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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
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
Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U. Pa. L. Rev. (forthcoming 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Empirical Legal Studies
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
The threshold question for all originalist methodologies concerns the original communicative content of the words of the Constitution. For too long this inquiry has been pursued through tools that are ill-suited to the task. Dictionaries generally just define individual words; they don’t typically define phrases or allow for the consideration of broader linguistic context. And while dictionaries can provide a list of possible senses, they can’t tell us which sense is the most ordinary (or common). Founding-era dictionaries, moreover, were generally the work of one individual, tended to plagiarize each other, and relied on famous, often dated examples of English usage (from Shakespeare or the King James Bible). Originalists have also turned to examples of usage in founding-era documents. This approach can address some of the shortcomings of dictionaries; a careful inquiry into sample sentences from founding-era literature can consider a wide range of semantic context. Yet even here the standard inquiry falls short. Originalists tend to turn only to certain sources, such as the Federalist Papers or the records of the state constitutional conventions, and those sources may not fully reflect how ordinary users of English of the day would have understood the Constitution (or at least have used language). Second, the number of founding-era documents relied on is often rather small, especially for generalizing about an entire country (or profession, in the case of lawyers). This opens originalists up to criticisms of cherry-picking, and even if that is not the case, sample sizes are just too small to confidently answer originalist questions. But all is not lost. Big data, and the tools of linguists, have the potential to bring greater rigor and transparency to the practice of originalism. This article will explore the application of corpus linguistic methodology to aid originalism’s inquiry into the original communicative content of the Constitution. We propose to improve this inquiry by use of a newly released corpus (or database) of founding-era texts: the beta version of the Corpus of Founding-Era American English. The initial beta version will contain approximately 150 million words, derived from the Evans Early American Imprint Series (books, pamphlets and broadsides by all types of Americans on all types of subjects), the National Archives Founders Online Project (the papers of Washington, Franklin, Adams, Jefferson, Madison, and Hamilton, including correspondence to them), and Hein Online’s Legal Database (cases, statutes, legislative debates, etc.). The paper will showcase how typical tools of a corpus—concordance lines, collocation, clusters (or n-grams), and frequency data—can aid in the search for original communicative content. We will also show how corpus data can help determine whether a word or phrase in question is best thought of as an ordinary one or a legal term of art. To showcase corpus linguistic methodology, the paper will analyze important clauses in the Constitution that have generated litigation and controversy over the years (commerce, public use, and natural born) and another whose original meaning has been presumed to be clear (domestic violence). We propose best practices, and also discuss the limitations of corpus linguistic methodology for originalism. Larry Solum has predicted that “corpus linguistics will revolutionize statutory and constitutional interpretation.”* Our paper seeks to chart out the first steps of that revolution so that others may follow.
Robert H. Sitkoff, Fiduciary Principles in Trust Law, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff eds., Oxford Univ. Press forthcoming 2019).
Categories:
Banking & Finance
,
Property Law
Sub-Categories:
Fiduciary Law
,
Trusts
Type: Book
Andrew Manuel Crespo, Impeachment as Punishment, 13 Harv. L. & Pol’y Rev. (forthcoming 2019)(reviewing Laurence Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment (2018)).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
Type: Article
Abstract
In their recent book "To End a Presidency" Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question ("why impeach?") through the broader lens of criminal jurisprudence, which perennially confronts the related and familiar question: "why punish?" After assessing Tribe and Matz's arguments for and against impeachment along the familiar Benthamite and Kantian axes, the essay ultimately recasts the dilemma of impeachment as a dilemma for reconstructivist accounts of punishment itself: Does punishing a wrongdoer--including potentially the President of the United States--help society heal in the wake of serious criminal acts, or does the prospect of punishment only tear us further apart?
Robert H. Sitkoff, Other Fiduciary Duties: Implementing Loyalty and Care, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., Oxford Univ. Press forthcoming 2019).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Nikolas Bowie, The Government Could Not Work Doctrine, 105 Va. L. Rev. 1 (forthcoming 2019).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
For over two thousand years, conscientious people from Plato to Gandhi have grappled with the dilemma of how to respond when a government orders you to do something you disagree with — say, pay a tax that will fund a war. Perhaps the most famous answer comes from the book of Matthew, when Jesus of Nazareth declared, "Render . . . unto Caesar the things that are Caesar's, and unto God the things that are God's." One way to interpret this declaration contends that you should always comply with fairly imposed civil obligations — at least until you can persuade others to accommodate your views. A second argues that if conscience so dictates, you should disobey the government and accept whatever punishment it doles in return. Recently, a group of constitutional lawyers have offered a third option: Sue the government. Adopting a libertarian interpretation of the First Amendment's protection of free speech and religious exercise, these lawyers argue that it is presumptively unconstitutional for the government ever to put one's moral obligations in conflict with one's civil obligations. As evidence, they draw on cases such as West Virginia v. Barnette, in which the Supreme Court struck down a regulation that compelled objecting school children to recite the pledge of allegiance. In the past few years these lawyers have asked the Court to extend Barnette's logic to petitioners who object to birth control, labor unions, vaccinations, same-sex marriage, and all kinds of politically charged topics. The Supreme Court has been sympathetic to these lawyers, in one case declaring that the First Amendment generally "prevent[s] the government from compelling individuals to express certain views or pay subsidies for speech to which they object." The Court has even acted on this declaration to invalidate laws that tax public-sector employees and donate the revenue to politically active labor unions. But this declaration is wrong. Treating compulsory laws as presumptively invalid not only contradicts historical practice, it's also at odds with the Court's precedent in nearly every other constitutional context. The First Amendment, along with the rest of the Constitution, was adopted to create a functional government out of the embers of a failing state. For any government to function — especially in a politically and religiously pluralistic society like the United States — it must be able to compel residents to do all sorts of things a minority might disagree with, from paying taxes and obeying generally applicable laws to accepting conditions on public benefits. Accordingly, the Supreme Court has rejected claims brought under every clause of the First Amendment (and many other articles of the Constitution) whenever it has realized that "government would not work" were it constitutionally prohibited from compelling citizens to do or pay for things they might not like. Even the author of Barnette recognized the danger of converting the First Amendment into a suicide pact. This Article molds these Supreme Court moments of clarity into a coherent doctrine, which I call the "government could not work" doctrine. Analyzing a wide variety of cases, I conclude that objectionable compulsion, in and of itself, should not make a law presumptively unconstitutional, triggering the so-called strict scrutiny that the Court currently applies when a person objects to subsidizing the political activity of a labor union. As the Court has declared throughout its history — with a brief exception between about 1940 and 1980 — applying such strict scrutiny every time a person challenges a compulsory law would "cripple" the government. In other words, the First Amendment doesn't render American citizens uniquely exempt from the universal dilemma of having to decide whether to abide by a disagreeable law. The authors of the First Amendment wanted a government that tolerated dissent, not a government that would be incapacitated by it.
The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., Oxford Univ. Press forthcoming 2019).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Lawrence Lessig, America, Compromised (U. Chi. Press, forthcoming Oct. 2018).
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Government Accountability
Type: Book
Abstract
There is not a single American awake to the world who is comfortable with the way things are.” So begins Lawrence Lessig's sweeping indictment of contemporary American institutions and the corruption that besets them. We can all see it—from the selling of Congress to special interests to the corporate capture of the academy. Something is wrong. It’s getting worse. And it’s our fault. What Lessig shows, brilliantly and persuasively, is that we can’t blame the problems of contemporary American life on bad people, as our discourse all too often tends to do. Rather, he explains, “We have allowed core institutions of America’s economic, social, and political life to become corrupted. Not by evil souls, but by good souls. Not through crime, but through compromise.” Every one of us, every day, making the modest compromises that seem necessary to keep moving along, is contributing to the rot at the core of American civic life. Through case studies of Congress, finance, the academy, the media, and the law, Lessig shows how institutions are drawn away from higher purposes and toward money, power, quick rewards—the first steps to corruption. Lessig knows that a charge so broad should not be levied lightly, and that our instinct will be to resist it. So he brings copious, damning detail gleaned from years of research, building a case that is all but incontrovertible: America is on the wrong path. If we don’t acknowledge our own part in that, and act now to change it, we will hand our children a less perfect union than we were given. It will be a long struggle. This book represents the first steps.
Mary Ann Glendon, Reflections on the Comparative Study of Law in the 21st Century, in The Past, Present and Future of Comparative Law (K. Boele-Woelki ed., Springer forthcoming 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
This book is published by the International Academy of Comparative Law to honor five great comparatists: Jean-Louis Baudouin from Canada, Xavier Blanc-Jouvan from France, Mary Ann Glendon from the United States of America, Hein Kötz from ...
Japanese Law: Readings in the Political Economy of Japanese Law (J. Mark Ramseyer ed., Routledge 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
Type: Book
Jennie Suk Gersen, Understanding the Partisanship of Brett Kavanaugh’s Confirmation Hearings, NewYorker.com (Sept. 12, 2018).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Politics & Political Theory
,
Executive Office
Type: Other
Kristen Stilt & Salma Waheedi, Islamic Judicial Review, in Comparative Judicial Review (Erin Delaney & Rosalind Dixon eds., forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Islamic Law
,
Comparative Law
Type: Book
Human Rights, Democracy, and Legitimacy in a World of Disorder (Silja Voeneky & Gerald L. Neuman eds., Cambridge Univ. Press, forthcoming Aug. 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
Human Rights, Democracy, and Legitimacy in a World of Disorder brings together respected scholars from diverse disciplines to examine a trio of key concepts that help to stabilize states and the international order. While used pervasively by philosophers, legal scholars, and politicians, the precise content of these concepts is disputed, and they face new challenges in the conditions of disorder brought by the twenty-first century. This volume will explore the interrelationships and possible tensions between human rights, democracy, and legitimacy, from the philosophical, legal, and political perspectives; as well as the role of these concepts in addressing particular problems such as economic inequality, catastrophic risks posed by new technologies, access to health care, regional governance, and responses to mass migration. Made up of essays arising from an interdisciplinary symposium convened at Harvard Law School in 2016, this volume will examine how these trusted concepts may bring order to the global community.
Jeannie Suk Gersen, What Michael Cohen’s Guilty Plea Doesn’t Tell Us About Trump, NewYorker.com (Aug. 26, 2018).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Corruption
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Other
Cass R. Sunstein, The Cost-Benefit Revolution (MIT Press 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Executive Office
Type: Book
Abstract
Opinions on government policies vary widely. Some people feel passionately about the child obesity epidemic and support government regulation of sugary drinks. Others argue that people should be able to eat and drink whatever they like. Some people are alarmed about climate change and favor aggressive government intervention. Others don't feel the need for any sort of climate regulation. In The Cost-Benefit Revolution, Cass Sunstein argues our major disagreements really involve facts, not values. It follows that government policy should not be based on public opinion, intuitions, or pressure from interest groups, but on numbers―meaning careful consideration of costs and benefits. Will a policy save one life, or one thousand lives? Will it impose costs on consumers, and if so, will the costs be high or negligible? Will it hurt workers and small businesses, and, if so, precisely how much? As the Obama administration's "regulatory czar," Sunstein knows his subject in both theory and practice. Drawing on behavioral economics and his well-known emphasis on "nudging," he celebrates the cost-benefit revolution in policy making, tracing its defining moments in the Reagan, Clinton, and Obama administrations (and pondering its uncertain future in the Trump administration). He acknowledges that public officials often lack information about costs and benefits, and outlines state-of-the-art techniques for acquiring that information. Policies should make people's lives better. Quantitative cost-benefit analysis, Sunstein argues, is the best available method for making this happen―even if, in the future, new measures of human well-being, also explored in this book, may be better still.
Tomiko Brown-Nagin, The Long Resistance, 36 Law & Hist. Rev. 441 (2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Race & Ethnicity
,
Elections & Voting
,
Politics & Political Theory
,
Executive Office
Type: Article
Abstract
We are living in an age of political turbulence, social division, and resistance. The resistance that formed in reaction to the election of Donald Trump styles itself a force to defend constitutional rights, democratic norms, and the rule of law in the United States. Perhaps the New Republic best explained its advent: the Resistance had been born of partisan—that is, Democratic—fury after “liberalism had been dealt its most stunning and consequential defeat in American history.” “For the first time in decades, liberalism has been infused with a sense of energy and purpose,” with millions of people devoted to a singular cause: resisting Trump.
Janet Halley, Abortion and the Struggle for Meaning, JOTWELL (Aug. 6, 2018) (reviewing Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America (2017)).
Categories:
Family Law
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Reproduction
Type: Other
Randall Kennedy, Saying It Louder, N.Y. Times, July 22, 2018, SR at 1.
Categories:
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
Type: Other
Russell A. Spivak, Glenn Cohen & Eli Y. Adashi, Moratoria and Innovation in the Reproductive Sciences: Of Pretext, Permanence, Transparency, and Time-Limits, 14 J. Health & Biomedical L. 5 (2018).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
As progress in the biosciences soldiers forth, new breakthroughs can often be swept up in a common narrative, that is, the narrative of science as a disruptive threat. Responding to perceived threats, policymakers the world over have frequently overreacted to these developments by enacting shortsighted legislation. These knee-jerk reactions often entail a ban or pause on the science to be explored, thereby foregoing a dialog or term-limited oversight. In this paper, we explore the history and transparency of such moratoria.
Christine A. Desan, Strange New Music: The Monetary Composition Made by the Enlightenment Quartet (July 21, 2018).
Categories:
Banking & Finance
,
Legal Profession
Sub-Categories:
Banking
,
Commercial Law
,
Financial Markets & Institutions
,
Economics
,
Legal History
Type: Other
Abstract
Across Europe and the Americas, the Enlightenment brought intellectual and institutional tumult over that most basic attribute of the political economy – its medium. By the time the age was over, money operated according to a new design. It enabled a set of financial practices that were unprecedented: modern money worked synergistically with circulating public debt, capital markets, and commercial banking. Together, that quartet of innovations transformed the political economies of the West. The essay considers the themes of that change, including the depth of conceptual innovation on money and finance, the range of institutional experimentation, and the contentious nature of the debate. The essay takes a short tour of the Enlightenment quartet to suggest how interdependent was (and is) the development of those institutions.
Noah Feldman, Tipping the Scales, N.Y. Rev. Books, July 19, 2018, at 8.
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Article
Mary Ann Glendon, Reflection on the Comparative Study of Law in the 21st Century, in The Past, Present and Future of Comparative Law 3 (Katharina Boele-Woelki & Diego P. Fernàndez Arroyo eds., 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
To legal scholars who have devoted much of their professional lives to the comparative study of legal systems, the benefits of comparative law can seem abundant, obvious, and more relevant than ever in today’s increasingly globalized world. Yet, paradoxically, it is not at all clear what role cross-national legal studies will play in twenty-first century legal academies. Unprecedented global interdependence has spurred many changes in the standard law school curriculum, with course offerings proliferating in the areas of international business, international tax, international arbitration, public international law, and international human rights. These very changes, however, have fostered a mentality that is somewhat impatient with national, regional and local differences. To ardent proponents of standardized and universal norms, the comparative enterprise can seem unnecessary or obstructive. At the same time, persons concerned about globalization’s disruptive effects on local cultures are apt to view foreign law studies with the same skepticism they hold toward internationalism in general.
I. Glenn Cohen & Michelle M. Mello, HIPAA and Protecting Health Information in the 21st Century, 320 JAMA 231 (2018).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Information Privacy & Security
,
Medical Technology
,
Networked Society
Type: Article
John C.P. Goldberg, History, Theory, and Tort: Four Theses, J. Tort L. (July 11, 2018).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Civil Practice & Procedure
Sub-Categories:
Torts
,
Legal Theory & Philosophy
,
Legal History
Type: Article
Mark J. Roe & Massimiliano Vatiero, Corporate Governance and Its Political Economy, in The Oxford Handbook of Corporate Law and Governance 56 (Jeffrey N. Gordon & Wolf-Georg Ringe eds., 2018).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Commercial Law
,
Financial Markets & Institutions
,
Corporate Law
,
Corporate Governance
,
Business Organizations
,
Corporate Bankruptcy & Reorganization
,
Fiduciaries
,
Shareholders
Type: Book
Abstract
In this chapter, we analyze three instances that illustrate the political economy of corporate governance. First, we examine how the politics of organizing financial institutions affects, and often determines, the flow of capital into the large firm, thereby affecting, and often determining, the power and authority of shareholder-owners. Second, we show how continental European nations have been slow in developing diffusely owned public firms in the years after World War II. The third political economy example deals with management in diffusely owned firms. The chapter also looks at the historical organization of capital ownership in the United States, noting how the country’s fragmented financial system limited the institutional blockholders and increased managerial autonomy over the years. Finally, it discusses the power of labor in postwar Europe, political explanations for the continuing power of the American executive and the board in recent decades, other political economy channels for corporate governance, and the limits of a political economy analysis.
Mark J. Roe, Corporate Short-Termism: In the Boardroom and in the Courtroom, in The Oxford Handbook of Corporate Law and Governance 425 (Jeffrey N. Gordon & Wolf-Georg Ringe eds., 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Business Organizations
,
Corporate Governance
,
Corporate Law
,
Fiduciaries
,
Shareholders
Type: Book
Abstract
In this chapter I examine whether short-termism in stock markets justifies using corporate law to further shield managers and boards from shareholder influence, to allow boards and managers to pursue their view of sensible long-term strategies in their investment and management policies even more freely. First, the evidence that on stock market short-termism is mixed and inconclusive, with managerial mechanisms under-rated sources of short-term distortions, including managerial compensation packages whose duration often is shorter than that of institutional stockholding; further insulating boards from markets would exacerbate these managerial short-term-favoring mechanisms. Nor are courts well positioned to make this kind of basic economic policy, which if serious is better addressed with policy tools unavailable to courts.
John C. Coates, Mergers, Acquisitions and Restructuring: Types, Regulation, and Patterns of Practice, in The Oxford Handbook of Corporate Law and Governance 570 (Jeffrey N. Gordon & Wolf-Georg Ringe eds. 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Governance
Type: Book
Abstract
This chapter examines how mergers, acquisitions, and restructuring are regulated, both within the formal body of corporate law and as that law interacts with other bodies of law such as securities (including listing standards), antitrust, industry-specific regulation, and regulations of cross-border transactions. It begins with an overview of relevant terminology and scope of M&A and restructuring and how they differ from other corporate transactions or activities. It then considers major types of M&A transactions, the core goals of corporate law or governance, and other bodies of law (antitrust, industry-based regulation, regulation of foreign ownership of business, and tax) that give special treatment to M&A and restructuring, and sometimes interact with corporate law and governance. It also looks at laws that constrain M&A transactions and those that facilitate them. It concludes by summarizing empirical research and discussing what variations in types and modes of regulation governing M&A and restructuring transactions imply.
Howell E. Jackson & Jeffrey Y. Zhang, Private and Public Enforcement of Securities Regulation, in Oxford Handbook of Corporate Law and Governance 928 (Jeffrey N. Gordon & Wolf-Georg Ringe eds., 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
Type: Book
Abstract
This chapter examines the impact of private and public enforcement of securities regulation on the development of capital markets. After a review of the literature, it considers empirical findings related to private and public enforcement as measured by formal indices and resources, with particular emphasis on the link between enforcement intensity and technical measures of financial market performance. It then analyses the impact of cross-border flows of capital, valuation effects, and cross-listing decisions by corporate issuers before turning to a discussion of whether countries that dedicate more resources to regulatory reform behave differently in some areas of market activities. It also explores the enforcement of banking regulation and its relationship to financial stability and concludes by focusing on direct and indirect, resource-based evidence on the efficacy of the US Securities and Exchange Commission’s enforcement actions.
Allen Ferrell, The Benefits and Costs of Indices in Empirical Corporate Governance Research, in The Oxford Handbook of Corporate Law and Governance 214 (Jeffrey N. Gordon & Wolf-Georg Ringe eds., 2018).
Categories:
Disciplinary Perspectives & Law
,
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Empirical Legal Studies
Type: Book
Abstract
This chapter reviews the benefits and costs of using indices, in particular the G- and E-indices, in empirical corporate governance research. As with corporate governance itself, the widespread use of corporate governance indices have both costs and benefits. The literature has identified a number of concerns with the use of these indices including concerns over measurement error, endogeneity, reverse causation, omitted variables and proper identification of the actual mechanisms by which corporate governance might matter. On the other hand, these indices enjoy several important benefits that explain their continued and widespread use. It concludes that event study methodology and the utilization of legal shocks/regulatory discontinuities for identification will likely play an ever greater role in future research.
Philip B. Heymann & Stephen P. Heymann, Challenging Organized Crime in the Western Hemisphere: A Game of Moves and Countermoves (Routledge 2018).
Categories:
Criminal Law & Procedure
Sub-Categories:
Organized Crime
Type: Book
Abstract
Challenging Organized Crime in the Western Hemisphere: A Game of Moves and Countermoves takes the unusual approach of exploring and describing how organized crime groups develop their capacities in response to heightened powers of law enforcement; and how law enforcement in turn responds, creating an ongoing dynamic interaction. The book shows how a state, such as the United States, has and can develop new laws and practices in ways that enable them to deal with relatively large violent groups—and yet preserve the rule of law and civil liberties. While most texts describe organized crime groups and the challenges to government they impose from a static perspective, the authors dissect the interaction over time of organized crime and democratic governance that has created the present structure and balance of advantages in the United States. Readers learn about the markets for contraband and extortionate protection that form the bulk of organized criminal enterprise, the vulnerabilities of the traditional practices and rules of law enforcement, the effects of globalization of criminal enterprises on their contest with the state, the effectiveness of various practices of law enforcement, and the continuing forces of change, often technological, in the businesses of organized crime and law enforcement that play important roles in the contest between them. This thought-provoking book is ideal for students of organized and transnational crime in university programs and law schools, as well as researchers and legal practitioners, who seek to look beyond the simple traditional history of organized crime and develop a strategy to confront organized crime in the future.
Jeannie Suk Gersen, Some Advice for Brett Kavanaugh, President Trump’s Second Nominee to the Supreme Court, NewYorker.com (July 9, 2018).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Executive Office
,
Politics & Political Theory
Type: Other
Jesse M. Fried & Charles C.Y. Wang, The Real Problem With Stock Buybacks, Wall St. J., July 9, 2018, at R1.
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Securities Law & Regulation
,
Shareholders
Type: News
J. Benjamin Hurlbut, Sheila Jasanoff, Krishanu Saha, Aziza Ahmed, Anthony Appiah, Elizabeth Bartholet, Françoise Baylis, Gaymon Bennett, George Church, I. Glenn Cohen, George Daley, Kevin Finneran, William Hurlbut, Rudolf Jaenisch, Laurence Lwoff, John Paul Kimes, Peter Mills, Jacob Moses, Buhm Soon Park, Erik Parens, Rachel Salzman, Abha Saxena, Hilton Simmet, Tania Simoncelli, O. Carter Snead, Kaushik Sunder Rajan, Robert D. Truog, Patricia Williams & Christiane Woopen, Building Capacity for a Global Genome Editing Observatory: Conceptual Challenges, 36 Trends in Biotechnology 639 (2018).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Anna Lvovsky, Fourth Amendment Moralism, 166 U. Pa. L. Rev. 1189 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Fourth Amendment
,
Constitutional History
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search. This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well-documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary-search doctrine gleaned from the Court’s drug-testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy-based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy. Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.
Richard Lazarus, William O. Douglas' Former Clerk Sitting on Key Climate Change Case, Envtl. F., July-Aug. 2018, at 13.
Categories:
Environmental Law
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Torts
,
Climate Change
,
State & Local Government
,
Courts
Type: Article
Cass R. Sunstein, It Can Happen Here, N.Y. Rev. Books, June 28, 2018, at 64 (reviewing Milton Mayer, They Thought They Were Free: The Germans, 1933-45 (2017) & Konrad H. Jarausch, Broken Lives: How Ordinary Germans Experienced the Twentieth Century (2018)).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
I. Glenn Cohen & Eli Y. Adashi, Personhood and the Three Branches of Government, 378 New Eng. J. Med. 2453 (2018).
Categories:
Family Law
,
Government & Politics
,
Health Care
Sub-Categories:
Reproduction
,
State & Local Government
,
Genetics & Reproduction
Type: Article
Darius Palia, John C. Coates, IV & Ge Wu, Are Merger Clauses Value Relevant to Bidder and Target Shareholders? (June 22, 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Shareholders
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.
J. Mark Ramseyer, On the Invention of Identity Politics: The Buraku Outcastes in Japan (June 20, 2018).
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
East Asian Legal Studies
Type: Other
Abstract
Using fourteen government censuses and a wide variety of quantitative historical sources, I trace the origins of the Japanese putative outcastes. Sympathetic scholars have long described the group - called the burakumin - as the descendants of a 17th century leather-workers' guild. Members of the group suffer discrimination because their ancestors handled dead animals, they write, and ran afoul of a distinctively Japanese religious obsession with ritual purity. In fact, the burakumin are not descended from leather-workers. They are descended from poor farmers. Eighteenth-century Japanese would not have discriminated against them out of any concern for ritual purity. They would have discriminated against them because they were poor. The burakumin identity as we know it dates instead from the early 20th century. In 1922, self-described Bolsheviks from the buraku upper class lauched a "liberation" movement. To fit their group within Marxist historiography, they created for it a fictive identity as a leather-workers' guild. Within a few years, however, criminal entrepreneurs from the urban slums had hijacked the new movement. They embarked on full-scale identity politics, and generated the public hostility that has plagued the group ever since. The criminal leadership used discrimination claims to shake down local (and eventually the national) governments for ever-increasing transfer payments. Before the 1920s, prosperous member of the buraku had stayed and helped to build its social and economic infrastructure. After the 1920s, those burakumin who hoped to capitalize on the shakedown strategies continued to stay. Given the public hostility that the criminal leadership generated, however, those who preferred mainstream careers increasingly left and merged into the general public.
Sanjit Dhami, Ali al-Nowaihi & Cass R. Sunstein, Heuristics and Public Policy: Decision Making Under Bounded Rationality (June 19, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
How do human beings make decisions when, as the evidence indicates, the assumptions of the Bayesian rationality approach in economics do not hold? Do human beings optimize, or can they? Several decades of research have shown that people possess a toolkit of heuristics to make decisions under certainty, risk, subjective uncertainty, and true uncertainty (or Knightian uncertainty). We outline recent advances in knowledge about the use of heuristics and departures from Bayesian rationality, with particular emphasis on growing formalization of those departures, which add necessary precision. We also explore the relationship between bounded rationality and libertarian paternalism, or nudges, and show that some recent objections, founded on psychological work on the usefulness of certain heuristics, are based on serious misunderstandings.
Annette Gordon-Reed, Opinion, At Long Last, Sally Hemings in the Spotlight, N.Y. Times, June 16, 2018, at A23.
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Executive Office
Type: News
Joel S. Weissman, Eric G. Campbell, I. Glenn Cohen, Holly Fernandez Lynch, Emily A. Largent, Avni Gupta, Ronen Rozenblum, Melissa Abraham, Karen Spikes, Maureen Fagan & Martie Carnie, IRB Oversight of Patient-Centered Outcomes Research: A National Survey of IRB Chairpersons, J. Empirical Res. on Hum. Res. Ethics (June 14, 2018).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Empirical Legal Studies
,
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Patient-centered outcomes research (PCOR) is becoming increasingly common. However, there is little evidence regarding what novel ethical challenges, if any, are posed by PCOR with relevance to institutional review board (IRB) oversight and human subjects protections. This article reports the results of a national survey of all IRB chairpersons from research-intensive institutions in the United States. Findings address the responsibilities of IRBs and the challenges associated with PCOR review and oversight. IRB chairpersons varied in their judgment of PCOR’s overall value to the scientific enterprise and to research at their institution. Furthermore, 27% of respondents considered patients serving in nontraditional roles to be research subjects even when they are not enrolled in research. There was also variation in the training and safeguards their IRBs require for patient partners. Our results suggest that guidance should be developed around ethical and regulatory issues associated with PCOR oversight.
Daniel Halperin, Choice of Entity: A Conceptual Approach, 159 Tax Notes 1601 (2018).
Categories:
Taxation
,
Corporate Law & Securities
Sub-Categories:
Business Organizations
,
Taxation - Corporate
Type: Article
Abstract
Halperin presents another look at choice of entity under the Tax Cuts and Jobs Act. He offers a conceptual approach to fully appreciate the actual rate of tax on corporate and passthrough income, following up on three earlier Tax Notes articles over the past eight years that had a similar goal.
Cass R. Sunstein, Originalism, 93 Notre Dame L. Rev. 1671 (2018).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Executive Office
,
Politics & Political Theory
,
Congress & Legislation
,
Supreme Court of the United States
Type: Article
Abstract
Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory – for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off-limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no helpful precedents or traditions with which to work, and because the original meaning is (at least) pretty good on the merits. These points are brought to bear on recent defenses of originalism; on conflicts between precedents and the original meaning; on conflicts between traditions and original meaning; and on nonoriginalist approaches, used shortly after ratification.
Cass R. Sunstein, The Welfare Effects of Information (June 10, 2018).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
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, 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 “break-even 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 say how much they would pay for (more) information; they may not know the welfare effects of information; and 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.
Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187 (2018).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Administrative Law & Agencies
,
Separation of Powers
Type: Article
Abstract
The nature of the presidency cannot be understood without reference to norms. The written provisions of our constitutional structure do not, by themselves, offer a sufficiently thick network of understandings to create a workable government. Rather, those understandings are supplied by norm-governed practices. Presidential power is both augmented and constrained by these unwritten rules. The article offers a sustained account of the norm-based presidency. It maps out the types of norms that structure the presidency, and excavates the constitutional functions that these norms serve, the substantive commitments that they supply, the decisional arenas where they apply, and the conditions that make some norms (relative to others) more or less fragile. Understanding these characteristics of an unwritten Article II helps to mark abnormal presidential behavior when it arises. It also brings into view core features of structural constitutionalism itself. Norms simultaneously settle constitutional duty for a time and orient contestation over what legitimate practice should be. Norms, however, cannot be understood in contrast to a fixed constitutional structure. Rather, norms bring into view the provisional nature of our constitutional order itself. The role of presidential norms in constituting a working government raises a pressing question for public law theory: What happens when these norms break down—when the extralegal system ceases to enforce them? The article sketches a spectrum of judicial responses, each of which finds occasional (though often implicit) support in the case law. Prescriptively, it argues that when the norms of the presidency collapse, the norms of the judiciary appropriately adjust. Underlying judicial deference is an antecedent question of institutional choice: should the court or the president decide the question at issue? The court’s answer to that question is predicated on (sometimes unarticulated) institutional assumptions about how the presidency actually functions—that the presidency is governed by norms that restrain self-dealing or promote considered judgment. Absent such norms, the court is confronted with a very different institutional choice; a court that ignores these presidential norms decides the legal question on false premises. Courts, however, are and should remain limited players in a norm-based constitutional order. Norms often do not implicate an independent and judicially enforceable legal claim. And the more society depends on courts to check norm breaching by political actors, the more fragile norms of the judiciary may become. Ultimately, it is extra-judicial institutions that sustain or erode the norm-based features of the presidency, and of American constitutional democracy.
Intisar Rabb, Response: The Appellate Rule of Lenity, 131 Harv. L. Rev. F. 179 (2018).
Categories:
Criminal Law & Procedure
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Statutory Interpretation
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 1298 (2018).
Cass R. Sunstein, Willingness to Pay to Use Facebook, Twitter, YouTube, Instagram, Snapchat, and More: A National Survey (June 7, 2018).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Other
Abstract
There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, Youtube, and Instagram), found a massive disparity between willingness to pay and willingness to accept. The sheer magnitude of this disparity – a “superendowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.
Xinyu Hua & Kathryn E. Spier, Product Safety, Contracts, and Liability (June 6, 2018).
Categories:
Disciplinary Perspectives & Law
,
Consumer Finance
,
Civil Practice & Procedure
Sub-Categories:
Consumer Protection Law
,
Torts - Product Liability
,
Law & Economics
Type: Other
Abstract
A firm sells a dangerous product to a population of heterogeneous consumers. Higher consumer types enjoy higher gross benefits from product use but suffer accidents more often. The firm invests resources to reduce the frequency of accidents. When the consumer's net benefit function (gross benefits minus expected harms) is decreasing in consumer type, the firm contractually accepts liability for accident losses and invests efficiently in product safety. When the consumer's net benefit function is increasing in consumer type, the firm contractually disclaims liability for accident losses and under-invests in product safety. Legal interventions, including products liability and limits on contractual waivers and disclaimers, are necessary to raise the level of product safety.
Jack Goldsmith & Stuart Russell, Strengths Become Vulnerabilities (Hoover Inst. Essay, Aegis Series Paper No. 1806, June 5, 2018).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Government Transparency
,
National Security Law
,
Information Privacy & Security
,
Cyberlaw
,
Networked Society
Type: Other
Abstract
This essay seeks to explain why the United States is struggling to deal with the “soft” cyberoperations that have been so prevalent in recent years: cyberespionage and cybertheft, often followed by strategic publication; information operations and propaganda; and relatively low-level cyber disruptions such as denial-of-service and ransomware attacks. The main explanation for the struggle is that constituent elements of U.S. society—a commitment to free speech, privacy, and the rule of law, innovative technology firms, relatively unregulated markets, and deep digital sophistication—create asymmetric weaknesses that foreign adversaries, especially authoritarian ones, can exploit. We do not claim that the disadvantages of digitalization for the United States outweigh the advantages, but we present reasons for pessimism.
Adrian Vermeule, The Publius Paradox: On the Dangers of a Weak Executive, 2018 Chorley Lecture, London School of Economics (June 5, 2018, forthcoming Modern L. Rev.).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Separation of Powers
,
Federalism
Type: Article
Abstract
At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued “[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators.” Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the “Publius Paradox,” that warrants great attention: Under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this “Publius Paradox,” I will turn briefly to its implications, the main one being that constitutional law should be cast as a loosely-fitting garment — particularly the executive component of the constitution and the scope of executive powers. 2018 Chorley Lecture, London School of Economics. Lecture video: https://onedrive.live.com/?authkey=%21AFgS0YbuvpwXhN4&cid=AF47A00F85EB8C77&id=AF47A00F85EB8C77%215252&parId=AF47A00F85EB8C77%213702&o=OneUp
David Rosenberg, Anne Brown, Jaehyun Oh & Benjamin Taylor, A Plan for Reforming Federal Pleading, Discovery, and Pretrial Merits Review, Vand. L. Rev. (forthcoming 2018).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Practice & Procedure
,
Litigation & Settlement
,
Courts
Type: Article
Abstract
We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits – problems largely attributable to discovery. The proposed reforms establish an affirmative disclosure mandate that sharply reduces the role of discovery by shifting most of the parties’ burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process eliminates Rule 12(b)(6), (c) and (f), with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to fully disclose discoverable matter as to which they have exclusive or superior practical access (“asymmetric information”),but only if the initiating party’s pleading makes a summary-judgment-proof showing on all elements of their claims or defenses that are unaffected by the information asymmetry. Discovery, if any, would generally be deferred to the post-pleading stage and restricted to court-approved targeted use as may be needed for purposes of facilitating resolution of cases by summary judgment, settlement, or trial preparation. Compared to the current regime, the reformed pretrial process should enable courts and parties to resolve more cases on the merits, more cheaply, quickly, and reliably, thus increasing deterrence and other social benefits from the use of civil liability to enforce the law. We note that tests of these projected benefits are underway in two district court pilot projects recently launched by the Federal Judicial Conference to evaluate “Mandatory Initial Discovery” rules that employ an affirmative disclosure mandate similar to, but was developed independently of, our proposal.
Jonathan Zittrain, Opinion, Rebooting The Internet Of Things, N.Y. Times, June 4, 2018, at A23.
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Privacy & Security
,
Cyberlaw
Type: News
Cass R. Sunstein, Lucia A. Reisch & Micha Kaiser, Trusting Nudges? Lessons from an International Survey (June 4, 2018).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Comparative Law
Type: Other
Abstract
In the past decade, policymakers have increasingly used behaviourally informed policies, including “nudges,” to produce desirable social outcomes. But do people actually endorse those policies? This study reports on nationally representative surveys in five countries (Belgium, Denmark, Germany, South Korea, and the US) carried out in 2018. We investigate whether people in these countries approve of a list of 15 nudges regarding health, the environment, and safety issues. A particular focus is whether trust in public institutions is a potential mediator of approval. The study confirms this correlation. We also find strong majority support of all nudges in the five countries. Our findings in general, and about trust in particular, suggest the importance not only of ensuring that behaviourally informed policies are effective, but also of developing them transparently and openly, and with an opportunity for members of the public to engage and to express their concerns.
Cass R. Sunstein, Freedom: The Holberg Lecture, 2018 (June 2, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
If people have freedom of choice, do their lives go better? Under what conditions? By what criteria? Consider three distinct problems. (1) In countless situations, human beings face a serious problem of “navigability”; they do not know how to get to their preferred destination, whether the issue involves health, education, employment, or well-being in general. This problem is especially challenging for people who live under conditions of severe deprivation, but it can be significant for all of us. (2) Many of us face problems of self-control, and our decisions today endanger our own future. What we want, right now, hurts us, next year. (3) In some cases, we would actually be happy or well-off with two or more different outcomes, whether the issue involves our jobs, our diets, our city, or even our friends and partners, and the real question, on which good answers are increasingly available, is what most promotes our welfare. The evaluative problem, in such cases, is especially challenging if a decision would alter people’s identity, values, or character. Private and public institutions -- including small companies, large companies, governments – can help people to have better lives, given (1), (2), and (3). This Essay, the text of the Holberg Lecture 2018, is the basis for a different, thicker, and more elaborate treatment in a book, On Freedom (forthcoming, Princeton University Press, 2019).
David W. Kennedy, Remarks, Lineages of Heterodoxy, Inst. Global Law & Pol’y (IGLP) Conference: Law in Global Political Economy: Heterodoxy Now, Harvard Law School, Cambridge, Mass. (June 2, 2018).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
,
International Law
,
Developing & Emerging Nations
,
Human Rights Law
Type: Presentation
Abstract
Remarks, Lineages of Heterodoxy, Inst. Global Law & Pol’y (IGLP) Conference: Law in Global Political Economy: Heterodoxy Now, Harvard Law School, Cambridge, Mass. (June 2, 2018).
Constantine Boussalis, Yuval Feldman & Henry E. Smith, An Experimental Analysis of the Effect of Standards on Compliance and Performance, 12 Reg. & Governance 277 (2018).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Law & Behavioral Sciences
,
Legal Ethics
,
Legal Scholarship
Type: Article
Abstract
Legal directives – whether laws, regulations, or contractual provisions – can be written along a spectrum of specificity, about which behavioral and legal scholarship present conflicting views. We hypothesized that the combination of specificity and monitoring promotes compliance but harms performance and trust, whereas the combination of specificity and good faith enhances both the informative goal-setting aspects of specificity and people's sense of commitment. To test these hypotheses, we used a 2x2x2 experimental design in which participants were instructed to edit a document with either general or detailed instructions, with a reference to good faith or without it, and with a review of the work or without it. Participants could engage in various levels and kinds of editing, allowing us to distinctly measure both compliance and performance. When participants require information and guidance, as in the case of editing, we found that specificity increases performance relative to the vague standard condition. We discuss the characteristics of the regulatory frameworks in which our findings are especially relevant.
Holger Spamann, Are Sleepy Punishers Really Harsh Punishers? Comment on Cho, Barnes, and Guanara (2017), 29 Psychol. Sci. 1006 (2018).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
Type: Article
Krishanu Saha, J. Benjamin Hurlbut, Sheila Jasanoff, Aziza Ahmed, Anthony Appiah, Elizabeth Bartholet, Françoise Baylis, Gaymon Bennett, George Church, I. Glenn Cohen, George Daley, Kevin Finneran, William Hurlbut, Rudolf Jaenisch, Laurence Lwoff, John Paul Kimes, Peter Mills, Jacob Moses, Buhm Soon Park & Erik Parens, Building Capacity for a Global Genome Editing Observatory: Institutional Design, 36 Trends in Biotechnology 741 (2018).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Jesse M. Fried & Holger Spamann, Cheap-Stock Tunneling Around Preemptive Rights (Eur. Corp. Governance Inst. Law Working Paper No. 408/2018, June 1, 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Securities Law & Regulation
Type: Other
Abstract
Preemptive rights are thought to protect minority shareholders from cheap-stock tunneling by a controlling shareholder. We show that preemptive rights, while making cheap-stock tunneling more difficult, cannot prevent it when asymmetric information about the value of the offered shares makes it impossible for the minority to know whether these shares are cheap or overpriced. Our analysis can help explain why sophisticated investors in unlisted firms and regulators of listed firms do not rely entirely on preemptive rights to address cheap-stock tunneling, supplementing them with other restrictions on equity issues.
Marcella Alsan & Crystal Yang, Fear and the Safety Net: Evidence from Secure Communities (NBER Working Paper No. w24731, June 2018).
Categories:
Discrimination & Civil Rights
,
Family Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Immigration Law
,
Law & Economics
,
Children's Law & Welfare
,
Government Benefits
Type: Other
Abstract
This paper explores the impact of fear on the incomplete take-up of safety net programs in the United States. We exploit changes in deportation fear due to the roll-out and intensity of Secure Communities (SC), an immigration enforcement program that empowers the federal government to check the immigration status of anyone arrested by local police, leading to the forcible removal of approximately 380,000 immigrants. We estimate the spillover effect of SC on the take-up of federal means-tested programs by Hispanic citizens. Though not at personal risk of deportation, Hispanic citizens may fear their participation could expose non-citizens in their network to immigration authorities. We find significant declines in SNAP and ACA enrollment, particularly among mixed-citizenship status households and in areas where deportation fear is highest. The response is muted for Hispanic households residing in sanctuary cities. Our results are most consistent with network effects that perpetuate fear rather than lack of benefit information or stigma.
Adriaan Lanni, Andrew Manuel Crespo, Benjamin I. Sachs, David J. Barron, Heather K. Gerken, Justice Anthony M. Kennedy, Justice Sonia Sotomayor & Michael C. Dorf, In Memoriam: Judge Stephen Reinhardt, 131 Harv. L. Rev. 2111 (2018).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Joseph William Singer, Indian Nations and the Constitution, 70 Me. L. Rev. 199 (2018).
Categories:
Discrimination & Civil Rights
,
Constitutional Law
,
Property Law
,
Government & Politics
Sub-Categories:
Native American & Tribal Law
,
Executive Office
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Property Rights
Type: Article
Abstract
This Constitution Day speech focuses on how the Constitution has been interpreted both to protect and to undermine the sovereignty of Indian nations. The good news is that both the text of the Constitution and the practice of the United States have recognized Indian nations as sovereigns who pre-existed the creation of the United States and who retain their inherent original sovereignty. The bad news is that the Constitution has often been interpreted by the Supreme Court to deny Indian nations protection for their property rights and their sovereignty. Most Americans are not aware of the history of interactions between the United States and Indian nations and most lawyers and law students never study the ways the Constitution treats Indian nations and their citizens differently from non-Indians. It is important for Americans to better understand the ways that the Constitution protects Indian nations from continued conquest and to understand the ways that the Supreme Court has interpreted the Constitution so as to deny equal rights to Indians and Indian nations. Limiting tribal sovereignty or harming tribal property without tribal consent is an act of conquest. It is an act that cannot be deemed consistent with our democratic values. Conquest is an historical fact that cannot be undone, but we can recognize that conquest was incomplete and that tribal sovereignty persists alongside that of the states and the federal government. The least we can do to honor the Constitution is to recognize the reality of conquest while committing not to do it ourselves. We can do that by consulting with Indian nations over matters that concern them; we can honor our treaty commitments. We can follow the lead of Chief Justice Marshall who lamented the fact of conquest and counseled the United States not to do it anymore.
Lloyd L. Weinreb, Joshua Dressler, 15 Ohio St. J. Crim. L. 293 (2018).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Education
Type: Article
Carol S. Steiker, Joshua Dressler Tribute, 15 Ohio St. J. Crim. L. 295 (2018).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Education
Type: Article
Nancy Gertner, Sexual Harassment and the Bench, 71 Stan. L. Rev. Online 88 (2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Judges & Jurisprudence
,
Courts
,
Employment Discrimination
,
Employment Practice
Type: Article
Steven Shavell, The Rationale for Motions in the Design of Adjudication (NBER Working Paper No. 24703, June 2018, Am. L. & Econ. Rev., forthcoming 2018).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Litigation & Settlement
,
Law & Economics
,
Judges & Jurisprudence
,
Courts
Type: Other
Abstract
The conduct of adjudication is often influenced by motions--requests made by litigants to modify the course of adjudication. The question studied in this article is why adjudication is designed so as to permit the use of motions. The answer developed is that litigants will naturally know a great deal about their specific matter, whereas a court will ordinarily know little except to the degree that the court has already invested effort to appreciate it. By giving litigants the right to bring motions, the judicial system leads litigants to efficiently provide information to courts that is relevant to the adjudicative process.
Dennis Redeker, Lex Gill & Urs Gasser, Towards Digital Constitutionalism? Mapping Attempts to Craft an Internet Bill of Rights, 80 Int'l Comm. Gazette, 302 (2018).
Categories:
Technology & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Politics & Political Theory
,
European Law
,
International Law
,
Cyberlaw
,
Networked Society
Type: Article
Abstract
The article develops digital constitutionalism as a common term connecting a constellation of initiatives that seek to articulate a set of political rights, governance norms, and limitations on the exercise of power on the Internet. We start by reporting on insights from an analysis of the substantive content of over 30 such documents, and make reference to the political and technological changes to which they may relate. We offer an overview of the core actors in the area of digital constitutionalism and a brief exploration of the processes by which their initiatives aim to entrench rights into law and practice. We discuss the changing sites of political and legal intervention, including a more recent focus on domestic and regional initiatives. Finally, we consider what a future research agenda could entail.
Tali Sharot & Cass R. Sunstein, Is Your Doctor a Republican?, N.Y. Times, May 27, 2018, SR, at 6.
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
Type: News
Mark J. Roe, Stock Market Short-Termism’s Impact (May 25, 2018).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Economics
,
Financial Markets & Institutions
,
Venture Capital
,
Risk Regulation
,
Corporate Governance
,
Securities Law & Regulation
,
Shareholders
Type: Other
Abstract
Stock-market driven short-termism is crippling the American economy, according to legal, judicial, and media analyses. Firms are forgoing the R&D they need, sharply cutting capital expenditures, and buying back their own stock so feverishly that they starve themselves of cash. The stock market is the primary cause: corporate directors and senior executives cannot manage for the long-term when their shareholders furiously trade their company’s stock, they cannot make long-term investments when stockholders demand to see profits on this quarter’s financial statements, they cannot even strategize about the long-term when shareholder activists demand immediate results, and they cannot keep the cash to invest in their future when stock market pressure drains away that cash in stock buybacks. This doomsday version of the stock-market-driven short-termism argument embeds economy-wide predictions that have not been well-examined and that could tell us how severe these problems are: if the scenario is correct and strong, we should first see sharp increases in stock trading in recent decades and more frequent activist interventions, and these increases should be accompanied by (1) economy-wide R&D spending declining, (2) cash bleeding out from the corporate sector, and (3) sharply declining investment spending in the U.S., where large firms depend on stock markets and where activists are important, as compared with advanced economies that do not depend as much on stock markets. These baseline predictions flow directly from the short-termist critique of stock markets and corporate America. They are the central negative consequences of stock-market driven short-termism and they justify corporate law policies that seek to prevent these outcomes. But none of these predicted outcomes can be found in the data. Corporate R&D is not declining, corporate cash is not bleeding out, and the developed nations with neither American-style quarterly-oriented stock markets nor aggressive activist investors are not investing any more in capital equipment than the U.S. Hence, the stock-market-driven short-termist argument needs to be reconsidered, recalibrated, and, quite plausibly, rejected. I then indicate why even if some firms suffer from short-termism, the economy as an eco-system does not. Lastly comes the broadest question: why has a view that lacks evidentiary support in the economy-wide data become one of the few corporate governance issues that attracts attention from the media, senators and other political and policymaking leaders, and the public. I suggest in this paper’s final part why.
Noah Feldman, Crooked Trump?, N.Y. Rev. Books, May 24, 2018, at 8.
Categories:
Government & Politics
Sub-Categories:
Corruption
,
Executive Office
,
Supreme Court of the United States
Type: Article
Cass R. Sunstein, How Much Would You Pay to Use Facebook? A Behavioral Perspective (May 21, 2018).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Other
Abstract
There has been a great deal of discussion of the welfare effects of digital goods, including social media. The discussion bears on both private practice and potential regulation. A pilot experiment, designed to monetize the benefits of Facebook use, found a massive disparity between willingness to pay and willingness to accept. The median willingness to pay to use Facebook for a month was $1. By contrast, the median willingness to accept to cease using Facebook for a month was $59. The sheer magnitude of this disparity – a “superendowment effect” – suggests that in the context of the willingness to pay question, people are giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers are expressive, rather than reflective of actual welfare effects. There is also a question whether the willingness to accept measure tells us much about the actual effects of Facebook on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.
Leo E. Strine, Made for this Moment: The Enduring Relevance of Adolf Berle's Belief in a Global New Deal (May 17, 2018).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Labor & Employment
,
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Law & Economics
,
Law & Political Theory
,
Government Benefits
,
Developing & Emerging Nations
,
International Trade
Type: Other
Abstract
At a time when the insecurity of working people in the United States and Europe is being exploited by nativist forces, the concept of a global New Deal is more relevant than ever. But, instead of a global New Deal, the predominant force in international trade in recent decades has been spreading pre-New Deal, laissez-faire approaches to markets, without extending with equal vigor the regulations essential to providing ordinary people economic security. Adolf Berle recognized that if the economy did not work for all, the worst impulses in humanity could be exploited by demagogues and authoritarians, having seen this first hand in the 1930s. Berle believed in international trade and economic dynamism. But he understood that growth in each produces instability, the potential for lost jobs, and human insecurity that governments, preferably working in concert, have the duty and capacity to address. That is why he advocated for a global New Deal that would extend the key elements necessary to a fair economy to cover the full scope of the transnational economy. This article identifies support in Berle’s writing for addressing economic inequality and insecurity and ensuring that the advances for working people accomplished by the New Deal and social democracy in the OECD nations are preserved and extended to working people in developing nations. Because Berle was both a believer in facts and an optimist, one senses that he would now be arguing for a muscular and bold international agenda to increase the security of working people in the developed world while simultaneously strengthening trade and opportunities for people in the developing world. Berle’s writings indicate that working people would be central to his focus, and signal his support for stronger minimum wages appropriate to the conditions of different tiers of the world economy, guarantees for workers to bargain for higher wages, and protections against child labor, unfair hours, and unsafe working conditions. Berle also advocated for other policies that have current relevance, such as investments in infrastructure, evolving technology, environmental protection, and education to create employment opportunities, improve quality of life, and make the United States more competitive. Berle’s work also indicates that he would view the U.S. as well positioned to pay for needed action by asking the wealthy winners to pay their fair share and by enacting Pigouvian taxes that would also reduce the risks of financial speculation and carbon use. This article outlines key components that could form the basis for Berlean transnational understandings to create more economic security for working people and thus continue globalizing trade while addressing the legitimate concerns of workers in the OECD nations.
Jesse M. Fried & Brian J. Broughman, Do Founders Control Start-Up Firms that Go Public? (Eur. Corp. Governance Inst. Law Working Paper No. 405/2018, May 16, 2018).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Venture Capital
,
Corporate Governance
,
Shareholders
Type: Other
Abstract
Startup founders, who generally must cede control to obtain VC financing, are widely believed to regain control in the event of IPO, à la Facebook’s Mark Zuckerberg. Indeed, the premise that founders expect to reacquire control if there is an IPO underlies the leading finance theory for why venture capital cannot thrive without a robust stock market: the existence of an IPO market enables VCs to give founders a “call option on control” exercisable if the firm is successful. But little is known about how frequently founders regain control via IPO. Using a sample of over 18,000 VC-backed firms that received their initial round of VC financing during 1990-2012, we show that founders generally do not reacquire control if there is an IPO. In almost 60% of firms that do go public, the founder is no longer CEO at IPO. In firms with a founder-CEO right after IPO, founders generally lack substantial voting power; 50% are no longer CEO of the firm within three years. Zuckerberg is not the norm. We also show that the ex ante likelihood of any given founder reacquiring control via IPO is extremely low, suggesting that the expected value of any call option on control is trivial. As of initial VC financing, the likelihood that a founder takes her firm public and retains the CEO position and voting control for three years is about 0.4%. Our results shed light on how control evolves in U.S. startups, and cast doubt on the plausibility of the “call option on control” theory linking stock and VC markets.
Laurence Tribe & Joshua Matz, To End a Presidency: The Power of Impeachment (2018).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
Type: Book
Cass Sunstein & Adrian Vermeule, The Morality of Administrative Law, 131 Harv. L. Rev. 1924 (2018).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.
Kira Hessekiel, Eliot Kim, James Tierney, Jonathan Yang & Christopher Bavitz, AGTech Forum Briefing Book: State Attorneys General and Artificial Intelligence (Berkman Klein Ctr. for Internet & Soc’y at Harvard Univ., May 8, 2018).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Courts
,
State & Local Government
,
Networked Society
,
Information Privacy & Security
,
Cyberlaw
Type: Other
Abstract
Artificial intelligence is already starting to change our lives. Over the coming decades, these new technologies will shape many of our daily interactions and drive dramatic economic growth. As AI becomes a core element of our society and economy, its impact will be felt across many of the traditional spheres of AG jurisdiction. Members of AG offices will need an understanding of the AI tools and applications they will increasingly encounter in consumer devices, state-procured systems, the court system, criminal forensics, and others areas that touch on traditional AG issues like consumer privacy, criminal justice, and representing state governments. The modest goal of this primer is to help state AGs orient their thinking by providing both a broad overview of the impact of AI on AG portfolios, and a selection of resources for further learning regarding specific topics. As with any next technology, it is impossible to predict exactly where AI will have its most significant on matters of AG jurisdiction. Yet AGs can better prepare themselves for this future by maintaining a broad understanding of how AI works, how it can be used, and how it can impact our economy and society. In success, AGs can play a key constructive role in preventing misconduct, shaping guidelines, and ultimately maximizing the positive impact of these exciting new technologies. We intend for this briefing book to serve as a jumping-off point in that preparation, setting a baseline of understanding for the AGTech Forum and providing resources for specific learning beyond our workshop.
I. Glenn Cohen, On the Human Right to Health: Statistical Lives, Contingent Persons, and Other Difficult Questions, in Human Rights, Democracy, and Legitimacy in a World of Disorder (Silja Voeneky & Gerald Neuman eds., Cambridge Univ. Press, 2018 forthcoming).
Categories:
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Human Rights Law
Type: Book
Abstract
In ethics and political philosophy, it is not uncommon to distinguish the question of who is a moral agent (one who bears moral responsibility) from the question of who is a moral patient (one to whom moral obligations are owed). The two need not go together: one could be a moral patient but not have moral agency – infant children are a plausible example. In this draft chapter, I examine the allied notion of a human rights patient for the human right to health. I consider two particular questions. First, to what extent should a human right to health focus on identified lives, those whom we have identified as currently in need and who make claims on us, as opposed to statistical lives – the faceless masses who may also need our help just as much? This question sadly comes up all the time for ministries of health – whether to fund an expensive treatment for a sympathetic child who has come forward and demanded the treatment to save his or her life or to invest in programs that distribute less expensive, more quotidian benefits to hundreds of children in need. In particular, I will dwell on how countries like Colombia that have made a right to health justiciable may have tilted spending towards identified lives in a way that is potentially troubling. This discussion will occupy Section I of this chapter. In Section II I will go into even more murky territory and discuss whether a human right to health ought to encompass as its moral patients only those who currently exist, those who certainly will exist but do not yet exist, those whose existence may be contingent on the decisions we make, all of the above, or only some of the above. To give some tangible examples: How should a health care allocator, trying to fulfill a human right to health, make trade-offs between expending resources to prevent a very bad disability (say blindness) in an individual who currently exists versus implementing a program that works on asymptomatic adults but prevents them from transmitting the same bad disability to the children they are about to conceive? This is a trade-off between currently existing lives and lives that are certain to exist but do not yet exist. What if the way that “prevention” is accomplished is by having those women delay getting pregnant (think of the Zika virus) or choosing a sperm donor rather than their romantic partner who is a carrier of the disease? This form of prevention does not prevent a disease for those who do not currently exist but will certainly exist, instead it prevents the disease by changing who comes into existence – a different sperm meets the egg and a different child is born. Call this the question of contingent persons. Does the human right to health treat contingent persons as its moral patients?
Henry E. Smith, Equitable Defences As Meta-Law, in Defences in Equity (Paul S. Davies, Simon Douglas & James Goudkamp eds., Hart 2018).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Remedies
,
Private Law
,
Legal Theory & Philosophy
Type: Book
Abstract
Equitable defences are the front line of controversy over fusion. Because law and equity offer a range of defences that partially overlap and the rationale for matching equitable defences to equitable remedies is at least as obscure as the rationale for separate equitable remedies, conventional wisdom holds that the more one can fuse the equitable defences into the law the better. In this chapter I argue that equity roughly reflects a distinct function - a safety valve that operates at a higher (meta) level over the rest of the law and that responds to problems of high uncertainty and variability. These characteristic problems include opportunism and multipolar conflicts. From a functional point of view, some of the special treatment of equitable defences makes sense, and puzzling patterns in this area receive an explanation and some justification. Even the adaptation of some equitable defences into the law dovetails with a dynamic picture of the equitable function.
Allison Orr Larsen, Constitutional Law in an Age of Alternative Facts, 93 N.Y.U. L. Rev. 175 (2018).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Congress & Legislation
,
Legal Research & Writing
,
Networked Society
Type: Article
Abstract
Objective facts—while perhaps always elusive—are now an endangered species. A mix of digital speed, social media, fractured news, and party polarization has led to what some call a “post-truth” society: a culture where what is true matters less than what we want to be true. At the same moment in time when “alternative facts” reign supreme, we have also anchored our constitutional law in general observations about the way the world works. Do violent video games harm child brain development? Is voter fraud widespread? Is a “partial-birth abortion” ever medically necessary? Judicial pronouncements on questions like these are common, and— perhaps more importantly—they are being briefed by sophisticated litigants who know how to grow the factual dimensions of their case in order to achieve the constitutional change that they want. The combination of these two forces—fact-heavy constitutional law in an environment where facts are easy to manipulate—is cause for serious concern. This Article explores what is new and worrisome about fact- finding today, and it identifies constitutional disputes loaded with convenient but false claims. To remedy the problem, we must empower courts to proactively guard against alternative facts. This means courts should push back on blanket calls for deference to the legislative record. Instead, I suggest re-focusing the standards of review in constitutional law to encourage fact-checking. It turns out some factual claims can be debunked with relative ease, and I encourage deference when lower courts rise above the fray and do just that.
Richard J. Lazarus, District Court to Decide Whether Antiquities Designations Are Final, Envtl. F., May-June 2018, at 13.
Categories:
Government & Politics
,
Environmental Law
Sub-Categories:
Natural Resources Law
,
Land Use
,
Executive Office
,
Politics & Political Theory
Type: Article
Mary Ann Glendon, Preface to 変容する家族と新たな財産 (The New Family and the New Property) (Makoto Arai trans., Nippon Hyoronsha 2018)(1981).
Categories:
Property Law
,
Family Law
Sub-Categories:
Domestic Relations
,
Personal Property
,
Property Rights
Type: Book
Abstract
〈家族〉が扶養制度としての機能を喪失し、職業が〈新たな資産〉としての価値を纏う現代。私法の衰退への予見と警鐘の書。
Eli Y. Adashi & I. Glenn Cohen, Preventing Mitochondrial Diseases: Embryo-Sparing Donor-Independent Options, 24 Trends Molecular Med. 449 (2018).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
Abstract
Mutant mitochondrial DNA gives rise to a broad range of incurable inborn maladies. Prevention may now be possible by replacing the mutation-carrying mitochondria of zygotes or oocytes at risk with donated unaffected counterparts. However, mitochondrial replacement therapy is being held back by theological, ethical, and safety concerns over the loss of human zygotes and the involvement of a donor. These concerns make it plain that the identification, validation, and regulatory adjudication of novel embryo-sparing donor-independent technologies remains a pressing imperative. This Opinion highlights three emerging embryo-sparing donor-independent options that stand to markedly allay theological, ethical, and safety concerns raised by mitochondrial replacement therapy.
Mary Ann Glendon, 変容する家族と新たな財産 (The New Family and the New Property) (Makoto Arai trans., Nippon Hyoronsha 2018)(1981).
Categories:
Family Law
,
Property Law
Sub-Categories:
Domestic Relations
,
Personal Property
,
Property Rights
Type: Book
Abstract
〈家族〉が扶養制度としての機能を喪失し、職業が〈新たな資産〉としての価値を纏う現代。私法の衰退への予見と警鐘の書。
Lewis Sargentich, Liberal Legality: A Unified Theory of Our Law (2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In his new book, Lewis D. Sargentich shows how two different kinds of legal argument - rule-based reasoning and reasoning based on principles and policies - share a surprising kinship and serve the same aspiration. He starts with the study of the rule of law in life, a condition of law that serves liberty - here called liberal legality. In pursuit of liberal legality, courts work to uphold people's legal entitlements and to confer evenhanded legal justice. Judges try to achieve the control of reason in law, which is manifest in law's coherence, and to avoid forms of arbitrariness, such as personal moral judgment. Sargentich offers a unified theory of the diverse ways of doing law, and shows that they all arise from the same root, which is a commitment to liberal legality.
Jeannie Suk Gersen, Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System, NewYorker.com (Apr. 27, 2018, 12:50 PM).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Jury Trials
,
Criminal Evidence
Type: Other
Antoni Abat i Ninet & Mark Tushnet, A Response to Chibli Mallat, 66 Am. J. Comp. L. 229 (2018).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Islamic Law
,
Law & Political Theory
,
Comparative Law
Type: Article
Howell E. Jackson & Talia B. Gillis, Fiduciary Duties in Financial Regulation (Apr. 17, 2018).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Banking
,
Investment Products
,
Fiduciaries
,
Securities Law & Regulation
,
Insurance Law
Type: Other
Abstract
This chapter explores the application of fiduciary duties to regulated financial firms and financial services. At first blush, the need for such a chapter might strike some as surprising in that fiduciary duties and systems of financial regulation can be conceptualized as governing distinctive and non-overlapping spheres: Fiduciary duties police private activity through open-ended, judicially defined standards imposed on an ex post basis, whereas financial regulations set largely mandatory, ex ante obligations for regulated entities under supervisory systems established in legislation and implemented through expert administrative agencies. Yet, as we document in this chapter, fiduciary duties often do overlap with systems of financial regulation. In many regulatory contexts, fiduciary duties arise as a complement to, or sometimes substitute for, other mechanisms of financial regulation. Moreover, the interactions between fiduciary duties and systems of financial regulation generate a host of recurring and challenging interpretative issues. Our motivation in writing this chapter is to explore the reasons why fiduciary duties arise so frequently in the field of financial regulation, and then to provide a structured account of how the principles of fiduciary duties interact with the more rule-based legal requirements that characterize financial regulation. As grist for this undertaking we focus on a set of roughly two dozen judicial decisions and administrative rulings to illustrate our claims.
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 (Apr. 13, 2018).
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.
Claudia M. Landeo & Kathryn E. Spier, Optimal Law Enforcement with Ordered Leniency (Apr. 10, 2018).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
White Collar Crime
,
Criminal Defense
,
Sentencing & Punishment
,
Law & Economics
Type: Article
Abstract
This paper studies the design of enforcement policies to detect and deter harmful short-term activities committed by groups of injurers. With an ordered-leniency policy, the degree of leniency granted to an injurer who self-reports depends on his or her position in the self-reporting queue. By creating a "race to the courthouse," ordered-leniency policies lead to faster detection and stronger deterrence of illegal activities. The socially-optimal level of deterrence can be obtained at zero cost when the externalities associated with the harmful activities are not too high. Without leniency for self-reporting, the enforcement cost is strictly positive and there is underdeterrence of harmful activities relative to the first-best level. Hence, ordered-leniency policies are welfare improving. Our findings for environments with groups of injurers complement Kaplow and Shavell's (1994) results for single-injurer environments. Experimental evidence provides support for our theory.
Jonathan Zittrain, Op-Ed., Facebook Can Still Fix This Mess, N.Y. Times, Apr. 8, 2018, at SR3.
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
,
Networked Society
Type: News
Luke Gelinas, Holly Fernandez Lynch, Emily A. Largent, Carmel Shachar, I. Glenn Cohen & Barbara E. Bierer, Truth in Advertising: Disclosure of Participant Payment in Research Recruitment Materials, 52 Therapeutic Innovation & Reg. Sci. 268 (2018).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Abstract
The practice of paying research participants has received significant attention in the bioethics literature, but the focus has been almost exclusively on consideration of factors relevant to determining acceptable payment amounts. Surprisingly little attention has been paid to what happens once the payment amount is set. What are the ethical parameters around how offers of payment may be advertised to prospective participants? This article seeks to answer this question, focusing on the ethical and practical issues associated with disclosing information about payment, and payment amounts in particular, in recruitment materials. We argue that it is permissible—and indeed typically ethically desirable—for recruitment materials to disclose the amount that participants will be paid. Further, we seek to clarify the regulatory guidance on “emphasizing” payment in a way that can facilitate design and review of recruitment materials.
Randall Kennedy, Martin Luther King Jr.: The Prophet as Healer, Am. Prospect, Apr. 3, 2018, at 1.
Categories:
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Discrimination
,
Race & Ethnicity
Type: Article
Abstract
What should we focus upon in marking the 50th anniversary of this somber landmark? I suggest three things: the particulars of King's achievements as a liberal dissident; the trying circumstances he faced at the end of his life; and the virtues of his principal strategy and aim-coalition politics in the service of a decent, egalitarian, multiracial society. At the end of his career, then, King found himself assailed from the right and the left, from those who resented him for challenging pigmentocracy effectively, from those who alleged (mistakenly) that the civil rights movement had changed little on the ground, from those who complained that he had shown too little gratitude and loyalty to LBJ, and from those who charged that he did not adequately condemn American society. A vivid instance is the claim that King opposed affirmative action and kindred efforts to assist racially identified groups. On this side of the Second Reconstruction, having enjoyed for a generation the benefits won with heart-rending sacrifice by King and company, it is all too easy to forget or overlook that prior to the invalidation of de jure segregation, governments could lawfully separate people on a racial basis (which almost always meant consigning people of color to inferior facilities); that prior to the Civil Rights Act, people of color could lawfully be excluded from "private" public accommodations, work sites, hospitals, and unions; that prior to the Voting Rights Act, black voting was openly and brutally nullified by chicanery and violence in many places, including the very state-Alabama-that black voters recently rescued from the clutches of Roy Moore; that prior to Loving v. Virginia in 1967, all of the states of the former Confederacy made it a felony for blacks and whites to intermarry.
Mark Tushnet, Book Review, 16 Int’l J. Const. L. 699 (2018)(reviewing Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L. Neo ed., 2017)).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Allison Christians, Wolfgang Schön & Stephen E. Shay, Foreword: International Tax Policy in a Disruptive Environment, Bull. Int’l Tax’n, April/May 2018, at 191.
Categories:
Taxation
Sub-Categories:
Tax Policy
,
Taxation - International
Type: Article
Abstract
In this foreword to International Tax Policy in a Disruptive Environment: A Special Issue, the authors provide an overview of the two-day interdisciplinary conference that took place in Munich on 14-15 December 2017, and offer a synopsis of the articles in this special edition of the Bulletin for International Taxation. The authors offer preliminary observations based on the conference and papers, including that despite its successes the BEPS Project has left unfinished business. In the face of reduced residence-based taxation of direct investment and tax competition for mobile activity and real investment, countries have yet to reach consensus on a residence-source or destination-based division of taxation rights. The international tax regime remains at a way station in coping with the disruptive forces of change.
Ginette Petitpas Taylor, Ildefonso Castro, Christiaan Rebergen, Matthew Rycroft, Iman Nuwayhid, Leonard Rubenstein, Ahmad Tarakji, Naz Modirzadeh, Homer Venters & Samer Jabbour, Protecting Health Care in Armed Conflict: Actions Towards Accountability, 391 The Lancet, Apr. 2018, at 1477.
Categories:
International, Foreign & Comparative Law
,
Health Care
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
Treaties & International Agreements
,
International Humanitarian Law
,
International Law
,
Laws of Armed Conflict
Type: Article
Abstract
Driven by a deplorable trend of unlawful attacks on health-care facilities and workers in armed conflicts throughout the world, on May 3, 2016, the UN Security Council (UNSC) adopted Resolution 2286 calling for an end to such attacks. The Secretary-General followed with recommendations of concrete measures for implementation. However, unlawful attacks on health care have continued or intensified in many conflicts, notably in Syria. We, academic institutions, civil society, and co-sponsoring Member States, convened a side event during the 72nd UN General Assembly to focus global attention on this issue and the imperative that Resolution 2286 be implemented.
William W. Fisher, The Puzzle of Traditional Knowledge, 67 Duke L.J. 1511 (2018).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Property Rights
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate in a multilateral treaty a set of provisions that, by increasing the risk that unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing, and drugs.
David W. Kennedy, Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
International Law
Type: Presentation
Abstract
Law, Development, and Distribution, The Role of Law in the Production of Inequality: Anthropological and Historical Perspectives, Rapoport Ctr. for Human Rights & Justice, Univ. Tex. Law Sch., Austin, Tex. (Mar. 30, 2018).
Jeannie Suk Gersen, Trump’s Affairs and the Future of the Nondisclosure Agreement, NewYorker.com (Mar. 30, 2018, 12:53 PM).
Categories:
Government & Politics
,
Civil Practice & Procedure
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Litigation & Settlement
,
Executive Office
,
Government Transparency
,
Communications Law
Type: Other