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Publication Types
Categories
David E. McCraw, Truth in Our Times: Inside the Fight to Save Press Freedom in the Age of Alternative Facts (St. Martin's Press forthcoming 2018).
Categories:
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Communications Law
,
Networked Society
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
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.
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.
John C. Coates, Mergers, Acquisitions and Restructuring: Types, Regulation, and Patterns of Practice, in The Oxford Handbook of Corporate Law and Governance (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.
Adrian Vermeule, The Publius Paradox: On the Dangers of a Weak Executive, 2018 Chorley Lecture, London School of Economics (June 5, 2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Separation of Powers
,
Federalism
Type: Presentation
Abstract
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
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
Scott Hirst, The Case for Investor Ordering, 8 Harv. Bus. L. Rev. (forthcoming June 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
,
Corporate Law
Type: Article
Abstract
Whether corporate arrangements should be mandated by public law or "privately ordered" by corporations themselves has been a foundational question in corporate law scholarship. State corporation laws are generally privately ordered. But a significant and growing number of arrangements are governed by "corporate regulations" created by the Securities and Exchange Commission (SEC). SEC corporate regulations are invariably mandatory. Whether they should be is the focus of this paper. The paper contributes to the ongoing debate by showing that whether mandatory or privately-ordered rules are optimal depends on the nature of investors, and their incentives in choosing corporate arrangements. The rise of institutional investors means that investors can now be relied on to choose optimal arrangements, because institutional investors will make informed decisions about corporate arrangements, and will internalize their effects on the capital markets. The paper thus makes the case for a third alternative: "investor ordering." For all but a few corporate regulations, investor ordering will result in the same or greater aggregate net benefit as mandatory regulations. The optimality of investor ordering of SEC corporate regulations has important implications. First, the D.C. Circuit’s jurisprudence on cost-benefit analysis will require the SEC to consider investor ordering. In the many cases where investor ordering would be superior to mandatory regulation, were the SEC to nevertheless implement a mandatory regulation, it would be susceptible to invalidation by the D.C. Circuit under the Administrative Procedure Act. Second, investor ordering substantially reduces the burden of the D.C. Circuit’s recent requirements for SEC cost-benefit analysis. This reduces the overall cost of SEC rule making, or permits the SEC to promulgate more regulations on its fixed budget. It also sidesteps the considerable academic debate about the value of cost-benefit analysis for corporate regulations. Third, investor ordering reduces the need for retrospective analysis. To the extent retrospective analysis remains necessary, investor ordering makes it more straightforward, and also permits lower-cost regulatory experimentation. Investor ordering therefore allows for a more dynamic regulatory system. These benefits mean that the SEC should implement investor ordering as its default approach for new corporate regulations, and for deregulating existing regulations. The paper considers a number of promising candidates for investor ordering among potential and proposed SEC regulations, and for deregulation of contentious existing SEC regulations. Investor ordering also has important implications for state corporation laws and for federal legislation.
Scott Hirst, Universal Proxies, 35 Yale J. on Reg. (forthcoming June 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Corporate Law
Type: Article
Abstract
Contested director elections are a central feature of the corporate landscape, and underlie shareholder activism. Shareholders vote by unilateral proxies, which prevent them from “mixing and matching” among nominees from either side. The solution is universal proxies. The Securities and Exchange Commission has proposed a universal proxy rule, which has been the subject of heated debate and conflicting claims. This paper provides the first empirical analysis of universal proxies, allowing evaluation of these claims. The paper’s analysis shows that unilateral proxies can lead to distorted proxy contest outcomes, which disenfranchise shareholders. By removing these distortions, universal proxies would improve corporate suffrage. Empirical analysis shows that distorted proxy contests are a significant problem: 12% of proxy contests at large U.S. corporations between 2008 and 2015 can be expected to have had distorted outcomes, with as many as 22% of contests possibly distorted. Contrary to the claims of most commentators, removing distortions can most often be expected to favor management nominees, by a significant margin (9% of contests, versus 3% for dissident nominees). A universal proxy rule is therefore unlikely to lead to more proxy contests, or to greater success by special interest groups. Given that the arguments made against a universal proxy rule are not valid, the SEC should implement proxy regulation. A rule permitting corporations to opt-out of universal proxies would be superior to the SEC’s proposed mandatory rule. If the SEC chooses not to implement a universal proxy regulation, investors could implement universal proxies through private ordering to adopt “nominee consent policies.”
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
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.
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.
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。
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
Holger Spamann, Are Sleepy Punishers Really Harsh Punishers? Comment on Cho, Barnes, and Guanara (2017), Psychol. Sci. (Apr. 23, 2018).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
Type: Article
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.
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.
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
Eli Y. Adashi & I. Glenn Cohen, Preventing Mitochondrial Diseases: Embryo-Sparing Donor-Independent Options, Trends in Molecular Med., Mar. 28, 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.
James K. Sebenius, R. Nicholas Burns & Robert H. Mnookin, Kissinger the Negotiator: Lessons from Dealmaking at the Highest Level (2018).
Categories:
Civil Practice & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Politics & Political Theory
,
Biography & Tribute
Type: Book
Abstract
"In this groundbreaking, definitive guide to the art of negotiation, three Harvard professors offer a comprehensive examination of one of the most successful dealmakers of all time, Henry Kissinger, and some of his most impressive achievements, including the Paris Peace Accords for which he won the 1973 Nobel Peace Prize. Political leaders, diplomats, and business executives around the world—including every President from John F. Kennedy to Donald J. Trump—have sought the counsel of Henry Kissinger, a brilliant diplomat and political scientist whose unprecedented achievements as a negotiator have been universally acknowledged. Now, Kissinger the Negotiator provides a groundbreaking analysis of Kissinger’s overall approach to making deals and his skill in resolving conflicts—expertise that holds powerful and enduring lessons. Based on in-depth interviews with Kissinger himself about some of his most difficult negotiations and an extensive study of his writings, James K. Sebenius of Harvard Business School, R. Nicholas Burns of the Kennedy School of Government, and Robert H. Mnookin of Harvard Law School crystallize the key elements of the former Secretary of State’s approach. Taut and instructive, Kissinger the Negotiator mines the long and fruitful career of this elder statesman and shows how his strategies not only apply to contemporary diplomatic challenges but also to other realms of negotiation, including business, public policy, and law. Essential reading for current and future leaders, Kissinger the Negotiator is an invaluable guide to reaching agreements." -- Harper Collins
Cass R. Sunstein, On Preferring A to B, While Also Preferring B to A (Mar. 21, 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In important contexts, people prefer option A to option B when they evaluate the two separately, but prefer option B to option A when they evaluate the two jointly. In consumer behavior, politics, and law, such preference reversals are often a product of the pervasive problem of "evaluability." Some important characteristics of options are difficult or impossible to assess in separate evaluation, and hence choosers disregard or downplay them; those characteristics are much easier to assess in joint evaluation, where they might be decisive. But the empirical findings do not resolve central questions: Is either mode of evaluation reliable? Which mode of evaluation is better? Some people insist that joint evaluation is more reliable than separate evaluation, because it offers more information. But that conclusion is far too simple. In joint evaluation, certain characteristics of options may receive excessive weight, because they do not much affect people's actual experience or because the particular contrast between joint options distorts people’s judgments. In joint as well as separate evaluation, people are subject to manipulation, though for different reasons. It follows that neither mode of evaluation is reliable. The appropriate approach will vary depending on the goal of the task – increasing consumer welfare, preventing discrimination, achieving optimal deterrence, or something else. Under appropriate circumstances, global evaluation would be much better, but it is often not feasible. These conclusions bear on preference reversals in law and policy, where joint evaluation is often better, but where separate evaluation might ensure that certain characteristics or features of situations do not receive excessive weight.
Samantha Power, Op-Ed., A Plan to Save the State Department, N.Y. Times, Mar. 14, 2018, at A23.
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
National Security Law
,
Politics & Political Theory
Type: News
Adriaan Lanni, From Anthropology to Sociology: New Directions in Ancient Greek Law Research, in Ancient Greek Law in the 21st Century (Paula Perlman ed., 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Ancient Law
Type: Book
Micah Altman, Alexandra Wood, David R. O’Brien & Urs Gasser, Practical Approaches to Big Data Privacy Over Time, 8 Int'l Data Privacy L. 29 (2018).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
Type: Article
Abstract
Governments and businesses are increasingly collecting, analysing, and sharing detailed information about individuals over long periods of time. Vast quantities of data from new sources and novel methods for large-scale data analysis promise to yield deeper understanding of human characteristics, behaviour, and relationships and advance the state of science, public policy, and innovation. The collection and use of fine-grained personal data over time, at the same time, is associated with significant risks to individuals, groups, and society at large. This article examines a range of long-term research studies in order to identify the characteristics that drive their unique sets of risks and benefits and the practices established to protect research data subjects from long-term privacy risks. We find that many big data activities in government and industry settings have characteristics and risks similar to those of long-term research studies, but are subject to less oversight and control. We argue that the risks posed by big data over time can best be understood as a function of temporal factors comprising age, period, and frequency and non-temporal factors such as population diversity, sample size, dimensionality, and intended analytic use. Increasing complexity in any of these factors, individually or in combination, creates heightened risks that are not readily addressable through traditional de-identification and process controls. We provide practical recommendations for big data privacy controls based on the risk factors present in a specific case and informed by recent insights from the state of the art and practice.
Curtis Bradley & Jack Landman Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Government Accountability
,
Government Transparency
,
Separation of Powers
,
Congress & Legislation
,
National Security Law
,
International Law
,
Treaties & International Agreements
,
Foreign Relations
Type: Article
Abstract
Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to: (a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law; (b) make increasingly consequential political commitments for the United States on practically any topic; (c) interpret these obligations and commitments; and (d) terminate or withdraw from these obligations and commitments. While others have examined pieces of this picture, no one has considered the picture as a whole. For this and other reasons, commentators have failed to appreciate the overall extent of presidential unilateralism in this area, as well as the extent to which presidents are able to shift between different pathways of authority in order to circumvent potential restraints. This trend, moreover, has become more pronounced in recent years. In many ways, the growth of this vast executive control over international law resembles the rise of presidential power in other modern contexts ranging from administrative law to covert action. Unlike in those other contexts, however, there is no systematic regulatory or judicial apparatus to guide or review the exercise of presidential discretion in this context. This is true even though international law often plays a significant role in the U.S. legal system and has direct and indirect effects on U.S. institutions and persons. After presenting a descriptive account of the rise of presidential control over international law, the Article turns to normative issues. It argues that, although much of this practice has a plausible legal foundation, some recent presidential actions relating to international agreements, and some supportive claims made by commentators, are questionable in light of generally accepted principles relating to the separation of powers. It also explains why presidential control over international law should become significantly more transparent, and it considers the costs and benefits of additional accountability reforms.
David M. J. Lazer, Matthew A. Baum, Yochai Benkler, Adam J. Berinsky, Kelly M. Greenhill, Filippo Menczer, Miriam J. Metzger, Brendan Nyhan, Gordon Pennycook, David Rothschild, Michael Schudson, Steven A. Sloman, Cass R. Sunstein, Emily A. Thorson, Duncan J. Watts & Jonathan L. Zittrain, The Science of Fake News, Science, Mar. 9, 2018, at 1094.
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Elections & Voting
,
Communications Law
,
Information Privacy & Security
,
Networked Society
Type: Article
Abstract
The rise of fake news highlights the erosion of long-standing institutional bulwarks against misinformation in the internet age. Concern over the problem is global. However, much remains unknown regarding the vulnerabilities of individuals, institutions, and society to manipulations by malicious actors. A new system of safeguards is needed. Below, we discuss extant social and computer science research regarding belief in fake news and the mechanisms by which it spreads. Fake news has a long history, but we focus on unanswered scientific questions raised by the proliferation of its most recent, politically oriented incarnation. Beyond selected references in the text, suggested further reading can be found in the supplementary materials.
Samantha Power, Beyond Elections: Foreign Interference with American Democracy, in Can It Happen Here?: Authoritarianism in America 81 (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
National Security Law
Type: Book
Martha Minow, Could Mass Detentions Without Process Happen Here?, in Can It Happen Here?: Authoritarianism in America 313 (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Immigration Law
,
Executive Office
,
Elections & Voting
,
Politics & Political Theory
,
National Security Law
,
Supreme Court of the United States
Type: Book
Cass R. Sunstein, Lessons from the American Founding, in Can It Happen Here?: Authoritarianism in America 57 (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Politics & Political Theory
,
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Separation of Powers
Type: Book
Noah Feldman, On “It Can’t Happen Here”, in Can It Happen Here?: Authoritarianism in America 157 (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Politics & Political Theory
,
Comparative Law
Type: Book
Jack Goldsmith, Paradoxes of the Deep State, in Can It Happen Here?: Authoritarianism in America 105 (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
National Security Law
,
Executive Office
Type: Book
Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar 2nd ed., 2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Einer Elhauge & Damien Geradin, Global Antitrust Law and Economics (Foundation Press 3rd ed. 2018).
Categories:
International, Foreign & Comparative Law
,
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
International Law
Type: Book
Cass R. Sunstein, Lucia A. Reisch & Julius Rauber, A World-Wide Consensus on Nudging? Not Quite, But Almost, 12 Reg. & Governance 3 (2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Comparative Law
Type: Article
Abstract
Nudges are choice-preserving interventions that steer people’s behaviour in specific directions while allowing people to go their own way. Some nudges have been controversial, because they are seen as objectionably paternalistic. This study reports on nationally representative surveys in eight diverse countries, investigating how people actually think about nudges and nudging. The study covers Australia, Brazil, Canada, China, Japan, Russia, South Africa, and South Korea. Generally, we find strong majority support for nudges in all countries, with the important exception of Japan, and with spectacularly high approval rates in China and South Korea. We connect the findings here to earlier studies involving the United States, the United Kingdom, Italy, Denmark, France, Germany, and Hungary. The largest conclusion is that while citizens generally approve of health and safety nudges, the nations of the world appear to fall into three distinct categories: (1) a group of nations, mostly liberal democracies, where strong majorities approve of nudges whenever they (a) are seen to fit with the interests and values of most citizens and (b) do not have illicit purposes; (2) a group of nations where overwhelming majorities approve of nearly all nudges; and (3) a group of nations that usually show majority approval, but markedly reduced approval rates. We offer some speculations about the relationship between approval rates and trust.
Jesse M. Fried & Charles C.Y. Wang, Are Buybacks Really Shortchanging Investment?, Harv. Bus. Rev., Mar.-Apr. 2018, at 88.
Categories:
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Shareholders
,
Corporate Governance
,
Corporate Law
Type: Article
Abstract
Some experts argue that corporate leaders are starving their firms of investment capital by making excessive payouts to shareholders, thereby undermining innovation, employment opportunity, and economic growth. As evidence, they point to S&P 500 firms’ using 96% of their net income for repurchases and dividends. A closer look at the data shows that the amounts going to shareholders at the expense of internal investment are less than claimed. The problem lies in the ratio used—shareholder payouts as a percentage of net income—which fails to take into account offsetting equity issuances as well as actual R&D expenditures. The percentage of income potentially available for investment that goes to shareholders is not 96% but a much more modest 41%. After paying shareholders, S&P 500 firms are at near-peak levels of investment and have huge stockpiles of cash for exploiting future opportunities. There may well be severe corporate governance problems in the S&P 500, but the data suggests that excessive shareholder payouts is not one of them.
James D. Dana, Jr. & Kathryn E. Spier, Bundling and Quality Assurance, 49 Rand J. Econ. 128 (2018).
Categories:
Disciplinary Perspectives & Law
,
Corporate Law & Securities
,
Consumer Finance
Sub-Categories:
Antitrust & Competition Law
,
Law & Economics
Type: Article
Abstract
With imperfect private monitoring, a firm selling two experience goods can increase both producer and consumer surplus by bundling. Bundling constrains consumers to buy two products, making consumers better informed and ensuring that they use tougher punishment strategies. Both increased monitoring and increased punishment benefit other consumers, so bundling overcomes a free‐rider problem. The social value of bundling is even larger if consumers cannot attribute a negative signal to the specific product that generated it, or if one of the two goods is a durable and the other is a complementary nondurable. Our results are robust to mixed bundling.
Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, Governance Feminism: An Introduction (2018).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Feminist Legal Theory
,
Human Rights Law
Type: Book
Abstract
Governance Feminism shows how some feminists and feminist ideas have entered into state and state-like power in recent years. Collecting examples from the U.S., Israel, India, and from transnational human rights law, the authors argue that governance feminism is institutionally diverse and globally distributed—emerging from grassroots activism as well as statutes and treaties, as crime control and as immanent bureaucracy.
J. Mark Ramseyer & Eric Bennett Rasmusen, Outcaste Politics and Organized Crime in Japan: The Effect of Terminating Ethnic Subsidies, 15 J. Empirical Legal Stud. 192 (2018).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Organized Crime
,
Race & Ethnicity
,
East Asian Legal Studies
Type: Article
Abstract
In 1969, Japan launched a massive subsidy program for the "burakumin" outcastes. The subsidies attracted the mob, and the higher incomes now available through organized crime compensated those burakumin who abandoned the legal sector for criminal careers. In the process, the subsidies gave new support to the tendency many Japanese already had to equate the burakumin with the mob. The government ended the subsidies in 2002. We explore the effect of the termination by merging 30 years of municipality data with a long-suppressed 1936 census of burakumin neighborhoods. First, we find that outmigration from municipalities with more burakumin increased after the end of the program. Apparently, the higher illegal income generated by the subsidies had restrained young burakumin from joining mainstream society. Second, we find that once the mob-tied corruption and extortion associated with the subsidies neared its end, real estate prices rose in municipalities with burakumin neighborhoods. With the subsidies gone and the mob in retreat, other Japanese found the formerly burakumin communities increasingly attractive places to live.
Eli Y. Adashi & I. Glenn Cohen, Preventing Mitochondrial Disease: A Path Forward, 131 Obstetrics & Gynecology 553 (2018).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
In a possible first, the heritable transmission of a fatal mitochondrial DNA disease (Leigh syndrome) may have been prevented by replacing the mutation-bearing mitochondria of oocytes with donated mutation-free counterparts. The procedure, carried out by a U.S.-led team, took place in Mexico in circumvention of a statutory U.S. moratorium on mitochondrial replacement. This development calls into question the regulatory utility of a national moratorium in a globalized world wherein cross-border care is increasingly prevalent. This development also calls to account the moral defensibility of a moratorium that acquiesces in the birth of gravely ill children whose afflictions could have been prevented. In this Current Commentary, we outline a potential path forward by analyzing the dual imprint of the moratorium, examining its legislative shortcomings, exploring its motivational roots, considering its national effect, and proposing its unlinking from the related yet distinct ban on editing the genome of the human embryo.
Mark Tushnet, The Pirate’s Code: Constitutional Conventions in U.S. Constitutional Law, 45 Pepp. L. Rev. 481 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Politics & Political Theory
,
Congress & Legislation
,
Supreme Court of the United States
Type: Article
Abstract
A convention is a practice not memorialized in a formal rule but regularly engaged in out of a sense of obligation, where the sense of obligation arises from the view that adhering to the practice serves valuable goals of institutional organization and the public good. Constitutional conventions are important in making it possible for the national government to achieve the goals set out in the Preamble. Over the past twenty years or so, however, such conventions have eroded. This article addresses the role and importance of constitutional conventions in the United States, arguing that conventions' erosion has been accompanied by a configuration of partisan politics that makes it difficult to present a discussion of that erosion in a way that will not itself seem partisan. I argue that contention over claims about departures from conventions takes forms familiar from ordinary common-law reasoning--perhaps not surprising because common-law reasoning rests on judicial decisions that cannot offer canonical textual formulations of the rules the courts apply. This article also discusses some of the ways in which political actors can depart from conventions, and some consequences of such departures. Finally, the Essay takes up some larger questions about constitutional transformation through abandonment or revision of constitutional conventions.
Richard J. Lazarus, Will 2018 Be the Year of the Bird? If So, Not Necessarily a Good One, Envtl. F., Mar.-Apr. 2018, at 13.
Categories:
Environmental Law
Sub-Categories:
Wildlife Law
Type: Article
Big Data, Health Law, and Bioethics (I. Glenn Cohen, Holly Fernandez Lynch, Effy Vayena & Urs Gasser eds., 2018).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Networked Society
,
Information Privacy & Security
,
Medical Technology
Type: Book
Abstract
When data from all aspects of our lives can be relevant to our health - from our habits at the grocery store and our Google searches to our FitBit data and our medical records - can we really differentiate between big data and health big data? Will health big data be used for good, such as to improve drug safety, or ill, as in insurance discrimination? Will it disrupt health care (and the health care system) as we know it? Will it be possible to protect our health privacy? What barriers will there be to collecting and utilizing health big data? What role should law play, and what ethical concerns may arise? This timely, groundbreaking volume explores these questions and more from a variety of perspectives, examining how law promotes or discourages the use of big data in the health care sphere, and also what we can learn from other sectors.
William A. Klein, J. Mark Ramseyer & Stephen M. Bainbridge, Business Associations: Cases and Materials on Agency, Partnerships, LLCs, and Corporations (Found. Press 10th ed. 2018).
Categories:
Corporate Law & Securities
,
Legal Profession
Sub-Categories:
Business Organizations
,
Legal Education
Type: Book
Mark Hall, David Orentlicher, Mary Anne Bobinski, Nicholas Bagley & I. Glenn Cohen, Health Care Law and Ethics (Wolters Kluwer 9th ed. 2018).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Book
Luke Gelinas, Emily A. Largent, I. Glenn Cohen, Susan Kornetsky, Barbara E. Bierer & Holly Fernandez Lynch, A Framework for Ethical Payment to Research Participants, 378 New Eng. J. Med. 766 (2018).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Samantha Bates, John Bowers, Shane Greenstein, Jordi Weinstock, Yunhan Xu & Jonathan L. Zittrain, Evidence of Decreasing Internet Entropy: The Lack of Redundancy in DNS Resolution by Major Websites and Services (NBER Working Paper No. w24317, Feb. 21, 2018).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Cyberlaw
,
Communications Law
Type: Article
Abstract
This paper analyzes the extent to which the Internet’s global domain name resolution (DNS) system has preserved its distributed resilience given the rise of cloud-based hosting and infrastructure. We explore trends in the concentration of the DNS space since at least 2011. In addition, we examine changes in domains’ tendency to “diversify” their pool of nameservers – how frequently domains employ DNS management services from multiple providers rather than just one provider – a comparatively costless and therefore puzzlingly rare decision that could supply redundancy and resilience in the event of an attack or service outage affecting one provider.
Jesse M. Fried, Ehud Kamar & Yishay Yafeh, The Effect of Minority Veto Rights on Controller Tunneling (Ctr. Econ. Pol’y Research Paper No. DP12697, Feb. 18, 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
A central challenge in the regulation of controlled firms is curbing controller tunneling. As independent directors and fiduciary duties are widely seen as not up to the task, a number of jurisdictions have given minority shareholders veto rights over these transactions. To assess these rights’ efficacy, we exploit a 2011 regulatory reform in Israel that gave the minority the ability to veto pay packages of controllers and their relatives (“controller executives”). We find that the reform curbed the pay of controller executives and led some controller executives to quit their jobs, or work for free, in circumstances suggesting their pay would not have received approval. These findings suggest that minority veto rights can help curb controller tunneling.
Dennis Redeker, Lex Gill & Urs Gasser, Towards Digital Constitutionalism? Mapping attempts to craft an Internet Bill of Rights, Int'l Comm. Gazette, Feb. 16, 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.
Oren Bar-Gill, David Schkade & Cass R. Sunstein, Drawing False Inferences from Mandated Disclosures, Behavioural Pub. Pol'y (Feb. 15, 2018).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Disclosure mandates are pervasive. Though designed to inform consumers, such mandates may lead consumers to draw false inferences – for example, that a product is harmful when it is not. When deciding to require disclosure of an ingredient in or characteristic of a product, regulators may be motivated by evidence that the ingredient or characteristic is harmful to consumers. But they may also be motivated by a belief that consumers have a right to know what they are buying or by interest-group pressure. Consumers who misperceive the regulator’s true motive, or mix of motives, will draw false inferences from the mandated disclosure. If consumers think that the disclosure is motivated by evidence of harm, when in fact it is motivated by a belief in a right-to-know or by interest-group pressure, then they will be inefficiently deterred from purchasing the product. We analyze this general concern about disclosure mandates. We also offer survey evidence demonstrating that the risk of false inferences is serious and real. Our framework has implications for the ongoing debate over the labeling of food with genetically modified organisms (GMOs); it suggests that the relevant labels might prove misleading to some or many consumers, producing a potentially serious welfare loss. Under prevailing executive orders, regulators must consider that loss and if feasible, quantify it.
Mark Tushnet, The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt, in Judicial Review: Process, Power and Problems (Shruti Bedi & Lokendra Malik eds., forthcoming 2018).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Social Welfare Law
,
Judges & Jurisprudence
,
Courts
,
Comparative Law
Type: Book
Abstract
This essay, to appear in a chapter in Judicial Review: Process, Power and Problems, edited by Shruti Bedi and Lokendra Malik, a festschrift for Upendra Baxi, argues that the pursuit of judicially enforced social welfare and equality rights in the modern world is bound to fail but must be pursued. The contemporary picture of judicial enforcement of social welfare rights in one in which there is a consensus that such enforcement is possible, general agreement that enforcement should be dialogic rather than coercive, and a sense that enforcement is rather less effective than is desirable. As to the last, the essay argues that the predicate for generating resources to finance the provision of social welfare rights – investment from abroad – generates economic and legal limitations that inhibit the government from accumulating those resources. The essay develops a parallel argument about judicial enforcement of substantive equality rights, referring specifically to problems associated with the horizontal effect/state action doctrine. The conclusion here is that courts have the capacity to move outcomes in the direction of substantive equality, and might not face overwhelming constraints from the domestic political system, but their ability to achieve true substantive equality is limited by economics, both domestic and international. Yet, where constitutions are committed to substantive equality and social and economic rights, the lesson of the twentieth century is that judges will – and should – attempt to enforce those commitments. Enforcing the constitution – the entire constitution – is what democratic-minded citizens have come to expect of their courts. What is needed is a realistic understanding of what courts can accomplish – less than one might hope (the noble dream), but more than nothing (the nightmare). The attempt more than the achievement is what matters. The task then might be to develop a judicial rhetoric associated with the enforcement of these rights that effectively communicates why what the courts are doing is worth doing, why what they are doing is not enough, and why it is as much as the courts can do.
Sharon Block & Benjamin Sachs, The Trump Administration is Abandoning McDonald’s Workers — and Everyone Else, Wash. Post, Feb. 9, 2018.
Categories:
Labor & Employment
Sub-Categories:
Labor Law
Type: News
Annette Gordon-Reed, Female Trouble, N.Y. Rev. Books, Feb. 8, 2018, at 12 (reviewing Hillary Rodham Clinton, What Happened (2018)).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Article
Can It Happen Here?: Authoritarianism in America (Cass R. Sunstein ed., 2018).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
With the election of Donald J. Trump, many people on both the left and right feared that America’s 240-year-old grand experiment in democracy was coming to an end, and that Sinclair Lewis’ satirical novel, It Can’t Happen Here, written during the dark days of the 1930s, could finally be coming true. Is the democratic freedom that the United States symbolizes really secure? Can authoritarianism happen in America? Acclaimed legal scholar, Harvard Professor, and New York Times bestselling author Cass R. Sunstein queried a number of the nation’s leading thinkers. In this thought-provoking collection of essays, these distinguished thinkers and theorists explore the lessons of history, how democracies crumble, how propaganda works, and the role of the media, courts, elections, and "fake news" in the modern political landscape—and what the future of the United States may hold.
Intisar A. Rabb & Sharon Tai, Digital Islamic Law: Purpose and Prospects, 50 Int'l J. Middle E. Stud. 113 (2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Islamic Law
Type: Article
Abstract
“Information wants to be free.” Although this sentiment dominates the current digital landscape, information about Islamic law and history often remains bound to its physical form and to the price of acquiring it. One should not have to travel to several countries or be associated with the handful of institutions with large collections in these fields to gain access to these sources (which can still be onerous once there). But this is precisely the case for those who aim to do serious, comparative, or otherwise broad-ranging work in Islamic law. For Islamic law, there is a persistent problem of access and ease of use.
Richard H. Fallon, Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, 96 Tex. L. Rev. 487 (2018).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
We live in a time of anxiety about the rule of law. In railing against individual judges and their decisions, angry protesters—including elected officials and the President—presume a knowledge of what the Constitution requires, judicial pronouncements to the contrary notwithstanding. Recent bluster raises a question about what would occur if the President ordered government officials to defy a judicial ruling. The idea that the Supreme Court has ultimate authority in matters of constitutional interpretation—which often rides under the heading of “judicial supremacy”—has acquired strong currency. In the history of American political ideas, it has substantially eclipsed “departmentalist” theories, which hold that each branch of government should interpret the Constitution for itself, and an allied notion of “popular constitutionalism.” In the view of many, the rule of law requires judicial supremacy. This Article probes the concepts of judicial supremacy, departmentalism, popular constitutionalism, and the rule of law, all of which possess relatively timeless importance. In doing so, it sheds light on issues of immediate practical urgency. The truth, terrifyingly enough under current circumstances, is that our system is not, never has been, and probably never could be one of pure judicial supremacy. In principle, moreover, a regime in which judicial review operates within “politically constructed bounds”—and judicial rulings on constitutional issues are at risk of occasional defiance—is entirely compatible with rule-of-law ideals. In our current political context, there is abundant ground for anxiety about the future of rule-of-law constitutionalism. But judicial supremacy is not the answer to any significant legal, constitutional, or political problem. An adequate response will require repair of the ethical commitments—among elected officials and the public, as well as the Judicial Branch—that the rule of law requires.
Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (Harv. Univ. Press 2018).
Categories:
Government & Politics
,
Constitutional Law
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Political Theory
,
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Legal & Political Theory
,
Legal Scholarship
Type: Book
Abstract
"Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy. Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate. Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed." -- publisher
Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201 (2018).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
,
Empirical Legal Studies
Type: Article
Abstract
Over 20 percent of prison and jail inmates in the United States are currently awaiting trial, but little is known about the impact of pre-trial detention on defendants. This paper uses the detention tendencies of quasi-randomly assigned bail judges to estimate the causal effects of pre-trial detention on subsequent defendant outcomes. Using data from administrative court and tax records, we find that being detained before trial significantly increases the probability of a conviction, primarily through an increase in guilty pleas. Pre-trial detention has no detectable effect on future crime, but decreases pre-trial crime and failures to appear in court. We also find suggestive evidence that pre-trial detention decreases formal sector employment and the receipt of employment- and tax-related government benefits. We argue that these results are consistent with (i) pre-trial detention weakening defendants' bargaining position during plea negotiations, and (ii) a criminal conviction lowering defendants' prospects in the formal labor market.
David B. Wilkins & Bryon Fong, Harvard Law School Report on the State of Black Alumni II: 2000-2016 (HLS Ctr. Legal Profession Research Paper No. 2018-2, Jan. 27, 2018).
Categories:
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Legal Education
Type: Other
Abstract
On January 10, 2017, President Barack Obama delivered his formal farewell address to the country in Chicago, the city that had given him his political start. In reflecting on the achievements and challenges of his two terms in office, the president paid special attention to an issue that he knew would, for better and for worse, define his presidency: Race. In the simple, yet elegant, language that even his harshest critics have come to respect, the president said this about the state of race relations after eight years of the Age of Obama: "After my election, there was talk about a post-racial America. Such a vision, no matter how well-intended, was never realistic. For race remains a potent and often divisive force in our society. I’ve lived long enough to know that race relations are better than they were 10, 20, 30 years ago — you can see it not just in the statistics, but in the attitudes of young Americans across the political spectrum. But we are not where we need to be. All of us have more work to do." In this Report, we offer a preliminary assessment of how much progress had been made — and how much work remains to be done — in a part of the American economy President Obama knows well: the legal profession. We do so by examining the careers of the black graduates of President Obama’s law school alma matter in the 16 years since the beginning of the new millennium. Harvard Law School provides an important lens through which to study these issues. One hundred and fifty years ago this year, the Law School enrolled George Lewis Ruffin, who would go on to be the first black person to graduate from any law school in the United States. In the intervening years, Harvard has graduated more black lawyers — over 2,700 — than any law school in the country with the exception of the great Howard University School of Law. Among their ranks are some of the most powerful and influential lawyers in the world, including the 44th President of the United States and the country’s former First Lady, Michelle Obama ’88. In 2000, the Harvard Law School Center on the Legal Profession released a Report on the State of Black Alumni: 1869-2000 chronicling the achievements and continuing challenges of this remarkable group of lawyers on the basis of a comprehensive survey of the careers of over 650 of the school’s African American alumni. In this new Report, based on a second survey of the school’s black alumni, including those that graduated in the new millennium and matured during the Age of Obama, we both bring that history up to date and offer new perspectives for this new era. Collectively, we hope that these two reports will provide the “common baseline of facts” that President Obama identified in his farewell address as key to a civil dialogue in a functioning democracy, for a profession that will always have a central role in guaranteeing the freedom and equality that are the cornerstones of our democracy.
Jeannie Suk Gersen, Donald Trump’s Brain is a Catch-22, NewYorker.com (Jan. 26, 2018, 12:36 PM).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Executive Office
,
Government Accountability
,
Psychology & Psychiatry
Type: Other
Cäzilia Loibl, Cass R. Sunstein, Julius Rauber & Lucia A. Reisch, Which Europeans Like Nudges? Approval and Controversy in Four European Countries, J. Consumer Aff. (forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
European Law
Type: Article
Abstract
Policy-makers show an increasing interest in “nudges” – behaviorally motivated interventions that steer people in certain directions but maintain freedom of consumer choice. Despite this interest, little evidence has surfaced about which population groups support nudges and nudging. We report the results of nationally representative surveys in Denmark, Hungary, Italy, and the United Kingdom. Individual, household and geographic characteristics served as predictors of nudge approval, and the count of significant predictors as measures of controversy. Less high approval rates of nudges in Denmark and Hungary were reflected in higher controversy about “System 1” nudges, whereas the United Kingdom and Italy were marked by higher controversy about “System 2” nudges, despite high approval rates. High-controversy nudges tended to be associated with current public policy concerns, for example, meat consumption. The results point to means for effective targeting, and increase knowledge about the types of nudges likely to obtain public support.
Louis Kaplow, Price-Fixing Policy, Int’l J. Indus. Org. (forthcoming 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Article
Abstract
The prohibition against price fixing is competition law's most important and least controversial provision. Yet there is far less consensus than meets the eye on what constitutes price fixing, and prevalent understandings cannot be reconciled with principles of oligopoly theory. This article (1) presents a fundamental reconceptualization of our understanding of horizontal agreements, (2) develops a systematic analysis of price-fixing policy that focuses on its deterrence benefits and chilling costs, and (3) compares this direct approach to commentators’ favored formulations that typically involve some sort of formalistic communications-based prohibition. By targeting a subset of means rather than the illicit ends, conventional formulations tend to impose liability in cases with lower deterrence benefits and greater chilling costs than those reached under a direct approach and to incur greater administrative costs as well.
The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society (Luciana Gross Cunha, Daniela Monteiro Gabbay, José Garcez Ghirardi,‎ David M. Trubek & David B. Wilkins eds., 2018).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Einer Elhauge, New Evidence, Proofs, and Legal Theories on Horizontal Shareholding (Jan. 4, 2018).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Antitrust & Competition Law
,
Corporate Governance
,
Shareholders
,
Empirical Legal Studies
,
Law & Economics
,
Executive Compensation
Type: Other
Abstract
This Article shows that new economic proofs and empirical evidence provide powerful confirmation that, even when horizontal shareholders individually have minority stakes, horizontal shareholding in concentrated markets often has anticompetitive effects. The new economic proofs show that, without any need for coordination or communication, horizontal shareholding will cause corporate managers to lessen competition to the extent they care about their vote share or re-election odds and will cause executive compensation to be based less on firm performance and more on industry performance. The new empirical evidence consists of cross-industry studies which confirm that, just as the proofs predict, increased horizontal shareholding increases the distortion of executive compensation and the gap between corporate profits and investment. I also provide new analysis demonstrating that critiques of earlier empirical studies showing adverse price effects for airlines and banking are generally invalid and that addressing the valid subset of those critiques actually increases the estimated price effects. I further demonstrate that the various excuses for delaying enforcement action are meritless. Finally, I provide new legal theories for tackling the problem of horizontal shareholding. I show that when horizontal shareholding has anticompetitive effects, it is illegal not only under Clayton Act §7, but also under Sherman Act §1. In fact, the historic trusts that were the core target of antitrust law were horizontal shareholders. I further show that anticompetitive horizontal shareholding also constitutes an illegal agreement or concerted practice under EU Treaty Article 101, as well as an abuse of collective dominance under Article 102.
Annette Gordon-Reed, America’s Original Sin: Slavery and the Legacy of White Supremacy, Foreign Aff., Jan. 1, 2018, at 2.
Categories:
Discrimination & Civil Rights
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Discrimination
,
Race & Ethnicity
Type: Article
Cass R. Sunstein & Lucia A. Reisch, Behavioral Economics and Public Opinion, 53 Intereconomics 5 (2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
In recent years, there has been a great deal of discussion of uses of behavioral economics in policy circles, with a focus on empirical, conceptual and ethical questions. On the basis of data from many nations, our forthcoming book asks and answers a question pressing in democratic and nondemocratic nations alike: What do citizens actually think about behaviorally informed policies? (Short answer: They approve of them.) In the process, we ask and answer two other questions as well: Do citizens of different nations have identifiable principles in mind when they approve or disapprove of behaviorally informed polices? (Short answer: Yes.) Do citizens of different nations agree with each other? (Short answer: Mostly yes, but with intriguing qualifications, involving diverging levels of trust and different evaluations of liberty.) This article previews our book, providing new insights into public approval of nudges and similar policies based on behavioral insights.
Luciana Gross Cunha, Daniela Monteiro Gabbay, José Garcez Ghirardi,‎ David M. Trubek & David B. Wilkins, Globalization, Lawyers, and Emerging Economies: The Case of Brazil, in The Brazilian Legal Profession in the Age of Globalization: The Rise of the Corporate Legal Sector and its Impact on Lawyers and Society 1 (Luciana Gross Cunha, Daniela Monteiro Gabbay, José Garcez Ghirardi,‎ David M. Trubek & David B. Wilkins eds., 2018).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Global Lawyering
,
Legal Services
Type: Book
Abstract
In the 1990s Brazil and other emerging economies went through a major transformation. Closed economies were opened, foreign investment encouraged, and many state-owned enterprises privatized. This “global transformation” had a major impact on the Brazilian legal system. While many parts of the legal system were affected, the corporate law profession changed the most. This sector includes all the institutions and actors that provide legal advice to corporations whether domestic and foreign, public or private. Global transformation brought about major changes in the national political economy, led to a flood of new laws governing corporate activity, and created a demand for new kinds of legal services to help companies manage the new legal environment. This led to rapid growth of the complex of institutions that provide corporate legal services and affected the way lawyering was practiced and organized. Many forces came together to give new shape to the professional identity of lawyers, the structures they work in, and the roles they play. The result was the creation of a new and powerful segment of the legal profession whose activities had profound impacts on the rest of the profession, the legal system, the operation of enterprises (both public and private), state policy and global governance. In this book, we describe the growth of the corporate legal sector in Brazil, and the impact of this development on law-making, legal education, regulation of the legal profession, public interest law, trade policy, and gender roles. The book is part of a larger study of global transformation and its impact on the legal profession carried out by GLEE, the project on Globalization, Lawyers, and Emerging Economies. Based at the Harvard Law School’s Center for the Legal Profession, GLEE is currently studying these developments in Brazil, India and China, with plans to expand the project into Africa and the states of the former Soviet Union. In Brazil, GLEE’s research has been based at the law school of the Fundação Getulio Vargas (FGV) in São Paulo.
Annette Gordon-Reed, Hot Ticket: The Biggest Show in Washington 150 Years Ago was President Andrew Johnson's Impeachment Hearings, Smithsonian, Jan. 2018, at 22.
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Politics & Political Theory
Type: Article
Abstract
The article examines U.S. President Andrew Johnson's impeachment hearings in 1868. It describes the impeachment proceedings initiated by the House of Representatives and the Senate against Johnson for violating the Tenure of Office Act and other offenses. It also discusses the actions taken by Johnson that indicated his hatred for African Americans and the political and social impact of his impeachment.
Richard J. Lazarus, Justice Gorsuch Faces Case Where Neither Choice Entirely Satisfactory (Supreme Court Justice Neil Gorsuch, hearing of New York v. EPA), Envtl. F., Jan.-Feb. 2018, at 13.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
,
Administrative Law & Agencies
Type: Article
Luke Gelinas, Holly Fernandez Lynch, Barbara E. Bierer & I. Glenn Cohen, On Scarcity and the Value of Clinical Trials, 18 Am. J. Bioethics 71 (2018).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Article
Emily A. Largent, I. Glenn Cohen, Joel S. Weissman, Avni Gupta, Melissa Abraham, Ronen Rozenblum & Holly Fernandez Lynch, Patient-Centered Outcomes Research: Stakeholder Perspectives and Ethical and Regulatory Oversight Issues, 40 IRB: Ethics & Human Res., Jan.-Feb. 2018, at 7.
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
Type: Article
Abstract
The article reports on the Stakeholder Perspectives including investigators and institutional review boards (IRBs) and the Ethical and the Regulatory Oversight and to address technical and methodological challenges and Issues concerning the leading research institute in the United States for PCOR, Patient-Centered Outcomes Research Institute (PCORI).
Cass R. Sunstein, ‘They Ruined Popcorn’: On the Costs and Benefits of Mandatory Labels, in Law & Marketing (Jacob Gersen & Joel Steckel eds., forthcoming 2018).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
Do consumers benefit from mandatory labels? How much? These questions are difficult to answer, because assessment of the costs and benefits of labels presents serious challenges. In the United States, federal agencies have: (1) claimed that quantification is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness-to-pay for the relevant information. All of these approaches run into serious normative, conceptual, and empirical objections. Approach (3) will exaggerate what consumers gain, because many people suffer welfare losses when they see labels, whether or not they end up making different choices. (Part of that loss is captured in one reaction to mandatory calorie labels: “They ruined popcorn!”) In principle, approach (4) is usually best, but people may lack the information that would permit them to say how much they would pay for (more) information, and sometimes tastes and values shift over time, which means that willingness to pay may fail to capture welfare effects. These points raise fundamental conceptual, normative, and empirical questions about welfarist approaches to public policy.
Tomiko Brown-Nagin, African Americans and the Constitution, in Handbook of African American History (Leslie Brown ed., Oxford Univ. Press forthcoming 2018).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Race & Ethnicity
Type: Book
Benjamin Sachs, Agency Fees and the First Amendment, 131 Harv. L. Rev. 1046 (2018).
Categories:
Constitutional Law
,
Labor & Employment
Sub-Categories:
First Amendment
,
Labor Law
Type: Article
Abstract
Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.
Mary Ann Glendon, Alexis de Tocqueville, in Great French Christian Jurists (Rafael Domingo ed., Cambridge Univ. Press forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Religion & Law
,
Judges & Jurisprudence
,
Biography & Tribute
,
Legal History
Type: Book
American Capitalism: New Histories (Sven Beckert & Christine A. Desan eds., 2018).
Categories:
Banking & Finance
,
Legal Profession
Sub-Categories:
Financial Markets & Institutions
,
Banking
,
Legal History
Type: Book
Abstract
The United States has long epitomized capitalism. From its enterprising shopkeepers, wildcat banks, violent slave plantations, and raucous commodities trade to its world-spanning multinationals, its massive factories, and the centripetal power of New York in the world of finance, America has shaped political economy for two centuries and more. But an understanding of "capitalism" is as elusive as it is urgent. What does it mean to make capitalism a subject of historical inquiry? What is its potential across multiple disciplines, alongside different methodologies, and in a range of geographic and chronological settings? And how does a focus on capitalism change our understanding of American history?American Capitalism collects cutting-edge research from prominent scholars, sampling the latest work in the field. Rather than a monolithic perspective, these broad-minded and rigorous essays venture new angles on finance and debt, women's rights, slavery and political economy, labor, and regulation, among other topics. Together, the essays suggest emerging themes in the field: a fascination with capitalism as it is made by public authority, how it is experienced in the detail of daily life, how it spreads across the globe, and how it can be reconceptualized as a discrete and quantified object. A major statement for a wide-open field, this book demonstrates the breadth and scope of the work the history of capitalism can provoke.
Kristen A. Stilt, Animals, in The Oxford Handbook of Islamic Law (Anver Emon & Rumee Ahmed eds., Oxford Univ. Press, forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Islamic Law
,
Animal Law
Type: Book
Guhan Subramanian, Appraisal After Dellin The Corporate Contract in Changing Times: Is the Law Keeping Up? (Steven Davidoff & Randall Thomas eds., Univ. Chi. Press forthcoming 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
Type: Book
Abstract
This Essay examines the state of appraisal in Delaware after the Delaware Supreme Court’s decisions in DFC Global (July 2017) and Dell (December 2017). In these two cases, the Supreme Court reversed Chancery Court rulings that “fair value” exceeded the deal price. In doing so the Supreme Court strongly signaled that deal price should receive presumptive weight as long as the deal process is good. The question then becomes how good the deal process must be in order to gain deference to the deal price. In Dell, the Chancery Court found that the deal process was good enough to satisfy fiduciary duties but not good enough to warrant deference to the deal price. The Supreme Court revisited (and in some instances, mischaracterized) key facts from the record to conclude that the Chancery Court’s ruling constituted an “abuse of discretion.” This Essay concludes with implications for practitioners and courts. An earlier version of this Essay is titled Using the Deal Price for Determining "Fair Value" in Appraisal Proceedings.
Gerald L. Neuman, Arbitrary Detention and the Human Rights Committee's General Comment 35, in Mélanges in tribute to Judge Christine Chanet, (Emmanuel Decaux, Iulia Motoc & Patrice Gillibert eds., forthcoming 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The UN Human Rights Committee’s General Comment No. 35 summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay provides an overview of General Comment No. 35, and then focuses on three aspects that provoked controversy either within the Committee or outside it: the time limit for “prompt” presentation of pre-trial detainees to a judge; the standards governing security detention in non-international armed conflict; and the disagreement between the Human Rights Committee and the Committee on the Rights of Persons with Disabilities regarding whether involuntary hospitalization is ever permitted. These examples illustrate significant issues about the interaction between the Covenant and other international regimes.
John C. P. Goldberg, Benjamin Cardozo and the Death of the Common Law, 34 Touro L. Rev. 147 (2018).
Categories:
Government & Politics
,
Legal Profession
,
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Torts
,
Legal Theory & Philosophy
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Federalism
,
Courts
,
Legal History
Type: Article
Abstract
Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.
Oren Bar-Gill & Nicola Persico, Bounded Rationality and the Theory of Property, Notre Dame L. Rev. (forthcoming 2018).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Property Rights
Type: Article
Abstract
Strong, property rule protection – implemented via injunctions, criminal sanctions and supercomepnsatory damages – is a defining aspect of property. What is the theoretical justification for property rule protection? The conventional answer has to do with the alleged shortcomings of the weaker, liability rule alternative: It is widely held that liability rule protection – implemented via compensatory damages – would interfere with efficient exchange and jeopardize the market system. We show that these concerns are overstated and that exchange efficiency generally obtains in a liability rule regime. But only when the parties are perfectly rational. When the standard rationality assumption is replaced with a more realistic, bounded rationality assumption, liability rules no longer support exchange efficiency. Bounded rationality thus emerges as a foundational element in the theory of property.
Robert C. Bordone, Building Conflict Resilience: It’s Not Just About Problem-Solving, 2018 J. Disp. Resol. 65.
Categories:
Civil Practice & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Dispute Resolution
,
Negotiation & Alternative Dispute Resolution
,
Politics & Political Theory
,
Clinical Legal Education
,
Legal Education
Type: Article
Cass R. Sunstein, Changing Climate Change, 2009-2016 42 Harv. Envtl. L. Rev. 231 (2018).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Article
Abstract
In 2009, the Obama Administration entered office in the midst of a serious economic recession. Nonetheless, one of its priorities was to address the problem of climate change. It ultimately did a great deal -- producing, with the aid of market forces, significant reductions in greenhouse gas emissions, which ultimately helped make an international agreement possible. This essay offers a preliminary account of some of the central domestic reforms, including the “endangerment finding”; the selection of a social cost of carbon; fuel economy regulations for motor vehicles; controls on new and existing power plants; and energy efficiency regulations. At various points, potentially challenging issues of law and policy are identified, and different imaginable paths are specified. The essay can be taken as an account of the extent to which the executive branch, relying on pre-existing regulatory authorities, can accomplish a great deal in an area in which the national legislature is blocked. To that extent, the climate change initiatives offer an illuminating case study in the contemporary operation of the system of separation of powers. There is a brief discussion of whether the reforms are likely to prove enduring. Appendices offer an assortment of tables on relevant costs and benefits.
Geoffrey R. Stone, Louis Michael Seidman, Cass R. Sunstein, Mark V. Tushnet, Pamela S. Karlan, Constitutional Law ((Wolters Kluwer 8th ed. 2018).
Categories:
Constitutional Law
Type: Book
Oren Bar-Gill, Consumer Contracts: Law, Economics and Psychology, in Law and Economics of the Mortgage Market (Fernando Gomez & Juanjo Ganuza eds., forthcoming 2018).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Consumer Contracts
,
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Mark J. Roe & Michael Troge, Containing Systemic Risk by Taxing Banks Properly, 35 Yale J. on Reg. 181 (2018).
Categories:
Banking & Finance
,
Taxation
,
Corporate Law & Securities
Sub-Categories:
Banking
,
Risk Regulation
,
Corporate Governance
,
Taxation - Corporate
Type: Article
Abstract
At the root of recurring bank crises are deeply-implanted incentives for banks and their executives to take systemically excessive risk. Since the 2008–2009 financial crisis, regulators have sought to strengthen the financial system by requiring more capital (which can absorb losses from risk-taking) and less risk-taking, principally via command-and-control rules. Yet bankers’ baseline incentives for system-degrading risk-taking remain intact. A key but underappreciated reason for banks’ recurring excessive risk-taking is the structure of corporate taxation. Current tax rules penalize equity and boost debt, thereby undermining the capital adequacy efforts that have been central to the post-crisis reform agenda. This tax-based distortion incentivizes financial firms to undermine regulators’ capital adequacy rules, either transactionally or by lobbying for their repeal. The resulting debt-heavy structure not only renders banks fragile but also pushes them toward further excessively risky strategies. This result is not inevitable. By repurposing tax tools used elsewhere, we show how the safety-undermining impact of the corporate tax can be reversed without affecting the overall level of tax revenue that the government raises from the financial sector. Several means to the desired end are possible, with the best trade-off between administrability and effectiveness being to lift the tax penalty on banks to the extent that they add to their loss-absorbing, safety-enhancing equity buffer above the regulatory minimum. This solution would minimize the tax impact and could have any revenue loss offset by modest tax changes affecting the riskiest forms of financial sector debt. Existing studies indicate that the magnitude of the resulting safety benefit should rival the size of the benefit from all the post-crisis capital regulation to date. Thus the main thesis we bring forward is not a small or technical claim. Standard bank regulatory style is command-and-control, and while much can be and has been accomplished with the standard style, it has its limits. In today’s political environment, current safety rules’ continuance may not be viable, as repeal of recent regulatory advances, not their refinement, has become a serious possibility. Yet rolling back the post-crisis regulatory advances without addressing the underlying risk-taking incentives would be unwise. While our policy preference would be to supplement and not replace traditional and recent regulation with the tax reform, any major rollback makes reducing the risk-taking tax distortion more urgent than ever.
Mark Tushnet, Critical Legal Studies and the Rule of Law, in Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds., forthcoming 2018).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
Type: Book
Abstract
This brief essay, to appear in the Cambridge Companion to the Rule of Law (Marti Loughlin & Jens Meierhenrich eds.), describes what critical legal scholars said – or perhaps more accurately – would have said – about the concept of the rule of law. Describing critical legal studies as a project in American legal thought rather than analytical jurisprudence, it argues that “the rule of law” is an ideological project, and can come in various versions – liberal, social democratic, and more. It addresses Morton Horwitz’s critique of E.P. Thompson’s assertion that the rule of law is an unqualified human good, and situates the CLS critique of the rule of law within more general discussion of the rule of law by Hayek and Fuller. It concludes by applying ideology-critique to the rule of law, arguing that in whatever form it takes the rule of law contributes to a culture of justification, which may indeed be an unqualified human good.
Anna Lvovsky, Cruising in Plain View: Clandestine Surveillance and the Unique Insights of Antihomosexual Policing, J. Urb. Hist. (forthcoming 2018).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Discrimination
Type: Article
Abstract
The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.
Oren Bar-Gill & Gabriella Blum, Defenses, Tex L. Rev. (forthcoming 2018).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
International Humanitarian Law
,
International Law
Type: Article
Abstract
Effective defenses that are designed to protect civilians in war have significant implications for policy planning, military strategy, international relations, domestic politics and economics. Defenses can increase or decrease overall humanitarian welfare. Surprisingly, existing legal scholarship has focused almost exclusively on offensive action, failing to consider the effects of defenses on the strategic interactions between armed rivals or the humanitarian consequences of defenses. The implications of defenses for the interpretation and application of the international legal rules on the use of force have also gone largely unexplored. We set out to fill this significant gap. We study the operation of defensive systems in both asymmetric rivalries and symmetric rivalries, and consider the interplay between defenses and offensive measures. We analyze how defensive systems are likely to affect parties’ wartime conduct and the potential consequences for the welfare of civilians on both sides of the conflict. A central motivating observation is that defenses have the potential of safeguarding not only the lives of the defending party’s civilians but also those on the opposing side. Our analysis further considers how international law, and especially the principle of proportionality, might affect parties’ choices with regard to investments in defenses. Counter-intuitively, we caution that under some circumstances, an overly-restrictive application of the principle of proportionality might deter investment in defenses, thereby decreasing overall humanitarian welfare. To make our theoretical models more concrete, we draw on several real-world examples: the Israeli anti-ballistic missile system, Iron Dome; the deployment of anti-missile defenses by Japan and the United States to meet the threat from North Korea; and the race between the two Cold War protagonists to develop superior inter-continental anti-ballistic missiles systems, which eventually lead to the 1972 ABM Treaty.