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Categories
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.
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.”
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.
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
Mary Ziegler, Americans can prove Alito wrong at the ballot box, Boston Globe, May 5, 2022.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Elections & Voting
Type: News
Abstract
The draft opinion overturning Roe v. Wade professes an indifference to public opinion. But the justices may think twice if voters rebuke Republicans this fall and in 2024.
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.
Mary Ziegler, The Conservatives Aren’t Just Ending Roe—They’re Delighting in It, The Atlantic (May 3, 2022).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
Abstract
This is the work of the Supreme Court’s emboldened, radical majority.
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. (forthcoming May 2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Shareholders
Type: Other
Abstract
Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance encourage society to rely 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 of stakeholder governance question whether corporate leaders have incentives to protect stakeholders and doubt the reliability of pledges by corporate leaders 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 Statement on the Purpose of a Corporation (the “BRT Statement”). Signed by CEOs of most of the country’s major companies, the BRT Statement expressed a commitment to deliver value to all stakeholders and not just shareholders and was widely viewed as a major milestone that would usher in a new stakeholder capitalism and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, the companies whose CEOs signed the highly visible BRT Statement would be natural candidates to do so, and they thus provide an instructive test case for an empirical investigation. To investigate whether the BRT Statement represented a meaningful commitment or was mostly for show, we review a wide array of hand-collected corporate documents of the over 130 U.S. public companies that joined the BRT Statement (the “BRT Companies”). We present the following six findings: First, examining the almost one-hundred BRT Companies that updated their corporate governance guidelines in the sixteen-month period between the release of the BRT Statement and the end of 2020, we find that they generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain in their guidelines a commitment to shareholder primacy; Second, reviewing all the corporate governance guidelines of BRT Companies that were in place as of the end of 2020, we find that most of them reflected a shareholder primacy approach, and an even larger majority did not include any mention of stakeholders in their discussion of corporate purpose; Third, examining the over forty shareholder proposals regarding the implementation of the BRT Statement that were submitted to BRT Companies during the 2020 or 2021 proxy season, and the subsequent reactions of these companies, we find that none of these companies accepted that the BRT Statement required any changes to how they treat stakeholders, and most of them explicitly stated that their joining the BRT Statement did not require any such changes. Fourth, reviewing all the corporate bylaws of the BRT Companies, we find that they generally reflect a shareholder-centered view; Fifth, reviewing the 2020 proxy statements of the BRT Companies, we find that the great majority of these companies did not even mention their signing of 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 the treatment of stakeholders; Sixth, we find that the BRT Companies continued to pay directors compensation that strongly aligns their interests with shareholder value. Furthermore, we document that the corporate governance guidelines of BRT Companies as of the end of 2020 commonly required such alignment of director compensation with stockholder value and generally avoided any support for linking such compensation to stakeholder interests. 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. These findings support the view that pledges by corporate leaders to serve stakeholders would not materially benefit stakeholders, and that their main effect could be to insulate corporate leaders from shareholder oversight and deflect pressures for stakeholder-protecting regulation. Stakeholder governance that relies on the discretion of corporate leaders would not represent an effective way to address growing concerns about the effects corporations have on stakeholders. This paper is part of a larger research project on stakeholder capitalism of the Harvard Law School Corporate Governance. Other parts of this research project are The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita, and For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.
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.
Philippe Sands, What the Inventor of the Word 'Genocide' Might Have Said About Putin's War, N.Y. Times, Apr. 28, 2022.
Categories:
Government & Politics
Sub-Categories:
Military, War, & Peace
Type: News
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
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
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.
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.
Mary Ziegler, Anti-Abortion Groups Once Portrayed Women as Victims. That’s Changing., N.Y. Times, Mar. 19, 2022.
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
Type: Other
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.
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.
John C. Coates, SPAC Law and Myths (Feb. 11, 2022).
Categories:
Corporate Law & Securities
Sub-Categories:
Business Organizations
,
Securities Law & Regulation
,
Corporate Governance
,
Corporate Law
Type: Other
Abstract
Special purpose acquisition companies (SPAC) were the financial-legal hit of 2021, before they weren’t. Breaking records and displacing to an extent conventional initial public offerings (C-IPOs), even as C-IPOs also boomed, SPACs spiked, in part, because – in addition to myths about their financial attributes, which others have debunked – several myths about SPAC law circulated widely and persistently. SPAC promoters claimed that (1) securities regulations ban projections from being used in conventional IPOs, (2) liability related to projections was lower and more certain in SPACs than it was (and is), (3) the Securities and Exchange Commission (SEC) registration process makes C-IPOs slower than SPACs, (4) the SEC changed SPAC accounting rules in early 2021, (5) this “change” was the primary reason the SPAC wave slowed and peaked, and (6) the Investment Company Act clearly does not apply to SPACs. Consistent with these being myths, de-SPACs from 2021 are experiencing significant levels of litigation – even higher than in conventional IPOs. These myths were aimed primarily not at unsophisticated retail investors, but business journalists, sophisticated SPAC sponsors and owner-managers of SPAC targets. They illustrate a broader and underappreciated fact that complex financial-legal innovation permits promoters to exploit the “credence good” character of professional advice, perpetuate “deep fraud,” and distort markets and asset prices more and longer than conventional theory assumes. To moderate deep fraud’s market distortions, regulators have a role in speaking frequently and clearly about law and its uncertainties.
Anna Lvovsky, Should Judges Defer to Police Expertise?, Lawfare (Feb. 17, 2022, 11:36 AM).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
Type: Other
Abstract
Legal challenges to police misconduct often do their best to deny claims that police officers are “experts” in the field. But what if they are, and that’s part of the problem?
Jack Landman Goldsmith, Curtis Bradley and Oona A. Hathaway, The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis, U. Chi. L. Rev. (forthcoming 2023).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
Type: Article
Abstract
The Article II treaty process has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding international agreements. Despite their prevalence and importance, nonbinding international agreements are not currently subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they are not centrally monitored or collected within the executive branch, and they are not systematically reported to Congress or disclosed to the public.This Article focuses on three of the most important types of nonbinding international agreements concluded by the United States: (1) high-level formal agreements; (2) joint statements and communiques; and (3) nonbinding agreements concluded by administrative agencies. After describing these categories and their history, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than 2100 nonbinding agreements. Based on this study, the Article argues that many of the concerns that prompted Congress to regulate binding executive agreements starting in the 1970s also apply to nonbinding agreements. Finally, drawing in part on insights obtained from a comparative assessment of the practices and reform discussions taking place in other countries, the Article suggests legal changes designed to enhance coordination and accountability.
Eli Y. Adashi & I. Glenn Cohen, Health Care Fraud: The Leading Violation of the False Claims Act, Am. J. Med. (2022).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Alan M. Dershowitz et al., Letters to the Editor January 31, 2022: Alan Dershowitz responds, Jerusalem Post, Jan. 31, 2022.
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
Type: News
Laurence Tribe & Dennis Aftergut, Trump's rally in Texas can ignore his fake electors scandal. The Jan. 6 committee won't., NBC News (Jan. 29, 2022).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Elections & Voting
Type: Other
Abstract
Nothing short of convicting Trump will disqualify him from running in 2024 — and claiming the mantle of the martyred hero while doing it.
Mark J. Roe, Missing the Target: Why Stock-Market Short-Termism Is Not the Problem (2022).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Economics
,
Finance
Type: Book
Abstract
The book shows that blaming short-termism overlooks the real causes of declining investment, R&D cutbacks, environmental deterioration, and workplace conflict.
Cass R. Sunstein, Beatlemania, J. Beatles Studies (forthcoming 2022).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Article
Abstract
Why did the Beatles become a worldwide sensation? Why do some cultural products succeed and others fail? Why are some musicians, poets, and novels,, unsuccessful or unknown in their lifetimes, iconic figures decades or generation after their deaths? Why are success and failure so unpredictable? On one view, the simplest and most general explanation is best, and it points to quality, appropriately measured: success is a result of quality, and the Beatles succeeded because of the sheer quality of their music. On another view, social influences are critical: timely enthusiasm or timely indifference can make the difference for all, including the Beatles, leading extraordinary books, movies, and songs to fail even if they are indistinguishable in quality from those that succeed. Informational cascades are often necessary for spectacular success; in some cases, they are both necessary and sufficient. For those who emphasize social influences and informational cascades, success and failure are not inevitable; they depend on seemingly small or serendipitous factors. History is only run once, so this proposition is difficult to prove. There is no question that the success of the Beatles, and the rise of Beatlemania, involved an informational cascade. But whether and in what sense that success was a product of serendipity, or contingent on factors that are elusive and perhaps even lost to history, is essentially unanswerable. If ‘Love Me Do’ had not been a hit, it is not entirely unfair to wonder whether the Beatles would have enjoyed anything like the spectacular success they had. We may doubt that in a counterfactual world, there might have been Kinksmania or Holliesmania, but research on ‘Lost Einsteins’ suggests that it might be reckless to rule out the possibility that some other band, obscure or unknown, might have taken the place of the Beatles.
Cameron Buckner et al., AI Reflections in 2021, 4 Nat. Mach. Intel. 5 (2022).
Categories:
Health Care
,
Technology & Law
,
Consumer Finance
Sub-Categories:
Consumer Protection Law
,
Health Law & Policy
,
Information Privacy & Security
Type: Article
Abstract
For a third year in a row, we followed up with authors of several recent Comments and Perspectives in Nature Machine Intelligence about what happened after their article was published: how did the topic they wrote about develop, did they gain new insights, and what are their hopes and expectations for AI in 2022?
Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (2022).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Race & Ethnicity
,
Legal History
,
Biography & Tribute
Type: Book
Abstract
The first major biography of one of our most influential but least known activist lawyers that provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century. Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP’s Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary. Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions–how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.
Eli Y. Adashi, I. Glenn Cohen & Jacob T. Elberg, Transparency and the Doctor-Patient Relationship - Rethinking Conflict-of-Interest Disclosures, 386 New England J. Med. 300 (2022).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Jeannie Suk Gersen, The Case Against the Oath Keepers, NewYorker.com (Jan. 21, 2022).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Criminal Prosecution
,
Elections & Voting
Type: Other
Abstract
Members of the group face seditious-conspiracy charges for their roles in the January 6th insurrection. Can a sincere belief that the election was stolen protect them?
David A. Simon, Carmel Shachar & I. Glenn Cohen, At-home Diagnostics and Diagnostic Excellence: Devices vs General Wellness Products, 327 JAMA 523 (2022).
Categories:
Health Care
Sub-Categories:
Food & Drug Law
Type: Article
Alan M. Dershowitz, BBC was right to interview me about Maxwell, Jerusalem Post, Jan. 20, 2022, at 11.
Categories:
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Criminal Evidence
Type: News
Abstract
The Times of London was wrong to report that I lobbied for a pardon for Ghislaine Maxwell.
Adrian Vermeule, Customary Law and Popular Sovereignty, Ius & Iustitium (Jan. 12, 2022).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Other
Abstract
Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.
Laurence H. Tribe & Dennis Aftergut, Clock is ticking on what Garland needs to do about Trump’s bid to overturn 2020 election, The Boston Globe, Jan. 11, 2022
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: News
Martha Minow & Aris Hadjipanteli, Congress Must Stop Big Tech's Threat to the Press, The Providence Journal (Jan. 11, 2022)
Categories:
Technology & Law
,
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Science & Technology
Type: News
Cass R. Sunstein, Foreword: On the Imperative of Adapting to Climate Change, Yale J. on Regul. (forthcoming 2022).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Abstract
With respect to climate change, the principal focus of both research and public policy has been on mitigation – on reducing greenhouse gas emissions so as to reduce anticipated adverse effects. But it is increasingly clear that adaptation must also be a high priority. Climate-related risks – including flooding, extreme heat, wildfires, droughts, and hurricanes – are quite serious and are likely to grow over time. Creative and not-so-creative measures to nudge, incentivize, and mandate adaptation may well have benefits far in excess of costs – and may, in fact, deliver higher net benefits than some efforts at mitigation. Because significant climate change is now occurring, and will almost certainly create increasing risks over time, adaptation is essential. It must be carefully assessed with attention to (a) its aggregate effects on social welfare and (b) its distributional impacts. Cost-benefit analysis can much help with (a), but it can run into serious concerns, not only because of (b), but also because of epistemic gaps and because of its failure, in some cases, adequately to capture welfare effects.
Benjamin Sachs, Unpreemption: The NLRB’s Untapped Power to Authorize State Experimentation, OnLabor (Jan. 11, 2022).
Categories:
Labor & Employment
Sub-Categories:
Labor Law
Type: Other
John C.P. Goldberg & Benjamin C. Zipursky, Replies to Commentators, 41 L. & Phil. 127 (2022).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in criminal law and moral theory. While we share Stone’s basic inclination, we argue for a different version of the link than the one that she draws. Veronica Rodriguez-Blanco provides a critique of our model of negligence law based on action theory. In response, we explain – in a way that we hope sheds light on debates over moral luck – how it is possible for the law to define negligence such that its commission depends simultaneously on the character of the defendant’s conduct and on the consequences that result from it. Though generally sympathetic to our approach, Stephen Smith faults us for failing satisfactorily to explain important remedial dimensions of tort law. Stubbornly, we insist that we can account for these, and indeed can do so on more satisfactory terms than corrective justice theorists. Finally, Erin Kelly challenges us to consider how our work might inform the analysis of two pressing issues of racial justice: overcriminalization and reparation payments. While we question whether our work to date has as much to offer on these matters as she suggests, we also maintain that the core principle of civil recourse theory – where there is a right there is a remedy – provides grounds for critiquing modern law’s failure to provide adequate accountability when police officers use excessive force against persons of color.
Carmel Shachar & I. Glenn Cohen, The Danger of the Supreme Court Undercutting Biden’s Vaccination Rules, Time.com (Jan. 10, 2022)
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Other
Cass R. Sunstein, On the Limited Policy Relevance of Evolutionary Explanations, Behav. Pub. Pol'y (forthcoming 2022).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
Evolutionary explanations for behavioral findings are often both fascinating and plausible. But even so, they do not establish that people are acting rationally, that they are not making mistakes, or that their decisions are promoting their welfare. For example, present bias, optimistic overconfidence, and use of the availability heuristic can produce terrible mistakes and serious welfare losses, and this is so even if they have evolutionary foundations. There might well be evolutionary explanations for certain kinds of in-group favoritism, and also for certain male attitudes and actions toward women, and also for human mistreatment of and cruelty toward nonhuman animals. But those explanations would not justify anything at all. It is not clear that in Darwinia (a nation in which departures from perfect rationality have an evolutionary explanation), policymakers should behave very differently from in Durkheimia (a nation in which departures from perfect rationality have a cultural explanation).
Nancy Gertner, Majority in ‘Sweeting-Bailey’ ignored what SJC itself warned against year ago, Mass. Lawyers Weekly (Jan. 6, 2022)
Categories:
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Race & Ethnicity
Type: Other