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Scott Westfahl, Leveraging Lawyer Strengths and Training Them to Be More Effective in a Crisis, in Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (Ray Brescia & Eric K. Stern eds., NYU Press forthcoming Feb. 2021).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Professional Responsibility
,
Legal Education
Type: Book
Benjamin Sachs & Kate Andrias, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. (forthcoming 2021).
Categories:
Government & Politics
,
Labor & Employment
Sub-Categories:
Politics & Political Theory
,
Labor Law
Type: Article
Daniel B. Kelly, Double Deterrence: Restitution and Punitive Damages in Trust and Fiduciary Law, 106 Iowa L. Rev. (forthcoming 2021).
Categories:
Property Law
,
Banking & Finance
,
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Fiduciaries
,
Remedies
,
Trusts
Type: Article
Japanese Law: Readings in the Political Economy of Japanese Law (J. Mark Ramseyer ed., forthcoming, Routledge Revivals 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
Type: Book
Abstract
This title was first published in 2001. This volume presents a selection of readings in the political economy of Japanese law.
Einer Elhauge, The Causal Mechanisms of Horizontal Shareholding, 82 Ohio St. L.J. (forthcoming 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we actually have ample proof on causal mechanisms, but that antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms. I debunk claims that every type of causal mechanism that might produce anticompetitive effects is either empirically untested or implausible. I also show that critics are wrong in claiming that common shareholders lack incentives to influence corporations to increase portfolio value by lessening competition. Finally, I show that preventing anticompetitive horizontal shareholding need not restrict diversification or discourage desirable institutional investor influence on corporate conduct.
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
Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (U. Chi. Press, forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Legal History
Type: Book
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.
Comparative Constitutional Law (Vicki C. Jackson & Mila Versteeg eds., 2020).
Categories:
Constitutional Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Legal Education
Type: Book
Abstract
"Once a mere appendage to constitutional law proper, research in comparative constitutional law has burgeoned in recent decades. Indeed, a growing tendency towards international borrowing and harmonization has been marked in many jurisdictions (even, tentatively, the United States), but it has not been uncontroversial, or uncontested. Now, this new collection from Routledge’s Critical Concepts in Law series meets the need for an authoritative reference work to help researchers and students navigate and make better sense of an abundance of scholarship in comparative constitutional law. The collection is made up of four volumes which bring together the best and most influential canonical and cutting-edge thinking. Topics include constitution-making and amendment; the different structural components of constitutional governance (such as the relationship of legislatures to courts and the effects of different methods of judicial oversight); the interaction of constitutional law with transnational sources of law; and theoretical and practical aspects of constitutional legitimacy. With a full index, and thoughtful introductions, newly written by the learned editor, Comparative Constitutional Law traces the field's development and highlights the challenges for future explorations. The collection will be valued by legal scholars—as well as by political philosophers and theorists—as a vital and enduring resource." -- Routledge
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
Anna Lvovsky, Cruising in Plain View: Clandestine Surveillance and the Unique Insights of Antihomosexual Policing, 46 J. Urb. Hist. 980 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Discrimination
Type: Article
Abstract
The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.
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
Jesse M. Fried & Holger Spamann, Cheap-Stock Tunneling Around Preemptive Rights, 137 J. Fin. Econ. 353 (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.
Urs Gasser, Marcello Ienca, James Scheibner, Joanna Sleigh & Effy Vayena, Digital Tools Against COVID-19: Taxonomy, Ethical Challenges, and Navigation Aid, 2 Lancet Digital Health e425 (Aug. 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Networked Society
,
Medical Technology
,
Information Privacy & Security
Type: Article
Abstract
Data collection and processing via digital public health technologies are being promoted worldwide by governments and private companies as strategic remedies for mitigating the COVID-19 pandemic and loosening lockdown measures. However, the ethical and legal boundaries of deploying digital tools for disease surveillance and control purposes are unclear, and a rapidly evolving debate has emerged globally around the promises and risks of mobilising digital tools for public health. To help scientists and policy makers to navigate technological and ethical uncertainty, we present a typology of the primary digital public health applications that are in use. These include proximity and contact tracing, symptom monitoring, quarantine control, and flow modelling. For each, we discuss context-specific risks, cross-sectional issues, and ethical concerns. Finally, recognising the need for practical guidance, we propose a navigation aid for policy makers and other decision makers for the ethical development and use of digital public health tools.
Micha Kaiser, Manuela Bernauer, Cass R. Sunstein & Lucia A. Reisch, The Power of Green Defaults: The Impact of Regional Variation of Opt-out Tariffs on Green Energy Demand in Germany, 174 Ecological Econ. (forthcoming Aug. 2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Empirical Legal Studies
,
Climate Change
,
Energy & Utilities Law
,
Renewable Resources Law
,
European Law
Type: Article
Abstract
The present paper focuses on green defaults as demand-side policies supporting the uptake of renewable energy in Germany. It sets out to gain a better understanding of whether and for whom green electricity defaults work. The present study is one of the first to use a large-scale data set to investigate this question. We combine micro-level data from the German Socio-Economic Panel (GSOEP) covering private households (including a wealth of individual information) with macro-level information such as population density of a region and proportion of energy suppliers in a given region that use a green opt-out tariff within their basic supply. We show that in Germany, green defaults, automatically enrolling customers in renewable energy sources, tend to stick, especially but not only among those who are concerned about the problem of climate change. This finding, based on real-world rather than experimental evidence, attests to the power of automatic enrollment in addressing environmental problems in Germany and potentially beyond, including climate change, and also adds to the growing literature on the substantial effects of shifting from opt-in to opt-out strategies.
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
Hal S. Scott & Anna Gelpern, International Finance: Transactions, Policy, and Regulation (Found. Press 23rd ed. 2020).
Categories:
Corporate Law & Securities
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Finance
,
Financial Reform
,
Securities Law & Regulation
,
Corporate Law
,
International Monetary Systems
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
Andrew Manuel Crespo, Unpacking DHS’s Troubling Explanation of the Portland Van Video, Lawfare (July 25, 2020, 10:29 AM).
Categories:
Constitutional Law
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
Type: Other
Elizabeth Warren, Opinion, My Must-Do List for the Pandemic, N.Y. Times, July 22, 2020, at A23.
Categories:
Government & Politics
,
Health Care
,
Labor & Employment
Sub-Categories:
Government Accountability
,
Government Benefits
,
State & Local Government
,
Executive Office
,
Corruption
,
Congress & Legislation
,
Health Law & Policy
,
Unemployment Law
Type: News
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
Glenn Hubbard & Hal S. Scott, Opinion, ’Main Street' Program Is Too Stingy to Banks and Borrowers, Wall St. J. (July 20, 2020 6:31 PM ET).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Congress & Legislation
,
Government Benefits
Type: Other
Kenneth W. Mack, James Baldwin Spoke Eloquently to His Era. Does He Also Speak to Ours?, Wash. Post (July 19, 2020, 8:00 AM EDT)(reviewing Eddie S. Glaude Jr., James Baldwin's America and Its Urgent Lessons for Our Own (2020)).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Politics & Political Theory
Type: News
Margaret Bourdeaux, Beth Cameron & Jonathan Zittrain, Opinion, Coronavirus Testing Is on the Brink of Paralysis, N.Y. Times, July 17, 2020, at A25.
Categories:
Government & Politics
,
Health Care
,
Technology & Law
Sub-Categories:
Government Accountability
,
Executive Office
,
State & Local Government
,
Health Law & Policy
,
Medical Technology
,
Networked Society
Type: News
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.
Jessie W. Bullock & Matthew C. Stephenson, How Should Lava Jato End?, in Corruption and the Lava Jato Scandal in Latin America (Paul F. Lagunes & Jan Svejnar eds., 2020).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Corruption
,
Foreign Law
Type: Book
Holger Spamann, No, Judges Are Not Influenced by Outdoor Temperature (Or Other Weather): Comment (Harv. John M. Olin Discussion Paper No. 1036, July 8, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Empirical Legal Studies
,
Law & Economics
,
Judges & Jurisprudence
Type: Other
Abstract
Heyes and Saberian (AEJ-AE 2019) estimate from 2000-2004 data that outdoor temperature reduces U.S. immigration judges’ propensity to grant asylum. This estimate is the result of coding and data errors and of sample selection. Correcting the errors reduces the point estimate by two thirds, with a wide 95% confidence interval straddling zero. Enlarging the sample to 1990-2019 flips the point estimate’s sign and rules out the effect size reported in Heyes and Saberian with very high confidence. An analysis of all criminal sentencing decisions by U.S. federal district judges 1992-2003 yields no evidence of temperature or other weather effects either.
Adrian Vermeule, Opinion, Why Conservative Justices Are More Likely to Defect, Wash. Post (July 8, 2020, 4:18 PM EDT).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Noah Feldman, Why Precedent Won't Protect 'Roe’, 67 N.Y. Rev. Books, July 2, 2020, at 29.
Categories:
Constitutional Law
,
Family Law
,
Government & Politics
Sub-Categories:
Reproduction
,
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
Type: Article
Charles Donahue, Book Review, 71 J. Ecclesiastical Hist. 630 (2020)(reviewing Elisabeth van Houts, Married life in the Middle Ages, 900–1300 (2019)).
Categories:
Disciplinary Perspectives & Law
,
Family Law
,
Legal Profession
Sub-Categories:
Religion & Law
,
Canon Law
,
Domestic Relations
,
Legal History
Type: Article
Lucian A. Bebchuk (with Alon Brav, Wei Jiang & Thomas Keusch), Dancing with Activists, 137 J. Fin. Econ. 1 (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.
Urs Gasser & Carolyn Schmitt, The Role of Professional Norms in the Governance of Artificial Intelligence, in The Oxford Handbook of Ethics of AI (Markus D. Dubber, Frank Pasquale & Sunit Das eds., 2020).
Categories:
Legal Profession
,
Technology & Law
Sub-Categories:
Legal Ethics
,
Cyberlaw
,
Networked Society
,
Information Privacy & Security
Type: Book
Cass R. Sunstein, The Triumph of the Friendly: A Review of Brian Hare and Vanessa Woods, Survival of the Friendliest, 22 J. Bioecon. 131 (2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Animal Law
Type: Article
Andres Lombana-Bermudez, Sandra Clio Cortesi, Christian Fieseler, Urs Gasser, Alexa Hasse, Gemma Newlands and Sarah Wu, Youth and the Digital Economy: Exploring Youth Practices, Motivations, Skills, Pathways, and Value Creation (Berkman Klein Center Research Publ'n No. 2020-4, July 1, 2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Cooperation, Peer-Production & Sharing
Type: Other
Abstract
Young people’s lives are increasingly shaped by digital technologies. While significant digital divides and participation gaps remain, an increasing number of young people around the globe participate in and contribute to the digitally networked environment in many forms, ranging from creative expression on social media to interactive gaming and collaboration. This spotlight explores young people’s digital engagement through the lens of the digital economy and seeks to gain an initial understanding of youth’s practices, motivations, skills, pathways, and modes of value creation as they interact with a digital environment in which the boundaries between the commercial and personal spheres, between work and play, are often blurring. The spotlight summarizes key insights from a trans-Atlantic exploratory research collaboration between Youth and Media at the Berkman Klein Center for Internet & Society at Harvard University and the Nordic Centre for Internet and Society at BI Norwegian Business School. In addition to sketching building blocks toward a framework, the paper brings together three essays that explore in different application contexts both the opportunities and challenges that surface when young people engage with and participate in the digital economy.
Annette Gordon-Reed, Afterword to In the Hands of the People: Thomas Jefferson on Equality, Faith, Freedom, Compromise, and the Art of Citizenship (Jon Meacham ed., 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Executive Office
,
Legal History
Type: Book
Abstract
"Thomas Jefferson believed in the covenant between a government and its citizens, in both the government’s responsibilities to its people and also the people’s responsibility to the republic. In this illuminating book, a project of the Thomas Jefferson Foundation at Monticello, the #1 New York Times bestselling author Jon Meacham presents selections from Jefferson’s writing on the subject, with an afterword by Pulitzer Prize–winning historian Annette Gordon-Reed and comments on Jefferson’s ideas from others, including Colin Powell, Madeleine Albright, Frederick Douglass, Carl Sagan, and American presidents. This curated collection revitalizes how to see an individual’s role in the world, as it explores such Jeffersonian concepts as religious freedom, the importance of a free press, public education, participation in government, and others. Meacham writes, “In an hour of twenty-first-century division and partisanship, of declining trust in institutions and of widespread skepticism about the long-term viability of the American experiment, it is instructive to return to first principles. Not, to be sure, as an exercise in nostalgia or as a flight from the reality of our own time, but as an honest effort to see, as Jefferson wrote, what history may be able to tell us about the present and the future.” -- Random House
Howell E. Jackson & Steven L. Schwarcz, Protecting Financial Stability: Lessons from the Coronavirus Pandemic (Duke L. Sch. Pub. L. & Legal Theory Series No. 2020-39, June 30, 2020).
Categories:
Banking & Finance
Sub-Categories:
Finance
,
Financial Markets & Institutions
,
Risk Regulation
,
Banking
,
Commercial Law
,
Financial Reform
Type: Other
Abstract
The coronavirus pandemic has produced a public health debacle of the first-order. But, the virus has also propagated the kind of exogenous shock that can precipitate—and to a certain degree has precipitated—a systemic event for our financial system. This still 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. Considerable 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. While today’s pandemic differs in many critical respects from the events of 2008, systemic events in the financial sector have a common structure relevant to both crises. Reflecting back on responses to the last financial crisis also affords us an opportunity both to understand how financial regulators are currently responding to the coronavirus pandemic and also to speculate how the pandemic might lead to further reforms of financial regulation and other areas of public policy in the years ahead.
Jesse M. Fried, Ehud Kamar & Yishay Yafeh, The Effect of Minority Veto Rights on Controller Pay Tunneling, J. Fin. Econ. (June 29, 2020).
Categories:
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Securities Law & Regulation
,
Shareholders
,
Executive Compensation
Type: Article
Abstract
A central challenge in the regulation of controlled firms is curbing rent extraction by controllers. As independent directors and fiduciary duties are often insufficient, some jurisdictions give minority shareholders veto rights over related-party transactions. To assess these rights’ effectiveness, we exploit a 2011 Israeli reform that gave minority shareholders veto rights over related-party transactions, including the pay of controllers and their relatives (“controller executives”). We find that the reform curbed controller-executive pay and led some controller executives to resign or go with little or no pay in circumstances suggesting their pay would be rejected. These findings suggest that minority veto rights can be an effective corporate governance tool.
Jeannie Suk Gersen, Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?, NewYorker.com (June 27, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Judges & Jurisprudence
,
Statutory Interpretation
,
Supreme Court of the United States
,
Employment Discrimination
Type: Other
Abstract
In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.
Samantha Power, 'Find the People Who Actually Want to Do Things.' Samantha Power Remembers the Wise Words of Jean Kennedy Smith, Time (June 26, 2020 5:08 PM EDT).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Other
Mark J. Roe, Derivatives and Repos in Bankruptcy, in Research Handbook on Corporate Bankruptcy Law 102 (Barry E. Adler ed., 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Bankruptcy & Reorganization
Type: Book
Abstract
Explains that favorable treatment of derivatives and financial repurchase agreements under bankruptcy law weakens market discipline during ordinary financial times and exacerbates financial failure during an economic downturn or financial crisis. Safe harbors for such instruments facilitate collateral runs and fire sales and encourage short-term financing, which benefit from such privilege. The purpose of the special treatment, containment of contagion, is not accomplished and the resulting risk is to inefficiently burden other creditors including the United States government, which serves as de jure or de facto guarantor of significant financial institutions.
Jonathan Zittrain, Twitter’s Least-Bad Option for Dealing With Donald Trump, Atlantic (June 26, 2020, 10:15 AM).
Categories:
Government & Politics
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Networked Society
,
Communications Law
Type: Other
Ruth L. Okediji, When is Intellectual Property an Investment?, in Research Handbook on Intellectual Property and Investment Law 94 (Christophe Geiger ed., 2020).
Categories:
Property Law
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Investment Products
,
International Law
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Book
Abstract
Protecting intellectual property (IP) as an investment has important consequences for the emerging landscape of international investment law and for the very nature of IP rights. By recasting IP as an investment ‘asset’ it diminishes the public-oriented aspect of IP and deviates from the competition and social progress norms in which IP law is grounded. This chapter explores the unique characteristics of IP rights which render them unsuitable for classification as traditional investments and discusses the conditions under which IP could be considered an investment for arbitration purposes. It argues that investment arbitration invoked to contest IP laws should be permitted only under a prescribed set of conditions which are designed to preserve the ‘wiggle room’ that is inherent within the international IP system and is critical for preserving national sovereignty, as well as public faith in domestic legislative and judicial processes.
Joseph William Singer, Choice of Law: Patterns, Arguments, Practices (2020).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Choice of Law
,
Conflict of Laws
,
Legal Education
Type: Book
Abstract
This book provides a new way to learn about the topic of conflicts of law through experiential learning. Most books describe the approaches that have been adopted over time to decide conflicts of laws. This book describes those approaches and includes the emerging Third Restatement. To promote experiential learning, it does more: First, it explains patterns of cases so that students can fit new cases into established frames of reference. Second, it distinguishes between easy cases and hard cases so students can determine when a case cannot be easily resolved. Third, it provides detailed arguments that are typically made on both sides of hard cases that fit the typical patterns. Fourth, it concludes with moot court exercises that students could perform in class to practice advocacy in this field and judging. With new requirements to provide students with experiential learning opportunities, this text enables any teacher to give students the tools they need to understand the issues in the field, the reasons why cases are hard, the arguments that are available on both sides, and justifications that judges can give for resolving cases one way or the other.
Benjamin Charles Iverson, Jared A. Ellias & Mark J. Roe, Estimating the Need for Additional Bankruptcy Judges in Light of the COVID-19 Pandemic, 11 Harv. Bus. L. Rev. (June 25, 2020).
Categories:
Corporate Law & Securities
,
Consumer Finance
,
Government & Politics
Sub-Categories:
Consumer Bankruptcy Law
,
Corporate Bankruptcy & Reorganization
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
This Essay (the “Essay”) estimates the U.S. bankruptcy system’s ability to absorb an anticipated surge of financial distress among American consumers, businesses, and municipalities as a result of COVID-19. An increase in the unemployment rate has historically been a leading indicator of the volume of bankruptcy filings that occur months later. If prior trends repeat this time, the May 2020 unemployment rate of 13.3 percent will lead to a substantial increase in all types of bankruptcy filings. Mitigation, governmental assistance, the unique features of the COVID-19 pandemic, and judicial triage should reduce the potential volume of bankruptcies to some extent, or make it less difficult to handle, and it is plausible that the predictive power of the recent unemployment spike will be smaller than history would otherwise predict. We hope this will be so. Yet, even assuming that the worst-case scenario could be averted, our analysis suggests substantial, temporary investments in the bankruptcy system may be needed. Our model assumes that Congress would like to have enough bankruptcy judges to maintain the average bankruptcy judge’s caseload at no more than it was during the last bankruptcy peak in 2010, when the bankruptcy system was pressured and the public caseload figures indicate that judges worked 50 hour weeks on average. To keep the judiciary’s workload at 2010 levels, we project that, in the worst-case scenario, the bankruptcy system could need as many as 246 temporary judges—a very large number. But even in our most optimistic model, the bankruptcy system will still need 50 additional temporary bankruptcy judgeships, as well as the continuation of all current temporary judgeships. The optimistic model begins with the observation that an unusually large number of the unemployed believe that they are only temporarily furloughed and will be back at work soon. Accordingly, we (optimistically) removed the excess-from-baseline number of unemployed who believe they will be back at work shortly—as if they will be back at work shortly with no adverse impact on the economy’s channel to bankruptcies. That reduction yielded a projected need of between 50 and 69 fewer judges to maintain a judicial workload no greater than the one bankruptcy courts faced in the 2009 financial crisis. In other circumstances, the enormous uncertainty of what the bankruptcy caseload will be would warrant waiting to see what develops. And strong action probably will not occur until we see a major across-the-board rise in filings. (Large business filings are rising sharply now, but consumer filings are not rising.) The downside of a wait-and-see strategy is that full-scale bankruptcy court appointments need about a year to complete. The dilemma in what action to take now is that if bankruptcies do in fact rise by several-fold---a plausible but uncertain prospect, then waiting for the rise will lead to a large gap that will put the system one year behind where it ought to be if the filings had been anticipated as certain and acted upon. Hence, we recommend that the relevant players act on the optimistic estimation and re-assess bankruptcy needs as the economy evolves and more information develops. Judicial appointments need not be for the full term of a bankruptcy judge. Capacity can be added via temporary judges (of which there already are some in the bankruptcy court system) and by recalling recent retirees who are willing to serve.
David Kennedy, Global Governance in Crisis Time, Vital Interests (June 25, 2020).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
National Security Law
,
Developing & Emerging Nations
,
Foreign Relations
,
International Law
,
Nonprofit & Nongovernmental Organizations
,
Comparative Law
Type: Other
Jonathan Zittrain, Is Digital Contact Tracing Over Before It Began?, Medium (June 25, 2020).
Categories:
Health Care
,
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Health Law & Policy
,
Networked Society
,
Medical Technology
Type: Other
Benjamin Eidelson, Unbundling DACA and Unpacking Regents: What Chief Justice Roberts Got Right, Balkinization (June 25, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Government Benefits
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Other
Katrine Bach Habersaat, Cornelia Betsch, Margie Danchin, Cass R. Sunstein, Robert Böhm, Armin Falk, Noel T. Brewer, Saad B. Omer, Martha Scherzer, Sunita Sah et al., Ten Considerations for Effectively Managing the COVID-19 Transition, Nature Hum. Behav., June 24, 2020.
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
,
International Law
,
Nonprofit & Nongovernmental Organizations
Type: Article
Abstract
Governments around the world have implemented measures to manage the transmission of coronavirus disease 2019 (COVID-19). While the majority of these measures are proving effective, they have a high social and economic cost, and response strategies are being adjusted. The World Health Organization (WHO) recommends that communities should have a voice, be informed and engaged, and participate in this transition phase. We propose ten considerations to support this principle: (1) implement a phased approach to a ‘new normal’; (2) balance individual rights with the social good; (3) prioritise people at highest risk of negative consequences; (4) provide special support for healthcare workers and care staff; (5) build, strengthen and maintain trust; (6) enlist existing social norms and foster healthy new norms; (7) increase resilience and self-efficacy; (8) use clear and positive language; (9) anticipate and manage misinformation; and (10) engage with media outlets. The transition phase should also be informed by real-time data according to which governmental responses should be updated.
Sharon Block & Benjamin Sachs, Worker Power and Voice in the Pandemic Response (Clean Slate for Worker Power, Labor & Worklife Program, Harv. L. Sch., June 24, 2020).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Labor & Employment
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Health Law & Policy
,
Labor Law
,
Employment Practice
Type: Other
Abstract
Our country is wracked by two urgent crises – the COVID-19 pandemic and the plague of systemic racism. COVID-19 presents grave challenges to all of us, but it poses particular – and, in many cases, life-threatening – challenges to working people. Moreover, the costs of the pandemic are being borne disproportionately by low-wage workers, a population made up primarily of women and workers of color. As they work to keep the economy moving despite the pandemic, these workers are being asked to put their lives on the line in ways that are both unacceptable and unnecessary. ‍ Indeed, as the economy reopens, more and more workers will be put in harm’s way. Unless, that is, something fundamental changes about the way we approach worker voice and power. In this issue brief, we offer a set of recommendations designed to empower workers so that they are better positioned to cope with the ravages of COVID-19, keep themselves and their families safe, and build a more equitable economy than the one the pandemic shut down. ‍ There is strong bipartisan support for the recommendations we are suggesting. A large majority of likely voters support giving workers a formal voice in setting health and safety standards. Only 19% of likely voters said they opposed these reforms. View the full polling results here. ‍ As with the original Clean Slate report, the recommendations here are designed so that they apply to all workers regardless of whether the law classifies them as employees, independent contractors, or otherwise outside of traditional labor law’s protection. And a central premise of the Clean Slate for Worker Power project is that any attempt to empower workers must begin with the effort to make labor law, and the labor movement, fully inclusive of workers of color – workers who have faced exclusion from the start. ‍ When law empowers all workers to demand equitable treatment – including safe and healthy working conditions – workers can build the kind of nation we all deserve
Sara Gerke, Timo Minssen & I. Glenn Cohen, Ethical and Legal Challenges of Artificial Intelligence-Driven Health Care, in Artificial Intelligence in Healthcare (Adam Bohr & Kaveh Memarzade eds., 2020).
Categories:
Government & Politics
,
Health Care
,
International, Foreign & Comparative Law
,
Technology & Law
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Bioethics
,
Food & Drug Law
,
Health Law & Policy
,
Comparative Law
,
European Law
,
Cyberlaw
,
Information Privacy & Security
,
Intellectual Property Law
,
Medical Technology
,
Networked Society
Type: Book
Abstract
This chapter will map the ethical and legal challenges posed by artificial intelligence (AI) in health care and suggest directions for resolving them. Section 1 will briefly clarify what AI is and Section 2 will give an idea of the trends and strategies in the United States (U.S.) and Europe, thereby tailoring the discussion to the ethical and legal debate of AI-driven health care. This will be followed in Section 3 by a discussion of four primary ethical challenges, namely (1) informed consent to use, (2) safety and transparency, (3) algorithmic fairness and biases, and (4) data privacy. Section 4 will then analyze five legal challenges in the U.S. and Europe: (1) safety and effectiveness, (2) liability, (3) data protection and privacy, (4) cybersecurity, and (5) intellectual property law. Finally, Section 5 will summarize the major conclusions and especially emphasize the importance of building an AI-driven health care system that is successful and promotes trust and the motto “Health AIs for All of Us”.
Jeannie Suk Gersen, How the Charges Against Derek Chauvin Fit Into a Vision of Criminal Justice Reform, NewYorker.com (June 17, 2020).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
,
Government Accountability
,
Legal Reform
Type: Other
Cass R. Sunstein, Are Food Labels Good? (June 15, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Other
Abstract
Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.
I. Glenn Cohen, Lawrence O. Gostin & Daniel J. Weitzner, Digital Smartphone Tracking for COVID-19: Public Health and Civil Liberties in Tension, 323 JAMA 2371 (2020).
Categories:
Health Care
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Comparative Law
,
Medical Technology
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
Contact investigations have been a vital public health strategy, most recently in controlling tuberculosis and sexually transmitted infections including HIV. Yet, the sheer scale of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) infections poses major challenges to contact investigations. Strategies in China, Singapore, South Korea, and Taiwan have supplemented traditional manual approaches with digital surveillance through smartphone applications. The US has not used digital surveillance as a tool, but Google, Apple, the Massachusetts Institute of Technology (MIT), as well as 2 pan-European consortia and a variety of independent efforts are developing Bluetooth smartphone technology to enable rapid notification of users that they have had a close exposure to individuals diagnosed with medically verified coronavirus disease 2019 (COVID-19). How does digital tracking differ from manual tracing? Although digital surveillance has the distinct advantages of scale and speed, does it confer sufficient public health benefit to justify adoption given privacy concerns? How do the design choices of digital contact tracing systems affect public health and privacy?
Philipp Lorenz-Spreen, Stephan Lewandowsky, Cass R. Sunstein & Ralph Hertwig, How Behavioural Sciences Can Promote Truth, Autonomy and Democratic Discourse Online, Nature Hum. Behav., June 15, 2020.
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
,
Information Commons
,
Communications Law
Type: Article
Abstract
Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.
Alan Dershowitz, The Case for Liberalism in an Age of Extremism or, Why I Left the Left But Can't Join the Right (2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
As a professor for half a century, Dershowitz never told students what values to accept or which candidates to support, but helped guide them to conclusions based on their own sets of values. He does the same in this book.
Annette Gordon-Reed, The Problem of Police Powers for People Living While Black, NYR Daily (June 13, 2020, 5:00 pm).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
Type: Other
Christine A. Desan & Nadav Orian Peer, The Constitution and the Fed after the COVID-19 Crisis, Just Money (June 10, 2020).
Categories:
Banking & Finance
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Banking
,
Economics
,
Secured Transactions
,
Financial Markets & Institutions
,
Congress & Legislation
Type: Other
Abstract
The COVID-19 financial response brought a seismic shift in the allocation of authority between Congress, the Treasury, and the Federal Reserve. According to the classic division of labor, Congress claims the “power of the purse” or the constitutional authority to appropriate public funds; the Treasury holds responsibility over the spending and taxing that puts those orders into effect; and the Federal Reserve engages in money creation as part of its role making monetary policy and acting as lender of last resort. Drawing on that theory of separated powers, the essay reconstructs the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse. Most notably, approaches to the Fed have downplayed the distributive implications of its money creation powers by casting them as merely a stabilizing force, either backstopping private lending in times of panic or maintaining the health of credit markets more generally. We then analyze the COVID-19 liquidity facilities at the heart of the Federal government’s response to the current crisis. Established by the Fed, these facilities are shaped in non-transparent ways by the Treasury’s authority to protect the Fed from losses. With only $450 billion in congressional appropriations, the facilities are anticipated to lend $4.5 trillion, an amount the size of the 2019 federal budget. In our view, the facilities collapse the traditional narrative that distinguished Fed money creation from congressional appropriations. We conclude that that traditional narrative was problematic from the start. Congress’s inability to take responsibility over Fed credit support calls for a more structural reform in our financial system- one compatible with democratic governance and distributive justice.
Jeannie Suk Gersen, Can the Constitution Reach Trump’s Corruption?, NewYorker.com (June 9, 2020).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Corruption
,
Executive Office
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Separation of Powers
,
Supreme Court of the United States
,
Foreign Relations
Type: Other
J. Mark Ramseyer, Contracting for Terroir in Sake (Harv. L. Sch. John M. Olin Center Discussion Paper No. 1034, June 7, 2020).
Categories:
Banking & Finance
,
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Contracts
,
Commercial Law
,
Agriculture Law
,
East Asian Legal Studies
Type: Other
Abstract
Over the course of the last half century, Japanese consumers have steadily lost their taste for sake. A few large producers dominate the mass market through economies of scale, but the regional brewers have gradually gone out of business. In this environment, a small group of enterprising regional brewers began to create a market for premium sake with the environmental variations so important to French terroir. To produce the delicate and subtle terroir sake, brewers must convince local farmers to grow the high-risk and high-cost varieties of rice optimized for premium sake. The challenge presents contractual problems with unusually complex incentive and informational requirements. I explore the arrangements by which brewers have addressed these problems. Some have decided to grow the rice themselves -- "solving" the contractual problem through vertical integration. Others have constructed deceptively simple arrangements that elicit the requisite information, bind the firm to the community through social capital, and (by paying a sufficiently high price) give the brewer the right to intervene directly in the farming.
Annette Gordon-Reed, Message for the World: The Idea of Hope in the Wake of the Global Protests Against Racism, TLS, June 26, 2020, at 18.
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Law & Social Change
Type: News
Louis Kaplow, A Unified Perspective on Efficiency, Redistribution, and Public Policy, 73 Nat'l Tax J. 429 (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: Article
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.
Cass R. Sunstein, Behavioral Welfare Economics, 11 J. Benefit-Cost Analysis 196 (2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
A growing body of normative work explores whether and how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost–benefit analysis, and regulatory policy. In light of behavioral findings, regulators should adopt a working presumption in favor of respect for people’s self-regarding choices, but only if those choices are adequately informed and sufficiently free from behavioral biases. The working presumption should itself be rebuttable on welfare grounds, with an understanding that the ends that people choose might make their lives go less well. For example, people might die prematurely or suffer from serious illness, and what they receive in return might not (on any plausible account of welfare) be nearly enough. The underlying reason might involve a lack of information or a behavioral bias, identifiable or not, in which case intervention can fit with the working presumption, but the real problem might involve philosophical questions about the proper understanding of welfare, and about what it means for people to have a good life.
I. Glenn Cohen, Tina Stevens & Stuart Newman, Biotech Juggernaut: Hope, Hype, and Hidden Agendas of Entrepreneurial, 54 Law & Soc’y Rev. 524 (2020)(book review).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Medical Technology
Type: Article
Jesse M. Fried, Delisting Chinese Companies Plays Straight Into Their Hands, FT.com (June 1, 2020).
Categories:
Corporate Law & Securities
,
Government & Politics
Sub-Categories:
Securities Law & Regulation
,
Shareholders
,
Congress & Legislation
Type: Other
Jack Goldsmith, Opinion, Here’s a Better Way to Protect our Inspectors General, Wash. Post (June 1, 2020, 7:30 AM EDT).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Separation of Powers
Type: Other
Amanda L. Tyler, Brian T. Fitzpatrick, Charles Fried, John F. Manning, Justice Ruth Bader Ginsburg & Richard H. Fallon, Jr., In Memoriam: Professor David L. Shapiro, 133 Harv. L. Rev. 2452 (2020).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Education
,
Legal Scholarship
,
Legal Services
Type: Article
I. Glenn Cohen, Nikolas Bowie, Megan Jones & Eli Y. Adashi, Preventing Female Genital Mutilation in the United States: The Legal Threat to Effective Action, 110 Am. J. Pub. Health 813 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Health Care
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Congress & Legislation
,
State & Local Government
,
Health Law & Policy
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
FGM can cause short-term complications such as severe pain, hemorrhage, tetanus infection, and urine retention.2 Long-term consequences include recurrent urinary tract infections, cyst formation, sexual difficulties, and increased risk of childbirth complications and newborn deaths.2 While some claim religious or ethnographic reasons for the practice, others view it as sustained by myths of femininity and virginity, and intended to cure vaginal "uncleanliness," prevent "deviant" premarital sexual activity, preserve "purity," and hinder sexual pleasure.2 FGM is a globally recognized human rights violation rendered unlawful under several international treaties. THE COURT'S DECISION On November 20, 2018, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan found in Nagarwala that the statute exceeded the federal government's enumerated powers and thus declared the statute unconstitutional.3 The federal government, the court made clear, has no authority to police local or state criminal activity; such authority should be left to the states.3 The Department of Justice declined to prosecute its appeal and the US Sixth Circuit Court of Appeals refused a request by the House of Representatives to intervene, making Judge Friedman's opinion the final word.4,5 Most criminal laws are passed and enforced by states, as Congress has the power to pass legislation only in areas in which the Constitution grants it authority. "4(p31) It also accords with the interpretation of Congress, which passed the FGM ban after finding that no "single State or local jurisdiction [could] control [FGM]" or protect against the physical, psychological, and civil injury it causes.5 Second, the district court mischaracterized FGM as a noncommercial "form of physical assault" rather than as a paid-for health care service within the national market of licensed medical providers. 3(p22) As federal prosecutors argued, "FGM is usually performed by trained practitioners," and the statute "contemplates criminalizing FGM undertaken by medical practitioners in a commercial healthcare setting, which is in and of itself economic activity.
Eli Y. Adashi & I. Glenn Cohen, Reproduction Reimagined, 1 F&S Reports 7 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., 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'.
Bruce A. Kimball & Daniel R. Coquillette, The Intellectual Sword: Harvard Law School, The Second Century (2020).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal History
Type: Book
Abstract
A history of Harvard Law School in the twentieth century, focusing on the school’s precipitous decline prior to 1945 and its dramatic postwar resurgence amid national crises and internal discord. By the late nineteenth century, Harvard Law School had transformed legal education and become the preeminent professional school in the nation. But in the early 1900s, HLS came to the brink of financial failure and lagged its peers in scholarly innovation. It also honed an aggressive intellectual culture famously described by Learned Hand: “In the universe of truth, they lived by the sword. They asked no quarter of absolutes, and they gave none.” After World War II, however, HLS roared back. In this magisterial study, Bruce Kimball and Daniel Coquillette chronicle the school’s near collapse and dramatic resurgence across the twentieth century. The school’s struggles resulted in part from a debilitating cycle of tuition dependence, which deepened through the 1940s, as well as the suicides of two deans and the dalliance of another with the Nazi regime. HLS stubbornly resisted the admission of women, Jews, and African Americans, and fell behind the trend toward legal realism. But in the postwar years, under Dean Erwin Griswold, the school’s resurgence began, and Harvard Law would produce such major political and legal figures as Chief Justice John Roberts, Justice Elena Kagan, and President Barack Obama. Even so, the school faced severe crises arising from the civil rights movement, the Vietnam War, Critical Legal Studies, and its failure to enroll and retain people of color and women, including Justice Ruth Bader Ginsburg. Based on hitherto unavailable sources—including oral histories, personal letters, diaries, and financial records—The Intellectual Sword paints a compelling portrait of the law school widely considered the most influential in the world.
Hal S. Scott, An Essay on the Fed and the U.S. Treasury: Lender of Last Resort and Fiscal Policy (May 21, 2020).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Risk Regulation
,
Finance
,
Administrative Law & Agencies
,
Congress & Legislation
,
Government Accountability
Type: Other
Abstract
This essay explores the evolution of my thinking on risky emergency lending to banks and non-banks. The Fed is now, in the Pandemic, engaging in lending with significant credit risk. While it appears these are Fed programs, in fact this lending is controlled by, and may be largely determined, by the Treasury. This is proper but should be clear. Lending with significant credit risk is a fiscal decision and should be made by the elected government not by an independent agency, whether made to banks or non-banks. And it should be the Treasury’s role, as advised by the Fed, to determine when there is significant credit risk. When there is no significant credit risk, the Fed should make the lending decision, without control or approval of the Treasury, again whether to banks or non-banks, as part of their role as liquidity supplier and lender of last resort. If there is disagreement as to whether there is significant credit risk the Treasury’s view should prevail.
Sabrineh Ardalan & Katherine Peeler, Don’t Believe the Trump Administration’s Misinformation: Domestic Violence Survivors Can Get Asylum in the United StatesPhysicians for Human Rights (May 20, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Legal Profession
,
Health Care
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Discrimination
,
Immigration Law
,
Government Transparency
,
Health Law & Policy
,
Refugee & Asylum Law
,
Clinical Legal Education
Type: Other
Andrew Manuel Crespo, Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn (May 19, 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
National Security Law
,
Politics & Political Theory
,
Executive Office
,
Government Accountability
,
Corruption
,
Separation of Powers
Type: Other
Abstract
This amicus curiae brief is submitted in United States v. Flynn, the criminal prosecution of former National Security Advisor Michael Flynn. It is authored by Professor Andrew Manuel Crespo and attorneys from Protect Democracy, on behalf of former federal prosecutors and high-ranking Department of Justice officials. The brief argues that the court has not only the authority but also the responsibility to review the government's motion to dismiss the case against Flynn with care, and to deny the motion if a dismissal would be contrary to the public interest. The brief analyzes the substantive defects in the government's argument that Flynn's acknowledged lies to the FBI were not "material" within the meaning of 18 USC 1001. And it explains why all of the publicly available evidence to date indicates that the motion to dismiss was motivated by a desire to satisfy the president's personal political interest, and thus contrary to the public interest as a matter of law.
I. Glenn Cohen, Andrew M. Crespo & Douglas B. White, Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms, 323 JAMA 1901 (2020).
Categories:
Criminal Law & Procedure
,
Civil Practice & Procedure
,
Health Care
,
Government & Politics
Sub-Categories:
Torts - Negligence
,
State & Local Government
,
Bioethics
,
Medical Jurisprudence
Type: Article
Abstract
With an anticipated shortage of ventilators for patients with coronavirus disease 2019 (COVID-19), hospitals, physicians, and nurses may have to make an unprecedented decision: should they withdraw or withhold ventilators from some patients and use them for other patients who have a better chance of survival? It is not uncommon for care teams to decide against initiating or continuing mechanical ventilation when such treatment would not achieve a patient’s goals or directives. COVID-19 presents a different case: patients who do not receive a ventilator could benefit, perhaps living for many additional years, if they receive short-term mechanical ventilation. Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support. Recently developed protocols expressly call for the rationing and reallocation of ventilators, in a manner that aims to save the greatest number of lives.1 These protocols are broadly accepted by medical ethicists.1,2 But ethics aside, there are potential legal ramifications of either withholding or withdrawing a ventilator from a patient who would ordinarily receive such aid in the absence of a public health emergency. In this Viewpoint, we assess the legal risks that physicians, other health care workers, and hospital systems confront in such scenarios and recommend that states explicitly and immediately adopt legal protections for health care workers, modeled on provisions in place in Maryland.
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.
Eli Y. Adashi & I. Glenn Cohen, The Case for Remedial Germline Editing-The Long-term View, 323 JAMA 1762 (2020).
Categories:
Technology & Law
,
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
,
Medical Technology
Type: Article
Sabrineh Ardalan, The Trump Administration, COVID-19, and the Continuing Assault on the Rights of Asylum Seekers and Refugees, Kaldor Centre for Int’l Refugee Law, COVID-19 Watch (May 11, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Government & Politics
,
Health Care
Sub-Categories:
Immigration Law
,
Executive Office
,
Politics & Political Theory
,
Health Law & Policy
,
Refugee & Asylum Law
Type: Other
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.
Todd Rakoff, Inequality, Discrimination, and the Covenant Not to Compete: A Commentary on Orly Lobel, Exit, Voice & Innovation, 57 Hous. L. Rev. 843 (2020).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
,
Banking & Finance
Sub-Categories:
Contracts
,
Economics
,
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Housing Law
,
Race & Ethnicity
,
Social Welfare Law
,
Employment Discrimination
,
Employment Practice
,
Labor Law
Type: Article
Abstract
Do the gendered phenomena highlighted in the preceding article by Professor Lobel amount to discrimination? In this Commentary, I argue that although these phenomena may well contribute to social inequality and deserve attention as such, on the whole, they do not constitute discrimination as it is ordinarily understood.
Cass R. Sunstein, On the Wrongness of Lies (May 6, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Other
Abstract
Why are lies wrong? The Kantian answer sees lies as a close cousin to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometime because they substitute the liar’s will for that of the chooser, who has much better information about the chooser’s welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Mill’s Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.
Beatrice Lindstrom & Adam Houston, Will Lessons from Cholera in Haiti Be Applied to COVID-19?, Global Observatory (May 6, 2020).
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Developing & Emerging Nations
,
Human Rights Law
,
Nonprofit & Nongovernmental Organizations
Type: Other
Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, 106 Iowa L. Rev. (forthcoming 2020).
Categories:
Corporate Law & Securities
,
Consumer Finance
,
Government & Politics
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Antitrust & Competition Law
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Article
Abstract
Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction is not unknown to the law, of course. This contradiction, though, is acute. For not only are both regimes at issue designed to protect competition, but they are both enforced by the same agency: the Federal Trade Commission, which targets “unfair competition” through antitrust and consumer protection enforcement. Courts’ treatment of false advertising in antitrust cases makes no sense. While courts have reasonably evidenced concern that not all false advertising violates antitrust law, the remedy is not to abandon the false advertising/antitrust interface. Instead, the solution is to focus on the actors most likely to harm the market: monopolists and attempted monopolists. This Essay proposes an antitrust framework for false advertising claims. It introduces a presumption that monopolists engaging in false advertising violate antitrust law and a rebuttal if the false advertising is ineffective. The framework also applies to attempted monopolization by incorporating factors such as falsity, materiality, and harm inherent in false advertising law, along with competition-centered issues like targeting new market entrants. Antitrust has dismissed false advertising that entrenches monopoly power for too long. This Essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets. Such an approach promises benefits for false advertising law, antitrust law, and consumers.
Max M. Schanzenbach & Robert H. Sitkoff, Comment Letter of Professors Max M. Schanzenbach and Robert H. Sitkoff on the Securities and Exchange Commission’s Request for Comment on the Names Rule for Mutual Finds in Light of ESG Investing and Other Market Developments (Nw. L. & Econ. Research Paper No. 20-05, May 5, 2020).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Property Law
Sub-Categories:
Investment Products
,
Fiduciary Law
,
Securities Law & Regulation
,
Fiduciaries
,
Shareholders
,
Trusts
Type: Other
Abstract
In March 2020, the Securities and Exchange Commission asked for public comment on the names rule (rule 35d-1) for mutual funds in light of developments since the rule's adoption in 2001. Among such developments, the request for comment identifies burgeoning investor interest in environmental, social, and governance (“ESG”) investing and the corresponding proliferation of funds that purport to make use of ESG factors. This response to the SEC’s request for comment has two purposes: First, we provide clarifying context for the ESG investing phenomenon and a summary of the current state of theoretical and empirical literature in financial economics on it. Second, we discuss how this context informs the critical relationship between ESG disclosure by a mutual fund, both in the fund’s name and in its prospectus, and the rules (e.g., state trust law or ERISA) that govern the extent to which a trustee or other fiduciary may use ESG factors in fiduciary investment. We organize this response in four parts: (1) we provide a clarifying taxonomy on the meaning of ESG investing and the methods for implementing it; (2) we discuss the inherent subjectivity in identifying and applying ESG factors; (3) we assess the current theory and evidence on whether ESG investing can improve risk-adjusted returns; and (4) we identify four interrelated questions of regulatory policy stemming from growing investor interest in ESG investing, situating the request for comment toward potential revision of the names rule within that four-part framework. This response is largely but not entirely based on “Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee,” 72 Stanford Law Review 381 (2020), https://ssrn.com/abstract=3244665.
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
Annette Gordon-Reed, Preparing to Move On in a Time of Losses, Wall St. J. (May 2, 2020).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Education
Type: News
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
Emily Broad Leib, Alex Ramsey & Emma I. Scott, COVID-19 Response: Resources for Small and Mid-Size Farms in Mississippi (Delta Directions Publ’n No. 33, May 1, 2020).
Categories:
Environmental Law
,
Health Care
,
Government & Politics
Sub-Categories:
Agriculture Law
,
Government Benefits
,
Health Law & Policy
Type: Article
Abstract
The COVID-19 pandemic presents a number of new and difficult challenges for families, small business owners, and food producers across the country. This Issue Brief provides an overview of the resources available to small and mid-size farms facing such challenges in Mississippi. The first section outlines current benefit programs that these farms can utilize, including loans and unemployment benefits, as a result of the Coronavirus Aid, Relief, and Economic Security (CARES) Act and related federal actions. The second section provides policies that the State of Mississippi could enact to provide additional assistance to farms dealing with the crisis.
Johanna Mollerstrom & Cass R. Sunstein, How Special is Democracy?: An Experimental Study of Recommendations in the Minimum Effort Game, 190 Econ. Letters 109066 (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.
I. Glenn Cohen, Informed Consent and Medical Artificial Intelligence: What to Tell the Patient?, 108 Geo. L.J. 1425 (2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Medical Technology
,
Networked Society
Type: Article
Abstract
Imagine you are a patient who has been diagnosed with prostate cancer. The two main approaches to treating it in the United States are active surveillance versus the surgical option of radical prostatectomy. Your physician recommends the surgical option, and spends considerable time explaining the steps in the surgery, the benefits of (among other things) eliminating the tumor and the risks of (among other things) erectile dysfunction and urinary incontinence after the surgery. What your physician does not tell you is that she has arrived at her recommendation of prostatectomy over active surveillance based on the analysis of an Artificial Intelligence (AI)/Machine Learning (ML) system, which recommended this treatment plan based on analysis of your age, tumor size, and other personal characteristics found in your electronic health record. Has the doctor secured informed consent from a legal perspective? From an ethical perspective? If the doctor actually chose to “overrule” the AI system, and the doctor fails to tell you that, has she violated your legal or ethical right to informed consent? If you were to find out that the AI/ML system was used to make recommendations on your care and no one told you, how would you feel? Well, come to think of it, do you know whether an AI/ML system was used the last time you saw a physician? This Article, part of a Symposium in the Georgetown Law Journal, is the first to examine in depth how medical AI/ML interfaces with our concept of informed consent. Part I provides a brief primer on medical Artificial Intelligence and Machine Learning. Part II sets out the core and penumbra of U.S. informed consent law and then seeks to determine to what extent AI/ML involvement in a patient’s health should be disclosed under the current doctrine. Part III examines whether the current doctrine “has it right,” examining more openly empirical and normative approaches to the question. To forefront my conclusions: while there is some play in the joints, my best reading of the existing legal doctrine is that in general, liability will not lie for failing to inform patients about the use of medical AI/ML to help formulate treatment recommendations. There are a few situations where the doctrine may be more capacious, which I try to draw out (such as when patients inquire, when the medical AI/ML is more opaque, when it is given an outsized role in the final decision-making, or when the AI/ML is used to reduce costs rather than improve patient health), though extending it even here is not certain. I also offer some thoughts on the question: if there is room in the doctrine (either via common law or legislative action), what would it be desirable for the doctrine to look like when it comes to medical AI/ML? I also briefly touch on the question of how the doctrine of informed consent should interact with concerns about biased training data for AI/ML.
Eli Y. Adashi & I. Glenn Cohen, Therapeutic Germline Editing: Sense and Sensibility, 36 Trends in Genetics 315 (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.
Mark Tushnet, 'A Motive, Not A Judgment': Reflections on Kieslowski’s Invitation to Think About Morality (Apr. 30, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Arts & Entertainment Law
,
Law & Humanities
,
Legal Theory & Philosophy
Type: Other
Abstract
Krysztof Kieslowski’s classic “Decalogue: The Ten Commandments – Ten Short Films About Morality” invites viewers to reflect upon what morality is: Propositions about what worthy actions or decisions are? Unintelligible without support from a deity? The choices – all the choices – one makes while going through everyday life? One of Kieslowski’s characters suggests that motives explain but don’t justify actions, and that all we can do is understand why people act as they do. A character in another Kieslowski film concludes that judging others’ actions lacks humility. The ten films, originally made for Polish television in the late 1980s, present morality through complex narratives that deny us the choice of reducing morality to propositions. In the end, though, the films might better support the thought that narrative is morality. In the course of leading up to this conclusion, this Article examines Kieslowski’s presentation of female characters and the intimations the films contain about his views about religion and its relation to the idea of narrative as morality.