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Publication Types
Categories
Nicholas Stephanopoulos & Jowei Chen, The Race-Blind Future of Voting Rights, 130 Yale L.J. (forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
Type: Article
Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 105 Cornell L. Rev. (forthcoming Dec. 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Shareholders
,
Corporate Governance
Type: Article
Abstract
Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” This Article critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.
John Palfrey & Urs Gasser, The Connected Parent: An Expert Guide to Parenting in a Digital World (forthcoming Oct. 6, 2020).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
Type: Book
Abstract
Today's teenagers spend about nine hours per day online. Parents of this ultra-connected generation struggle with decisions completely new to parenting: Should an eight-year-old be allowed to go on social media? How can parents help their children gain the most from the best aspects of the digital age? How can we keep kids safe from digital harm? John Palfrey and Urs Gasser bring together over a decade of research at Harvard to tackle parents' most urgent concerns. The Connected Parent is required reading for anyone trying to help their kids flourish in the fast-changing, uncharted territory of the digital age.
Cass R. Sunstein & Adrian Vermeule, Law and Leviathan (forthcoming Sept. 15, 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
,
Government Transparency
,
Politics & Political Theory
,
Legal Ethics
Type: Book
Abstract
"Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall." -- Harvard University Press
Cass R. Sunstein, Too Much Information: Understanding What You Don't Want to Know (MIT Press, forthcoming Sept. 1, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives. Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.
I. Glenn Cohen, Eli Y. Adashi, Sara Gerke, César Palacios-González & Vardit Ravitsky, The Regulation of Mitochondrial Replacement Techniques Around the World, 21 Ann. Rev. Genomics & Hum. Genetics (forthcoming Aug. 31, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Mitochondrial replacement techniques (MRTs, also referred to as mitochondrial replacement therapies) have given hope to many women who wish to have genetically related children but have mitochondrial DNA mutations in their eggs. MRTs have also spurred deep ethical disagreemensts and led to different regulatory approaches worldwide. In this review, we discuss the current regulation of MRTs across several countries. After discussing the basics of the science, we describe the current law and policy directions in seven countries: the United Kingdom, the United States, Canada, Australia, Germany, Israel, and Singapore. We also discuss the emerging phenomenon of medical tourism (also called medical travel) for MRTs to places like Greece, Spain, Mexico, and Ukraine. We then pull out some key findings regarding similarities and differences in regulatory approaches around the world.
Fundamental Rights and Conflict Among Rights (Mary Ann Glendon & Pierluca Azzaro eds., Franciscan Univ. Press, forthcoming Aug. 21, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Human Rights Law
Type: Book
Abstract
How far have we come putting into practice what was declared in the Universal Declaration of Human Rights, which this year marks its 70th anniversary? How can the Church respond today to the new challenges threatening these rights, whether relativism, fundamentalism, and persecution or new types of poverty and oppression? And with whom can the Church engage on these issues? With states, religious leaders, international institutions, cultural institutions, or first and foremost with global civil society? In addition, what are the roots of fundamental rights, and what response can there be to the danger of a multiplication of rights that can paradoxically threaten concepts on the rule of law and human dignity? These are the fundamental questions addressed and debated by the experts whose essays appear in this book. Fundamental Rights and Conflicts among Rights is divided into four parts: Genesis and Meaning of the Idea of Religious Liberty, Laicité and Natural Law, Birth and Transformation of the Culture of Liberty and Human Rights, and the Multiplication of Rights and the Risk of Destruction of the Idea of Right. Throughout the volume, prestigious international experts analyze these issues. Among them are Giuseppe Dalla Torre (Libera Università Maria SS. Assunta), Jean Louis Ska (Pontificio Istituto Biblico), Robert P. George (Princeton University), Marta Cartabia (vice president of the Italian Constitutional Court), Carlos Ignacio Massini (Mendoza, Argentina), Barbara Zehnpfennig (Universität Passau), Mary Ann Glendon (Harvard University), Joseph H. Weiler (New York University), and Roberto Baratta (Macerata, Italia). The volume also contains an essay by Cardinal Pietro Parolin, secretary of state, on "The Church's Interlocutors in the Debate and in the Affirmation of Human Rights."
Jesse Choper, Richard Fallon, Jr., Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2020 ed.).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Guhan Subramanian, Dealmaking: The New Strategy of Negotiauctions (W. W. Norton & Co., 2d ed., forthcoming Aug. 4, 2020).
Categories:
Banking & Finance
,
Civil Practice & Procedure
Sub-Categories:
Commercial Law
,
Negotiation & Alternative Dispute Resolution
Type: Book
An Oral History of the Special Olympics in China Vol. 3: Finding and Keeping a Job (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 31, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
An Oral History of the Special Olympics in China Vol. 1: Overview (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 27, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
An Oral History of the Special Olympics in China Vol. 2: The Movement (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 31, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
Lloyd L. Weinreb, Leading Constitutional Cases on Criminal Justice (2020 ed., forthcoming July 21, 2020).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Criminal Justice & Law Enforcement
Type: Book
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale Univ. Press, forthcoming July 14, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
,
Courts
Type: Book
Abstract
The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved from the liberalism of the New Deal and Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore the other branches of government’s role in deciding constitutional questions.
Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., Cambridge Univ. Press, forthcoming May 28, 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The electoral successes of right-wing populists since 2016 have unsettled world politics. The spread of populism poses dangers for human rights within each country, and also threatens the international system for protecting human rights. Human Rights in a Time of Populism examines causes, consequences, and responses to populism in a global context from a human rights perspective. It combines legal analysis with insights from political science, international relations, and political philosophy. Authors make practical recommendations on how the human rights challenges caused by populism should be confronted. This book, with its global scope, international human rights framing, and inclusion of leading experts, will be of great interest to human rights lawyers, political scientists, international relations scholars, actors in the human rights system, and general readers concerned by recent developments.
Philosophical Foundations of the Law of Equity (Irit Samet-Porat, Henry Smith & Dennis Klimchuk eds., 2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Remedies
,
Legal Theory & Philosophy
Type: Book
Abstract
The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'.
Jeannie Suk Gersen, How Concerning Are the Trump Administration’s New Title IX Regulations?, NewYorker.com (May 16, 2020).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Education Law
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Other
Abstract
This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.
Noah Feldman, The Arab Winter: A Tragedy (Princeton Univ. Press, forthcoming May 12, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Foreign Law
Type: Book
Abstract
The Arab Spring promised to end dictatorship and bring self-government to people across the Middle East. Yet everywhere except Tunisia it led to either renewed dictatorship, civil war, extremist terror, or all three. In The Arab Winter, Noah Feldman argues that the Arab Spring was nevertheless not an unmitigated failure, much less an inevitable one. Rather, it was a noble, tragic series of events in which, for the first time in recent Middle Eastern history, Arabic-speaking peoples took free, collective political action as they sought to achieve self-determination. Focusing on the Egyptian revolution and counterrevolution, the Syrian civil war, the rise and fall of ISIS in Syria and Iraq, and the Tunisian struggle toward Islamic constitutionalism, Feldman provides an original account of the political consequences of the Arab Spring, including the reaffirmation of pan-Arab identity, the devastation of Arab nationalisms, and the death of political Islam with the collapse of ISIS. He also challenges commentators who say that the Arab Spring was never truly transformative, that Arab popular self-determination was a mirage, and even that Arabs or Muslims are less capable of democracy than other peoples. Above all, The Arab Winter shows that we must not let the tragic outcome of the Arab Spring disguise its inherent human worth. People whose political lives had been determined from the outside tried, and for a time succeeded, in making politics for themselves. That this did not result in constitutional democracy or a better life for most of those affected doesn’t mean the effort didn’t matter. To the contrary, it matters for history—and it matters for the future.
Jeannie Suk Gersen, A Fair Examination of the Allegations Against Joe Biden Can Strengthen the #MeToo Movement, NewYorker.com (May 6, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Elections & Voting
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
Type: Other
Abstract
A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.
Jonathan Zittrain, Entering the Minefield of Digital Contact Tracing, Medium (May 5, 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Information Privacy & Security
,
Networked Society
,
Medical Technology
Type: Other
Abstract
People across America and the world remain under strong advisories or outright orders to shelter in place, and economies largely shut down, as part of an ongoing effort to flatten the curve of the most virulent pandemic since 1918. The economic effects have been predictably staggering, with no clear end in sight. Until a vaccine or other transformative medical intervention is developed, the broad consensus of experts is that the only way out of mass sheltering in place, if hospital occupancy curves are to remain flattened, entails waiting for most of the current cases to resolve, and then cautiously and incrementally reopening. That would mean a sequence of allowing people out; promptly testing anyone showing symptoms — and even some who are not; identifying recent proximate contacts of those who test positive; and then getting in touch with those contacts and, if circumstances dictate, asking or demanding that they individually shelter until the disease either manifests or not. The idea is to promptly prune branches of further disease transmission in order to keep its reproductive factor non-exponential.
Maggie Goff & T. Keith Fogg, Nonparty Remote Electronic Access to Tax Court Records, 167 Tax Notes Fed., May 4, 2020, at 771.
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Taxation
,
Technology & Law
Sub-Categories:
Practice & Procedure
,
Litigation & Settlement
,
Administrative Law & Agencies
,
Courts
,
Government Transparency
,
Tax Policy
,
Taxation - Federal
,
Taxation - Personal Income
,
Information Privacy & Security
,
Networked Society
Type: Article
Jeannie Suk Gersen, The Supreme Court Confronts Trump’s Challenge to the Separation of Powers, NewYorker.com (May 2, 2020).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Separation of Powers
Type: Other
William A. Klein, J. Mark R Ramseyer & Stephen M. Bainbridge, Business Associations: Agency, Partnerships, LLCs, and Corporations, 2020 Statutes and Rules (Found. Press 2020 ed., forthcoming Apr. 27, 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Business Organizations
Type: Book
Samantha Power, Threats Are Ahead. National Security Can't Look Backward,TIME , Apr. 27, 2020, at 64.
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
National Security Law
,
Politics & Political Theory
,
Health Law & Policy
Type: Article
Abstract
The author calls for a review of the concept of U.S. national security amid the Covid-19 pandemic. She cites the potential of seismic events to unite even politically divided Americans behind a common cause. He also criticizes several measures taken by the administration of President Donald Trump to address the pandemic.
Jack Goldsmith & Andrew Keane Woods, Internet Speech Will Never Go Back to Normal, Atlantic (Apr. 25, 2020).
Categories:
Technology & Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Fourth Amendment
,
Government Accountability
,
Government Transparency
,
Information Privacy & Security
,
Networked Society
Type: Article
Jeannie Suk Gersen, Finding Real Life in Teaching Law Online, NewYorker.com (Apr. 23, 2020).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
William P. Alford, Introduction to Part VI — Quantifying Disability, in Disability, Health, Law, and Bioethics 223 (I. Glenn Cohen, Carmel Shachar, Anita Silvers & Michael Ashley Stein eds., 2020).
Categories:
Discrimination & Civil Rights
,
Health Care
Sub-Categories:
Disability Rights
,
Disability Law
,
Health Law & Policy
Type: Book
Abstract
The four chapters in this part, each in its own way, raise and begin to propose answers to the enormously challenging question of society’s responsibilities toward persons with disabilities when it comes to the provision of healthcare. Although all four are one in recognizing and documenting the all too abundant and profound ways in which persons with disabilities are disadvantaged (many of which are not obvious to persons whose lives are not touched by disability), they differ markedly in their proposals to rectify these problems.
Mark Tushnet & Bojan Bugaric, Populism and Constitutionalism: An Essay on Definitions and Their Implications (Apr. 21, 2020).
Categories:
Government & Politics
,
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
Executive Office
,
Comparative Law
,
European Law
Type: Other
Abstract
Around the world governments characterized by observers as populist have taken power. Many of their actions have been incompatible with tenets of modern liberalism. This has generated commentary suggesting that populism is itself incompatible with constitutionalism. This Essay challenges that commentary. We agree that some variants of populism are incompatible with modern liberal constitutionalism but argue that the tension between populism as such and constitutionalism as such, though real, is significantly narrower than much commentary suggests. We begin in Section II by offering “barebones” definitions of populism and constitutionalism so that we can tease out precisely what the tension between them is. Section III turns to case studies of challenges to judicial independence, of the use of referendums, and of innovative methods of determining the public’s views. As with our discussion of defining populism and constitutionalism, here we attempt to identify whether (or the degree to which) the case studies demonstrate a tension between populism and constitutionalism. Our conclusion is that sometimes we can see such a tension and sometimes we cannot, and that the analysis of specific populisms and their policies in relation to constitutionalism must be highly sensitive to context. Section IV applies the argument to two developments in the United Kingdom: the Brexit referendum and the attempt by Boris Johnson to prorogue Parliament and the ensuing decision by the UK Supreme Court finding the prorogation unlawful. Here our conclusion once again that analysis of populism’s relation to constitutionalism must be sensitive to context: The referendum was flawed but not in ways that cast a bad light on populism as such, and the prorogation, while perhaps unlawful, was not clearly anti-constitutional. Overall we argue against generalized claims about populism as such and constitutionalism as such. There are many populisms and at least a few constitutionalisms, and scholars and observers should direct their attention to the questions posed by specific actions taken by individual populist governments. Sometimes populist governments will act in anti-constitutional ways, and sometimes they will not. We believe that this conclusion is appropriately deflationary.
Sabrineh Ardalan, EU and US Border Policy: Externalisation of Migration Control and Violation of the Right to Asylum, in Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights 282 (Valsamis Mitsilegas, Violeta Moreno-Lax & Niovi Vavoula eds., 2020).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Human Rights Law
,
Refugee & Asylum Law
,
European Law
Type: Book
Howell E. Jackson & Steven L. Schwarcz, Pandemics and Systemic Financial Risk (Apr. 19, 2020).
Categories:
Banking & Finance
,
Health Care
Sub-Categories:
Finance
,
Risk Regulation
,
Financial Markets & Institutions
,
Health Law & Policy
Type: Other
Abstract
The coronavirus has produced a public health debacle of the first-order. But the virus is also propagating the kind of exogenous shock that can precipitate – and to a considerable degree is already precipitating – a systemic event for our financial system. This currently unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Additional scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. We compare and contrast the two crises in terms of systemic financial risks and then explore two dimensions on which financial regulatory authorities might profitably engage with public health officials. As we are writing this essay, the pandemic’s ultimate scope and consequences, financial and otherwise, are unknown and unknowable; our analysis, therefore, is necessarily provisional and tentative. We hope, however, it may be of interest and potential use to the academic community and policymakers.
Michael Eber, Cass R. Sunstein, James K. Hammitt & Jennifer Yeh, The Modest Effects of Fact Boxes on Cancer Screening (Apr. 19, 2020).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Health Law & Policy
Type: Other
Abstract
As health care becomes increasingly personalized to the needs and values of individual patients, informational interventions that aim to inform and debias consumer decision-making are likely to become important tools. In a randomized controlled experiment, we explore the effects of providing participants with published fact boxes on the benefits and harms of common cancer screening procedures. Female participants were surveyed about breast cancer screening by mammography, while male participants were surveyed about prostate cancer screening by prostate-specific antigen (PSA) testing. For these screening procedures, we expect consumers to have overly optimistic prior beliefs about the benefits and harms. We find that participants update their beliefs only modestly and change their stated preferences to seek screening even more modestly. Participants who scored higher on a numeracy test updated their beliefs and preferences about screening more in response to the fact boxes than did patients who scored lower on the numeracy test. More-numerate subjects also seem to become more anxious in response to the risk information.
Jeannie Suk Gersen, Who’s In Charge of the Response to the Coronavirus?, New Yorker (Apr. 19, 2020).
Categories:
Constitutional Law
,
Health Care
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Federalism
,
Politics & Political Theory
,
Separation of Powers
,
State & Local Government
,
Government Accountability
,
Health Law & Policy
Type: Other
Jonathan Zittrain & John Bowers, A Start-Up is Using Photos to ID You. Big Tech Can Stop It From Happening Again, Wash. Post (Apr. 14, 2020, 3:58 PM EDT).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
,
Networked Society
,
Cyberlaw
,
Digital Property
Type: News
Jack Goldsmith, The Growth of Press Freedoms in the United States Since 9/11 (Apr. 13, 2020).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
National Security Law
,
Communications Law
,
Networked Society
,
Information Privacy & Security
Type: Other
Abstract
The number, frequency, and seriousness of leaks of classified information have grown sharply in the last two decades. The government has reacted to these leaks with several initiatives to stop or deter them. Journalists and their allies, in turn, have complained that these initiatives have narrowed press freedoms and damaged the First Amendment. This essay argues that the journalists are wrong. The last two decades have witnessed an unprecedented growth in press freedoms in the national security context, and greater protection for journalists in their reporting of national security secrets. The indictment of Julian Assange is no violation of this norm, and in many ways confirms it.
Caroline O. Buckee, Satchit Balsari, Jennifer Chan, Mercè Crosas, Francesca Dominici, Urs Gasser, Yonatan H. Grad, Bryan Grenfell, M. Elizabeth Halloran, Moritz U. G. Kraemer, Marc Lipsitch, C. Jessica E. Metcalf, Lauren Ancel Meyers, T. Alex Perkins, Mauricio Santillana, Samuel V. Scarpino, Cecile Viboud, Amy Wesolowski, Andrew Schroeder, Aggregated Mobility Data Could Help Fight COVID-19, 368 Science 145 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Information Privacy & Security
,
Networked Society
Type: Article
Cass R. Sunstein, The Siren of Selfishness, N.Y. Rev. Books, Apr. 9, 2020, at 33 (reviewing Lisa Duggan, Mean Girl: Ayn Rand and the Culture of Greed (2019)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
,
Legal Theory & Philosophy
,
Law & Economics
Type: Article
Samantha Power, We Can't Beat Covid by OurselvesN.Y. Times, Apr. 9, 2020, at A27.
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
Health Law & Policy
,
Foreign Relations
,
International Humanitarian Law
,
Developing & Emerging Nations
,
Nonprofit & Nongovernmental Organizations
Type: News
Louis Kaplow & Scott Duke Kominers, On the Representativeness of Voter Turnout (Harv. L. Sch. John M. Olin Center Discussion Paper No. 1030, Apr. 8, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Elections & Voting
Type: Article
Abstract
Prominent theory research on voting uses models in which expected pivotality drives voters' turnout decisions and hence determines voting outcomes. It is recognized, however, that such work is at odds with Downs's paradox: in practice, many individuals turn out for reasons unrelated to pivotality, and their votes overwhelm the forces analyzed in pivotality-based models. Accordingly, we examine a complementary model of large-N elections at the opposite end of the spectrum, where pivotality effects vanish and turnout is driven entirely by individuals' direct costs and benefits from the act of voting itself. Under certain conditions, the level of turnout is irrelevant to representativeness and thus to voting outcomes. Under others, \anything is possible"; starting with any given distribution of preferences in the underlying population, there can arise any other distribution of preferences in the turnout set and thus any outcome within the range of the voting mechanism. Particular skews in terms of representativeness are characterized. The introduction of noise in the relationship between underlying preferences and individuals' direct costs and benefits from voting produces, in the limit, fully representative turnout. To illustrate the potential disconnect between the level of turnout (a focus of much empirical literature) and representativeness, we present a simple example in which, as noise increases, the turnout level monotonically falls yet representativeness monotonically rises.
Sara Gerke, Boris Babic, Theodoros Evgeniou & I. Glenn Cohen, The Need For a System View to Regulate Artificial Intelligence/Machine Learning-Based Software as Medical Device, npj Digital Med., art. no. 53, Apr. 7, 2020.
Categories:
Health Care
,
Technology & Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Bioethics
,
Food & Drug Law
,
Medical Technology
Type: Article
Abstract
Artificial intelligence (AI) and Machine learning (ML) systems in medicine are poised to significantly improve health care, for example, by offering earlier diagnoses of diseases or recommending optimally individualized treatment plans. However, the emergence of AI/ML in medicine also creates challenges, which regulators must pay attention to. Which medical AI/ML-based products should be reviewed by regulators? What evidence should be required to permit marketing for AI/ML-based software as a medical device (SaMD)? How can we ensure the safety and effectiveness of AI/ML-based SaMD that may change over time as they are applied to new data? The U.S. Food and Drug Administration (FDA), for example, has recently proposed a discussion paper to address some of these issues. But it misses an important point: we argue that regulators like the FDA need to widen their scope from evaluating medical AI/ML-based products to assessing systems. This shift in perspective—from a product view to a system view—is central to maximizing the safety and efficacy of AI/ML in health care, but it also poses significant challenges for agencies like the FDA who are used to regulating products, not systems. We offer several suggestions for regulators to make this challenging but important transition.
Holger Spamann, Scott Hirst & Gabriel Rauterberg, Corporations in 100 Pages (2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Securities Law & Regulation
,
Shareholders
,
Corporate Governance
,
Mergers & Acquisitions
Type: Book
Abstract
This book is a primer on corporate law for law students and anyone else interested in the foundations of corporate law. The book provides a self-contained, accessible presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors and other stakeholders, major transactions (M&A), and parallels with alternative entities including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated yet short and simple enough for a quick read.
Deborah Anker, The History and Future of Gender Asylum Law and Recognition of Domestic Violence as a Basis of Protection in the United States, 45 Hum. Rts. 14 (2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Gender & Sexuality
,
Immigration Law
,
Discrimination
,
Refugee & Asylum Law
,
Treaties & International Agreements
,
Human Rights Law
,
International Law
,
Clinical Legal Education
Type: Article
Disability, Health, Law, and Bioethics (I. Glenn Cohen, Carmel Shachar, Anita Silvers & Michael Ashley Stein eds., 2020).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Bioethics
,
Disability Law
,
Health Law & Policy
Type: Book
Adrian Vermeule, The Right Constitutional Philosophy for This Moment, Atlantic (Mar. 31, 2020, 5:30 AM).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Law & Political Theory
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Other
Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276 (2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Judges & Jurisprudence
Type: Article
Abstract
The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior — a connection assessed by asking whether the search or seizure is supported by probable cause. And yet, central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means, or how it operates. Indeed, the Supreme Court has gone so far as to insist that it is “not possible” to define the term, holding instead that the probable cause inquiry entails no more than the application of “common-sense” to “the totality of the circumstances.” That doctrinal approach is routinely criticized as an “I know it when I see it” mode of jurisprudence that is ill equipped to safeguard civil liberties in the face of competing and weighty law enforcement demands. Viewed charitably, however the Supreme Court’s refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of widely varying law enforcement-civilian interactions. This tension between doctrinal flexibility and structure is the animating dilemma of probable-cause jurisprudence — a dilemma that this Article attempts to navigate, and ultimately to resolve. To do so, it urges a rejection of an often invoked (if not always followed) tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method, judged by the same substantive standard, from one case to another. On close inspection, however, the Supreme Court does not always practice what it preaches. Rather, beneath the surface of its probable cause canon there are seeds of an alternative — and superior — conception of probable cause, which this Article terms probable cause pluralism. On this view, “probable cause” is an open-textured and capacious idea that can comfortably encompass multiple distinct analytic frameworks and multiple different substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable cause, as the case may be, can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses, while treating others with deserved skepticism or disbelief. It can, in short, come to mean something, so long as it gives up on meaning any one thing in all cases. Because probable cause’s pluralism is both nascent and implicit, it is also undertheorized, having escaped sustained or comprehensive analysis by either the Court or its commentators. As a result, probable cause pluralism, in its current form, is at best a stunted and haphazard collection of disparate and disconnected ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should like in practice. Specifically, by organizing probable cause around three central analytic axes — which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments — the Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through all the many and varied cases to come, and better able to assess all the many cases that have come before.
Christine Desan, The Monetary Structure of Economic Activity (Mar. 30, 2020).
Categories:
Disciplinary Perspectives & Law
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Economics
,
Financial Markets & Institutions
,
Banking
,
Finance
,
Law & Economics
,
International Monetary Systems
Type: Other
Abstract
The modern approach to the market as a place with autonomy depends on a certain view of money. According to that view, money is a neutral technology that expresses individual choices made about real goods and services. But the controversies over money that regularly arise in political communities reveal that money is far from a transparent medium. It is a legal project that structures economic activity. Money literally makes the market. The article extracts a definition of money from the most recent controversy over it. That controversy, the debate over safe assets, suggests that moneys overwhelmingly share a particular character: they are made of sovereign debt, short-term IOUs, that are enabled to act as cash by the sovereign who issues them. The article constructs a thought experiment to illuminate exactly why governments would create money according to this pattern. The experiment suggests, first, that governments gain enormous capacity when they convert in-kind obligations due to them into countable units that can be anticipated, spent, and levied. Second, governments benefit even more when they enable those units to circulate, a feat they manage by enforcing transactions in law – making money the default mode of payment for contracts, torts, property, and other transactions. That activity takes public authority into the intricacies of personal exchange, curating it in ways that condition its exercise. The article explores each of these qualities – the identity of money as sovereign debt and its enhancement as cash – because each of them represents a legal initiative that fundamentally reconfigures a society’s political economy. In that moment, money departs its reputation as a neutral technology and the market loses its claim as the product of private choice. To the contrary, economic exchange depends on a medium made in law and travels within the channels that medium enables through law.
Alma Cohen, Moshe Hazan & David Weiss, Politics and Gender in the Executive Suite (Mar. 25, 2020).
Categories:
Corporate Law & Securities
,
Discrimination & Civil Rights
,
Labor & Employment
,
Government & Politics
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Gender & Sexuality
,
Discrimination
,
Politics & Political Theory
,
Elections & Voting
,
Employment Discrimination
Type: Other
Abstract
We investigate whether CEOs' political preferences are associated with the prevalence and compensation of women among non-CEO top executives at U.S. public companies. We find that "Democratic" CEOs are associated with more women in the executive suite. To explore causality, we use an event study approach to show that replacing a Republican with a Democratic CEO increases female representation. Additionally, we discuss how the lack of an association between CEO political preferences and gender diversity in the boardroom influences our interpretation of these results. Finally, gender gaps in the level and performance-sensitivity of compensation diminish, or disappear, under Democratic CEOs.
Eli Y. Adashi & I. Glenn Cohen, What Would Responsible Remedial Human Germline Editing Look Like?, 38 Nature Biotech. 398 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Sandra Cortesi, Alexa Hasse, Andres Lombana, Sonia Kim & Urs Gasser, Youth and Digital Citizenship+ (Plus): Understanding Skills for a Digital World (Berkman Klein Ctr. Res. Publ’n No. 2020-2, Mar. 20, 2020).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
Type: Other
Abstract
Digital citizenship has become a topic of growing importance among academics and policymakers alike, at the center of debate and theorization around the skills youth need to navigate and actively participate in our digital world. On a global level, a variety of stakeholders — including government, international organizations, nongovernmental organizations, and academia — have adopted the term to develop and shape formal and informal learning programs that aim to help youth address the challenges and embrace the opportunities the digital environment may present. Yet, there is little consensus as to the broad areas (e.g., safety and well-being, civic and political engagement, identity exploration), and skills within them, digital citizenship should encompass. In this spotlight, Youth and Media explores the concept of digital citizenship, providing an overview of the current dialogue surrounding the term, with a focus on several key questions. Why does digital citizenship matter? Why has the concept become central in discussions about youth (ages 12-18), education, and learning in the 21st century? In a world where the online and offline are increasingly blending, to what extent should we emphasize the role of the “digital” in “digital citizenship”? To what degree do youth feel connected to the term “citizen?” How is the concept of digital citizenship similar to or different from other concepts, such as digital literacy or 21st century skills? How should we approach these concepts to more effectively foster the skills youth need to thrive in today’s society? And to what extent have we as decision-makers, academics, and educators been successful at incorporating youth voices in the development, implementation, and evaluation of digital citizenship initiatives?
Samantha Power, The Courage and Compassion of Catholic Activist Dorothy DayWash. Post, Mar. 8, 2020, at B06 (reviewing John Loughery & Blythe Randolph, Dorothy Day: Dissenting Voice of the American Century (2020)).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
,
Poverty Law
,
Public Interest Law
,
Law & Social Change
,
Religion & Law
,
Biography & Tribute
Type: News
Randall Kennedy, The Journalist and the Murderers, N.Y. Times, Mar. 8, 2020, at BR14 (reviewing Jerry Mitchell, Race Against Time, A Reporter Reopens the Unsolved Murder Cases of the Civil Rights Era (2020)).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Civil Rights
,
Race & Ethnicity
,
Discrimination
Type: News
Jesse M. Fried & Holger Spamann, Cheap-Stock Tunneling Around Preemptive Rights, J. Fin. Econ. (forthcoming 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Securities Law & Regulation
Type: Article
Abstract
Preemptive rights are thought to protect minority shareholders from cheap-stock tunneling by a controlling shareholder. We show that preemptive rights, while making cheap-stock tunneling more difficult, cannot prevent it when asymmetric information about the value of the offered shares makes it impossible for the minority to know whether these shares are cheap or overpriced. Our analysis can help explain why sophisticated investors in unlisted firms and regulators of listed firms do not rely entirely on preemptive rights to address cheap-stock tunneling, supplementing them with other restrictions on equity issues.
Elizabeth Bartholet, Contested Child Protection Policies, in The Oxford Handbook of Children and the Law (James G. Dwyer ed., 2020).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Race & Ethnicity
,
Social Welfare Law
,
Children's Law & Welfare
,
Legal Guardianship
Type: Book
Abstract
This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
Johanna Mollerstrom & Cass R. Sunstein, How Special is Democracy?: An Experimental Study of Recommendations in the Minimum Effort Game, Econ. Letters, Mar. 6, 2020.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Elections & Voting
Type: Article
Abstract
Democratic institutions aggregate voters’ preferences about policy options and thereby help determine which policies are implemented. Previous research has, however, suggested that such institutions can also have a direct, positive effect on cooperative and efficient behavior. In a laboratory experiment, we test this suggestion by comparing the effect of recommendations on how to play that are generated through a group vote to expert-generated recommendations, on play in a minimum effort game. We find no difference between the two: both expert recommendations and democratically generated recommendations increase the efficiency of choices. In addition, we find that merely considering potential recommendations, and knowing that others have done so as well, can help enhance efficient coordination.
Holly Fernandez Lynch, D. James Greiner & I. Glenn Cohen, Overcoming Obstacles to Experiments in Legal Practice, 367 Science 1078 (2020).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Health Care
,
Technology & Law
Sub-Categories:
Empirical Legal Studies
,
Bioethics
,
Legal Ethics
,
Legal Reform
,
Legal Services
,
Science & Technology
Type: Article
Abstract
The importance of evidence-based policy rooted in experimental methods is increasingly recognized, from the Oregon Medicaid experiment to the efforts to address global poverty that were awarded a 2019 Nobel Prize. Over the past several decades, there have been attempts to extend this scientific approach to legal systems and practice. Yet, despite progress in empirical legal studies and experimental social policy research, judges, lawyers, and legal services providers often fail to subject their own practices to empirical study or to be guided by empirical data, with a particular aversion to randomized controlled trials (RCTs) (1). This is troubling, as many questions fundamental to legal practice and those it affects, such as allocation of attorney services, bail decisions, and use of mandatory mediation, could and should be informed by a rigorous evidentiary foundation. Although there are practical obstacles to undertaking legal practice RCTs, they have also been stymied by cultural barriers...
Adrian Vermeule, Neo-?, 133 Harv. L. Rev. F. 103 (2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Responding to Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 HARV.L.REV.852 (2020).
Annette Gordon-Reed, Thomas Jefferson's Revolutionary Words, TIME, Mar. 2, 2020, at 46.
Categories:
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Legal History
,
Biography & Tribute
Type: Article
Mark Tushnet, Institutions Protecting Constitutional Democracy: Some Conceptual and Methodological Preliminaries, 70 U. Toronto L.J. 95 (2020).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Elections & Voting
,
Corruption
,
Politics & Political Theory
,
Comparative Law
,
Foreign Law
,
Developing & Emerging Nations
Type: Article
Abstract
Chapter 9 of the South African Constitution refers to ‘institutions protecting constitutional democracy’ (IPDs). Contemporary constitution designers have written into new constitutions numerous such institutions, and scholars have begun to identify them as a fourth branch of government alongside the traditional legislative, executive, and judicial branches. This article explores some of the conceptual issues associated with the new fourth branch: what justifies the creation of these IPDs (the short answer: a particular type of conflict of interest); what are their generic characteristics (the short answer: they are reasonably permanent institutions rather than ad hoc or statutory ones, unlike their antecedents); what is their relation to a constitutional court – another twentieth-century innovation; and why should they be understood to be a ‘branch’ of government rather than a congeries of useful innovations (the short answer: like the traditional branches, they perform distinctive function not readily performed by institutions located within those branches)?
Richard J. Lazarus, Seventy-Four Inches, 37 Envtl. F., Mar.-Apr. 2020, at 24.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Abstract
The space between jurists and advocate at the Supreme Court is only a little more than six feet during oral arguments. As counsel for the state in Massachusetts v. EPA learned, the exchange of fire over that small divide is highly penetrating and usually hostile.
Richard J. Lazarus, The Rule of Five: Making Climate History at the Supreme Court (2020).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Book
Abstract
When the Supreme Court announced its ruling in Massachusetts v. EPA, the decision was immediately hailed as a landmark. But this was the farthest thing from anyone’s mind when Joe Mendelson, an idealistic lawyer working on a shoestring budget for an environmental organization no one had heard of, decided to press his quixotic case. In October 1999, Mendelson hand-delivered a petition to the Environmental Protection Agency asking it to restrict greenhouse gas emissions from new cars. The Clean Air Act had authorized the EPA to regulate “any air pollutant” that could reasonably be anticipated to endanger public health. But could something as ordinary as carbon dioxide really be considered a harmful pollutant? And even if the EPA had the authority to regulate emissions, could it be forced to do so? Environmentalists urged Mendelson to stand down. Thinking of his young daughters and determined to fight climate change, he pressed on—and brought Sierra Club, Greenpeace, NRDC, and twelve state attorneys general led by Massachusetts to his side. This unlikely group—they called themselves the Carbon Dioxide Warriors—challenged the Bush administration and took the EPA to court. The Rule of Five tells the story of their unexpected triumph. We see how accidents, infighting, luck, superb lawyering, and the arcane practices of the Supreme Court collided to produce a legal miracle. An acclaimed advocate, Richard Lazarus reveals the personal dynamics of the justices and dramatizes the workings of the Court. The final ruling, by a razor-thin 5–4 margin, made possible important environmental safeguards which the Trump administration now seeks to unravel.
Alex Whiting, Prosecution Strategy at the International Criminal Court in Search of a Theory, in Why Punish Perpetrators of Mass Atrocities?: Purposes of Punishment in International Criminal Law 285 (Florian Jeßberger & Julia Genes eds., 2020).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
International Law
Type: Book
Abstract
Alex Whiting thoroughly analyzes the submissions by the ICC Office of the Prosecutor and statements made by the Prosecution. He explains the different approaches of the first and the second Prosecutor: The first embraced a theory of ‘disruption and specific deterrence’, seeking to intervene in real time to stop ongoing crimes with the Court being a force for diplomacy and peace. The second Prosecutor, on the other hand, focuses on the judicial tasks of the Court, chooses fewer cases, acts slowly and carefully. This way, the Court moved towards an expressive theory of punishment, investigations and cases are a way of expressing, shaping and enforcing norms. In the end, Whiting concludes that at the ICC’s Office of the Prosecutor theory does not dictate practice – it is the other way round: The Office’s strategy is reactive to and constrained by the dependency on state cooperation and the limits of the ICC’s authority. Only within those constraints, can theories of punishment play a role: ‘robust theories of punishment are a luxory of actors with power’.
Stephen N. Subrin, Martha L. Minow, Mark S. Brodin, Thomas O. Main & Alexandra D. Lahav, Civil Procedure: Doctrine, Practice, and Context (Wolters Kluwer L. & Bus. 6th ed., 2020).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Practice & Procedure
,
Legal Education
Type: Book
Cass R. Sunstein, On Neglecting Regulatory Benefits (Feb. 20, 2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Executive Office
Type: Other
Abstract
The administrative state faces a pervasive problem: “benefit neglect,” understood as insufficient attention to the benefits of regulation. In 2017, for example, President Donald Trump issued Executive Order 13771, calling for a regulatory budget of $0 and directing agencies to eliminate two regulations for every regulation that they issue. The order has two laudable ambitions: to reduce the stock of existing regulations and to stem the flow of new regulations. But because it entirely ignores the benefits of regulations and focuses only on costs, it is a singularly crude instrument for achieving those goals. In both theory and practice, it threatens to impose large net costs (including significant increases in mortality and morbidity). It would be much better to abandon the idea of a regulatory budget, focused solely on costs, and instead to engage in two sustained but independent efforts: (1) a continuing “look back” at existing regulations, with the goal of simplifying or eliminating those that are unwarranted, and (2) cost-benefit discipline for new regulations. A third goal, no less important than (1) and (2), should be a very high priority, which is to produce institutional mechanisms to promote issuance of regulations that would have high net benefits (including reductions in mortality and morbidity). Congress, courts, and the executive branch should take steps to combat benefit neglect.
Alan Dershowitz, Defending the Constitution: Alan Dershowitz's Senate Argument Against Impeachment (2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Separation of Powers
Type: Book
Abstract
Alan Dershowitz has been called “one of the most prominent and consistent defenders of civil liberties in America” by Politico and “the nation’s most peripatetic civil liberties lawyer and one of its most distinguished defenders of individual rights” by Newsweek. Yet he has come under intense criticism fire for applying those same principles, and his famed “shoe‑on‑the‑other‑foot test,” to Donald Trump, especially after arguing on the president’s behalf before the U.S. Senate as it deliberated impeachment. Defending the Constitution seeks to refocus the debate over impeachment to the same standard that Dershowitz has upheld for decades: the law of the United States of America, as established by the Constitution. Citing legal examples from a long lineage of distinguished judges and attorneys, and examining the impeachment language in the Constitution itself, Dershowitz proves—first to the U.S. Senate, and now to readers everywhere—that President Trump should not have been impeached, and certainly should not be removed, for causes that do not meet the standards laid out by the founding fathers. This book is Alan Dershowitz’s argument for a return to nonpartisan judgment based on the Constitution, for a preservation of the separation of powers and the checks and balances that make American government great. It is essential reading for anyone interested in or concerned about the impeachment of President Trump, and for everyone who cares about the future of U.S. government and society.
Jonathan Zittrain, A World Without Privacy Will Revive the Masquerade, Atlantic (Feb. 7, 2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
Type: Other
I. Glenn Cohen & Michelle M. Mello, HIPAA in the Era of Data Sharing—Reply, 323 JAMA 477 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Information Privacy & Security
,
Medical Technology
Type: Article
John C. P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs (2020).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
Type: Book
Abstract
Tort law is badly misunderstood. In the popular imagination, it is “Robin Hood” law. Law professors, meanwhile, mostly dismiss it as an archaic, inefficient way to compensate victims and incentivize safety precautions. In Recognizing Wrongs, John Goldberg and Benjamin Zipursky explain the distinctive and important role that tort law plays in our legal system: it defines injurious wrongs and provides victims with the power to respond to those wrongs civilly. Tort law rests on a basic and powerful ideal: a person who has been mistreated by another in a manner that the law forbids is entitled to an avenue of civil recourse against the wrongdoer. Through tort law, government fulfills its political obligation to provide this law of wrongs and redress. In Recognizing Wrongs, Goldberg and Zipursky systematically explain how their “civil recourse” conception makes sense of tort doctrine and captures the ways in which the law of torts contributes to the maintenance of a just polity. Recognizing Wrongs aims to unseat both the leading philosophical theory of tort law—corrective justice theory—and the approaches favored by the law-and-economics movement. It also sheds new light on central figures of American jurisprudence, including former Supreme Court Justices Oliver Wendell Holmes, Jr., and Benjamin Cardozo. In the process, it addresses hotly contested contemporary issues in the law of damages, defamation, malpractice, mass torts, and products liability.
I. Glenn Cohen, Commentary on Gestation, Equality and Freedom: Ectogenesis as a Political Perspective, 46 J. Med. Ethics 87 (2020).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Family Law
Sub-Categories:
Gender & Sexuality
,
Reproduction
,
Bioethics
,
Genetics & Reproduction
Type: Article
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet & Pamela S. Karlan, The First Amendment (Wolters Kluwer 6th ed., 2020).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Ronald A. Cass, Colin S. Diver, Jack M. Beermann & Jody Freeman, Administrative Law: Cases and Materials (Wolters Kluwer 8th ed., 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal Education
Type: Book
Scott Michelman, Civil Rights Enforcement (2020).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Sovereign Immunity
,
Statutory Interpretation
,
Supreme Court of the United States
,
Separation of Powers
,
Judges & Jurisprudence
,
Congress & Legislation
,
Courts
Type: Book
Abstract
"Described as “superb” and “inspiring” by Dean Erwin Chemerinsky, Civil Rights Enforcement dives deeply into doctrines concerning the enforcement of civil rights (rather than the content of those rights) and the aspects of those doctrines of most importance to those litigating in the field. The book is organized as a litigator might think through a case, and it provides students rich, detailed hypothetical problems to which they can apply what they are learning. Alongside these practice-focused elements, the book’s notes, questions, and topic transitions push students to grapple both with (1) strategic questions about impact litigation and the role of civil rights litigation in constitutional enforcement, and (2) theoretical questions such as tradeoffs between the values of federalism and judicial review and the relationship between rights and remedies." -- Wolters Kluwer
Maureen E. Brady, Book Review, 38 L. & Hist. Rev. 291 (2020)(reviewing Caroline R. Sherman, The Uses of the Dead: The Early Modern Development of Cy-Près Doctrine (2018)).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal History
,
Estates
,
Personal Property
,
Probate
Type: Article
Guhan Subramanian & Annie Zhao, Go-Shops Revisited, 133 Harv. L. Rev. 1216 (2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
Type: Article
Abstract
A go-shop process turns the traditional M&A deal process on its head: rather than a pre-signing market canvass followed by a post-signing “no shop” period, a go-shop deal involves a limited pre-signing market check, followed by a post-signing “go shop” process to find a higher bidder. A decade ago one of us published the first systematic empirical study of go-shop deals. Contrary to the conventional wisdom at the time, the study found that go-shops could yield a meaningful market check, with a higher bidder appearing 13% of the time during the go-shop period. In this Article, we compile a new sample of M&A deals announced between 2010 and 2018. We find that go-shops, in general, are no longer an effective tool for post-signing price discovery. We then document several reasons for this change: the proliferation of first-bidder match rights, the shortening of go-shop windows, CEO conflicts of interest, investment banker effects, and collateral terms that have the effect of tightening the go-shop window. We conclude that the story of the go-shop technology over the past ten years is one of innovation corrupted: transactional planners innovate, the Delaware courts signal qualified acceptance, and then a broader set of practitioners push the technology beyond its breaking point. In view of these developments in transactional practice, we provide recommendations for the Delaware courts and corporate boards of directors.
J. Mark Ramseyer, Nuclear Reactors in Japan: Who Asks for Them, What Do They Do?, 49 Eur. J.L. & Econ. 7 (2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
East Asian Legal Studies
Type: Article
Abstract
Japanese communities with nuclear reactors have them because they applied for them, and they applied for them for the money. Among Japanese municipalities, they were some of the most dysfunctional before the reactors had even arrived. These were the villages that had long fought for targeted subsidies, but ignored infrastructural investments. Subsidies operate as a regressive tax on out-migration, of course, and the lack of private-sector infrastructure reduces the returns to high-value human capital. As a result, these were the villages from which the most talented young people had probably begun to disappear—even before the reactors arrived. After the communities built the reactors, talented young people continued to leave. Unemployment rose. Divorce rates climbed. And in time, the communities had little other than reactor-revenue on which to rely.
Claudia M. Landeo & Kathryn E. Spier, Optimal Law Enforcement with Ordered Leniency, 63 J.L. & Econ. 71 (2020).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
White Collar Crime
,
Criminal Defense
,
Sentencing & Punishment
,
Law & Economics
Type: Article
Abstract
This paper studies the design of enforcement policies to detect and deter harmful short-term activities committed by groups of injurers. With an ordered-leniency policy, the degree of leniency granted to an injurer who self-reports depends on his or her position in the self-reporting queue. By creating a "race to the courthouse," ordered-leniency policies lead to faster detection and stronger deterrence of illegal activities. The socially-optimal level of deterrence can be obtained at zero cost when the externalities associated with the harmful activities are not too high. Without leniency for self-reporting, the enforcement cost is strictly positive and there is underdeterrence of harmful activities relative to the first-best level. Hence, ordered-leniency policies are welfare improving. Our findings for environments with groups of injurers complement Kaplow and Shavell's (1994) results for single-injurer environments. Experimental evidence provides support for our theory.
Readings in Comparative Health Law and Bioethics (Nathan Cortez, I. Glenn Cohen & Timothy Stoltzfus Jost eds., 3d ed. 2020).
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Comparative Law
Type: Book
Abstract
Readings in Comparative Health Law and Bioethics examines how different countries around the world approach the same challenges in health care law and ethics: how to finance care for as many people as possible; how to ensure quality care; how to best secure patients' rights; how to regulate abortion, end of life decision-making, and assisted reproduction; and how to manage infectious diseases, tobacco use, and human subject research. The new edition considers a broader array of countries, particularly from Asia, Latin America, Africa, and the Middle East.
Joseph William Singer, Sovereignty and Property, in Reading American Indian Law: Foundational Principles 215 (Grant Christensen & Melissa L. Tatum eds., 2020).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Property Rights
Type: Book
Lucian A. Bebchuk (with Alon Brav, Wei Jiang & Thomas Keusch), Dancing with Activists, J. Fin. Econ. (Jan. 29, 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Mergers & Acquisitions
Type: Article
Abstract
An important milestone often reached in the life of an activist engagement is the entering into a “settlement” agreement between the activist and the target’s board. Using a comprehensive hand-collected data set, we provide the first systematic analysis of the drivers, nature, and consequences of such settlement agreements. We identify the determinants of settlements, showing that settlements are more likely when the activist has a credible threat to win board seats in a proxy fight. We argue that, due to incomplete contracting, settlements can be expected to contract not directly on the operational or leadership changes that activists seek but rather on board composition changes that can facilitate operational and leadership changes down the road. Consistent with the incomplete contracting hypothesis, we document that settlements focus on boardroom changes and that such changes are subsequently followed by increases in CEO turnover, increased payout to shareholders, and higher likelihood of a sale or a going-private transaction. We find no evidence to support concerns that settlements enable activists to extract significant rents at the expense of other investors by introducing directors not supported by other investors or by facilitating “greenmail.” Finally, we document that stock price reactions to settlement agreements are positive and that the positive reaction is higher for “high-impact” settlements. Our analysis provides a look into the “black box” of activist engagements and contributes to understanding how activism brings about changes in its targets.
Jeannie Suk Gersen, What Would a Fair Impeachment Trial Look Like?, NewYorker.com (Jan. 29, 2020).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Corruption
,
Government Accountability
Type: Other
Cass R. Sunstein, Internalities, Externalities, and Fuel Economy (Jan. 28, 2020).
Categories:
Environmental Law
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Taxation
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Transportation Law
,
Energy & Utilities Law
,
Administrative Law & Agencies
,
Tax Policy
Type: Other
Abstract
It is standard to think that corrective taxes, responding to externalities, are generally or always better than regulatory mandates, but in the face of behavioral market failures, that conclusion might not be right. Fuel economy and energy efficiency mandates are possible examples. Because such mandates might produce billions of dollars in annual consumer savings, they might have very high net benefits, complicating the choice between such mandates and externality-correcting taxes (such as carbon taxes). The net benefits of mandates that simultaneously reduce internalities and externalities might exceed the net benefits of taxes that reduce externalities alone, even if mandates turn out to be a highly inefficient way of reducing externalities. An important qualification is that corrective taxes might be designed to reduce both externalities and internalities, in which case they would almost certainly be preferable to a regulatory mandate.
Sara Gerke, Serena Young & I. Glenn Cohen, Ethical and Legal Aspects of Ambient Intelligence in Hospitals, JAMA (Jan. 24, 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Medical Technology
,
Information Privacy & Security
Type: Article
Oren Bar-Gill & Christoph Engel, Property is Dummy Proof: An Experiment (MPI Collective Goods Discussion Paper, No. 2020/2, Jan. 24, 2020).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Property Rights
Type: Other
Abstract
Law is for humans. Humans suffer from cognitive limitations. Legal institutions can help humans by making these limitations irrelevant. This experiment shows that strong property rights serve this function. In theory, efficient outcomes obtain even without strong property rights. In a hypothetical world where cognitive ability is perfect, individuals would not engage in wasteful taking wars. A party would not take another’s good, if she expects that the good will ultimately be taken back. By contrast, the large majority of experimental subjects takes a token good when interacting with a computer they know to maximize profit, and that has a symmetric ability to take the good back. Experience mitigates the inefficiency, but does not eliminate it; and in the real world relevant experience is often lacking. We show that cognitive limitations prevent weak property rights – imperfectly enforced property rules and liability rules with low damages – from securing efficient outcomes. Strong property rights should be preferred, because they are dummy proof.
Sharon Block & Benjamin Sachs, Clean Slate for Worker Power: Building a Just Economy and Politics (Lab. & Worklife Program, Harv. L. Sch., Jan. 23, 2020).
Categories:
Labor & Employment
,
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
Labor Law
Type: Other
Louis Kaplow, A Unified Perspective on Efficiency, Redistribution, and Public Policy (NBER Working Paper No. w26683, Jan. 22, 2020).
Categories:
Disciplinary Perspectives & Law
,
Taxation
,
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Social Welfare Law
,
Law & Economics
,
Empirical Legal Studies
,
Retirement Benefits & Social Security
,
Taxation - Personal Income
,
Taxation - Federal Estate & Gift
,
Taxation - Federal
,
Tax Policy
Type: Other
Abstract
Specialized theoretical and empirical research should in principle be embedded in a unified framework that identifies the relevant interactions among different phenomena, enables an appropriate matching of policy instruments to objectives, and grounds normative analysis in individuals’ utilities and a social welfare function. This article advances an approach that both provides integration across many dimensions and contexts and also identifies which tasks may be undertaken separately and how such analysis should be conducted so as to be consistent with the underlying framework. It employs the distribution-neutral methodology and welfare analysis developed in Kaplow (2008a) and related work, offering applications to income taxation, commodity taxation, tax expenditures, externalities, public goods, capital income and wealth taxation, social security and retirement savings, estate and gift taxation, and transfer programs. It also explores welfare criteria and examines how their consideration enables the normative analysis of the taxation of families, heterogeneous preferences, and tax administration and enforcement.
Oren Bar-Gill, Consumer Misperception in a Hotelling Model: With and Without Price Discrimination, 176 J. Inst. & Theoretical Econ. 180 (2020).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Corporate Law & Securities
Sub-Categories:
Consumer Protection Law
,
Antitrust & Competition Law
,
Law & Economics
Type: Article
Abstract
This paper studies the implications of consumer misperception in a market for a (horizontally) differentiated product. Two distinct type of misperceptions are considered: (i) a common misperception that leads consumers to similarly overestimate the benefit from both firms’ products; and (ii) a relative misperception that leads consumers to overestimate the relative benefit of one firm’s product as compared to the product offered by its competitor. The paper analyzes the implications of misperception for social welfare and consumer surplus. In particular, the effects of price discrimination are considered, for each type of misperception.
Eli Y. Adashi & I. Glenn Cohen, Therapeutic Germline Editing: Sense and Sensibility, Trends in Genetics (Jan. 22, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Abstract
Safe and effective heritable editing of the human genome is years away from the clinic because of formidable technical, statutory, regulatory, and societal challenges. In particular, we note the fledgling state of the science, the imperatives of editing efficiency, specificity, and uniformity, and the extant legal roadblock.
Noah Feldman, Is Trump Above the Law?, N.Y. Rev. Books, Jan. 16, 2020, at 12.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Cass R. Sunstein, A Note on Human Welfare and the Administrative State (Jan. 15, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
The American administrative state has become, in important respects, a cost-benefit state. At least this is so in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, expressivism, or interest-group power. The focus on costs and benefits is an important effort to attend to the real-world consequences of regulations – and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. In the future, however, there will be better ways to identify those consequences, by focusing directly on welfare, and not relying on imperfect proxies.
John Bowers & Jonathan Zittrain, Answering Impossible Questions: Content Governance in an Age of Disinformation, 1 Harv. Kennedy Sch. Misinformation Rev. 1 (2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
,
Communications Law
Type: Article
Abstract
The governance of online platforms has unfolded across three eras – the era of Rights (which stretched from the early 1990s to about 2010), the era of Public Health (from 2010 through the present), and the era of Process (of which we are now seeing the first stirrings). Rights-era conversations and initiatives amongst regulators and the public at large centered dominantly on protecting nascent spaces for online discourse against external coercion. The values and doctrine developed in the Rights era have been vigorously contested in the Public Health era, during which regulators and advocates have focused (with minimal success) on establishing accountability for concrete harms arising from online content, even where addressing those harms would mean limiting speech. In the era of Process, platforms, regulators, and users must transcend this stalemate between competing values frameworks, not necessarily by uprooting Rights-era cornerstones like CDA 230, but rather by working towards platform governance processes capable of building broad consensus around how policy decisions are made and implemented. Some promising steps in this direction could include delegating certain key policymaking decisions to entities outside of the platforms themselves; making platforms “information” or “content” fiduciaries; and systematically archiving data and metadata about disinformation detected and addressed by platforms.
Rebecca Tushnet, Brief of Copyright Scholars as Amici Curiae in Support of the Petitioner, Google LLC v. Oracle America, Inc., 18-956 (U.S., Jan. 10, 2020).
Categories:
Property Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Intellectual Property - Copyright
,
Science & Technology
,
Intellectual Property Law
Type: Other
Abstract
The fair use doctrine requires courts “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577 (1994). The Federal Circuit’s rejection of a jury finding of fair use instead embraced a rigid approach that, as a matter of law, would bar any copying of code into a new program, even for a different platform, as non-transformative and unfair. To justify its ruling, the Federal Circuit abandoned a consensus in the lower courts about the broad scope of fair use when dealing with highly functional software elements. It made key mistakes about the fair use factors and their balancing, including inflating the relevance of commerciality, applying an erroneous “no more than necessary” standard for copying, dismissing as insignificant the highly functional nature of computer programs, and conflating the market for Java SE as a whole with the market for individual declarations. Absent these legal errors, it is clear that the jury was at least reasonable in making factual findings that supported a finding of fair use. The extent to which a new work has a new meaning, message, or purpose—transformativeness—is often and rightly prioritized in the fair use analysis. But what constitutes transformativeness is often contentious. Here, the new purpose of Google’s new code implementing the declarations was the creation of a new computing environment in which Java programmers could readily create programs on multiple platforms, which required the use of limited portions of highly functional declarations. This type of purpose has been recognized as transformative because of its role in furthering competition and innovation. A computer interface supports the creation of other creative works, and in such situations, it is important to avoid locking in third parties to specific platforms. Factors two and three of the fair use test help define the boundaries of this type of fair use. In cases such as the one at bar, the highly functional nature of the copied declarations and the limited amount of the overall Java SE work used, consistent with industry practices, are vital considerations supporting the conclusion that Google’s use was a transformative use that served copyright’s basic goal of encouraging creation of new works. By discounting to the point of irrelevance the thinness of protection for highly functional aspects of computer interfaces (factor two) and of the industry practice of treating the amount Google reimplemented as reasonable (factor three), the Federal Circuit distorted its analysis of the other fair use factors, threatening the coherence of fair use doctrine and the ultimate progress of creativity. By downplaying the relevance of the nature of the work and the amount taken, the Federal Circuit fell into the well-known trap of circularity: reasoning that, because Oracle could have charged a license fee for this type of use if fair use were unavailable, Oracle suffered cognizable market harm. Because such claims can be made for any fair use, which by definition is not paid for, this reasoning cannot distinguish fair and unfair uses. But factors two and three can help identify when crediting such claimed market harm would be inconsistent with copyright’s overall balance between past and future creators. Thus, given the limited copying of functional elements here, factors one and four also support fair use, because Google’s purpose was generative of additional creativity by third parties and because Oracle’s claimed market harm goes beyond the legitimate scope of its thin copyright in highly functional declarations. A thin copyright for software, including Java SE, provides software copyright owners with meaningful protection against copying of significant amounts of expression, but meaningful protection does not require the expansive rights that the Federal Circuit granted. Providing a broad scope to highly functional elements of software is unnecessary and dangerous to competition and innovation. Factors two and three enable fair use to implement this distinction between types of works. The Federal Circuit erred in not recognizing this interaction between the fair use factors and instead adopting a rigid rule that would preclude fair use in computer programs.
Rebecca Tushnet & Mark P. McKenna, Brief of Trademark Scholars As Amici Curiae in Support of Neither Party, United States Patent and Trademark Office v. Booking.com B.V., No. 19-46 (U.S., Jan. 13, 2020).
Categories:
Property Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Intellectual Property - Patent & Trademark
Type: Other
Abstract
Amici take no position on whether BOOKING.COM is generic, but write to encourage the Court to be cautious in resolving this case, which involves a generic term combined with a common top-level domain name identifier (.com). Trademark applications raise almost infinitely varied scenarios, including generic terms combined with other elements, and the top-level domain name identifier has some specific features that make it analogous to functional matter. Whatever rule the Court adopts should be highly attentive to the risks to competition of overassertion of registered marks that are largely or entirely comprised of generic elements. Because courts deciding infringement cases are often unfamiliar with the context of a trademark registration, they may miss limitations on the scope of the registered mark that the Trademark Office believed existed and, as a result, enforce broader rights than the registrants should actually have. Ordinary businesses receiving cease and desist letters are even more unlikely to have the expertise to understand the limits on a registration. This practical reality should guide the Court’s standards for registrations with generic components. Relatedly, the Court should reaffirm the basic principle that “de facto secondary meaning” does not give rise to protectability as a trademark. Courts have long distinguished between “de facto secondary meaning” and secondary meaning “to which courts will attach legal consequences.” De facto secondary meaning refers to an association between a generic term and a particular producer that is usually the result of an extended period of market dominance, whether achieved through advertising or through lack of competition. Because of the need to protect potential and future competition, a generic term cannot be appropriated as a trademark even if it has de facto secondary meaning The practical exclusivity afforded by domain name registration means that there may often be de facto secondary meaning in domain names, which can be difficult to distinguish from true trademark secondary meaning. This easily elided distinction affects how the Court should evaluate Booking.com’s survey, which purports to show secondary meaning. But the fact that de facto secondary meaning does not lead to trademark status does not mean it is irrelevant to the law. Even when a term is not protectable as a trademark, narrower unfair competition remedies may be available to prevent true passing off. When a term is generic or a product shape is functional, neither can be protected as a trademark and others may not be enjoined from competing using the term or shape.. Those competitors, however, may be required to distinguish themselves in the market by adding identifiers or otherwise differentiating their use, if the competitors’ use might deceive consumers. Thus, a rule that strongly protects competition by denying registration to generic terms does not leave consumers exposed to clever bad actors.
Carol S. Steiker & Jordan M. Steiker, The Rise, Fall, and Afterlife of the Death Penalty in the United States, 3 Ann. Rev. Criminology 299 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Eighth Amendment
,
Capital Punishment
,
Sentencing & Punishment
,
Criminal Prosecution
,
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Legal History
Type: Article
Abstract
This review addresses four key issues in the modern (post-1976) era of capital punishment in the United States. First, why has the United States retained the death penalty when all its peer countries (all other developed Western democracies) have abolished it? Second, how should we understand the role of race in shaping the distinctive path of capital punishment in the United States, given our country's history of race-based slavery and slavery's intractable legacy of discrimination? Third, what is the significance of the sudden and profound withering of the practice of capital punishment in the past two decades? And, finally, what would abolition of the death penalty in the United States (should it ever occur) mean for the larger criminal justice system?
David Barron, Memoriam: Justice John Paul Stevens, 133 Harv. L. Rev. 748 (2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Cass R. Sunstein, Behaviorally Informed, in The State of Economics, The State of the World 349 (Kaushik Basu, David Rosenblatt & Claudia Sepúlveda eds., 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Cass R. Sunstein, Sludge Audits, Behav. Pub. Pol'y (Jan. 6, 2020).
Categories:
Government & Politics
,
Consumer Finance
,
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Information Privacy & Security
Type: Article
Abstract
Consumers, employees, students, and others are often subjected to “sludge”: excessive or unjustified frictions, such as paperwork burdens, that cost time or money; that may make life difficult to navigate; that may be frustrating, stigmatizing, or humiliating; and that might end up depriving people of access to important goods, opportunities, and services. Because of behavioral biases and cognitive scarcity, sludge can have much more harmful effects than private and public institutions anticipate. To protect consumers, investors, employees, and others, firms, universities, and government agencies should regularly conduct Sludge Audits to catalogue the costs of sludge, and to decide when and how to reduce it. Much of human life is unnecessarily sludgy. Sludge often has costs far in excess of benefits, and it can have hurt the most vulnerable members of society.
Annette Gordon-Reed, "Take Care of Me When Dead": Jefferson Legacies, 40 J. Early Republic 1 (2020).
Categories:
Government & Politics
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Politics & Political Theory
,
Legal History
Type: Article
Cass R. Sunstein, ‘They Ruined Popcorn’: On the Costs and Benefits of Mandatory Labels, in Law & Marketing (Jacob Gersen & Joel Steckel eds., forthcoming 2020).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
Do consumers benefit from mandatory labels? How much? These questions are difficult to answer, because assessment of the costs and benefits of labels presents serious challenges. In the United States, federal agencies have: (1) claimed that quantification is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness-to-pay for the relevant information. All of these approaches run into serious normative, conceptual, and empirical objections. Approach (3) will exaggerate what consumers gain, because many people suffer welfare losses when they see labels, whether or not they end up making different choices. (Part of that loss is captured in one reaction to mandatory calorie labels: “They ruined popcorn!”) In principle, approach (4) is usually best, but people may lack the information that would permit them to say how much they would pay for (more) information, and sometimes tastes and values shift over time, which means that willingness to pay may fail to capture welfare effects. These points raise fundamental conceptual, normative, and empirical questions about welfarist approaches to public policy.
I. Glenn Cohen & Harry Graver, A Doctor’s Touch: What Big Data in Health Care Can Teach Us About Predictive Policing, in Policing and Artificial Intelligence (John L.M. McDaniel & Ken G. Pease eds., forthcoming 2020).
Categories:
Criminal Law & Procedure
,
Health Care
,
Technology & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Health Law & Policy
,
Networked Society
,
Medical Technology
,
Information Privacy & Security
Type: Book
Abstract
We take two professions — police officers and doctors — and place their experiences with big data in dialogue. Policing and medicine, while naturally different in some obvious respects, actually both need to grapple with a lot of the same moral, social, and legal questions that come with adopting big data programs. This because, as we discuss below, both professions generally possess a monopoly over an acute societal vulnerability, be it safety or health, and have accordingly developed a set of settled internal norms to shape individual discretion in service of each respective function. We place the professions side-by-side and try to distill certain insights from the perspective of three key stakeholders — practitioners, policymakers, and the polity.
Duncan Kennedy, A Political Economy of Contemporary Legality, in The Law of Political Economy: Transformations of the Function of Law 89 (Poul Fritz Kjaer ed., 2020).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Critical Legal Studies
,
Law & Political Theory
,
Judges & Jurisprudence
,
Separation of Powers
,
Politics & Political Theory
,
Legal & Political Theory
,
Legal History
Type: Book
Abstract
"The chapter starts with an observation: contemporary elite jurists pursue, vis-à-vis one another, a ‘hermeneutic of suspicion’, meaning that they work to uncover hidden ideological motives behind the ‘wrong’ legal arguments of their opponents, while affirming their own right answers allegedly innocent of ideology. The rise of the hermeneutic of suspicion is a striking manifestations of the contemporary transformation of the relationship between legal elites and political/economic elites. This transformation accompanies and corresponds to the progressive juridification, judicialization and finally constitionalization of the contemporary social order."
Robert H. Sitkoff & John Morley, A Taxonomy of American Trust Law: Adaptation for Private Ordering, in The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., Oxford Univ. Press forthcoming 2020).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
T. Keith Fogg, Access to Judicial Review in Non-Deficiency Tax Cases, 73 Tax Law. 435 (2020).
Categories:
Taxation
,
Government & Politics
,
Civil Practice & Procedure
,
Constitutional Law
Sub-Categories:
Fifth Amendment
,
Litigation & Settlement
,
Remedies
,
Practice & Procedure
,
Supreme Court of the United States
,
Congress & Legislation
,
Courts
,
Administrative Law & Agencies
,
Taxation - Personal Income
,
Taxation - Federal
,
Tax Policy
Type: Article
Abstract
In 1958 and 1960, the Supreme Court took two tries to decide Flora v. United States and then only by the thinnest of margins with the thinnest of reasons. In the second opinion, the Court concluded that under section 1346(a) a taxpayer must fully pay any asserted tax deficiency prior to bringing a refund suit in federal court. The majority of justices acknowledged, however, that neither the statute nor the legislative history of the statute controlled the outcome. Instead, the majority relied upon the harmony of the carefully structured system of tax litigation involving the district courts and the Tax Court. A decade and a half later, the Solicitor General of the United States argued before the Supreme Court that Flora stood only for the narrow proposition that a taxpayer who had received a statutory notice of deficiency and failed to petition the Tax Court could not sue for a refund in district court by paying only a portion of the liability. Yet today, and for the last few decades, the United States has argued vigorously, and successfully, for a broader interpretation of the decision in Flora, an interpretation that prevents taxpayers in situations quite different from that of Mr. Flora from successfully pursuing a tax refund suit without full payment of the tax or penalty at issue. Importantly, since the Court’s decision on its rehearing of Flora in 1960, Congress has enacted over 50 assessable penalties that do not offer the taxpayer an opportunity to appear before the Tax Court prior to assessment and collection. Consequently, the legal landscape has changed dramatically. The current situation effectively denies many taxpayers the right to judicial review of the taxes or penalties assessed against them. This stark reality played out in Larson v. United States, in which the district court and the Second Circuit denied Mr. Larson the right to bring a refund suit after partial payment of a $163 million assessable penalty. This Article examines the history of how we arrived at the current situation and suggests a solution that would provide taxpayers with the right to litigate in district court any taxes or penalties assessed against them without making full payment under the Flora rule if they did not have the prior opportunity to challenge the assessment in a judicial proceeding.