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Publication Types
Categories
Disability, Health, Law, and Bioethics (I. Glenn Cohen, Carmel Shachar, Anita Silvers & Michael Ashley Stein eds., 2020).
Categories:
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Bioethics
,
Disability Law
,
Health Law & Policy
Type: Book
Richard J. Lazarus, The Rule of Five: Making Climate History at the Supreme Court (Belknap Press, forthcoming 2020).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Book
I. Glenn Cohen & Harry Graver, A Doctor’s Touch: What Big Data in Health Care Can Teach Us About Predictive Policing, in Policing and Artificial Intelligence (John L.M. McDaniel & Ken G. Pease eds., forthcoming 2020).
Categories:
Criminal Law & Procedure
,
Health Care
,
Technology & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Health Law & Policy
,
Networked Society
,
Medical Technology
,
Information Privacy & Security
Type: Book
Abstract
We take two professions — police officers and doctors — and place their experiences with big data in dialogue. Policing and medicine, while naturally different in some obvious respects, actually both need to grapple with a lot of the same moral, social, and legal questions that come with adopting big data programs. This because, as we discuss below, both professions generally possess a monopoly over an acute societal vulnerability, be it safety or health, and have accordingly developed a set of settled internal norms to shape individual discretion in service of each respective function. We place the professions side-by-side and try to distill certain insights from the perspective of three key stakeholders — practitioners, policymakers, and the polity.
Robert H. Sitkoff & John Morley, A Taxonomy of American Trust Law: Adaptation for Private Ordering, in The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., Oxford Univ. Press forthcoming 2020).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
Oren Bar-Gill, Consumer Misperception in a Hotelling Model: With and Without Price Discrimination, J. Inst. & Theoretical Econ. (forthcoming 2020).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Corporate Law & Securities
Sub-Categories:
Consumer Protection Law
,
Antitrust & Competition Law
,
Law & Economics
Type: Article
Abstract
This paper studies the implications of consumer misperception in a market for a (horizontally) differentiated product. Two distinct type of misperceptions are considered: (i) a common misperception that leads consumers to similarly overestimate the benefit from both firms’ products; and (ii) a relative misperception that leads consumers to overestimate the relative benefit of one firm’s product as compared to the product offered by its competitor. The paper analyzes the implications of misperception for social welfare and consumer surplus. In particular, the effects of price discrimination are considered, for each type of misperception.
Robert H. Sitkoff, Extrinsic Fiduciary Duties, in Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding eds., Cambridge Univ. Press forthcoming 2020).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection, 62 Ariz. L. Rev. (forthcoming 2020).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
,
Education Law
Type: Article
Abstract
This article describes the rapidly growing homeschooling phenomenon, and the threat it poses to children and society. Homeschooling activists have in recent decades largely succeeded in their deregulation campaign, overwhelming legislators with aggressive advocacy. As a result, parents can now keep their children at home in the name of homeschooling free from any real scrutiny as to whether or how they are educating their children. Many homeschool precisely because they want to isolate their children from ideas and values central to our democracy. Many promote racial segregation and female subservience. Many question science. Many are determined to keep their children from exposure to views that might enable autonomous choice about their future lives. Abusive parents can keep their children at home free from the risk that teachers will see the signs of abuse and report them to child protection services. Some homeschool precisely for this reason. This article calls for a radical transformation in the homeschooling regime, and a related rethinking of child rights and reframing of constitutional doctrine. It recommends a presumptive ban on homeschooling, with the burden on parents to demonstrate justification for permission to homeschool.
Arnulf Becker Lorca, Keeping It Together, Universal and European: Cultural Diversity in International Law, in Culture and Order in World Politics: Diversity and its Discontents (A. Phillips & Christian Reus-Smit eds., Cambridge Univ. Press forthcoming 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
European Law
,
International Law
Type: Book
J. Mark Ramseyer, Privatizing Police: Japanese Police, the Korean Massacre, and Private Security Firms, in The Cambridge Handbook on Privatization (Avihay Dorfman & Alon Harel eds., forthcoming 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Corruption
,
Government Benefits
,
East Asian Legal Studies
Type: Book
Abstract
Public security is often a non-excludable public good that involves economies of scale. For these obvious reasons, modern democracies provide their residents with basic security services out of the public fisc. Yet the capacity to protect overlaps with the capacity to prey. As a result, regimes in dysfunctional societies sometimes use the public security apparatus to extract benefits. Sometimes the security services use their resources to extract benefits for themselves. Public security is also a normal good: the level of security that people demand tends to increase with income. Hence, wealthier citizens often choose to purchase additional levels of security on the market. In democracies, they do this to supplement the security provided through the public police. In dysfunctional societies, they do this in part to protect themselves from the public police. I illustrate several of these simple principles with examples from Japan: the development of the modern police force, the Korean massacre after the 1923 earthquake, and the development of modern private security firms.
Maureen E. Brady, Property and Projection, 133 Harv. L. Rev. (forthcoming, 2020).
Categories:
Property Law
,
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
First Amendment
,
Torts
,
Property Rights
,
Real Estate
Type: Article
Abstract
In cities across the country, artists, protestors, and businesses are using light projections to turn any building’s façade into a billboard, often without the owner’s consent. Examples are legion: “Believe Women” on a New York City Best Buy; a scantily clad male model on the side of an apartment building; a nativity scene on the Los Angeles chapter of the American Civil Liberties Union. Two courts have considered claims by owners seeking to stop these projections under theories of trespass and nuisance. In each case, the courts held that because light is intangible and the projections result in no economic harm to the property, the common law affords no relief. This Article argues that property law can and should address projection claims by private owners. It traces the history of property tort claims involving light, explaining how the law developed to emphasize economic and physical harm and identifying the forgotten strands of doctrine that nonetheless support liability for targeted projections. Projections are forms of appropriation: they disrupt the owner’s use and control, but they also cause dignity and privacy harms by exploiting the owner’s realty toward unwanted ends. Protections for these noneconomic interests have long been parasitic on trespass and nuisance, but the light projections expose a gap between the two forms of action. This Article offers a pathway to mend the gap despite hurdles in both nuisance and First Amendment law. More generally, the projection cases teach broader lessons about the development of the property torts, the relationship between privacy and property, and the nature of property itself.
J. Mark Ramseyer, The Japanese Judiciary, in The Oxford Handbook of Japanese Politics (Robert Pekkanen & Saadia Pekkanen, eds., forthcoming 2020).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Politics & Political Theory
,
East Asian Legal Studies
Type: Book
Abstract
In this essay for the Oxford Handbook of Japanese Politics, I survey the state of (and the research into) the Japanese judiciary. Japan operates a largely honest and meritocratic judiciary. The court's administrative office (and indirectly, the ruling party) can reward and punish judge for the quality of the work they do -- and has. For the most part, the administrative office uses that capacity to reward good work. It can also use the capacity to punish opposition politics -- but self-selection into the judiciary seems to keep the (perceived) need for that political intervention to a minimum.
John Morley & Robert Sitkoff, Trust Law: Private Ordering and the Branching of American Trust Law, in The Oxford Handbook of New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith, eds., forthcoming 2020).
Categories:
Civil Practice & Procedure
,
Property Law
,
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Commercial Law
,
Business Organizations
,
Fiduciaries
,
Corporate Bankruptcy & Reorganization
,
Private Law
,
Trusts
,
Estate Planning
Type: Book
Abstract
In this chapter, prepared for The Oxford Handbook of New Private Law, we identify the principal ways in which the common law trust has been used as an instrument of private ordering in American practice. We argue that in both law and function, contemporary American trust law has divided into distinct branches. In our taxonomy, one branch involves donative trusts and the other commercial trusts. The donative branch divides further to include separate sub-branches for revocable and irrevocable donative trusts. We explain the logic of this branching in both practical function and doctrinal form.
Mark Tushnet, A Short History of European Law: The Last Two and a Half Millennia, 49 J. Interdisc. Hist. 492 (2019)(reviewing Benjamin Lieberman & Elizabeth Gordon, Climate Change in Human History (2018)).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Climate Change
,
European Law
,
Legal History
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
John H. Rex, Holly Fernandez Lynch, I. Glenn Cohen, Jonathan J. Darrow & Kevin Outterson, Designing Development Programs for Non-Traditional Antibacterial Agents, 10 Nature Comm. no. 3416 (2019).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Administrative Law & Agencies
,
Bioethics
,
Food & Drug Law
Type: Article
Abstract
In the face of rising rates of antibacterial resistance, many responses are being pursued in parallel, including ‘non-traditional’ antibacterial agents (agents that are not small-molecule drugs and/or do not act by directly targeting bacterial components necessary for bacterial growth). In this Perspective, we argue that the distinction between traditional and non-traditional agents has only limited relevance for regulatory purposes. Rather, most agents in both categories can and should be developed using standard measures of clinical efficacy demonstrated with non-inferiority or superiority trial designs according to existing regulatory frameworks. There may, however, be products with non-traditional goals focused on population-level benefits that would benefit from extension of current paradigms. Discussion of such potential paradigms should be undertaken by the development community.
Carol S. Steiker & Jordan M. Steiker, Comparative Capital Punishment (2019).
Categories:
Criminal Law & Procedure
,
International, Foreign & Comparative Law
Sub-Categories:
Capital Punishment
,
Comparative Law
Type: Book
Abstract
This research handbook explores both the forces behind the stunning recent rejection of the death penalty, as well as the changing shape of capital practices where it is retained.
Lawrence Lessig, They Don't Represent Us: Reclaiming Our Democracy (2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Government Accountability
Type: Book
Abstract
With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Equity and Law: Fusion and Fission (John C.P. Goldberg, Henry E. Smith & Peter G. Turner eds., 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Remedies
,
Legal Theory & Philosophy
,
Comparative Law
,
Legal History
Type: Book
Abstract
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world. Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue. Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others. Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.
Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (forthcoming 2019).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Criminal Prosecution
,
Ancient Law
,
Foreign Law
,
Legal History
Type: Book
Abstract
This book explores the role of mens rea, broadly defined, as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word “felony” itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, willed in a way not constrained by necessity, and evil or wicked in its essence. Examines what factors juries weighed in sorting the guilty from the innocent in the first two centuries of the criminal trial jury. Situates the medieval English law of felony in a broader cultural, social, and religious setting. Speaks to current controversies in the field of criminal law, such as the role of intentionality in determining the bounds of criminal responsibility.
Jack Goldsmith, In Hoffa's Shadow: A Stepfather, A Disappearance in Detroit, and my Search for the Truth (Farrar, Straus & Giroux, forthcoming Sept. 24, 2019).
Categories:
Criminal Law & Procedure
,
Labor & Employment
,
Legal Profession
Sub-Categories:
Organized Crime
,
Labor Law
,
Biography & Tribute
Type: Book
Abstract
As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration and questioning its misuse of surveillance and other powers, that he began to reconsider his stepfather, and to understand Hoffa’s true legacy. In Hoffa’s Shadow tells the moving story of how Goldsmith reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it. Along the way, Goldsmith explores Hoffa’s rise and fall and why the golden age of blue-collar America came to an end, while also casting new light on the century-old surveillance state, the architects of Hoffa’s disappearance, and the heartrending complexities of love and loyalty.
Martha Minow, When Should Law Forgive? (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Jonathan Zittrain, Three Eras of Digital Governance (Sept. 23, 2019).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Networked Society
,
Communications Law
Type: Other
Abstract
To understand where digital governance is going, we must take stock of where it’s been, because the timbre of mainstream thinking around digital governance today is dramatically different than it was when study of “Internet governance” coalesced in the late 1990s. Perhaps the most obvious change has been from emphasizing networked technologies’ positive effects and promise – couched around concepts like connectivity, innovation, and, by this author, “generativity” – to pointing out their harms and threats. It’s not that threats weren’t previously recognized, but rather that they were more often seen in external clamps on technological development and upon the corresponding new freedoms for users, whether government intervention to block VOIP services like Skype to protect incumbent telco revenues, or in the shaping of technology to effect undue surveillance, whether for government or corporate purposes. The shift in emphasis from positive to negative corresponds to a change in the overarching frameworks for talking about regulating information technology. We have moved from a discourse around rights – particularly those of end-users, and the ways in which abstention by intermediaries is important to facilitate citizen flourishing – to one of public health, which naturally asks for a weighing of the systemic benefits or harms of a technology, and to think about what systemic interventions might curtail its apparent excesses. Each framework captures important values around the use of technology that can both empower and limit individual freedom of action, including to engage in harmful conduct. Our goal today should be to identify where competing values frameworks themselves preclude understanding of others’ positions about regulation, and to see if we can map a path forward that, if not reconciling the frameworks, allows for satisfying, if ever-evolving, resolutions to immediate questions of public and private governance.
Samantha Power, The Education of an Idealist: A Memoir (2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Human Rights Law
,
Biography & Tribute
Type: Book
Andrew Manuel Crespo, Brief of Professor Andrew Manuel Crespo as Amicus Curiae in Support of Affirmance, Kansas v. Glover (No. 18-556), 2019 WL 4256217 (U.S., Sept. 6, 2019).
Categories:
Constitutional Law
,
Criminal Law & Procedure
Sub-Categories:
Fourth Amendment
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
Type: Other
Abstract
In Kansas v. Glover, the United States Supreme Court will consider whether a police officer has reasonable suspicion to believe that a vehicle is being driven by its registered owner, as opposed to some other authorized driver, when the sole fact known to the officer is that the registered owner has a suspended license. Professor Crespo authored this amicus brief on his own behalf urging affirmance of the Kansas Supreme Court.
Alan M. Dershowitz, Defending Israel: The Story of My Relationship with My Most Challenging Client (2019).
Categories:
Legal Profession
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Services
Type: Book
I. Glenn Cohen, Changing Conception, 365 Science 872 (2019)(reviewing Margaret S. Marsh & Wanda Ronner, The Pursuit of Parenthood (2019)).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Daniel M. Klerman & Holger Spamann, Law Matters -- Less Than We Thought (USC CLASS Research Paper No. CLASS19-25, Aug. 19, 2019).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Choice of Law
,
Conflict of Laws
,
Empirical Legal Studies
,
Judges & Jurisprudence
Type: Other
Abstract
In a pre-registered 2×2×2 factorial between-subject randomized lab experiment with 61 federal judges, we test if the law influences judicial decisions, if it does so more under a rule than under a standard, and how its influence compares to that of legally irrelevant sympathies. The judges were given realistic materials and a relatively long period of time (50 minutes) to decide a run-of-the-mill auto accident case. We find weak evidence for the law effect, stronger evidence that rules constrain more than standards, and no evidence of a sympathy effect. Unexpectedly, we find that judges were more likely to choose the law that fully compensates an injured plaintiff.
Steven Shavell, On the Redesign of Accident Liability for the World of Autonomous Vehicles (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1014, Aug. 19, 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Litigation & Settlement
,
Torts
,
Torts - Product Liability
,
Torts - Negligence
,
Remedies
,
Transportation Law
,
Law & Economics
Type: Other
Abstract
This article proposes a scheme of liability that would desirably control accident risks in the coming world in which motor vehicles will be autonomous. In that world, travelers will not be drivers, rendering liability premised on driver fault irrelevant as a means of reducing accident dangers. Moreover, no other conventional principle of individual or of manufacturer liability would serve well to do so. Indeed, strict manufacturer liability, recommended by many commentators, would actually tend to leave accident risks unchanged from their levels in the absence of liability. However, a new form of strict liability – the hallmark of which is that damages would be paid to the state – would be superior to conventional rules of liability in alleviating accident risks and would be easy to implement.
Jesse Choper, Richard Fallon, Jr., Yale Kamisar, Steven Shiffrin, Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2019).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Phillip Areeda, Louis Kaplow, Aaron S. Edlin & C. Scott Hemphill, 2019 Professor's Update to Antitrust Analysis: Problems, Text, and Cases (Aug. 13, 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Other
Abstract
This update applies to the Seventh Edition (2013) of Areeda, Kaplow & Edlin, Antitrust Analysis: Problems, Text, and Cases.
Mark Tushnet, Epistemic Closure and the Schechter Case (Aug. 13, 2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Religion
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Government Accountability
Type: Other
Abstract
In Gundy Justice Gorsuch offered two characterizations of the facts in the Schechter case: (1) “Kosher butchers such as the Schechters had a hard time following [the rules that required ‘straight-killing’ of chickens].” (2) “Yet the government apparently singled out the Schechters as a test case; inspectors repeatedly visited them and, at times, apparently behaved abusively toward their customers.” Justice Gorsuch relied upon Amity Shlaes’s book The Forgotten Man to support these assertions. In a blog post I criticized Shlaes’s account, and used Justice Gorsuch’s reliance upon it to illustrate what I called epistemic closure in the construction of the law – by which I meant the reliance upon a closed set of sources written by authors who generally shared a specific outlook on the way the world works. Josh Blackman and Shlaes responded to my criticism. But, as I show here, their responses are largely mistaken and (or perhaps because) undertheorized because of their failure (or perhaps inability – an inability that may be intrinsic to the process) to recognize the existence of epistemic closure.
Alex Dimitrief, Employee Reporting is Best Line of Defense Against Corporate Misconduct, Bloomberg Law Insight (Aug. 8, 2019, 4:01 AM).
Categories:
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Corporate Governance
,
Whistleblowers
Type: Other
Abstract
Anger and distrust over corporate missteps is rising, with even presidential candidates jumping in to offer solutions. Alex Dimitrief, former GC at General Electric, explains that providing clear and open internal communication lines for employees to report potential integrity lapses without fear of reprisals is the best first step to prevent corporate malfeasance.
Richard H. Fallon, Jr., Jack L. Goldsmith, John F. Manning, David L. Shapiro & Amanda L. Tyler, Hart and Wechsler's The Federal Courts and the Federal System (7th ed., 2019 Supp.).
Categories:
Government & Politics
,
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Jurisdiction
,
Courts
,
Federalism
,
Supreme Court of the United States
,
Separation of Powers
,
Legal Education
Type: Book
Abstract
This supplement brings the principal text current with recent developments in the law.
Cass R. Sunstein, Should Public Figures Apologize? Preliminary Evidence and Speculations (Aug. 7, 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
,
Elections & Voting
,
Government Accountability
,
Executive Office
Type: Other
Abstract
In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.
Jean-Christophe Bélisle-Pipon, Effy Vayena, Robert C. Green & I. Glenn Cohen, Genetic Testing, Insurance Discrimination and Medical Research: What the United States Can Learn From Peer Countries, 25 Nature Med. 1198 (2019).
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Comparative Law
Type: Article
Abstract
While genetic testing may be the gateway to the future of medicine, it also poses challenges for individuals, especially in terms of differentiated treatments on the basis of their genetic characteristics. The fear of unwanted disclosure to insurers and the possibility of genetic discrimination can hamper the recruitment of individuals for clinical research that involves genetic testing. Precision medicine initiatives, such as All of Us, are proliferating in the United States. In order to succeed, however, they must ensure that the millions of Americans recruited to share their genetic data are not penalized with regard to life, disability and long-term insurance coverage. In this Perspective, we discuss several initiatives adopted by countries around the world, such as the United Kingdom and France, that better balance the interests of insurers and research subjects, and explain how the United States might learn from them. We call for regulatory and industry leadership to come together to establish a voluntary moratorium on insurance pricing with the aim of protecting research participants.
Alan M. Dershowitz, Opinion, A Yellow Light for Red-Flag Laws, Wall St. J. (Aug. 6, 2019, 6:55 PM).
Categories:
Constitutional Law
Sub-Categories:
Second Amendment
Type: News
Henry E. Smith, Complexity and the Cathedral: Making Law and Economics More Calabresian, 48 Eur. J.L & Econ. 43 (2019).
Categories:
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Law & Economics
,
Property Rights
Type: Article
Abstract
This article argues that Calabresi and Melamed’s “Cathedral” framework of property rules, liability rules, and inalienability rules needs to be extended using the tools of complex systems theory in order to capture important institutional features of the law. As an applied field, law and economics looks to law in choosing the appropriate analytical tools from economics—something that Calabresi has identified (in strong form) as law and economics as opposed to economic analysis of law. Recognizing law as a complex system requires a rethinking of some Realist-inspired assumptions that underpin economically inspired analysis of law. These assumptions include a preference for narrow, concrete concepts and a skepticism about traditional doctrines and baselines—and ultimately Legal Realism’s extreme nominalism and the strong bundle of rights picture of property. The article shows how the Calabresi and Melamed (C&M) framework exhibits gaps that can be addressed by systems theory; these include narrow entitlements to engage in specific activities, liability rules that allow an affected party to buy out an activity (Rule 4), opportunistic behavior by parties that destabilizes liability rules, and the role of equity as an institutional response. Extending the C&M framework to treat it as a system helps prevent the C&M framework from flattening the law out. If we supplement the C&M framework to take account of law as a system, we can bring it closer to Calabresian law and economics.
I. Glenn Cohen, Organ Donor Intervention Trials and Risk to Bystanders: An Ethical Analysis, Clinical Trials (Aug. 1, 2019).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Abstract
There are two distinct problems about bystander effects raised by organ donor intervention research. The first is the problem of “bystander organs”—sometimes called “non-target organs”—which Kimmelman discusses in his case presentation. How do we treat the recipients of organs that are not the subject of the intervention research but nonetheless might be directly affected by the research? The second problem is not about altering the organ but the pattern of distribution of organs. Each of these cases shows bystander effects that matter for real people. This article examines how research ethics should approach each of these cases.
Ross Zafonte, Alvaro Pascual‐Leone, Aaron Baggish, Marc G. Weisskopf, Herman A. Taylor, Ann Connor, Jillian Baker, Sarah Cohan, Chelsea Valdivia, Theodore K. Courtney, I. Glenn Cohen, Frank E. Speizer & Lee M. Nadler, The Football Players' Health Study at Harvard University: Design and Objectives, 62 Am. J. Indus. Med. 643 (2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Article
Abstract
The Football Players Health Study at Harvard University (FPHS) is a unique transdisciplinary, strategic initiative addressing the challenges of former players’ health after having participated in American style football (ASF). The whole player focused FPHS is designed to deepen understanding of the benefits and risks of participation in ASF, identify risks that are potentially reversible or preventable, and develop interventions or approaches to improve the health and wellbeing of former players. We are recruiting and following a cohort of former professional ASF players who played since 1960 (current n = 3785). At baseline, participants complete a self‐administered standardized questionnaire, including initial reporting of exposure history and physician‐diagnosed health conditions. Additional arms of the initiative are addressing targeted studies, including promising primary, secondary, and tertiary interventions; extensive in‐person clinical phenotyping, and legal and ethical concerns of the play. This paper describes the components of the FPHS studies undertaken and completed thus far, as well as those studies currently underway or planned for the near future. We present our initiatives herein as a potential paradigm of one way to proceed (acknowledging that it is not the only way). We share what we have learned so that it may be useful to others, particularly in regard to trying to make professional sports meet the needs of multiple stakeholders ranging from players to owners, to fans, and possibly even to parents making decisions for their children.
Noah R. Feldman & Kathleen M. Sullivan, Constitutional Law (20th ed. 2019).
Categories:
Constitutional Law
Type: Book
Cass R. Sunstein Opinion, Apologies are for Losers, N.Y. Times, July 28, 2019, at SR8.
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Elections & Voting
,
Politics & Political Theory
Type: News
Hal S. Scott, John Gulliver & Hillel Nadler, Cloud Computing in the Financial Sector: A Global Perspective (Program on International Financial Systems, July 26, 2019).
Categories:
Banking & Finance
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Risk Regulation
,
International Monetary Systems
,
Networked Society
,
Information Privacy & Security
Type: Other
Abstract
As financial institutions move their operations, including core functions, to the cloud, financial regulators have begun to issue regulations and informal guidance addressing the use of cloud services in the financial sector. These are typically based on the regulator’s existing framework for outsourcing by a financial institution to third-party technology providers, under which the risks associated with outsourcing and the supervision of third-party providers are primarily the responsibility of the financial institution. This report provides background on the use of cloud computing in the financial sector, reviews existing regulatory and supervisory frameworks for cloud use by financial institutions, and recommends improvements to those frameworks that could reduce obstacles to more widespread cloud adoption by financial institutions.
A. Mitchell Polinsky & Steven Shavell, Deterrence and the Adjustment of Sentences During Imprisonment (Stanford L. & Econ. Olin Working Paper No. 535, July 25, 2019).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Prison Law & Prisoners' Rights
,
Sentencing & Punishment
,
Law & Economics
,
Law & Behavioral Sciences
Type: Other
Abstract
The prison time actually served by a convicted criminal depends to a significant degree on decisions made by the state during the course of imprisonment — on whether to grant parole or other forms of sentence reduction. In this article we study a model of the adjustment of sentences assuming that the state’s objective is the optimal deterrence of crime. In the model, the state can lower or raise the sentence based on deterrence-relevant information that it obtains about a criminal during imprisonment. Our focus on sentence adjustment as a means of promoting deterrence stands in contrast to the usual emphasis in sentence adjustment policy on reducing recidivism.
Cass R. Sunstein, Falsehoods and the First Amendment (July 25, 2019).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Politics & Political Theory
,
Supreme Court of the United States
,
Communications Law
,
Networked Society
Type: Other
Abstract
What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.
Jonathan Zittrain, The Hidden Costs of Automated Thinking, NewYorker.com (July 23, 2019).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Medical Technology
Type: Other
Jack Weinstein, Norman Abrams, Scott Brewer & Daniel Medwed, Evidence, 2019 Rules and Statute Supplement (2019).
Categories:
Civil Practice & Procedure
,
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Evidence
Type: Book
Dustin A. Lewis, Naz K. Modirzadeh & Gabriella Blum, Quantum of Silence: Inaction and Jus ad Bellum (Harv. L. Sch. Program on Int’l L. & Armed Conflict (PILAC), July 16, 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Laws of Armed Conflict
,
International Law
,
Treaties & International Agreements
Type: Other
Abstract
In this paper, we examine the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines. We submit that there is no quantum of silence that has clear doctrinal force. We argue that, at least in relation to jus ad bellum, only certain forms of qualified silence — whether of States or of the Security Council — may be capable of contributing to legal effects. We further contend that, due in part to the nature and status of the norms underlying this field, those forms of qualified silence ought not to be lightly presumed. Arguably, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a jus ad bellum claim. Still, States and other international actors should be aware of the possible role that their silence could play in the identification and development of this field. We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.
Oren Bar-Gill, Smart Disclosure: Promise and Perils, Behavioural Public Policy (July 11, 2019).
Categories:
Disciplinary Perspectives & Law
,
Consumer Finance
,
Government & Politics
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Government Transparency
,
Administrative Law & Agencies
Type: Article
Abstract
The move to smart disclosure promises to revitalize disclosure mandates and save them from a fate of ignored verbiage. But by making disclosure relevant and effective, this shift to smart disclosure also raises several concerns. Specifically, simple disclosures like genetically modified food disclosures, restaurant hygiene grades, annual percentage rate disclosures, etc., can result in market distortions and inefficiencies as: (1) consumers might draw false inferences from the disclosure; and (2) disclosing one dimension will elevate this dimension relative to other dimensions, and thus distort demand for the product and even alter the product itself. Relatedly, System 1 disclosures, like graphic cigarette labels, might influence behavior by triggering an emotional response rather than through informed deliberation, thus abandoning traditional justifications for disclosure mandates. In light of these concerns, it is more difficult to view disclosure mandates as minimally paternalistic. Government, by tweaking disclosure design, wields substantial power over markets and consumers.
Eli Y. Adashi & I. Glenn Cohen, Heritable Genome Editing: Is a Moratorium Needed?, 322 JAMA 104 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Randall Kennedy, Contracts: Happiness and Heartbreak (2019).
Categories:
Banking & Finance
Sub-Categories:
Contracts
Type: Book
Joseph Marks, Eloise Copland, Eleanor Loh, Cass R. Sunstein & Tali Sharot, Epistemic Spillovers: Learning Others’ Political Views Reduces the Ability to Assess and Use Their Expertise in Nonpolitical Domains, 188 Cognition 74 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
Type: Article
Abstract
On political questions, many people are especially likely to consult and learn from those whose political views are similar to their own, thus creating a risk of echo chambers or information cocoons. Here, we test whether the tendency to prefer knowledge from the politically like-minded generalizes to domains that have nothing to do with politics, even when evidence indicates that person is less skilled in that domain than someone with dissimilar political views. Participants had multiple opportunities to learn about others’ (1) political opinions and (2) ability to categorize geometric shapes. They then decided to whom to turn for advice when solving an incentivized shape categorization task. We find that participants falsely concluded that politically like-minded others were better at categorizing shapes and thus chose to hear from them. Participants were also more influenced by politically like-minded others, even when they had good reason not to be. The results demonstrate that knowing about others’ political views interferes with the ability to learn about their competency in unrelated tasks, leading to suboptimal information-seeking decisions and errors in judgement. Our findings have implications for political polarization and social learning in the midst of political divisions.
Cass R. Sunstein, Rear Visibility and Some Problems for Economic Analysis (With Particular Reference to Experience Goods) (July 1, 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
Type: Other
Abstract
In 2014, the National Highway Traffic Safety Administration finalized its rear visibility regulation, which requires cameras in all new vehicles, with the goal of allowing drivers to see what is behind them and thus reducing backover accidents. In 2018, the Trump administration embraced the regulation. The rear visibility initiative raises numerous puzzles. First: Congress’ grant of authority was essentially standardless – perhaps the most open-ended in all of federal regulatory law. Second: It is not easy to identify a market failure to justify the regulation. Third: The monetized costs of the regulation greatly exceeded the monetized benefits, and yet on welfare grounds, the regulation can plausibly be counted as a significant success. Rearview cameras produce a set of benefits that are hard to quantify, including increased ease of driving, and those benefits might have been made a part of “breakeven analysis,” accompanying standard cost-benefit analysis. In addition, rearview cameras significantly improve the experience of driving, and it is plausible to think that in deciding whether to demand them, many vehicle purchasers did not sufficiently anticipate that improvement. This is a problem of limited foresight; rearview cameras are “experience goods.” A survey conducted in 2019 strongly supports this proposition, finding that about 56 percent of consumers would demand at least $300 to buy a car without a rearview camera, and that fewer than 6 percent would demand $50 or less. Almost all of that 6 percent consists of people who do not own a car with a rearview camera. (The per-person cost is usually under $50.) These conclusions may have general implications for other domains in which regulation has the potential to improve people’s lives, even if it fails standard cost-benefit analysis; the defining category involves situations in which people lack experience with a good whose provision might have significant welfare effects.
Jane McAdam & Fiona Chong, Refugee Rights and Policy Wrongs: A Frank, Up-to-Date Guide by Experts (2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Refugee & Asylum Law
,
Human Rights Law
Type: Book
Abstract
Most of us cannot imagine how intolerable the circumstances must be when risking your life on a dangerous boat journey becomes a rational decision. The only reason you would do it is because you have no choice – because to stay at home is to face certain death. Official statistics show that the vast majority of people who arrive in Australia by boat are found to be in need of protection – because they have a well-founded fear of persecution or they otherwise face a real risk of significant harm if they are returned to their homelands, in Afghanistan, Iraq, Syria and beyond. Yet, successive governments in Australia have declared the need to ‘stop the boats’, at all costs. If you come by boat to Australia, you will be intercepted by the military and turned back at sea. Failing that, you will be forcibly removed to a remote island in the Pacific, where you will likely be detained for years while your protection claim is assessed. Even if you are found to be a refugee, you will never be resettled in Australia. The human cost of Australia’s policies is extreme. At the time of writing, 906 refugees and asylum seekers remain on Nauru and Manus Island, living in conditions of extreme deprivation and despair. Over 80 per cent suffer from depression, anxiety and post-traumatic stress disorder. Experts say that the levels of trauma offshore exceed those in war zones and disaster zones around the world. Twelve people have died, on Australia’s watch. At a time when there are more people in need of protection globally than at any time since World War II, Australia’s policies of deterrence are indefensible. They violate Australia’s obligations under international law – obligations to which our government has voluntarily agreed. They do nothing to address the underlying conditions that lead people to take boat journeys in the first place – persecution and human rights violations at home, and the lack of alternative pathways to safety. Australia has simply pushed the problem away – out of sight, out of mind. In Refugee Rights and Policy Wrongs, we argue that a radically different approach is possible – one that is consistent with international refugee and human rights law. Australia is one of the world’s most harmonious, multicultural and socially mobile countries. We have the capacity to accommodate and celebrate diversity, and to be generous towards those who seek our protection.
Lucian A. Bebchuk & Kobi Kastiel, The Perils of Small-Minority Controllers, 107 Geo L.J. 1453 (2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Governance
Type: Article
Abstract
This Article contributes to the long-standing and heated debate over dual-class companies by placing a spotlight on a significant set of dual-class companies whose structures raise especially severe governance concerns: those with controllers holding a small minority of the company’s equity capital. Such small-minority controllers dominate some of the country’s largest companies, and we show that their numbers can be expected to grow. We begin by analyzing the perils of small-minority controllers, explaining how they generate considerable governance costs and risks and showing how these costs can be expected to escalate as the controller’s stake decreases. We then identify the mechanisms that enable such controllers to retain their power despite holding a small or even a tiny minority of the company’s equity capital. Based on a hand-collected analysis of governance documents of these companies, we present novel empirical evidence on the current incidence and potential growth of small-minority and tiny-minority controllers. Among other things, we show that governance arrangements at a substantial majority of dual-class companies enable the controller to reduce his equity stake to below 10% and still retain a lock on control, and a sizable fraction of such companies enable retaining control with less than a 5% stake. Finally, we examine the considerable policy implications that arise from recognizing the perils of small-minority controllers. We first discuss disclosures necessary to make transparent to investors the extent to which arrangements enable controllers to reduce their stake without forgoing control. We then identify and examine measures that public officials or institutional investors could take to ensure that controllers maintain a minimum fraction of equity capital; to provide public investors with extra protections in the presence of small-minority controllers; or to screen midstream changes that can introduce or increase the costs of small-minority controllers.
Randall Kennedy, Woe the People, N.Y. Times, June 30, 2019, at BR1 (reviewing Astra Taylor, Democracy May Not Exist, But We’ll Miss It When It’s Gone (2019)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: News
Ronald S. Sullivan, Jr., Opinion, Harvard Capitulates Instead of Debates, N.Y Times, June 25, 2019, at A25.
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Services
Type: News
Kristen Stilt, Cow Protection in India Is Not About Cows, Not About Protection, JOTWELL (June 20, 2019)(reviewing Yamini Narayanan, Cow Protection as ‘Casteised Speciesism’: Sacralisation, Commercialisation and Politicisation, 41 S. Asia: J. of S. Asian Stud. 331 (2018)).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
,
Constitutional Law
Sub-Categories:
Animal Law
,
Agriculture Law
,
Comparative Law
Type: Article
Cass R. Sunstein, Lapidation and Apology (June 19, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
Type: Article
Abstract
Groups of people, outraged by some real or imagined transgression, often respond in a way that is wildly disproportionate to the occasion, thus ruining the transgressor’s day, month, year, or life. To capture that phenomenon, we might repurpose an old word: lapidation. Technically, the word is a synonym for stoning, but it sounds much less violent. It is also obscure, which makes it easier to enlist for contemporary purposes. Lapidation plays a role in affirming, and helping to constitute, tribal identity. It typically occurs when a transgressor is taken to have violated a taboo, which helps account for the different people and events that trigger left-of-center and right-of-center lapidation. One of the problems with lapidation is that it often accomplishes little; it expresses outrage, and allows people to signal their identity, but does no more. Victims of lapidation might be tempted to apologize, but apologies can prove ineffective or even make things worse, depending on the nature of the lapidators.
Fern L. Nesson & Charles R. Nesson, The Confrontation Clause: Get Raleigh Right - Overrule Crawford (June 17, 2019).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Jury Trials
,
Criminal Prosecution
,
Criminal Evidence
Type: Article
Abstract
Crawford v. Washington, 542 U.S. 36 (2004), is the latest in a series of misconceived confrontation holdings. Its 'testimonial' hearsay standard has created endless confusion and done nothing to protect the rights of defendants nor the needs of fair jury trials. Constitutional confrontation requires legal sufficiency of proof. A crime may not be proved by hearsay alone. This is not a rule about the admissibility of hearsay evidence. It is a rule responsive to the injustice done to Sir Walter Raleigh mandating proof of criminal guilt by live-witness, personal-knowledge testimony sufficient to warrant conviction. Overruling Crawford and replacing it with a proper judicial understanding of the Sixth Amendment will rationalize confrontation law and restore the centrality of jury process to American criminal justice.
Francis E. McGovern & William B. Rubenstein, The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Stakeholders (Duke L. Sch. Pub. L. & Legal Theory Series No. 2019-41, June 13, 2019).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Practice & Procedure
,
Litigation & Settlement
Type: Article
Abstract
Class action law is built on a model that assumes a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund fee award sharing the costs across the class. The Constitution guarantees class members the options of opting out (exit) or objecting (voice), but given the small stakes, most do nothing (loyalty). While elegant, this model does not capture the reality of all class suits. In many cases, some class members have significant enough legal claims that they are capable of litigating alone. The group dynamics accordingly change, with everything turning on the decisions of the large claimants: in some securities cases, they step forward to perform a monitoring function (voice) and often they simply remain passive (loyalty), but the central question is whether they will opt out and litigate separately in the hopes of maximizing their recovery (exit). The risk that they might deters defendants from settling the class’s small claims, lest they then have to litigate the large claimants’ valuable claims. But the risk simultaneously creates an opportunity: if the class could present a united front, a defendant would likely pay a premium to settle the whole package of claims. Heterogeneous classes can therefore suffer a problem akin to a prisoner’s dilemma: every class member might be best off if they could work together, but lacking a mechanism to do so, coordination costs render the option elusive. The tragedy of this commons is that, built on a different template, class action law offers class members only the three options of exit, voice, or loyalty. In this Article, we offer heterogeneous class members a fourth option: cooperation. Our proposed mechanism for harnessing claimants’ cooperative instincts is a new form of class certification that we call “negotiation class certification.” Under this approach, class members would work together to generate a metric for distributing a lump sum settlement across the class. They would then ask the court to certify a “negotiation class” and to direct notice to the class members informing them that counsel will negotiate a lump sum settlement and that, if achieved, the lump sum amount would be put to a vote, with a supermajority vote binding the class; the notice would also explain the distributional metric. Any class member that did not want to bind itself to either the distributional metric or the supermajority voting process could opt out. By establishing the contours of the class prior to settlement discussions, negotiation class certification would provide the defendant with a precise sense of the scope of finality a settlement would produce, hence encouraging a fulsome offer. The proposal is a novel use of Rule 23, but it is, in many ways, a less ambitious one than certification of a settlement class, although the latter approach, controversial at its inception, has been a “stock device” in class action practice for nearly a quarter century. And while novel, negotiation class certification is consistent with the requirements of both Rule 23 and the Constitution. Indeed, engaging large class members in the settlement negotiation process ex ante improves on a system that delegates that authority to agents and involves the class only ex post.
Taiwan and International Human Rights (Jerome A. Cohen, William P. Alford & Chang-fa Lo eds., 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Human Rights Law
,
Treaties & International Agreements
Type: Book
Abstract
This book tells a story of Taiwan’s transformation from an authoritarian regime to a democratic system where human rights are protected as required by international human rights treaties. There were difficult times for human rights protection during the martial law era; however, there has also been remarkable transformation progress in human rights protection thereafter. The book reflects the transformation in Taiwan and elaborates whether or not it is facilitated or hampered by its Confucian tradition. There are a number of institutional arrangements, including the Constitutional Court, the Control Yuan, and the yet-to-be-created National Human Rights Commission, which could play or have already played certain key roles in human rights protections. Taiwan’s voluntarily acceptance of human rights treaties through its implementation legislation and through the Constitutional Court’s introduction of such treaties into its constitutional interpretation are also fully expounded in the book. Taiwan’s NGOs are very active and have played critical roles in enhancing human rights practices. In the areas of civil and political rights, difficult human rights issues concerning the death penalty remain unresolved. But regarding the rights and freedoms in the spheres of personal liberty, expression, privacy, and fair trial (including lay participation in criminal trials), there are in-depth discussions on the respective developments in Taiwan that readers will find interesting. In the areas of economic, social, and cultural rights, the focuses of the book are on the achievements as well as the problems in the realization of the rights to health, a clean environment, adequate housing, and food. The protections of vulnerable groups, including indigenous people, women, LGBT (lesbian, gay, bisexual, and transgender) individuals, the disabled, and foreigners in Taiwan, are also the areas where Taiwan has made recognizable achievements, but still encounters problems. The comprehensive coverage of this book should be able to give readers a well-rounded picture of Taiwan’s human rights performance. Readers will find appealing the story of the effort to achieve high standards of human rights protection in a jurisdiction barred from joining international human rights conventions.
Oren Bar-Gill, Omri Ben-Shahar & Florencia Marotta-Wurgler, The American Law Institute’s Restatement of Consumer Contracts: Reporters’ Introduction, 15 Eur. Rev. Contract L. 91 (2019).
Categories:
Banking & Finance
,
Consumer Finance
Sub-Categories:
Contracts
,
Consumer Contracts
Type: Article
Jeannie Suk Gersen, How Fetal Personhood Emerged as the Next Stage of the Abortion Wars, NewYorker.com (June 5, 2019).
Categories:
Health Care
,
Family Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Reproduction
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
John C. Coates, Darius Palia & Ge Wu, Are M&A Contract Clauses Value Relevant to Bidder and Target Shareholders? (June 2019).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Mergers & Acquisitions
,
Shareholders
,
Empirical Legal Studies
Type: Other
Abstract
Merger and acquisition deals are governed by merger clauses which are negotiated between the bidder and target in order to communicate deal terms, specify risk sharing between the parties, and describe dispute management provisions in case of litigation. In a large sample of manually collected U.S. deal contracts involving publicly traded bidders and targets, we construct merger clauses indices based on legal scholars’ ex-ante prediction and examine the relationship between announcement returns and different types of merger clauses. We find that bidder protective clauses correlate with higher bidder returns while target protective clauses and pro-competition clauses correlate with higher target returns. We also find that bidder and target protective indices have larger impacts on announcement abnormal returns for “bad” deals than for “good” deals. Finally, we find that the inclusion of more bidder protective clauses leads to lower deal completion rates while the inclusion of more target protective clauses and pro-competition clauses has no impact on deal completion rates. These results are consistent with the expert lawyer/efficient contracting view of Cain, Macias, and Davidoff Solomon (2014), and Coates (2016), and against merger contracts as boilerplate agreements.
Jacob Gersen & C. Scott Hemphill, Coca-Cola Bottle, in A History of Intellectual Property in 50 Objects 273 (Claudy Op den Kamp & Dan Hunter eds., forthcoming 2019).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal History
,
Intellectual Property - Patent & Trademark
Type: Book
Kathryn E. Spier & J.J. Prescott, Contracting on Litigation, 50 RAND J. Econ. 391 (2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Litigation & Settlement
,
Law & Economics
Type: Article
Abstract
Two risk‐averse litigants with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the litigants can mitigate risk and/or speculate on the trial outcome. Contingent contracting decreases the settlement rate and increases the volume and costs of litigation. These contingent contracts mimic the services provided by third‐party investors, including litigation funders and insurance companies. The litigants (weakly) prefer to contract with risk‐neutral third parties when the capital market is transaction‐cost free. However, contracting with third parties further decreases the settlement rate, increases the costs of litigation, and may increase the aggregate cost of risk bearing.
Eli Y. Adashi, Arthur L. Caplan, Alexander Capron, Audrey R. Chapman, Mildred Cho, Ellen Wright Clayton, I. Glenn Cohen, Robert Cook-Deegan, Ruth R. Faden, Theodore Friedmann, Lawrence O. Gostin, Henry T. Greely, Josephine Johnston, Eric Juengst, Patricia A. King, Lori P. Knowles, Anne Drapkin Lyerly, Amy L. McGuire, Jonathan D. Moreno, Karen Rothenberg, Robert D. Truog & LeRoy Walters, In Support of Mitochondrial Replacement Therapy, 25 Nature Med. 870 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Cass R. Sunstein, Ruining Popcorn? The Welfare Effects of Information, 58 J. Risk & Uncertainty 121 (2019).
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
,
Health Law & Policy
Type: Article
Abstract
Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, federal agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious objections. With respect to (4), people may lack the information that would permit them to make good decisions about how much to pay for (more) information; they may not know the welfare effects of information. Their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.
Rose L. Molina, Sabrineh Ardalan & Jennifer Scott, Impact of a US Asylum Decision on Sexual and Reproductive Health and Rights: a call to action for health and legal professionals, 27 Sexual and Reproductive Health Matters 1 (2019).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Gender & Sexuality
Type: Article
Abstract
The political environment and legal decisions in the United States (US) can impact lives around the globe. A recent attack on women’s sexual and reproductive health and rights (SRHR) occurred in June 2018 when former US Attorney General Jeff Sessions reversed a decision (Matter of A-R-C-G-) in which domestic violence was recognized as a basis for asylum. Domestic violence is one form of gender-based violence, encompassing sexual and physical assault and reproductive coercion, which disproportionately harm women. Given the global epidemic of gender-based violence, we argue that Sessions’ reversal of this decision and efforts to rollback protection for domestic violence survivors could have far-reaching impacts on women around the world. This article will provide some recommendations for medical and legal professionals in response to this affront on SRHR.
Henry E. Smith, Restating the Architecture of Property, in 10 About Modern Studies in Property Law (Ben McFarlane & Sinéad Agnew eds., 2019).
Categories:
Property Law
Sub-Categories:
Personal Property
,
Real Estate
Type: Book
Abstract
Property law has proven difficult to restate, with none of the American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property. In the terms of complex systems theory, a Restatement should reflect the arrangement and interactions, the groupings, and the coherence (sometimes) of property law, rather than treating it as a heap of full detachable rules and components. Conventional strong versions of the bundle of rights picture of property, reinforced by the nature of the Restatement process, make it difficult to address property as a complex system. Using examples of possession and the property torts, the paper shows how a Restatement can begin to incorporate property’s architecture and why it matters to the operation and the development of the law.
Renee N. Salas, Wendy Jacobs & Frederica Perera, The Case of Juliana v. U.S. — Children and the Health Burdens of Climate Change, 380 New Eng. J. Med. 2085 (2019).
Categories:
Health Care
,
Environmental Law
,
Constitutional Law
,
Family Law
Sub-Categories:
Climate Change
,
Children's Law & Welfare
,
Health Law & Policy
Type: Article
Carmel Shachar, I. Glenn Cohen, Holly Fernandez Lynch & Barbara J. Evans, Introduction and Front Matter, in Transparency in Health and Health Care in the United States: Law and Ethics 1 (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar & Barbara J. Evans, eds., 2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Book
Abstract
This Introduction summarizes the contributions of the chapters and introduces the main themes of the edited volume Transparency in Health and Health Care in the United States: Law and Ethics (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar, Barbara J. Evans, eds., Cambridge University Press 2019). It also provides the front matter for the volume, including its table of contents.
Cass R. Sunstein, Conformity: The Power of Social Influences (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Abstract
We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender. How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent. An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more. Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself. Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best. A well-functioning democracy depends on it.
Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff, Introduction, in The Oxford Handbook of Fiduciary Law 11 (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Fiduciary Law
,
Corporate Law
,
Fiduciaries
,
Legal Theory & Philosophy
,
Trusts
Type: Book
Abstract
In recent years, the study of fiduciary law has undergone a paradigm shift. Rather than treat fiduciary principles as subsidiary elements of legal fields, such as trust law or corporate law, a burgeoning group of scholars has undertaken to study fiduciary law as a coherent general field of study that encompasses aspects of both private and public law. Case law and academic commentary have progressed to the point that it is now possible to generate a detailed mapping of the field. To this end, the newly published Oxford Handbook of Fiduciary Law provides a near-encyclopedic survey of the terrain, focusing primarily on U.S. jurisprudence but also incorporating perspectives from other legal traditions. In its breadth and depth of coverage, the Handbook stands alone as a uniquely authoritative guide to the current state of the law and scholarship in the field. This essay, which is the Introduction to the Handbook, explores fiduciary law’s emergence as a general field of study and explains the Handbook’s ambitious contributions to the field. These contributions are grouped thematically into four parts. First, the Handbook surveys fiduciary principles across diverse contexts, ranging from agency law and the law of investment advice, to family law and the law of lawyering, to public offices and public international law. Second, the Handbook identifies and synthesizes several fundamental principles of fiduciary law that apply across these contexts, including the core fiduciary duties of loyalty and care. Third, the Handbook explores how fiduciary principles have developed across time and in different legal traditions around the world. Lastly, the Handbook considers how different legal theories, interdisciplinary approaches, and social institutions may contribute to the academic study and development of fiduciary law. The Handbook thus furnishes a single source to which readers can turn for guidance on fiduciary principles across a host of substantive fields, jurisdictions, and epochs.
Jerome A. Cohen, William P. Alford & Chang-fa Lo, Introduction — An Overview, in Taiwan and International Human Rights: A Story of Transformation 3 (Jerome A. Cohen, William P. Alford & Chang-fa Lo eds., 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Human Rights Law
,
Treaties & International Agreements
Type: Book
Abstract
Taiwan has gone through a number of important stages in its modern history, including the 1945 resumption of governance by the Republic of China succeeding Japanese colonialism, the Nationalist central government’s 1949 move to Taiwan, the horrendous abuse of many fundamental rights during four decades of martial law, and the termination of martial law beginning 1987. The issues discussed in this chapter mostly concern the recent stages. They include: the gradual transition to a constitutional regime protecting human rights; the role of Confucian tradition in the transition process; human rights related institutional arrangements (including the Constitutional Court, the Control Yuan, and the yet-to be- created National Human Rights Commission); Taiwan’s adoption of human rights treaties through implementation legislation and constitutional interpretation; the roles of NGOs in human rights protection; and Taiwan’s problems relating to: civil and political rights (including the death penalty, personal liberty, freedoms of expression, privacy, and fair trial), economic, social, and cultural rights (including the rights to health, a clean environment, and adequate housing and food) and the protection of vulnerable groups (including indigenous people, women, LGBT individuals, the disabled, and foreigners). Thus this chapter offers background to other chapters in this book concerning Taiwan’s human rights performance.
William P. Alford, Qiongyue Hu & Charles Wharton, People Over Pandas: Taiwan’s Engagement of International Human Rights Norms with Respect to Disability, in Taiwan and International Human Rights: A Story of Transformation 643 (Jerome A. Cohen, William P. Alford & Chang-fa Lo eds., 2019).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
East Asian Legal Studies
,
Human Rights Law
,
Treaties & International Agreements
Type: Book
Abstract
Taiwan’s early law (1980) regarding disability presumed a medical model—i.e., seeing disability as an individual problem rather than a societal responsibility. Facing considerable discrimination and inspired by the social model embodied elsewhere, including in the United Nations Convention on the Rights of Persons with Disabilities (CRPD), citizen activists, including disabled persons organizations, have pressed for legislative reform. Following the earlier support of the administration of President Ma Ying-jeou for incorporation of the United Nations Human Rights Covenants into domestic law (owing to Taiwan’s being barred from formal accession), the Legislative Yuan in 2014 passed a bill designed to incorporate the CRPD into Republic of China (R.O.C) law. That measure not only retained all key provisions of the CRPD but also called on the Executive Yuan to conduct a comprehensive review of existing legal measures for compliance and pro-actively to engage persons with disabilities in implementing the new law, while also establishing innovative reporting and monitoring mechanisms intended to parallel the requirements of the CRPD. Much progress has been achieved but serious challenges remain regarding discrimination, especially with respect to employment and reasonable accommodations, while some scholars have questioned the suitability of a highly individual-focused rights-based model for Taiwanese society. Disabled persons organizations continue to play an active role both in policy and legal advocacy and in seeking to educate the public more broadly about disability.
David B. Wilkins & Brant J. Hellwig, Address by Professor David B. Wilkins: Washington and Lee University School of Law Commencement Exercises, May 5, 2018, 76 Wash. & Lee L. Rev. 1 (2019).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal History
,
Legal Services
Type: Article
Alexa Hasse, Sandra Cortesi, Andres Lombana & Urs Gasser, Youth and Artificial Intelligence: Where We Stand (Berkman Klein Ctr. Res. Publ’n No 2019-3, May 24, 2019).
Categories:
Technology & Law
,
Family Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
,
Information Privacy & Security
Type: Other
Abstract
This spotlight seeks to share Youth and Media’s initial learnings and key questions around the intersection between AI and youth (ages 12-18), in the context of domains such as education, health and well-being, and the future of work. It aims to encourage various stakeholders — including policymakers, educators, and parents and caregivers — to consider how we can empower young people to meaningfully interact with AIbased technologies to promote and bolster learning, creative expression, and wellbeing, while also addressing key challenges and concerns.
Dov Fox, Eli Y. Adashi & I. Glenn Cohen, A Troubling Court Decision for Reproductive Rights, 322 JAMA 23 (2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Abstract
Abortion remains one of the most divisive controversies in the United States, and few states restrict the practice more than Alabama. In 2018, Alabama voters passed an amendment to the state’s constitution that “recognize[s] and support[s] the sanctity of unborn life and the rights of unborn children.” Kansas, Missouri, and Louisiana have enacted similar language into their constitutions. These clauses variously classify fertilized eggs, zygotes, embryos, and fetuses as “persons” entitled to unspecified legal protections from the moment of conception. They have the potential for sweeping consequences. It is unclear whether and how these measures would lead to criminal penalties against pregnant women for activities like drug use that risk harming the fetus, as well as prohibitions on in vitro fertilization (IVF), stem cell research, or other practices that involve the destruction of human embryos
I. Glenn Cohen, Eli Y. Adashi & Vardit Ravitsky, How Bans on Germline Editing Deprive Patients with Mitochondrial Disease, 37 Nature Biotechnology 589 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Randall Kennedy, Harvard Betrays a Law Professor, N.Y. Times, May 17, 2019, at A29.
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Services
Type: News
Eli Y. Adashi, Rohit S. Rajan & I. Glenn Cohen, When Science and Politics Collide: Enhancing the FDA, 364 Science 628 (2019).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Food & Drug Law
Type: Article
Holger Spamann, Lawyers’ Role-Induced Bias Arises Fast and Persists Despite Intervention (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1005, May 15, 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Litigation & Settlement
,
Law & Behavioral Sciences
,
Legal Education
,
Legal Services
Type: Article
Abstract
Law students randomly assigned to represent one side in a legal argument in the classroom exhibit substantial role-induced prediction bias for their side within only 40 minutes of their role assignment. Reminding students that prediction requires a more neutral perspective than advocacy does not attenuate the bias. The bias occurs evenly in male and female participants, who also report equal confidence in their predictions.
Nikolas Bowie, Corporate Personhood v. Corporate Statehood, 132 Harv. L. Rev. 2009 (2019) (reviewing Adam Winkler, We the Corporations: How American Businesses Won Their Civil Rights (2018)).
Categories:
Corporate Law & Securities
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Corporate Law
,
Corporate Governance
,
Shareholders
,
Politics & Political Theory
,
Supreme Court of the United States
,
Labor Law
Type: Article
Abstract
Professor Adam Winkler’s recent history of corporate rights, We the Corporations, showed that folk wisdom about corporate personhood is exactly backwards: businesses have won their rights not by asserting their own personhood, but by purporting to represent the real, rights-bearing people behind the corporate veil. In this review, Professor Nikolas Bowie elaborates on this second framework –– what he calls “corporate statehood.” If this metaphor has had pathological consequences, Bowie argues, the problem isn’t necessarily intrinsic to the metaphor. Drawing on a narrative from the Lochner era, Bowie urges reformers to “make the metaphor true,” and in doing so convert “industrial oligarchies” into representative, accountable institutions.
Mihir Desai, Let's Root for Uber's I.P.O. to Fail, N.Y. Times, May 10, 2019, at A23.
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Investment Products
,
Venture Capital
,
Finance
,
Securities Law & Regulation
Type: News
Jeannie Suk Gersen, Robert Mueller’s and William Barr’s “Baby” and the History of Presidential Obstruction, NewYorker.com (May 5, 2019).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Congress & Legislation
,
Government Accountability
,
Politics & Political Theory
Type: Other
Eli Y. Adashi & I. Glenn Cohen, Germline Editing: Could Ban Encourage Medical Tourism?, 569 Nature, May 2019, at 40.
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Christine Desan, Book Review, 16 Labor 136 (2019)(reviewing Mehrsa Baradaran, How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy (2015)).
Categories:
Banking & Finance
,
Legal Profession
Sub-Categories:
Banking
,
Commercial Law
,
Legal History
Type: Article
Yun-chien Chang & Henry E. Smith, Convergence and Divergence in Systems of Property Law: Theoretical and Empirical Analyses, 92 S. Cal. L. Rev. (forthcoming May 2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Comparative Law
,
Property Rights
Type: Article
Abstract
This article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, the structure of property law among all jurisdictions in the world will converge, or is similar since some time in the distant past, as they all face the same, positive transaction costs in delineating property rights. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominium, tenancy in common, and limited property rights serve as prominent examples.
Vicki C. Jackson, Donald Kommers and Comparative Constitutional Law, 20 German L.J. 532 (2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
,
Biography & Tribute
Type: Article
Yochai Benkler, Don’t Let Industry Write the Rules for AI, Nature (May 1, 2019).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
,
Networked Society
,
Science & Technology
,
Cyberlaw
Type: Other
Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Book
Abstract
The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.
Cass R. Sunstein, Growing Outrage, 3 Behavioural Pub. Pol’y 1 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
Type: Article
Abstract
Why and when does outrage grow? This essay explores two potential answers. The first points to a revision or weakening of social norms, which leads people to express outrage that they had previously suppressed. The second points to a revision or weakening of social norms, which leads people to express outrage that they had not previously felt (and may or may not now feel). The intensity of outrage is often a product of what is most salient. It is also a product of “normalization”; people compare apparently outrageous behavior to behavior falling in the same category in which it is observed, and do not compare it to other cases, which leads to predictable incoherence in judgments. These points bear on the #MeToo movement of 2017 and 2018 and the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity).
Richard Lazarus, May Courts Review Congressional Review Act Compliance by Agencies?, Envtl. F., May-June 2019, at 13.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Courts
,
Congress & Legislation
,
Administrative Law & Agencies
Type: Article
Jesse M. Fried, Powering Preemptive Rights with Presubscription Disclosure, in The Law and Finance of Related Party Transactions (Luca Enriques & Tobias H. Tröger eds., 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
Type: Book
Abstract
Preemptive rights can prevent cheap-issuance tunneling by a controller when outside investors know that the offered securities are cheap. But when outsiders cannot tell whether the securities are cheap or overpriced, preemptive rights fail to prevent such tunneling. Afraid of purchasing overpriced securities, outsiders may rationally refrain from purchasing (even when the securities are in fact cheap), and then suffer cheap-issuance losses. I put forward a mechanism to make preemptive rights more effective: requiring disclosure of a controller’s subscription commitment, before outside investors must finalize their own, so that outsiders can choose to mimic it.
Cass R. Sunstein, Sludge and Ordeals, 68 Duke L.J. 1843 (2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Government Benefits
Type: Article
Abstract
In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services; the problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. In principle, a serious deregulatory effort should be undertaken to reduce sludge, through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. In most cases, these defenses of sludge turn out to be more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often argue in favor of a neglected form of deregulation: sludge reduction. For both public and private institutions,“Sludge Audits” should become routine. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress.
Lucian Bebchuk & Scott Hirst, The Specter of the Giant Three, 99 B.U. L. Rev. 721 (2019).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Investment Products
,
Economics
,
Corporate Governance
,
Shareholders
,
Securities Law & Regulation
Type: Article
Abstract
This Article examines the large, steady, and continuing growth of the Big Three index fund managers--BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.” We begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status of the Big Three, and their likely growth into the Giant Three. Among other things, we document that the Big Three have almost quadrupled their collective ownership stake in S&P 500 companies over the past two decades; that they have captured the overwhelming majority of the inflows into the asset management industry over the past decade, that each of them now manages 5% or more of the shares in a vast number of public companies; and that they collectively cast an average of about 25% of the votes at S&P 500 companies. We then extrapolate from past trends to estimate the future growth of the Big Three. We estimate that the Big Three could well cast as much as 40% of the votes in S&P 500 companies within two decades. Policymakers and others must recognize--and must take seriously--the prospect of a Giant Three scenario. The plausibility of this scenario exacerbates concerns about the problems with index fund incentives that we identify and document in other work.
David B. Wilkins & María J. Esteban Ferrer, Taking the 'Alternative' out of Alternative Legal Service Providers: Remapping the Corporate Legal Ecosystem in the Age of Integrated Solutions, in New Suits: Appetite for Disruption in the Legal World (Michele Destefano & Guenther Dobrauz-Saldapenna eds., 2019).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Legal Education
Type: Book
Abstract
The word “alternative” is definitely trending in the legal zeitgeist. Beginning with the U.K. Legal Services Act and accelerating through the legal tech startup boom, discussion about the growing importance of Alternative Business Structures (ABS) and Alternative Legal Service Providers (ALSP) has become a cottage industry in the legal press, and increasingly in the legal academy as well. And yet, for all of the talk about the growing importance of these “alternatives,” the very discourse used to cast these new providers as the harbingers of impending dramatic changes in the market for legal services continues to marginalize and mask their true significance. In this Chapter, we argue that this characterization of the range of new providers competing for a share of the global corporate legal services market is fundamentally flawed. We do so by first reminding today’s lawyers and commentators that the large law firms and sophisticated in-house legal departments that we now consider to be the “traditional” standard against which all other legal service providers should be measured, were once considered radical “alternatives” posing a significant threat to the “core” values of lawyer professionalism. As market conditions changed, however, these marginalized forms of practice not only moved to the mainstream, but have become the very embodiment of professional excellence. Similarly, we argue, as corporate clients increasingly demand professional services that are “integrated,” “customized,” and “agile,” the parts of the market that are now considered “alternative” – e.g., technology, managed services, flexible staffing, and multidisciplinary practice – are also moving from the periphery to the core. At the same time, “traditional” law firms and in-house legal departments are under mounting pressure to demonstrate how the “core” services that they provide contribute to producing the kind of “integrated solutions” their clients need. We conclude by highlighting some of the challenges that this evolving “integrated solutions” model poses for other parts of the legal “ecosystem” such as legal education, legal regulation, and the rule of law, that either have not – or should not – change.
Transparency in Health and Health Care in the United States: Law and Ethics (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar & Barbara J. Evans eds., 2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Book
Abstract
Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry. Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Working at the intersection of law, medicine, ethics, and business, the book goes beyond the buzzwords to the heart of transparency's transformative potential, while interrogating its obstacles and downsides. It should be read by anyone looking for a better understanding of transparency in the health care context.
Gabriella Blum, The Paradox of Power: The Changing Norms of the Modern Battlefield, 56 Hous. L. Rev. 745 (2019).
Categories:
International, Foreign & Comparative Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
Politics & Political Theory
,
Laws of Armed Conflict
,
International Law
,
Treaties & International Agreements
,
Science & Technology
Type: Article
Abstract
We live in a paradox of power: our capabilities of inflicting destruction through military means are unparalleled in human history; yet, for liberal democracies, contemporary military practices are the most restrained they have ever been, at least as far as effects of military operations on civilians go. This Article describes the ways in which laws, norms, and technology have come together to produce the paradox of power. It begins with the observation that the international laws that govern resort to force by states (the jus ad bellum) have had only limited effect on states' initiation or continuation of war, including by liberal democracies. Yet, the international laws that govern the conduct of war (the jus in bello), in combination with prevailing norms and advanced technology, have had substantial effects on how liberal democracies fight their wars. The combination of ongoing, open-ended wars that are harder to fight while complying with contemporary norms of warfare produce a set of unique challenges for liberal democracies.
Urs Gasser & Carolyn Schmitt, The Role of Professional Norms in the Governance of Artificial Intelligence (April 25, 2019).
Categories:
Technology & Law
,
Legal Profession
Sub-Categories:
Legal Ethics
,
Cyberlaw
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
The development, deployment, and use of artificial intelligence (AI) systems and AI-based technologies are governed by an increasingly complex set of legal, ethical, social, and other types of norms, which surface from various sources and contribute to what might be described as a patchwork of norms. Among this complicated landscape of modes of governance, this chapter zeroes in on the extent to which professional norms — and specifically norms in the development phase as expressed in formal documents such as code of ethics and ethical principles — may serve as a reservoir of norms and accountability mechanisms to include within the existing governance toolbox. It explores the interface between AI and “the profession,” with an emphasis on new institutional arrangements and sources of norms that arise within the profession, such as corporate principles and employee demands. This chapter discusses trends of this fluctuating ecosystem through a suggested analytical framework for thinking about these professional norms of AI development within the broader context of the AI lifecycle, and hypothesizing about the future possibilities of professional norms within discussions of AI governance. A shorter version of this paper is forthcoming in: Markus D. Dubber, Frank Pasquale, and Sunit Das (eds.), The Oxford Handbook of Ethics of AI, Oxford University Press.