becomes a rational decision. The only reason you would do it is because you have no choice – because to stay at home is to face certain death. Official statistics show that the vast majority of people who arrive in Australia by boat are found to be in need of protection – because they have a well-founded fear of persecution or they otherwise face a real risk of significant harm if they are returned to their homelands, in Afghanistan, Iraq, Syria and beyond. Yet, successive governments in Australia have declared the need to ‘stop the boats’, at all costs. If you come by boat to Australia, you will be intercepted by the military and turned back at sea. Failing that, you will be forcibly removed to a remote island in the Pacific, where you will likely be detained for years while your protection claim is assessed. Even if you are found to be a refugee, you will never be resettled in Australia. The human cost of Australia’s policies is extreme. At the time of writing, 906 refugees and asylum seekers remain on Nauru and Manus Island, living in conditions of extreme deprivation and despair. Over 80 per cent suffer from depression, anxiety and post-traumatic stress disorder. Experts say that the levels of trauma offshore exceed those in war zones and disaster zones around the world. Twelve people have died, on Australia’s watch. At a time when there are more people in need of protection globally than at any time since World War II, Australia’s policies of deterrence are indefensible. They violate Australia’s obligations under international law – obligations to which our government has voluntarily agreed. They do nothing to address the underlying conditions that lead people to take boat journeys in the first place – persecution and human rights violations at home, and the lack of alternative pathways to safety. Australia has simply pushed the problem away – out of sight, out of mind. In Refugee Rights and Policy Wrongs, we argue that a radically different approach is possible – one that is consistent with international refugee and human rights law. Australia is one of the world’s most harmonious, multicultural and socially mobile countries. We have the capacity to accommodate and celebrate diversity, and to be generous towards those who seek our protection.
Lucian A. Bebchuk & Kobi Kastiel, The Perils of Small-Minority Controllers, 107 Geo L.J. 1453 (2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Governance
Type: Article
Abstract
This Article contributes to the long-standing and heated debate over dual-class companies by placing a spotlight on a significant set of dual-class companies whose structures raise especially severe governance concerns: those with controllers holding a small minority of the company’s equity capital. Such small-minority controllers dominate some of the country’s largest companies, and we show that their numbers can be expected to grow. We begin by analyzing the perils of small-minority controllers, explaining how they generate considerable governance costs and risks and showing how these costs can be expected to escalate as the controller’s stake decreases. We then identify the mechanisms that enable such controllers to retain their power despite holding a small or even a tiny minority of the company’s equity capital. Based on a hand-collected analysis of governance documents of these companies, we present novel empirical evidence on the current incidence and potential growth of small-minority and tiny-minority controllers. Among other things, we show that governance arrangements at a substantial majority of dual-class companies enable the controller to reduce his equity stake to below 10% and still retain a lock on control, and a sizable fraction of such companies enable retaining control with less than a 5% stake. Finally, we examine the considerable policy implications that arise from recognizing the perils of small-minority controllers. We first discuss disclosures necessary to make transparent to investors the extent to which arrangements enable controllers to reduce their stake without forgoing control. We then identify and examine measures that public officials or institutional investors could take to ensure that controllers maintain a minimum fraction of equity capital; to provide public investors with extra protections in the presence of small-minority controllers; or to screen midstream changes that can introduce or increase the costs of small-minority controllers.
Mark Tushnet, Weak-Form Review: An Introduction, 17 Int'l J. Const. L. 807 (2019).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Legal Profession
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Courts
,
International Law
,
Comparative Law
,
Legal Scholarship
Type: Article
Abstract
About two decades ago Stephen Gardbaum and I noticed something seemingly new in constitutional design: the emergence of a “New Commonwealth Model” of constitutional review or “weak-form” judicial review.1 Our starting point was constitutional review under the Canadian Charter of Rights and, in particular, its theorization by Peter Hogg and Alison Bushell Thornton as creating opportunities for dialogue between legislatures and constitutional courts.
Randall Kennedy, Woe the People, N.Y. Times, June 30, 2019, at BR1 (reviewing Astra Taylor, Democracy May Not Exist, But We’ll Miss It When It’s Gone (2019)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: News
Ronald S. Sullivan, Jr., Opinion, Harvard Capitulates Instead of Debates, N.Y Times, June 25, 2019, at A25.
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Services
Type: News
Martin D. Ginsburg, Jack S. Levin & Donald E. Rocap, Mergers, Acquisitions, and Buyouts (Wolters Kluwer L. & Bus., May 2019 ed.)(Semiannual 1989- ).
Categories:
Corporate Law & Securities
,
Taxation
Sub-Categories:
Mergers & Acquisitions
,
Taxation - Corporate
,
Taxation - Federal
Type: Book
Kristen Stilt, Cow Protection in India Is Not About Cows, Not About Protection, JOTWELL (June 20, 2019)(reviewing Yamini Narayanan, Cow Protection as ‘Casteised Speciesism’: Sacralisation, Commercialisation and Politicisation, 41 S. Asia: J. of S. Asian Stud. 331 (2018)).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
,
Constitutional Law
Sub-Categories:
Animal Law
,
Agriculture Law
,
Comparative Law
Type: Article
Cass R. Sunstein, Lapidation and Apology (June 19, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
Type: Article
Abstract
Groups of people, outraged by some real or imagined transgression, often respond in a way that is wildly disproportionate to the occasion, thus ruining the transgressor’s day, month, year, or life. To capture that phenomenon, we might repurpose an old word: lapidation. Technically, the word is a synonym for stoning, but it sounds much less violent. It is also obscure, which makes it easier to enlist for contemporary purposes. Lapidation plays a role in affirming, and helping to constitute, tribal identity. It typically occurs when a transgressor is taken to have violated a taboo, which helps account for the different people and events that trigger left-of-center and right-of-center lapidation. One of the problems with lapidation is that it often accomplishes little; it expresses outrage, and allows people to signal their identity, but does no more. Victims of lapidation might be tempted to apologize, but apologies can prove ineffective or even make things worse, depending on the nature of the lapidators.
Fern L. Nesson & Charles R. Nesson, The Confrontation Clause: Get Raleigh Right - Overrule Crawford (June 17, 2019).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Jury Trials
,
Criminal Prosecution
,
Criminal Evidence
Type: Article
Abstract
Crawford v. Washington, 542 U.S. 36 (2004), is the latest in a series of misconceived confrontation holdings. Its 'testimonial' hearsay standard has created endless confusion and done nothing to protect the rights of defendants nor the needs of fair jury trials. Constitutional confrontation requires legal sufficiency of proof. A crime may not be proved by hearsay alone. This is not a rule about the admissibility of hearsay evidence. It is a rule responsive to the injustice done to Sir Walter Raleigh mandating proof of criminal guilt by live-witness, personal-knowledge testimony sufficient to warrant conviction. Overruling Crawford and replacing it with a proper judicial understanding of the Sixth Amendment will rationalize confrontation law and restore the centrality of jury process to American criminal justice.
Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Stakeholders (Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41, June 13, 2019).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Practice & Procedure
,
Litigation & Settlement
Type: Article
Abstract
Class action law is built on a model that assumes a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund fee award sharing the costs across the class. The Constitution guarantees class members the options of opting out (exit) or objecting (voice), but given the small stakes, most do nothing (loyalty). While elegant, this model does not capture the reality of all class suits. In many cases, some class members have significant enough legal claims that they are capable of litigating alone. The group dynamics accordingly change, with everything turning on the decisions of the large claimants: in some securities cases, they step forward to perform a monitoring function (voice) and often they simply remain passive (loyalty), but the central question is whether they will opt out and litigate separately in the hopes of maximizing their recovery (exit). The risk that they might deters defendants from settling the class’s small claims, lest they then have to litigate the large claimants’ valuable claims. But the risk simultaneously creates an opportunity: if the class could present a united front, a defendant would likely pay a premium to settle the whole package of claims. Heterogeneous classes can therefore suffer a problem akin to a prisoner’s dilemma: every class member might be best off if they could work together, but lacking a mechanism to do so, coordination costs render the option elusive. The tragedy of this commons is that, built on a different template, class action law offers class members only the three options of exit, voice, or loyalty. In this Article, we offer heterogeneous class members a fourth option: cooperation. Our proposed mechanism for harnessing claimants’ cooperative instincts is a new form of class certification that we call “negotiation class certification.” Under this approach, class members would work together to generate a metric for distributing a lump sum settlement across the class. They would then ask the court to certify a “negotiation class” and to direct notice to the class members informing them that counsel will negotiate a lump sum settlement and that, if achieved, the lump sum amount would be put to a vote, with a supermajority vote binding the class; the notice would also explain the distributional metric. Any class member that did not want to bind itself to either the distributional metric or the supermajority voting process could opt out. By establishing the contours of the class prior to settlement discussions, negotiation class certification would provide the defendant with a precise sense of the scope of finality a settlement would produce, hence encouraging a fulsome offer. The proposal is a novel use of Rule 23, but it is, in many ways, a less ambitious one than certification of a settlement class, although the latter approach, controversial at its inception, has been a “stock device” in class action practice for nearly a quarter century. And while novel, negotiation class certification is consistent with the requirements of both Rule 23 and the Constitution. Indeed, engaging large class members in the settlement negotiation process ex ante improves on a system that delegates that authority to agents and involves the class only ex post.
Taiwan and International Human Rights (Jerome A. Cohen, William P. Alford & Chang-fa Lo eds., 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Human Rights Law
,
Treaties & International Agreements
Type: Book
Abstract
This book tells a story of Taiwan’s transformation from an authoritarian regime to a democratic system where human rights are protected as required by international human rights treaties. There were difficult times for human rights protection during the martial law era; however, there has also been remarkable transformation progress in human rights protection thereafter. The book reflects the transformation in Taiwan and elaborates whether or not it is facilitated or hampered by its Confucian tradition. There are a number of institutional arrangements, including the Constitutional Court, the Control Yuan, and the yet-to-be-created National Human Rights Commission, which could play or have already played certain key roles in human rights protections. Taiwan’s voluntarily acceptance of human rights treaties through its implementation legislation and through the Constitutional Court’s introduction of such treaties into its constitutional interpretation are also fully expounded in the book. Taiwan’s NGOs are very active and have played critical roles in enhancing human rights practices. In the areas of civil and political rights, difficult human rights issues concerning the death penalty remain unresolved. But regarding the rights and freedoms in the spheres of personal liberty, expression, privacy, and fair trial (including lay participation in criminal trials), there are in-depth discussions on the respective developments in Taiwan that readers will find interesting. In the areas of economic, social, and cultural rights, the focuses of the book are on the achievements as well as the problems in the realization of the rights to health, a clean environment, adequate housing, and food. The protections of vulnerable groups, including indigenous people, women, LGBT (lesbian, gay, bisexual, and transgender) individuals, the disabled, and foreigners in Taiwan, are also the areas where Taiwan has made recognizable achievements, but still encounters problems. The comprehensive coverage of this book should be able to give readers a well-rounded picture of Taiwan’s human rights performance. Readers will find appealing the story of the effort to achieve high standards of human rights protection in a jurisdiction barred from joining international human rights conventions.
Oren Bar-Gill, Omri Ben-Shahar & Florencia Marotta-Wurgler, The American Law Institute’s Restatement of Consumer Contracts: Reporters’ Introduction, 15 Eur. Rev. Contract L. 91 (2019).
Categories:
Banking & Finance
,
Consumer Finance
Sub-Categories:
Contracts
,
Consumer Contracts
Type: Article
Jeannie Suk Gersen, How Fetal Personhood Emerged as the Next Stage of the Abortion Wars, NewYorker.com (June 5, 2019).
Categories:
Health Care
,
Family Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Reproduction
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
John C. Coates, Darius Palia & Ge Wu, Are M&A Contract Clauses Value Relevant to Bidder and Target Shareholders? (June 2019).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Mergers & Acquisitions
,
Shareholders
,
Empirical Legal Studies
Type: Other
Abstract
Merger and acquisition deals are governed by merger clauses which are negotiated between the bidder and target in order to communicate deal terms, specify risk sharing between the parties, and describe dispute management provisions in case of litigation. In a large sample of manually collected U.S. deal contracts involving publicly traded bidders and targets, we construct merger clauses indices based on legal scholars’ ex-ante prediction and examine the relationship between announcement returns and different types of merger clauses. We find that bidder protective clauses correlate with higher bidder returns while target protective clauses and pro-competition clauses correlate with higher target returns. We also find that bidder and target protective indices have larger impacts on announcement abnormal returns for “bad” deals than for “good” deals. Finally, we find that the inclusion of more bidder protective clauses leads to lower deal completion rates while the inclusion of more target protective clauses and pro-competition clauses has no impact on deal completion rates. These results are consistent with the expert lawyer/efficient contracting view of Cain, Macias, and Davidoff Solomon (2014), and Coates (2016), and against merger contracts as boilerplate agreements.