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Publication Types
Categories
A Global History of Crime: Antiquity (Adriaan Lanni ed., forthcoming 2023).
Categories:
Legal Profession
,
Criminal Law & Procedure
Sub-Categories:
Legal History
Type: Book
Adriaan Lanni, Community-based and Restorative Justice Interventions to Reduce Over-policing, Minn. J. L. & Ineq. (forthcoming).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
Type: Article
Adriaan Lanni, Enforcement in Classical Athens, in 1 A Global History of Crime: Antiquity (Adriaan Lanni ed., forthcoming 2023).
Categories:
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Legal History
Type: Book
Adriaan Lanni, Introduction: Ancient Approaches to Crime, in 1 A Global History of Crime (Adriaan Lanni ed., forthcoming 2023).
Categories:
Legal Profession
,
Criminal Law & Procedure
Sub-Categories:
Legal History
Type: Book
Adriaan Lanni, Meeting the Challenges of Scaling Up Restorative Justice in the United States, in Restorative Justice at a Crossroads: Dilemmas of Institutionalization (forthcoming).
Categories:
Criminal Law & Procedure
Type: Book
Adriaan Lanni, Erin V. Freeborn & Lucas Wilson, Restorative Justice Intersections with the Legal System in Massachusetts: Criminal Diversion to Programs in Prison, in The International Encyclopedia of Restorative Justice (forthcoming).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
Type: Book
Lucian A. Bebchuk, Kobi Kastiel & Roberto Tallarita, Stakeholder Capitalism in the Time of COVID, 40 Yale J. Regul. (forthcoming 2023).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Mergers & Acquisitions
Type: Article
Abstract
This Article investigates the time of COVID-19 to test the claims of supporters of stakeholder capitalism (“stakeholderism”). Such supporters advocate encouraging and relying on corporate leaders to use their discretion to serve stakeholders such as employees, customers, suppliers, local communities, and the environment. The pandemic followed and was accompanied by peak support for stakeholderism and broad expressions of commitment to it from corporate leaders. Nonetheless, and even though the pandemic heightened risks to stakeholders, we document that corporate leaders negotiating deal terms failed to look after stakeholder interests. Some supporters of stakeholder capitalism argue that corporate leaders should and do give weight to stakeholder interests because delivering value to stakeholders is a major element of corporate purpose. Other supporters maintain that corporate leaders considering a sale of the company should and do seek to benefit stakeholders, because fulfilling implicit promises to do so serves shareholders’ ex ante interest in inducing stakeholder cooperation, arguably essential to corporate success. We find that the evidence is inconsistent with the claims of both views. We conduct a detailed examination of all the $1B+ acquisitions of public companies that were announced during the COVID pandemic, totaling more than 100 acquisitions with an aggregate consideration exceeding $700 billion. We find that deal terms provided large gains for the shareholders of target companies, as well as substantial private benefits for corporate leaders. However, although many transactions were viewed at the time of the deal as posing significant post-deal risks for employees, corporate leaders largely did not obtain any employee protections, including payments to employees who would be laid off post-deal. Similarly, we find that corporate leaders failed to negotiate for protections for customers, suppliers, communities, the environment, and other stakeholders. After conducting various tests to examine whether this pattern could have been driven by other factors, we conclude that it is likely to have been driven by corporate leaders’ incentives to benefit stakeholders only to the extent needed to serve shareholders’ interests. While we focus on decisions in the acquisition context, we explain why our findings also have implications for ongoing-concern decisions, and we discuss and respond to potential objections to our conclusions. Overall, our findings cast substantial doubt on the claims made by supporters of stakeholder capitalism. Those who seriously care about corporations’ external effects on shareholders should not harbor illusory hopes that corporate leaders would protect stakeholder interests on their own. Instead, they should concentrate their efforts on securing governmental interventions (such as carbon taxes and employee protection policies) that could truly protect stakeholders.
Adriaan Lanni, The Debate over the Rule of Law in Classical Athens: A Legal Consciousness Approach, in 1 The Cambridge History of Democracy: From Democratic Beginnings to c. 1350 (Eric Robinson & Valentina Arena eds., forthcoming 2023).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Political Theory
,
Legal History
Type: Book
Vicki C. Jackson & Yasmin Dawood, Constitutionalism and a Right to Effective Government? (forthcoming 2022).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Comparative Law
Type: Book
Abstract
Nations around the world are facing various crises of ineffective government. Basic governmental functions, including rights-protection and securing material well-being, including education and healthcare, are compromised, leading to declines in general welfare, in enjoyment of rights, and even of democracy itself. This innovative collection, featuring analyses by leaders in the fields of constitutional law and politics, highlights the essential role of effective government in sustaining democratic constitutionalism. The book explores 'effective government' as a right, principle, duty, and interest, situating questions of governance in debates about negative and positive constitutionalism. In addition to providing new conceptual approaches to the connections between rights and governance, the volume also provides novel insights on government institutions, including courts, legislatures, executives, and administrative bodies, as well as the media and political parties. This is an essential volume for anyone interested in constitutionalism, comparative law, governance, democracy, the rule of law, and rights.
Sanjit Dhami & Cass R. Sunstein, Bounded Rationality: Heuristics, Judgment, and Public Policy (forthcoming 2022).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Economics
,
Law & Behavioral Sciences
Type: Book
Abstract
Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections. After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.”
O. Carter Snead & Mary Ann Glendon, The pro-life movement can’t stop at the unborn, Wash. Post, June 29, 2022.
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: News
Jack Goldsmith, Prosecute Trump? Put Yourself in Merrick Garland's Shoes., N.Y. Times, June 22, 2022, at A21.
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Executive Office
Type: News
Laurence H. Tribe & Dennis Aftergut, Republican election sabotage has already started. New Mexico is proof of that, CNN (June 20, 2022).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Other
Laurence H. Tribe, Phillip Allen Lacovara & Dennis Aftergut, The insurrection won't end until Trump is prosecuted and disqualified from future office, L.A. Times, June 20, 2022.
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Elections & Voting
Type: Other
Laurence H. Tribe & Dennis Aftergut, An ‘I-believed-my-own-lies’ defense won’t work for Trump, The Hill (June 16, 2022).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Executive Office
Type: Other
Jonathan Zittrain, How to Fix Twitter and Facebook, Atlantic (June 9, 2022).
Categories:
Corporate Law & Securities
,
Technology & Law
Sub-Categories:
Mergers & Acquisitions
,
Information Privacy & Security
,
Digital Property
Type: Article
Albert W. Alschuler & Laurence H. Tribe, Some Questions for the Alito Five, Verdict, (June 9, 2022).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Other
Abstract
On the assumption that five Supreme Court Justices—Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—are prepared to overrule Roe v. Wade and join an opinion resembling Justice Alito’s draft in Dobbs v. Jackson Women’s Health Org. (“the draft”), we have some questions.
Ryan Doerfler & Elie Mystal, The Supreme Court Is Broken. How Do We Fix It?, Nation (June 6, 2022).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Other
Abstract
Ryan Doerfler argues that real change requires us to strip the court of its authority while Elie Mystal writes that the best approach is to flood the court with more justices.
Benjamin I. Sachs, Safety, Health, and Union Access in Cedar Point Nursery, 2021 Supreme Ct. Rev. 99 (2022).
Categories:
Constitutional Law
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Fifth Amendment
,
Supreme Court of the United States
,
Labor Law
Type: Article
Abstract
In Cedar Point Nursery v. Hassid, the Supreme Court holds that a California regulation granting union organizers limited access rights to agricultural property interferes with the property owners’ right to exclude and therefore constitutes a per se physical taking. But the Court also decides that there are exceptions to its per se takings rule. Most relevant, the Court holds that the government, without effecting a taking, can require property owners to cede access rights as a condition of receiving benefits or in order to avoid a risk posed to the public, as long as the benefits conveyed or the risks avoided constitute a legitimate police power purpose and as long as the access condition bears an essential nexus and rough proportionality to that purpose. This essay shows that Cedar Point is wrong on its own terms because the union access provision that the Court holds to be a taking fits comfortably within the Court’s exception to its takings rule. This is so for two reasons. One, the access regulation – and the general labor statute it implemented – was part of California’s approach to ending violence that had come to define agricultural union organizing in the 1960s and 1970s, violence so rampant that many contemporaries described it as “war.” Two, the access provision facilitated the negotiation of collective bargaining agreements containing robust mechanisms for pesticide safety, pesticides whose use posed a dire threat to farmworker and consumer health. Understood this way, the access provision is germane to two quintessential police power purposes: public safety and health. Moreover, the limited access rights provided by the regulation bear a clear nexus to those purposes and are, to say the least, roughly proportional to the costs they help avoid.
Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 133 Yale L.J. (2022).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Constitutional History
,
Separation of Powers
,
Executive Office
,
Legal History
Type: Article
Abstract
Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution. That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.
Jill Lepore, Bicycles Have Evolved. Have We?, New Yorker (May 23, 2022).
Categories:
Disciplinary Perspectives & Law
Type: Article
Abstract
From the velocipede to the ten-speed, biking innovations brought riders freedom. But in a world built for cars, life behind handlebars is both charmed and dangerous.
Laurence H. Tribe, Does American Law Currently Authorize the President to Seize Sovereign Russian Assets?, Lawfare (May 23, 2022).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Military, War, & Peace
,
Congress & Legislation
Type: Other
Laurence H. Tribe, Don’t believe those who say ending Roe v. Wade will leave society largely intact, The Guardian (May 23, 2022).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: News
Abstract
If the high court adopts Alito’s draft opinion, it will be a legal tidal wave that sweeps away a swath of rights unlike anything America has ever seen.
Elizabeth Rushing, Naz K. Modirzadeh & Dustin A. Lewis, Humanitarian values in a counterterrorism era, Humanity in War (May 17, 2022).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Terrorism
,
International Humanitarian Law
Type: Other
Abstract
In support and promotion of the recent International Review of the Red Cross edition on counterterrorism, a conversation with Naz Modirzadeh and Dustin Lewis on whether and how we can reconcile the current clash between a growing global counterterrorism architecture and impartial humanitarian activities.
Jill Lepore, After the Failed Senate Bill on Abortion, New Yorker (May 15, 2022).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Genetics & Reproduction
Type: Article
Abstract
If the Democratic response to Justice Alito’s draft opinion was largely rhetorical, was it also a missed opportunity?
Lori Lowenthal Marcus & Jesse M. Fried, California Parents Say No to Anti-Semitic Ethnic Studies, Wall St. J., May 13, 2022, at A15.
Categories:
Disciplinary Perspectives & Law
,
Family Law
Sub-Categories:
Religion & Law
,
Education Law
Type: Other
Ronald Sullivan, Forgotten Insurrection Clause of 14th Amendment Used to Force GOP Members of Congress to Defend Actions on Jan. 6, Law.com (May 11, 2022).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
First Amendment
,
Congress & Legislation
Type: Other
Abstract
As a constitutional scholar, I believe that the lawyers seeking disqualification have a steep hill to climb in all of these cases—especially when their arguments based on the 14th Amendment collide with the First Amendment and its protection of free speech.
Jeannie Suk Gersen, Academic Freedom and Discrimination in a Polarizing Time, 59 Hous. L. Rev. 781 (2022).
Categories:
Discrimination & Civil Rights
,
Legal Profession
,
Constitutional Law
Sub-Categories:
First Amendment
,
Legal Education
Type: Article
Abstract
Academic freedom is under attack from both the left and the right. The very notion of academic freedom is at stake as liberals and conservatives attack exercises of it that do not align with their political goals. Moreover, those who purport to champion academic freedom frequently end up attempting to restrict it. This trend has accompanied an atmosphere of fear about speaking freely. At this moment, we desperately need explicit discussions about academic freedom. Those who believe in the value of academic freedom must wrest it from disingenuous invocations and truly defend it by wrestling with its genuine difficulties, including by acknowledging the tensions it may create with evolving antidiscrimination principles and practices.
Aaron Goldzimer & Nicholas Stephanopoulos, The Novel Strategy Blue States Can Use to Solve Partisan Gerrymandering by 2024, Slate Mag (May 6, 2022).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Article
Ari Peskoe, Can FERC convince utilities to build modern transmission systems?, Utility Dive (May 4, 2022).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Energy & Utilities Law
,
Administrative Law & Agencies
Type: Other
Abstract
Make no little plans; they have no magic to stir men’s blood and probably themselves will never be realized. – Daniel Burnham
Jill Lepore, Of Course the Constitution Has Nothing to Say About Abortion, New Yorker (May 4, 2022).
Categories:
Constitutional Law
,
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Gender & Sexuality
,
Genetics & Reproduction
Type: Article
Abstract
There is no mention of the procedure in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito.
Jeannie Suk Gersen, What an Unprecedented Supreme Court Leak Says About the Future of Abortion--and About Precedent Itself, New Yorker (May 4, 2022).
Categories:
Constitutional Law
,
Health Care
Sub-Categories:
Fourteenth Amendment
,
Genetics & Reproduction
Type: Article
Abstract
The fragility of the right to an abortion has become synonymous with the fragility of the Court’s legitimacy.
Laurence Tribe, The new Supreme Court’s iron fist, Boston Globe, May 3, 2022.
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
Abstract
If the right of a woman to decide whether to have a baby won’t qualify as a guaranteed right, then neither will most of the rights you have long assumed are yours.
Chester A. Finn et al., How Persons with Intellectual Disabilities Are Fighting for Decision-Making Rights, 121 Current Hist. 30 (forthcoming 2022).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
Type: Article
Faraaz Mahomed et al., Mental Health, Human Rights, and Legal Capacity, 9 Lancet Psychiatry 341 (2022).
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Disability Law
,
Human Rights Law
Type: Article
Lucian A. Bebchuk & Roberto Tallarita, Will Corporations Deliver Value to All Stakeholders? 75 Vand. L. Rev. 1031 (2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Shareholders
Type: Article
Abstract
Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance advocate relying on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics question whether corporate leaders have incentives to protect stakeholders and to follow though pledges to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views. The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable’s 2019 Statement on the Purpose of a Corporation (the “BRT Statement”). The BRT Statement expressed a commitment to deliver value to all stakeholders, not just shareholders, and was widely viewed as a major milestone that would usher in “stakeholder capitalism” and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, those whose CEOs signed the highly visible BRT Statement would be natural candidates to do so. We review a wide array of hand-collected corporate documents of the 128 U.S. public companies that joined the BRT Statement (the “BRT Companies”). Examining the two-year period following the issuance of the BRT Statement, we obtain the following six findings: First, the numerous BRT Companies that updated their corporate governance guidelines during the two-tear period generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain a commitment to shareholder primacy in their guidelines. Second, as of the end of the two-year period, most of the BRT Companies had governance guidelines that reflected a shareholder primacy approach. Third, in SEC submissions or securities filings responding to the over forty shareholder proposals that were submitted to BRT Companies regarding their implementation of the BRT Statement, most of the BRT Companies explicitly stated that their joining the BRT Statement did not require any such changes, and none of them accepted that the Statement required any changes. Fourth, all of the BRT Companies had and retained corporate bylaws that reflect a shareholder-centered view. Fifth, in their proxy statement following the BRT Statement, the great majority of the BRT did not even mention their joining the BRT Statement, and, among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in stakeholder treatment. Sixth, the BRT Companies all continued to pay directors compensation that strongly aligns their interests with shareholder value and avoided any use or support of stakeholder-oriented metrics. Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders.
Mark J. Roe, Stock Market Short-Termism: What the Empirical Evidence Tells Policymakers, 7 J. L. Fin. & Acct. 1 (2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
Type: Article
Abstract
In corporate law policymaking, there is considerable attention to stock market short-termism. Public discourse pins some noticeable part of the blame for climate change, environmental damage, and mistreatment of stakeholders on stock market short-termism. Presidential candidates raise the issue and castigate the stock market for short-termism; and it’s regularly invoked to justify securities regulation proposals and corporate case-law decisions. Here I examine the extant economic empirical work on stock market short-termism to assess whether it supports making stock market short-termism actionable in a major way for policy purposes. I evaluate it in two dimensions: first to see whether a consensus emerges from the work (none does) and second to see whether the work is conceptually structured to reveal its economy-wide severity. The latter conceptual point – the difficulty in scaling much corporate research to ascertain whether there’s an economy-wide problem – affects not just the stock market short-termism inquiry. The typical research effort seeks to measure whether a local treatment induces more local short-termism, not whether the economy-wide impact is severe. But evaluating short-termism’s economy-wide impact is essential for policymaking; policymakers must consider whether the economy is failing to invest or cutting back on R&D because of a stock market afflicted with a truncated time horizon. Local findings (of the impact on a subset of firms with a particular characteristic, such as short-vesting stock options, rapid stock market trading, or hedge fund activism) need not scale to economy-wide results; some local results will do so only serendipitously; and, finally, there are structural reasons why for stock market short-termism one should expect economy-wide results not to match local results. More than most corporate law issues, the short-termism problem faces a high failure-to-scale hurdle.
Eli Y. Adashi, Daniel P. O'Mahony & I. Glenn Cohen, Stamping Out the Medicaid Coverage Gap: An ACA Imperative, Am. J. Med. (2022).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Eli Y. Adashi & I. Glenn Cohen, The CMS Vaccine Mandate at the Supreme Court: A Hippocratic Imperative, Am. J. Med. (2022).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
,
Health Law & Policy
Type: Article
Ryan D. Doerfler & Samuel Moyn, The Ghost of John Hart Ely, 75 Vand. L. Rev. 769 (2022).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Abstract
The ghost of John Hart Ely haunts the American liberal constitutional imagination. Despite the failure long ago of any progressive constitutional vision in an increasingly conservative Supreme Court, Ely’s conjectures about the superiority of judges relative to legislatures in the protection of...
Jeannie Suk Gersen, If Roe v. Wade Is Overturned, What’s Next?, NewYorker.com (Apr. 17, 2022).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
Abstract
After building toward such a moment for half a century, pro-life legal efforts aren’t likely to stop there.
Laurence H. Tribe & Jeremy Lewin, $100 Billion. Russia’s Treasure in the U.S. Should Be Turned Against Putin., N.Y. Times, Apr. 15, 2022, at SR5.
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Military, War, & Peace
,
Foreign Relations
Type: News
Tomiko Brown-Nagin, Ketanji Brown Jackson is the beginning, not the end, of this story, CNN (Apr. 8, 2022).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Race & Ethnicity
,
Supreme Court of the United States
Type: Other
Keith Fogg, Excuses, Excuses: Which Ones Will Work, 24 J. Tax Prac. & Proc. 37 (2022).
Categories:
Taxation
Sub-Categories:
Taxation - Federal
Type: Article
Abstract
In Brockamp, the Supreme Court faced the issue of whether the three-year time limit for filing an administrative tax refund claim in Code Sec. 6511 was subject to equitable tolling.8 Without discussing whether the time period was jurisdictional (and apparently assuming that it was not), the Court held that, even if the Irwin presumption applied to this time period, a combination of factors would rebut any presumption that equitable tolling could apply: (1) the time limits were set forth in an "unusually emphatic form"; (2) the statute set forth the limitations in a "highly detailed technical manner," by reiterating the limitations period in multiple subsections; (3) the statute specified numerous exceptions to the filing deadline, which did not include equitable tolling9; (4) the granting of equitable tolling would require tolling substantive limitations on the amount of recovery, for which there was no direct precedent (see Code Sec. 6511 (b) lookback amount limitations); and (5) granting equitable tolling could create serious administrative problems by forcing the Internal Revenue Service (IRS) to respond to large numbers of late claims.10 In Holland, the Supreme Court revisited Brockamp when addressing whether the one-year statute of limitations for asking a federal district court to engage in habeas review of a state death penalty conviction was subject to equitable tolling.11 In distinguishing the habeas statute from the one in Brockamp, the Court found that the presumption in favor of equitable tolling was not rebutted because (1) the language of the limitations provision was not unusually emphatic, (2) the statute did not "reiterate" its time limitation, (3) the one exception the statute enunciated (tolling during state collateral review proceedings) was a necessary procedural measure to account for exhaustion of state remedies, (4) the application of equitable tolling would not affect the substance of a habeas petitioner's claim, and (5) the subject matter at issue, habeas corpus, pertains to an area in which equitable considerations often factor (which "reinforced" the presumption in favor of tolling), unlike the area of refund claim administration.12 Refunds claims present a special problem for the IRS because most tax returns qualify as refund claims making the number of claims huge, over 90 million according to Brockamp, and the consequent administrative problems if equitable tolling applied significant. [...]in Rubel, the IRS gave a taxpayer an incorrect deadline for filing a Tax Court petition in written correspondence.19 Likewise, in Matuszak, an IRS employee orally gave an unrepresented taxpayer the wrong last date to file a petition.20 In Nauflett, an employee of the IRS's Taxpayer Advocate Service orally gave another unrepresented taxpayer an incorrect final filing date.21 Although these cases arose in the innocent spouse context, rather than under Code Sec. 6330, they illustrate the contexts in which a failure to allow for equitable tolling can be outcome-determinative for litigants. In each of these cases, the tax clinic at Harvard Law School filed an appeal from the dismissal for lack of jurisdiction of the case by the Tax Court and in each case the circuit court upheld the dismissal and did not get to the issue of equitable tolling because of the ruling on jurisdiction. In one of the Code Sec. 6330(d)(1) cases described above in which the tax clinic at Harvard represented the petitioner on appeal, the Fourth Circuit found that the IRS language was not confusing enough to justify equitable tolling.25 The Ninth Circuit declined to even consider the taxpayer's equitable-tolling arguments, reasoning that Code Sec. 6330(d)(l)'s deadline was jurisdictional.26 B. Extraordinary Circumstances Sometimes Prevent Taxpayers from Meeting Tax Court Filing Deadlines In other cases, taxpayers experience extraordinary circumstances that prevent them from timely filing petitions with the Tax Court.
A Political Economy of Justice (Danielle Allen, Yochai Benkler et al. eds., 2022).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Economics
,
Legal Theory & Philosophy
,
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
Defining a just economy in a tenuous social-political time. If we can agree that our current social-political moment is tenuous and unsustainable—and indeed, that may be the only thing we can agree on right now—then how do markets, governments, and people interact in this next era of the world? A Political Economy of Justice considers the strained state of our political economy in terms of where it can go from here. The contributors to this timely and essential volume look squarely at how normative and positive questions about political economy interact with each other—and from that beginning, how to chart a way forward to a just economy. A Political Economy of Justice collects fourteen essays from prominent scholars across the social sciences, each writing in one of three lanes: the measures of a just political economy; the role of firms; and the roles of institutions and governments. The result is a wholly original and urgent new benchmark for the next stage of our democracy.
Annie Duke & Cass R. Sunstein, Freerolls and binds: making policy when information is missing, 6 Behav. Pub. Pol'y 261 (2022).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
When policymakers focus on costs and benefits, they often find that hard questions become easy – as, for example, when the benefits clearly exceed the costs, or when the costs clearly exceed the benefits. In some cases, however, benefits or costs are difficult to quantify, perhaps because of limitations in scientific knowledge. In extreme cases, policymakers are proceeding in circumstances of uncertainty rather than risk, in the sense that they cannot assign probabilities to various outcomes. We suggest that in difficult cases in which important information is absent, it is useful for policymakers to consider a concept from poker: “freerolls.” A freeroll exists when choosers can lose nothing from selecting an option but stand to gain something (whose magnitude may itself be unknown). In some cases, people display “freeroll neglect.” In terms of social justice, John Rawls’ defense of the difference principle is grounded in the idea that behind the veil of ignorance, choosers have a freeroll. In terms of regulatory policy, one of the most promising defenses of the Precautionary Principle sees it as a kind of freeroll. Some responses to climate change, pandemics, and financial crises can be seen as near-freerolls. Freerolls and near-freerolls must be distinguished from cases involving cumulatively high costs and also from faux freerolls, which can be found when the costs of an option are real and significant, but not visible. “Binds” are the mirror image of freerolls; they involve options from which people are guaranteed to lose something (of uncertain magnitude). Some regulatory options are binds, and there are faux binds as well.
Andrew Manuel Crespo, No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, Fordham L. Rev. (2022).
Categories:
Criminal Law & Procedure
Sub-Categories:
Prison Law & Prisoners' Rights
,
Criminal Prosecution
,
Sentencing & Punishment
Type: Article
Abstract
The American penal system is a system of massive, racially unjust incarceration. It is also, to quote the U.S. Supreme Court, a "system of pleas." The latter drives the former, as coercive plea bargaining makes it possible for the state to do two things that are otherwise hard to pull off at once: increase convictions and sentence lengths. Mass incarceration is a predictable result. But while plea bargaining is intensely coercive when leveraged against individuals, the system of pleas has a structural weak point. That Achilles' heel is exposed once we see people facing prosecution not as isolated individuals but rather as a potentially collective community of power. Organized to act together, this community has unique resources. Most notably, they have the power to say "not guilty" when asked "how do you plead?" If done together, this simple but profound act of resistance would bring the penal system to a halt. Courts and prosecutors simply do not have the resources to sustain mass incarceration while affording everyone accused of a crime the constitutionally guaranteed right to a trial. This fact is what makes plea bargaining so essential to mass incarceration in the first place. Plea bargaining unions, with their implicit power to threaten plea bargaining strikes, thus hold a potentially transformative power--a decarceral power, a democratic power--that arises from the penal system's massive overextension. Susan Barton, a formerly incarcerated organizer, floated this idea in the pages of The New York Times with Michelle Alexander one decade ago. In the years since, it has never received focused academic attention and has seen only sporadic and isolated attempts at implementation. This Essay aims to conceptualize and test the limits of Burton's idea, examining both its promise and its hurdles while marking key questions for future exploration.
Yochai Benkler, Power and Productivity: Institutions, Ideology, and Technology in Political Economy, in A Political Economy of Justice (Danielle Allen et al. eds., 2022).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Politics & Political Theory
Type: Book
Robert Percival & Richard J. Lazarus, The U.S. Supreme Court and Environmental Law Update, Prac. Law., Apr. 2022, at 39.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Abstract
Environmental cases and cases with implications for environmental law decided by the supreme court during its 2020-21 term.
Eloise Lawrence, When We Fight, We Win: Eviction Defense as Subversive Lawyering, 90 Fordham L. J. 2125 (2022).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Housing Law
,
Public Interest Law
,
Legal Services
,
Clinical Legal Education
Type: Article
Eli Y. Adashi & I. Glenn Cohen, Who Will Oversee the Ethical Limits of Human Embryo Research?, 40 Nature Biotechnology 463 (2022).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Medical Technology
Type: Article
Gerald L. Neuman, Another Trump Legacy That Won't Give Up, Human Rights@Harvard Law (Mar. 28, 2022).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Other
Conor Casey & Adrien Vermeule, If every judge is an originalist, originalism is meaningless, Wash. Post., Mar. 25, 2022.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Other
Abstract
Ketanji Brown Jackson is the latest liberal to embrace an approach once associated with conservatives
Adrian Vermeule, Pickwickian Originalism, Ius & Iustitium (Mar. 22, 2022).
Categories:
Constitutional Law
Type: Other
Abstract
We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.
Cass R. Sunstein, The War on Bureaucratic Sludge, Saturday Evening Post, Mar. 22, 2022.
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: News
Abstract
The red tape we all must deal with is more than an inconvenience. It wastes time, money, and energy and ultimately robs us of our freedom.
Jill Lepore, Why the School Wars Still Rage, New Yorker (Mar. 14, 2022).
Categories:
Family Law
Sub-Categories:
Education Law
Type: Article
Abstract
From evolution to anti-racism, parents and progressives have clashed for a century over who gets to tell our origin stories.
Georgia R. Goodman et al., “I’d feel like someone was watchin’ me… watching for a good reason”: Perceptions of data privacy, access, and sharing in the context of real-time PrEP adherence monitoring among HIV-negative MSM with substance use, AIDS & Behav. (2022).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Food & Drug Law
,
Information Privacy & Security
Type: Article
Abstract
Once-daily oral tenofovir/emtricitabine is highly effective as pre-exposure prophylaxis (PrEP) against HIV but is dependent on adherence, which may be challenging for men who have sex with men (MSM) and use substances. Digital pill systems (DPS) permit the direct, real-time measurement of adherence, though user perceptions of data privacy in this context are unknown. Thirty prospective DPS users – HIV-negative MSM with non-alcohol substance use – completed in-depth qualitative interviews exploring preferences around privacy, access, and sharing of DPS adherence data. Participants discussed some concerns about the impact of DPS use on personal privacy, and emphasized the need for robust data protections in the technology. Participants were interested in having on-demand access to their adherence data, and were most willing to share data with primary care providers and long-term relationship partners. Future investigations exploring bioethical frameworks around DPS use are warranted, and user preferences should inform best practices for protecting DPS data.
Daniel K. Tarullo, Regulators should rethink the way they assess bank mergers, Brookings (Mar. 16, 2022).
Categories:
Banking & Finance
Sub-Categories:
Banking
Type: Other
Laurence H. Tribe & Dennis Aftergut, The evidence is clear: it’s time to prosecute Donald Trump, Guardian (Mar. 16, 2022).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Criminal Prosecution
Type: Other
Abstract
The evidence is clear: it’s time to prosecute Donald Trump Laurence H Tribe and Dennis Aftergut On the supposedly difficult question of ‘criminal intent’, prosecutors should have no trouble convincing a jury. Full speed ahead is the only proper course.
Laurence H. Tribe & Elizabeth B. Wydra, Confederate Amnesty Act must not insulate the Jan. 6 insurrectionists, The Boston Globe, Mar. 11, 2022.
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
Type: News
Abstract
In the lead-up to the insurrection, Madison Cawthorn participated in planning meetings and promoted the confrontation with Congress on social media. He has invoked a post-Civil War statute to render him immune from consequences imposed by North Carolina voters.
Cass R. Sunstein, Injury In Fact, Transformed, (Mar. 11, 2022).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Congress & Legislation
Type: Other
Abstract
Over the course of the last half-century, the “injury in fact” test has been radically transformed. It began as a bold and essentially lawless effort, led by Justice William O. Douglas, to expand the category of persons entitled to bring suit, and in the process to open federal courts to a wide range of people, including the beneficiaries of regulatory statutes. It is now achieving precisely the opposite goal: The Court has sharply limited the category of legally cognizable “injuries,” requiring them to be identical or akin to those recognized at the common law (or by the Constitution itself). The result is severely to restrict Congress’ power to grant standing to regulatory beneficiaries, by creating constitutional limits on its authority to create new rights and to allow people to sue to protect those rights. Ironically, the Court has restricted Congress’ power by developing public law principles on private law foundations – foundations that public law was specifically meant to repudiate. The transformation is an effort to invent a tradition; the new understanding of standing (and of Articles III and II) has no roots in the Constitution, and it is disconnected from standard sources of constitutional law. The best path forward is for the Court to make it clear that while traditionally recognized harms are a legitimate basis for standing, Congress has broad authority to create rights, and causes of action, lacking clear analogs at common law. Article III does not enact Mr. William Prosser’s Law of Torts.
Lucian Bebchuk & Roberto Tallarita, The Flaws and Limits of ESG-based Compensation, ProMarket (Mar. 11, 2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
Type: Other
Abstract
Companies increasingly use ESG metrics in their compensation packages for CEOs. A new empirical study suggests that this practice has questionable promise and produces significant risks.
Laurence H. Tribe, Politicians in Robes, N.Y. Rev., Mar. 10, 2022 (reviewing Stephen Breyer, The Authority of the Court and the Peril of Politics (2021) and Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court (2021)).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Abstract
Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?
Howell jackson & Timothy Massad, The Treasury Option: How the U.S. Can Achieve the Financial Inclusion Benefits of a CBDC Now, Brookings (Mar. 10, 2022).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Financial Markets & Institutions
,
Administrative Law & Agencies
Type: Other
Abstract
We propose that the U.S. Treasury Department create “Treasury Accounts” as a means of improving access to financial services for many Americans. These would be digital accounts that would facilitate distribution of federal benefits and provide low cost, no-frills payment services. Treasury could create these accounts under existing statutory authority. In addition, Treasury’s substantial experience, dating back several decades, in devising benefit distribution and payment service programs for individuals can serve as the foundation for our proposal. Treasury Accounts could make it easier for those who are underserved by today’s banking system to both open and sustain an account. We propose a limit on account size and rollovers to private accounts to minimize disintermediation of bank deposits. As the public debate heats up over whether to create a U.S. central bank digital currency (CBDC), we explain why Treasury is better suited, at least in the short term, to provide retail accounts than the Federal Reserve, and why this proposal would be a faster, easier way to achieve some of the primary objectives of a CBDC.
Laurence H. Tribe & Dennis Aftergut, Attorney General Merrick Garland Should Appoint a Special Counsel to Investigate Trump, Wash. Post., Mar. 9, 2022.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: News
Kristin M. Kostick-Quenet, I. Glenn Cohen, et al., Mitigating Racial Bias in Machine Learning, 50 J. L., Med., & Ethics 92 (2022).
Categories:
Discrimination & Civil Rights
,
Technology & Law
Sub-Categories:
Race & Ethnicity
,
Medical Technology
Type: Article
Abstract
When applied in the health sector, AI-based applications raise not only ethical but legal and safety concerns, where algorithms trained on data from majority populations can generate less accurate or reliable results for minorities and other disadvantaged groups.
Alicia Ely Yamin, Reflections on Paul Farmer’s legacy: a clarion call for transformative human rights praxis in global health, OpenGlobalRights, Mar. 4, 2022.
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Human Rights Law
Type: Other
Eli Y. Adashi & I. Glenn Cohen, SARS-CoV-2 Laboratory-Developed Tests, JAMA (2022).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
,
Health Law & Policy
Type: Article
Abstract
On November 15, 2021, the US Department of Health and Human Services (HHS) rescinded a Trump-era policy that had directed the US Food and Drug Administration (FDA) to discontinue the premarket reviews of laboratory-developed tests (LDTs), including those for SARS-CoV-2.1 In a statement detailing the reversal, HHS Secretary Xavier Becerra noted that the policy “limited FDA’s ability to address certain problematic COVID-19 tests.”1 Secretary Becerra also noted that restoring the integrity of the regulatory process required that the FDA reinstate its “longstanding approach” to the oversight of the LDTs.1 Given the ever-growing demand for LDTs for detecting SARS-CoV-2, the restoration of integrity to the FDA review process could not be more timely. In this Viewpoint, we review the regulatory oversight of the LDTs, discuss its recent policy permutations, and explore potential future considerations.
Cass R. Sunstein, Arbitrariness Review and Climate Change, 170 U. Pa. L. Rev. 991 (2022).
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Climate Change
,
Administrative Law & Agencies
,
Executive Office
Type: Article
Abstract
In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy”—a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to offer detailed justifications, and also a substantive component, in which courts assess the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientific and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences.”
Tomiko Brown-Nagin, Constance Baker Motley Taught the Nation How to Win Justice, Smithsonian, Mar. 1, 2022.
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Race & Ethnicity
,
Legal History
Type: Article
Abstract
The pathbreaking lawyer and “Civil Rights Queen” was the first Black woman to argue before the U.S. Supreme Court.
Cass R. Sunstein, Governing by Algorithm? No Noise and (Potentially) Less Bias, 71 Duke L. J. 1175 (2022).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Administrative Law & Agencies
Type: Article
Abstract
As intuitive statisticians, human beings suffer from identifiable biases, cognitive and otherwise. Human beings can also be “noisy,” in the sense that their judgments show unwanted variability. As a result, public institutions, including those that consist of administrative prosecutors and adjudicators, can be biased, noisy, or both. Both bias and noise produce errors. Algorithms eliminate noise, and that is important; to the extent that they do so, they prevent unequal treatment and reduce errors. In addition, algorithms do not use mental short-cuts; they rely on statistical predictors, which means that they can counteract or even eliminate cognitive biases. At the same time, the use of algorithms, by administrative agencies, raises many legitimate questions and doubts. Among other things, they can encode or perpetuate discrimination, perhaps because their inputs are based on discrimination, perhaps because what they are asked to predict is infected by discrimination. But if the goal is to eliminate discrimination, properly constructed algorithms nonetheless have a great deal of promise for administrative agencies.
I. Glenn Cohen, Jacob S. Sherkow & Eli Y. Adashi, Handle with Care: The WHO Report on Human Genome Editing, 52 Hastings Center Rep. 10 (2022).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: Article
Abstract
The World Health Organization’s recent Report on Human Genome Editing departs from similar reports from other institutions in that it recognizes that ethical assessments of the technology are deeply complex, surprisingly fragile, and subject to practical and political considerations. The WHO report largely recommends that human genome editing, rather than being accepted in some circumstances and banned in others, should be handled with care. The report recommends some oversight mechanisms—such as intellectual property licensing—previously undiscussed or underexplored in sister reports, and it recognizes that others—like international law—may be impractical. This essay explores how the report has shifted global considerations of governing human genome editing to more pragmatic ends.
Sonia L. Canzater, Adrienne Simmons & Robert Greenwald, States Must Act Against Viral Hepatitis Now To Eliminate The Ongoing Epidemic By 2030, Health Aff. Forefront, Mar. 1, 2022.
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Other
Jonathan L. Zittrain and Jordi Weinstock, Torts! (MIT Press, 3rd ed., 2022).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
,
Torts - Business
,
Torts - Defamation
,
Torts - Negligence
,
Torts - Product Liability
Type: Book
Abstract
"What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money ("damages") from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, some-thing) to account. We’ll discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?"– Provided by publisher.
Laurence H. Tribe & Jeremy Lewin, The rightwing US supreme court has climate protection in its sights, Guardian, Feb. 28, 2022.
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: News
Jody Freeman, Will the Supreme Court Frustrate Efforts to Slow Climate Change?, N.Y. Times, Feb. 26, 2022.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Other
Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein, Adrian Vermeule & Michael Herz, Administrative Law and Regulatory Policy: Problems, Text, and Cases (9th ed., 2022).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Book
Abstract
The ninth edition of this classic casebook Administrative Law and Regulatory Policy: Problems, Text, and Cases is streamlined and updated while retaining the previous editions’ rigor, comprehensiveness, and contextual approach.
Laurence Tribe & Dennis Aftergut, An Ex-U.S. Attorney Cuts to the Chase About Prosecuting Trump. Is Attorney General Garland Doing the Same?, Verdict (Feb. 24, 2022).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Other
Lucian Bebchuk, Kobi Kastiel & Roberto Tallarita, How the Covid-19 Pandemic Put Corporate Stakeholder Promises to the Test, ProMarket (Feb. 24, 2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
Type: Other
Abstract
Prior to the outbreak of Covid-19, corporate leaders pledged to look after all stakeholders, not just deliver value to shareholders. Did they live up to these promises? A new empirical study examines more than 100 major public company acquisitions that were announced during the pandemic and shows that corporate leaders failed to look after stakeholder interests.
Mark Roe, Does stock market short-termism make capitalism irresponsible?, ECGI Blog (Feb. 22, 2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
Type: Other
Abstract
The primary stock market characteristic driving climate issues is not a truncated time horizon. It’s the corporation’s capacity to externalize environmental and climate harms.
Kenneth W. Mack & Andre M. Davis, Did Ketanji Brown Jackson rule against Black workers? It’s not so simple., Wash. Post, Feb. 21, 2022.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Supreme Court of the United States
Type: News
Jeannie Suk Gersen, The Politics of the Supreme Court Shortlist, NewYorker.com (Feb. 17, 2022).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Supreme Court of the United States
Type: Other
Abstract
President Biden has promised to nominate a Black woman at the same moment when the Court is likely to ban most race-conscious selections.
David A. Simon, I. Glenn Cohen et al., The hospital-at-home presents novel liabilities for physicians, hospitals, caregivers, and patients, 28 Nat. Med. 438 (2022).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
Healthcare is increasingly provided in a patient’s home, with potential cost savings and clinical improvements. But the hospital-at-home also raises unique liability issues not only for physicians and hospitals but also for caregivers and patients.
I. Glenn Cohen, Rebecca B. Reingold & Lawrence O. Gostin, Supreme Court Ruling on the Texas Abortion Law: Beginning to Unravel Roe v Wade, 327 JAMA 621 (2022).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: Article
Lawrence Lessig, The Supreme Court Needs Its Own Filibuster, Slate, Feb. 15, 2022.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Laurence H. Tribe & Dennis Aftergut, Supreme Court shows its true colors by greenlighting Alabama’s racial gerrymander, The Boston Globe, Feb. 11, 2022.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Elections & Voting
,
Supreme Court of the United States
Type: News
Abstract
There was no denial that Alabama’s new map blatantly discriminated against Black voters.
Robert Böhm et al., Crowdsourcing interventions to promote uptake of COVID-19 booster vaccines, PsyArXiv (Feb. 10, 2022).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
Type: Other
Abstract
We apply a novel crowdsourcing approach to provide rapid insights on the most promising interventions to promote uptake of COVID-19 booster vaccines. In the first stage, international experts proposed 46 unique interventions. To reduce noise and potential bias, in the second stage, experts and representative general population samples from the UK and the US rated the proposed interventions on several criteria, including expected effectiveness and acceptability. Sanctions were evaluated as potentially most effective but least accepted. Interventions that received the most positive evaluations regarding both effectiveness and acceptability across evaluation groups were a day off after getting vaccinated, financial incentives, tax benefits, benefit campaigns, and mobile vaccination teams. The results provide useful insights to help governments in their decision which interventions to implement.
Nicholas Stephanopoulos, The grim fate of the Voting Rights Act in the hands of the Supreme Court, Wash. Po., Feb. 8, 2022.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Supreme Court of the United States
Type: News
Kristin Kostick-Quenet et al., How NFTs could transform health information exchange, 375 Science 500 (2022).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Medical Technology
,
Information Privacy & Security
,
Digital Currency
Type: Article
Abstract
Can patients regain control over their health information?
Ronald S. Sullivan Jr., In a flawed system, a Black prosecutor wonders if she’s pursuing justice or being complicit, Wash. Po., Feb. 4, 2022.
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Prosecution
,
Race & Ethnicity
,
Law & Social Change
Type: News
Abstract
Book review of Just Pursuit by Laura Coates.
Charlotte Blease, I. Glenn Cohen & Sharona Hoffman, Sharing Clinical Notes: Potential Medical-Legal Benefits and Risks, JAMA (2022).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Eli Y. Adashi et al., The next two decades of mifepristone at FDA: History as destiny, Contraception (2022).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
Type: Article
Abstract
Congressional and presidential records reveal a consistent pattern of political intercession with the regulatory authority of the Food and Drug Administration (FDA) over the approval and labeling of mifepristone (RU-486). This pattern is unlikely to abate any time soon. It is against this backdrop that we examine herein the ongoing legislative and legal disputes over mifepristone at a point in time which is just beyond the 20th anniversary of its approval by the FDA “for the medical termination of intrauterine pregnancy.”
Intisar A. Rabb, Legal Canons—In the Classroom and in the Courtroom or, Comparative Perspective on the Origins of Islamic Legal Canons, 1265–1519, 66 Vill. L. Rev. 831 (2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Islamic Law
,
Statutory Interpretation
Type: Article
Adrien Vermeule, Reviving the Classical Constitution, Ius & Iustitium (Feb. 3, 2022).
Categories:
Constitutional Law
Type: Other
Adrian Vermeule, Supreme Court Justices Have Forgotten What the Law Is For, N.Y. Times, Feb. 3, 2022.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Adrien Vermeule, The Supreme Court Is on the Wrong Path, N.Y. Times, Feb. 3, 2022.
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Supreme Court of the United States
Type: News
Tomiko Brown-Nagin, This Black Woman Could Have Served on the Supreme Court Decades Ago. She Has Some Lessons for Ketanji Brown Jackson., Politico (Feb. 25, 2022).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Supreme Court of the United States
Type: Other
Abstract
Constance Baker Motley had sterling qualifications. It didn’t matter to her critics.
Eric A. Posner & Cass R. Sunstein, Antitrust and Inequality (Feb. 1, 2022).
Categories:
Corporate Law & Securities
,
Discrimination & Civil Rights
Sub-Categories:
Antitrust & Competition Law
,
Social Welfare Law
Type: Other
Abstract
In its current form, antitrust law is often said to advance consumer welfare and to disregard economic inequality. But with the right priority-setting and other modest reforms, efforts to increase consumer welfare might simultaneously reduce economic inequality. Because monopoly and monopsony benefit shareholders at the expense of workers and consumers, ideal enforcement of antitrust law should redistribute resources from shareholders to workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. We also suggest that antitrust law could, with little violence, be turned toward advancing consumer welfare (in the sense of utility) rather than consumer surplus. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential to basic well-being. Regulators should also give priority to labor markets, especially labor markets in which lower-income people participate, and especially where pay gaps based on race or gender are large. In some cases, it is also appropriate to consider sacrificing economic efficiency for distributional goals by introducing distributional weights into antitrust analysis; doing so can increase social welfare.
Penelope J.S. Stein & Michael Ashley Stein, Disability, Human Rights, and Climate Justice, 44 Hum. Rts. Q. 71 (2022).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Environmental Law
Sub-Categories:
Disability Rights
,
Climate Change
,
Human Rights Law
Type: Article
Conor Casey & Adrien Vermeule, Myths of Common Good Constitutionalism, 45 Harv. J. L. & Pub. Pol'y 103 (2022).
Categories:
Constitutional Law
Type: Article
Abstract
This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism.Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin.Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.