Randall L. Kennedy, Say It Loud!: On Race, History, and Culture (forthcoming 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
Type: Book
Martha Minow, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech (forthcoming 2021).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Communications Law
Type: Book
Abstract
In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem. Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.
Guhan Subramanian & Caley Petrucci, Deals in the Time of Pandemic, 121 Colum. L. Rev. (forthcoming June 2021).
Categories:
Corporate Law & Securities
,
Civil Practice & Procedure
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
,
Corporate Governance
,
Negotiation & Alternative Dispute Resolution
Type: Article
Daniel Kahneman, Olivier Sibony & Cass R. Sunstein, Noise: A Flaw in Human Judgment (forthcoming 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
Imagine that two doctors in the same city give different diagnoses to identical patients — or that two judges in the same courthouse give different sentences to people who have committed the same crime. Suppose that different food inspectors give different ratings to indistinguishable restaurants — or that when a company is handling customer complaints, the resolution depends on who happens to be handling the particular complaint. Now imagine that the same doctor, the same judge, the same inspector, or the same company official makes different decisions, depending on whether it is morning or afternoon, or Monday rather than Wednesday. These are examples of noise: variability in judgments that should be identical. In Noise, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein show how noise helps produce errors in many fields, including medicine, law, public health, economic forecasting, food safety, forensic science, bail, child protection, strategy, performance reviews and and personnel selection. And although noise can be found wherever people make judgments and decisions, individuals and organizations alike commonly ignore to its role in their judgments and in their actions. They show “noise neglect.” With a few simple remedies, people can reduce both noise and bias, and so make far better decisions. Packed with new ideas, and drawing on the same kind of diligent, insightful research that made Thinking, Fast and Slow and Nudge groundbreaking New York Times bestsellers, Noise explains how and why humans are so susceptible to noise in judgment — and what we can do about it.
Annette Gordon-Reed, On Juneteenth (forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Legal History
Type: Book
Abstract
Interweaving American history, dramatic family chronicle, and searing episodes of memoir, Annette Gordon-Reed, the descendant of enslaved people brought to Texas in the 1850s, recounts the origins of Juneteenth and explores the legacies of the holiday that remain with us. From the earliest presence of black people in Texas—in the 1500s, well before enslaved Africans arrived in Jamestown—to the day in Galveston on June 19, 1865, when General Gordon Granger announced the end of slavery, Gordon-Reed’s insightful and inspiring essays present the saga of a “frontier” peopled by Native Americans, Anglos, Tejanos, and Blacks that became a slaveholder’s republic. Reworking the “Alamo” framework, Gordon-Reed shows that the slave-and race-based economy not only defined this fractious era of Texas independence, but precipitated the Mexican-American War and the resulting Civil War. A commemoration of Juneteenth and the fraught legacies of slavery that still persist, On Juneteenth is stark reminder that the fight for equality is ongoing.
Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (U. Chi. Press, forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Legal History
Type: Book
Abstract
In the mid-twentieth century, gay life flourished in American cities even as the state repression of queer communities reached its peak. Liquor investigators infiltrated and shut down gay-friendly bars. Plainclothes decoys enticed men in parks and clubs. Vice officers surveilled public bathrooms through peepholes and two-way mirrors. In Vice Patrol, Anna Lvovsky chronicles this painful story, tracing the tactics used to criminalize, profile, and suppress gay life from the 1930s through the 1960s, and the surprising controversies those tactics often inspired in court. Lvovsky shows that the vice squads’ campaigns stood at the center of live debates about not only the law’s treatment of queer people, but also the limits of ethical policing, the authority of experts, and the nature of sexual difference itself—debates that had often unexpected effects on the gay community’s rights and freedoms. Examining those battles, Vice Patrol enriches understandings of the regulation of queer life in the twentieth century and disputes about police power that continue today.
Cass R. Sunstein, Averting Catastrophe: Decision Theory for COVID-19, Climate Change, and Potential Disasters of All Kinds (forthcoming 2021).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
,
Disaster Law
,
Administrative Law & Agencies
Type: Book
Abstract
The world is increasingly confronted with new challenges related to climate change, globalization, disease, and technology. Governments are faced with having to decide how much risk is worth taking, how much destruction and death can be tolerated, and how much money should be invested in the hopes of avoiding catastrophe. Lacking full information, should decision-makers focus on avoiding the most catastrophic outcomes? When should extreme measures be taken to prevent as much destruction as possible? Averting Catastrophe explores how governments ought to make decisions in times of imminent disaster. Cass R. Sunstein argues that using the “maximin rule,” which calls for choosing the approach that eliminates the worst of the worst-case scenarios, may be necessary when public officials lack important information, and when the worst-case scenario is too disastrous to contemplate. He underscores this argument by emphasizing the reality of “Knightian uncertainty,” found in circumstances in which it is not possible to assign probabilities to various outcomes. Sunstein brings foundational issues in decision theory in close contact with real problems in regulation, law, and daily life, and considers other potential future risks. At once an approachable introduction to decision-theory and a provocative argument for how governments ought to handle risk, Averting Catastrophe offers a definitive path forward in a world rife with uncertainty.
Cass R. Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception (forthcoming 2021).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
,
Administrative Law & Agencies
,
Communications Law
,
Networked Society
Type: Book
Abstract
Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech. To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself.
Scott Westfahl, Leveraging Lawyer Strengths and Training Them to Be More Effective in a Crisis, in Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (Ray Brescia & Eric K. Stern eds., NYU Press forthcoming Feb. 2021).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Professional Responsibility
,
Legal Education
Type: Book
Gary Myers, William W. Berry III & Paul C. Weiler, Entertainment, Media, and the Law: Text, Cases, and Problems (6th ed. 2021).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Arts & Entertainment Law
,
Legal Education
Type: Book
Cass R. Sunstein, This Is Not Normal: The Politics of Everyday Expectations (forthcoming 2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.
Howell E. Jackson, A System of Fiduciary Protections for Mutual Funds, in Fiduciary Obligations in Business (Arthur Laby & Jacob H. Russell eds., forthcoming 2021).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Consumer Finance
Sub-Categories:
Investment Products
,
Fiduciary Law
,
Consumer Protection Law
,
Fiduciaries
,
Securities Law & Regulation
,
Shareholders
,
Corporate Governance
Type: Book
Abstract
The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as public officials and policy analysts attempt to balance the cost of compliance and oversight against benefits to investors. Over time, government officials have made numerous supervisory accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments (including insurance products and managed accounts of various sorts) and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced systemic of fiduciary protections for mutual funds. Technological innovations, such as robo-advising, are likely to accelerate this trend. In this chapter, I explore this important illustration of regulatory arbitrage and suggest areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.
Albert H. Choi & Kathryn E. Spier, Class Actions and Private Antitrust Litigation, Am. Econ. J.: Microeconomics (forthcoming 2021).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Class Action Litigation
,
Litigation & Settlement
,
Remedies
,
Law & Economics
Type: Article
Abstract
When firms collude and charge supracompetitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms' incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered.
Benjamin Sachs & Kate Andrias, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. (forthcoming 2021).
Categories:
Government & Politics
,
Labor & Employment
Sub-Categories:
Politics & Political Theory
,
Labor Law
Type: Article
Daniel B. Kelly, Double Deterrence: Restitution and Punitive Damages in Trust and Fiduciary Law, 106 Iowa L. Rev. (forthcoming 2021).
Categories:
Property Law
,
Banking & Finance
,
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Fiduciaries
,
Remedies
,
Trusts
Type: Article
Evelyn Douek, Governing Online Speech: From 'Posts-As-Trumps' to Proportionality and Probability, 121 Colum. L. Rev. (Forthcoming 2021).
Categories:
Constitutional Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
First Amendment
,
Administrative Law & Agencies
,
Communications Law
,
Networked Society
,
Cyberlaw
Type: Article
Abstract
Online speech governance stands at an inflexion point. Platforms are emerging from the state of emergency invoked during the pandemic and lawmakers are poised to transform the regulatory landscape. The importance of what emerges from this moment can hardly be overstated: how platforms write and enforce the rules for what speech they allow on their services shapes the most important channels for communication in the modern era, and has profound consequences for individuals, societies, and democratic governance. Understanding how online speech governance arrived at this moment illuminates the tasks that the institutions created during this transformation must be designed to do. This history shows that where online speech governance was once dominated by the First Amendment tradition’s categorical and individualistic approach to adjudicating speech issues, that approach became strained and online speech governance now revolves around the principles of proportionality and probability. Proportionality requires governance to no longer focus on the speech interest in an individual post alone, but to also take into account other societal interests and place proportionate limitations on content where necessary. But the unfathomable scale of online speech governance makes the enforcement of rules only ever a matter of probability: content moderation will always involve error, and so the pertinent question is what error rates are reasonable and which kinds of errors should be preferred. Platforms’ actions during the pandemic have thrown into stark relief the centrality of these principles to online speech governance, but also how undertheorized they remain. This article reviews the nature and causes of this shift of online speech governance from a “posts-as-trumps” approach to one of systemic balancing, and what this new era of content moderation requires of platforms and their regulators.
Japanese Law: Readings in the Political Economy of Japanese Law (J. Mark Ramseyer ed., forthcoming, Routledge Revivals 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
Type: Book
Abstract
This title was first published in 2001. This volume presents a selection of readings in the political economy of Japanese law.
Cass R. Sunstein (with Lucia A. Reisch, Mark A. Andor, Friederike Doebbe, Neal Haddaway & Johanna Meier, Mitigating Climate Change via Food Consumption and Food Waste: A Systematic Map of Behavioral Interventions, 279 J. Cleaner Production (forthcoming Jan. 2021).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Health Care
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
,
Food & Drug Law
Type: Article
Abstract
Demand-side policies for mitigating climate change based on behavioral insights are gaining increased attention in research and practice. Here we describe a systematic map that catalogs existing research on behaviorally informed interventions targeting changes in consumer food consumption and food waste behavior. The purpose is to gain an overview of research foci and gaps, providing an evidence base for deeper analysis. In terms of food consumption, we focus on animal protein (meat, fish, dairy, and eggs) and its substitutes. The map follows the standards for evidence synthesis from the Collaboration for Environmental Evidence (CEE) as well as the RepOrting Standards for Systematic Evidence Syntheses (ROSES). We identified 49 articles including 56 separate studies, as well as 18 literature reviews. We find a variety of study designs with a focus on canteen and restaurant studies as well as a steep increase of publications since 2016. We create an interactive evidence atlas that plots these studies across geographical space. Here, we find a concentration of research in the Anglo-Saxon world. Most studies follow multi-intervention designs and focus on actual food consumption behavior, fewer on food waste behavior. We identify knowledge clusters amenable for a systematic review focusing on the effectiveness of these interventions, namely: priming, disclosure, defaults, social norms, micro-environment changes, and ease of use. The systematic map highlights knowledge gaps, where more primary research is needed and evidence cannot support policy; it identifies knowledge clusters, where sufficient studies exist but there is a lack of clarity over effectiveness, and so full synthesis can be conducted rapidly; finally, it reveals patterns in research methods that can highlight best practices and issues with methodology that can support the improvement of primary evidence production and mitigation of research waste. To the best of our knowledge, this is the first systematic study mapping this specific area.
Einer Elhauge, The Causal Mechanisms of Horizontal Shareholding, 82 Ohio St. L.J. (forthcoming 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we actually have ample proof on causal mechanisms, but that antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms. I debunk claims that every type of causal mechanism that might produce anticompetitive effects is either empirically untested or implausible. I also show that critics are wrong in claiming that common shareholders lack incentives to influence corporations to increase portfolio value by lessening competition. Finally, I show that preventing anticompetitive horizontal shareholding need not restrict diversification or discourage desirable institutional investor influence on corporate conduct.
Nikolas Bowie, The Constitutional Right of Self-Government, 130 Yale L.J. (forthcoming 2021).
Categories:
Government & Politics
,
Constitutional Law
,
Legal Profession
Sub-Categories:
Constitutional History
,
First Amendment
,
State & Local Government
,
Legal History
Type: Article
Abstract
The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the Assembly Clause has been described even by its advocates as “forgotten,” a “historical footnote in American political theory and law.” The clause protects “the right of the people peaceably to assemble”—a phrase the Supreme Court has interpreted only once over the past fifty years despite issuing hundreds of opinions interpreting its First Amendment siblings. From the moment it was included in the proposed federal bill of rights, observers have questioned who would bother turning to the Assembly Clause for assistance given the First Amendment’s other protections of free expression. This paper offers a surprising answer. After describing the historical context in which the “right to assemble” was first expressed, it argues that the right could be interpreted not as a narrow right of self-expression but rather as a broad right of self-government. In the decade preceding the American Revolution, advocates of “the right to assemble” used the phrase in response to attempts by royal and parliamentary officials to subordinate their town meetings and colonial legislatures—or, in the language of the day, to subordinate their local and general “assemblies.” This subordination came in various forms: Parliament passed laws disempowering New York’s general assembly until it enacted certain legislation; Parliament censured and then banned town meetings in Massachusetts from debating international affairs; and governors up and down the continent dissolved, changed the location of, and otherwise coerced general and local assemblies into repealing legislation they regarded as seditious. In response, town officials and colonial representatives complained that all people have an inherent right to participate in assembled governments, which in turn have the power to consult their constituents and seek a redress of their grievances—whether by enacting laws with their constituents’ consent or by petitioning other governments for their assistance. The historical context of the assembly clause’s origins suggest that the clause has been interpreted far too narrowly. Once the clause is understood as protecting not only the informal expressions of conventions, marches, and gatherings but also a right to meaningfully participate in effective government, the state and federal assembly clauses look like an important, “forgotten” limit on disenfranchisement and local disempowerment.
Albert H. Choi & Kathryn E. Spier, The Economics of Class Action Waivers, 38 Yale J. on Reg. (forthcoming 2021).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Arbitration
,
Class Action Litigation
,
Litigation & Settlement
,
Law & Economics
Type: Article
Abstract
Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and three recent US Supreme Court cases, Concepcion, Italian Colors, and Epic Systems, have endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.
Nicholas Stephanopoulos & Jowei Chen, The Race-Blind Future of Voting Rights, 130 Yale L.J. (forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
Type: Article
Nicholas Stephanopoulos, The Sweep of the Electoral Power, Const. Comment. (forthcoming 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
Congress is on the cusp of transforming American elections. The House recently passed a bill that would thwart voter suppression, end gerrymandering, and curb the undue influence of the rich. Something like this bill could soon become law. In this Article, I provide a multilayered foundation for such sweeping electoral legislation. From a theoretical perspective, first, I argue that Congress poses less of a threat to democratic values than do the states or the courts. It’s more difficult for a self-interested faction to seize control of federal lawmaking than to capture a state government or a judicial body. Second, surveying the history of congressional electoral regulation, I contend that it’s remarkably benign. Most federal interventions have advanced democratic values—in marked contrast to many of the states’ and the courts’ efforts. Third, I show that current law grants Congress the expansive electoral authority that, normatively, it ought to possess. In particular, the Elections Clause, the Guarantee Clause, and the Fourteenth Amendment’s Enforcement Clause combine to empower Congress over most electoral levels and topics. And fourth, returning to the House’s recently passed bill, I maintain that its most controversial elements are constitutional under the applicable doctrine. In fact, Congress could venture considerably further than, to date, it has tried to go. Together, these points should hearten legislators when they next turn to the project of electoral reform. Not only is aggressive federal action permissible in the American political system—it may be the only way to save it.
Noah Feldman, The Battle Over Scalia’s Legacy, N.Y. Rev. Books, Dec. 17, 2020, at 67 (reviewing Antonin Scalia, The Essential Scalia: On the Constitution, the Courts, and the Rule of Law (Jeffrey S. Sutton & Edward Whelan eds., 2020)).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Article
Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 105 Cornell L. Rev. (forthcoming Dec. 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Shareholders
,
Corporate Governance
Type: Article
Abstract
Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” This Article critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.
Jeannie Suk Gersen, Kamala Harris and the Noble Path of the Prosecutor, NewYorker.com (Nov. 20, 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Executive Office
,
Politics & Political Theory
Type: Other
James Toomey, Constitutionalizing Nature’s Law: Dignity and the Regulation of Biotechnology in Switzerland, J.L. & Biosciences lsaa072 (Nov. 19, 2020).
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
European Law
Type: Article
Abstract
The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional concept of dignity embraces the normative theory that the natural order is a source of moral value. Because this theory speaks directly to contested questions of the good life, Switzerland’s adoption of it as a constitutional principle is analogous to the adoption of a religious theory in a constitution. The concept of dignity as understood in the Swiss constitutional order is contrary to the commitment to epistemic humility characteristic of liberal constitutions.
Cass R. Sunstein, Behavioral Science and Public Policy (2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
Type: Book
Michael J. Klarman, Foreword: The Degradation of American Democracy—and the Court, 134 Harv. L. Rev. 1 (2020).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Executive Office
,
Elections & Voting
Type: Article
Abstract
This Foreword examines the recent degradation of American democracy, seeks explanations for it, and canvasses the Supreme Court’s contribution to it. Section IA examines the “autocrats’ playbook” to establish a baseline against which to evaluate recent American developments. Part IB considers President Trump’s authoritarian bent. Part IC describes the measures that Republicans have enacted in states to entrench themselves in power, including partisan gerrymandering, voter identification laws, purges of the voter rolls, measures to suppress the youth vote, circumvention of inconvenient voter initiatives, and even the delay and cancellation of elections. Part ID considers Republicans’ complicity with Trump, which has escalated over the course of his presidency, to the point that they mostly will not criticize him for obstructing the investigation into Russian interference with the 2016 presidential election, pressuring the president of Ukraine to dig up dirt on Joe Biden, politicizing law enforcement and intelligence, or catastrophically mishandling the federal government’s response to the coronavirus pandemic. Part II offers explanations for the nation’s current political predicament. Groups that fear becoming perpetual political losers may abandon their commitment to democracy, just as white southerners did in the antebellum period. Part IIA, “The Disappearing White Majority,” examines the role of demographic change, immigration, and increasing racial resentment in growing disaffection with democracy. Part IIB, “The Disappearing Christian Majority,” describes how the gradual collapse of the idea of the American “Christian nation” has contributed to such disaffection. Part IIC, “The Rise of the Neo-Ayn Randians,” considers how radical libertarians, never enthusiastic about democracy because of the threat it posed to property rights, gradually gained ideological and political influence since the 1960s and came to dominate the Republican Party. Part IID, “Economic Inequality,” explores how working-class Americans, whose economic position stopped improving about forty years ago, have become disaffected with a democratic political system that no longer works for them. Part IIE explains how these other developments, refracted through American political and media ecosystems, have produced a politics of asymmetric polarization, hardball, and negative partisanship, which created a Republican Party no longer strongly committed to democracy and prepared to defend at all costs a president with a strong authoritarian bent. Part III examines the Supreme Court’s contributions to the degradation of American democracy. The Court’s conservatives abrogated the preclearance provision of the Voting Rights Act, enabling Republican governments in the South to enact voting restrictions enabling the party to maintain political power in rapidly diversifying states such as Florida, Georgia, North Carolina, and Texas. The Court’s Republican Justices have also upheld stringent voter-identification laws and purges of the voter rolls, both of which purport to address the largely non-existent problem of voter fraud, while disfranchising Democratic-leaning constituencies, such as persons of color, the poor, and the young. Most recently, the conservative Justices have declined to intervene against partisan gerrymandering, which has mostly benefitted Republicans in recent years. The Court’s campaign finance decisions, dating back to 1976 but becoming increasingly extreme over the last decade, have created a political system dominated by money, which advantages Republicans who disproportionately benefit from the political spending of the most affluent Americans. In Bush v. Gore (2000), the Court helped to elect a Republican president, who appointed two conservative Justices, without whose participation none of the recent rulings undermining democracy would have been possible. In 2019, the conservative Justices fell one vote short of enabling Republicans to entrench themselves in power for another decade by ensuring that persons of color would be undercounted in the 2020 census. Only a last-minute change of heart by the Chief Justice stymied that effort. The conservative justices have also abjured the Court’s traditional role in protecting vulnerable racial and religious minorities from discrimination by validating the Trump administration’s thinly veiled ban on Muslim travel to the United States. Part III concludes by discussing how constitutional interpretation works in general and why the Republican majority’s rulings on issues of democratic governance nearly always benefit the Republican Party. Part IV briefly considers how to bolster American democracy. The best way to stem the degradation of democracy is to entrench democracy. Yet, this is an uphill battle, both because political actors who benefit from the status quo are incentivized to resist changes to it and because various structural features of the American political system advantage Republicans. To entrench democracy, Democrats would need to overcome simultaneously the disadvantages of partisan gerrymandering and geographic clustering in state legislatures and the House of Representatives, extreme malapportionment in the Senate, the vagaries and malapportionment of the electoral college, and the flood of unregulated political spending that the Court has unleashed. Even then, Republican Justices might invalidate democracy-entrenching measures. Moreover, some such measures, such as campaign-finance reform, may require a constitutional amendment, given the conservative Justices’ strained interpretations of the First Amendment. The Court has a Republican majority today only because Senate Majority Leader Mitch McConnell stole a Supreme Court seat from Democrats in 2016, when he refused to permit President Obama to fill the vacancy left by the death of Justice Antonin Scalia. The entrenchment of democracy will probably require Democrats to undo that theft. A brief Conclusion examines competing reasons to be pessimistic and optimistic regarding prospects for stemming the degradation of American democracy, and reflects on the deeply contingent nature of this story’s outcome.
Jeannie Suk Gersen, How Far Could Republications Take Trump's Claims of Election Fraud?, NewYorker.com (Nov. 10, 2020).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Supreme Court of the United States
,
State & Local Government
Type: Other
W. Nicholson Price, Sara Gerke & I. Glenn Cohen, Invited Perspective: How Much Can Potential Jurors Tell Us about Liability for Medical AI?, J. Nuclear Med. (Nov. 6, 2020).
Categories:
Health Care
,
Civil Practice & Procedure
,
Technology & Law
Sub-Categories:
Litigation & Settlement
,
Torts - Negligence
,
Medical Jurisprudence
,
Networked Society
,
Medical Technology
Type: Article
The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., 2020).
Categories:
Civil Practice & Procedure
Sub-Categories:
Private Law
Type: Book
Abstract
The Oxford Handbook of the New Private Law reflects exciting developments in scholarship dedicated to reinvigorating the study of the broad field of private law. This field embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent, more statutory areas, such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. "Private law" can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law - including courts, arbitrators, and even custom. The New Private Law is an approach to these subjects that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law's various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law - including philosophical, economic, historical, and psychological, to name a few - yet it offers a unifying theme of seriousness about the structure and content of private law. It will be an essential resource for legal scholars interested in the future of this important field.
Cass R. Sunstein, There Are Two “Major Question” Doctrines (Nov. 4, 2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Judges & Jurisprudence
,
Statutory Interpretation
,
Supreme Court of the United States
Type: Other
Abstract
The Supreme Court is conspicuously uneasy about its Chevron framework, which requires courts to defer to agency interpretations of law, so long as those interpretations are “reasonable.” One of the principal manifestations of its uneasiness is the “major question” doctrine, which makes Chevron inapplicable to questions of great “economic and political significance.” But the major question doctrine is actually two separate doctrines. The weak version is a kind of “Chevron carve-out,” meant to ensure that courts exercise independent judgment, and so do not defer to agencies, with respect to the meaning of statutes as applied to especially important questions. By contrast, the strong version flatly prohibits agencies from interpreting ambiguous statutes so as to assert broad authority over the private sector. Both versions of the major question doctrine can claim a connection to the nondelegation doctrine. The arguments on behalf of the weak version are very different from the arguments on behalf of the strong version.
Robert H. Sitkoff, Risk Management and the Prudent Investor Rule, Wealth Mgmt, Nov. 2, 2020.
Categories:
Banking & Finance
,
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Banking
,
Economics
,
Financial Markets & Institutions
,
Investment Products
,
Risk Regulation
,
Empirical Legal Studies
,
Trusts
Type: Article
Abstract
Against that backdrop, we’ll summarize the key findings of our previously published rigorous empirical study of market risk management by bank trustees using data that spanned multiple prior financial crises.1 Specifically, using data from reports to federal banking regulators of trust holdings by banks that are in the federal reserve system, we undertook an econometric examination of both asset allocation and portfolio rebalancing before and after each state enacted the modern PIR.2 We had two main findings: 1. [...]to obtain a greater expected return, an investor must assume greater market risk. A larger trust can more readily tolerate market volatility without imperiling its distribution obligations, such as support payments to a surviving spouse. [...]given the strong correlation between overall personal wealth and inheritances, the beneficiaries of a larger trust are more likely to have other sources of support.10 If trustees have been sensitive to trust risk tolerance in trust asset allocation, we should observe larger trust stockholdings in banks with larger average trust account sizes than in those with smaller average trust account sizes. [...]we concluded that adoption of the PIR primarily increased trust stockholdings by bank trustees with average trust account sizes at or above the 25th percentile.
Jeannie Suk Gersen, What If This Election Ends in Another Bush v. Gore?, NewYorker.com (Nov. 2, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Executive Office
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Cass R. Sunstein, On Overruling Chevron (Nov. 1, 2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Judges & Jurisprudence
,
Statutory Interpretation
,
Supreme Court of the United States
,
Politics & Political Theory
,
Congress & Legislation
Type: Other
Abstract
Chevron, U.S.A., Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval—a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally,, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits along ideological lines. There is also the question of reliance interests: For decades, Congress has legislated against the background set by Chevron, and the resulting statutes reflect an understanding that the Court’s framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.
Nicholas Stephanopoulos, Quasi Campaign Finance, 70 Duke L.J. 333 (2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
First Amendment
,
Elections & Voting
Type: Article
Abstract
Say you’re wealthy and want to influence American politics. How would you do it? Conventional campaign finance — giving or spending money to sway elections — is one option. Lobbying is another. This Article identifies and explores a third possibility: quasi campaign finance, or spending money on non-electoral communications with voters that nevertheless rely on an electoral mechanism to be effective. Little is currently known about quasi campaign finance because no law requires its disclosure. But its use by America’s richest and politically savviest individuals — the Koch brothers, Michael Bloomberg, and the like — appears to be rising. It also seems to skew policy outcomes in the spenders’ preferred direction. After introducing quasi campaign finance, the Article considers its legal status. Is it like ordinary campaign finance, in which case it could be regulated fairly extensively? Or is it like garden-variety political speech, rendering it presumptively unregulable? One argument for pairing quasi and regular campaign finance is that they share several features — who bankrolls them, the tactics they pay for, the reasons they work — and so may serve as substitutes. Another rationale for conflation is that they may both cause the same democratic injuries: corruption, the distortion of public opinion, and the misalignment of public policy. Pitted against these points is the slippery-slope objection: If quasi campaign finance may constitutionally be curbed, what political speech may not be? Lastly, the Article suggests how quasi campaign finance should (assuming it actually may) be regulated. Limits on contributions and expenditures are unwise and probably unadministrable. Disclosure, though, is a necessity. The public should know who is trying to persuade it (and how). Even more promising is the public subsidization of quasi campaign finance. If every voter received a voucher for this purpose, then public funds might crowd out private capital, thus alleviating its harmful effects.
Robert Faris, Justin Clark, Bruce Etling, Jonas Kaiser, Hal Roberts, Carolyn Schmitt, Casey Tilton & Yochai Benkler, Polarization and the Pandemic: American Political Discourse, March – May 2020 (Berkman Klein Ctr. Research Publ'n No. 2020-9, Oct. 29, 2020).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Politics & Political Theory
,
Elections & Voting
,
Executive Office
,
Communications Law
,
Networked Society
Type: Other
Abstract
By the middle of March, the Democratic primary had effectively ended and the enormity of the Covid-19 pandemic and its human and economic cost began to sink in. The response to the pandemic had already been thoroughly politicized several weeks earlier such that news and information about the pandemic were mediated by political media systems. While the rest of the American media ecosystem focused on describing the pandemic, its economic costs, and criticizing the president for his response, conservative media presented a thoroughly partisan view of events and proactively defended and supported the actions and inactions of the president. For audiences of conservative media, information about the pandemic was communicated not through politically neutral public health authorities but was instead filtered and propagated through media channels shaped by many decades of partisan politics. The mainstream media coverage of the pandemic that got the most attention was highly critical of the president’s response, which may have deepened the politically-rooted differences in perspectives on the pandemic. Compared to conservative media, there was far greater deference among media sources on the center and left to views and perspectives of public health authorities and experts. This report, based on an ecosystem-wide analysis of political media coverage, spans the period of March, April, and May, when the spread and magnitude of the pandemic in the United States became clear, and the response of the government was communicated to the public and debated in the media. In March, coverage of the pandemic dominated political media on both sides of the political spectrum, though significantly less so on the right. The proportion of media attention to the pandemic diminished in April and May on the left. On the right, attention to the pandemic dropped off steeply. In April, conservative media and their audiences devoted substantial attention to coverage of the allegations of sexual harassment by Tara Reade against Joe Biden. In May, there was far more attention in conservative media to relitigating the origins of the Russia investigation under the banner of Obamagate than to the pandemic, which had already exacted a terrible cost and was nowhere near being under control. The collective judgment of the conservative media ecosystem was that this largely unsubstantiated storyline rooted in grievance politics was more deserving of the attention of the American public. For Biden supporters, the drop in attention to Covid-19 was picked up by negative coverage of the Trump administration on other issues. Sanders supporters followed a similar path until the death of George Floyd at the end May took up their attention. This was not replicated in the Biden set. Consistent with our findings in January-February, at the peak of the primaries season, Sanders supporters here too appear more focused on progressive issues, while Biden supporters are largely focused on criticism or rejection of Trump. The basic asymmetric and polarized structure of American political media has changed little over the past several years, and this time period is no exception. The potent role of conservative media in the election victory of Trump in 2016 rested on two distinct factors: first, Trump’s success in securing favorable coverage and strong support in conservative media, and second, the success that conservative media had in influencing media coverage outside of conservative media. The willingness of conservative media and audiences to defend and support Trump is clearly evident during these months. Trump continued to receive strong support in conservative media, which acted to divert, deflect, and reframe negative coverage, despite the rash of negative coverage criticizing the administration’s response to the pandemic. The evidence also points to a further isolation of conservative media in American political discourse and a system less able to shape discourse and coverage outside of its own confines, leaving Americans in more starkly divided epistemic worlds. The administration-friendly narratives about the pandemic and Obamagate got little to no traction outside of conservative media. This finding matches what we found in a prior report in which we describe the inability of conservative media to shape coverage of the Hunter Biden scandal outside of right-wing media during January and February 2020, a pattern that is repeated in October 2020. Neither President Trump nor conservative media have lost their ability to influence the media agenda. For example, in a recent report we describe how Trump was able to create a controversy about mail-in voter fraud that prompted media coverage across the political spectrum. The sexual harassment allegations lodged by Tara Reade against Joe Biden ultimately got a public airing—something conservative media pushed hard on. Despite the fact that the impetus to address this topic came also from the left, the media attention garnered in conservative media was not matched in the center and left. The key difference is that while President Trump and conservative media can still make news, their power to interpret and frame the narrative around key events beyond conservative media is more constrained than in 2016. The asymmetric credibility gap between conservative media and the rest of the media ecosystem appears to have deepened. And professional media seem to succumb less readily to the “bias of balance” problem that had bedeviled much of mainstream coverage of Hillary Clinton’s campaign in 2016. There is plentiful evidence of disinformation in political discourse among partisan media and on social media. The problem is far more acute on the right than the left and considerable attention on the far right is tied to the growing QAnon conspiracy. This development is a troubling symptom of the state of political discourse in the United States and translates into real-world costs. However, the impact of top-down propaganda and disinformation is still a greater problem in the United States, particularly so in relation to Covid-19, as tens of millions of Americans have taken unnecessary risks and helped spread the pandemic because they were misinformed about the dangers of contracting the disease and the value of measures deemed effective by public health authorities in reducing the chance of infection, such as social distancing or mask wearing. Many people, including public health specialists and the general public, have come to the conclusion that compared to the relative successes of other countries in addressing the Covid-19 pandemic, the United States response has been a failure, costing innumerable lives and leaving tens of thousands with long-term health problems, while deepening and extending the economic and social consequences of the pandemic. A large minority of Americans fundamentally disagree with this assessment. These divergent worldviews, the symptom of a larger epistemic crisis in the United States tied to asymmetrically polarized media systems, greatly complicate efforts to effectively meet such collection action challenges, and undermine democratic governance. In this paper, we describe how American media ecosystems are able to sustain such different worldviews and contribute to the mishandling and miscommunication of the pandemic. This report is the second in a series of reports that cover the months running up to the November election.
Jeannie Suk Gersen, What the Democrats Achieve by Threatening to Pack the Supreme Court, NewYorker.com (Oct. 28, 2020).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Henry E. Smith, Systems Theory: Emergent Private Law, in The Oxford Handbook of the New Private Law (Andrew S. Gold, John C. P. Goldberg, Daniel B. Kelly, Emily Sherwin & Henry E. Smith eds., 2020).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Property Law
Sub-Categories:
Private Law
,
Legal Theory & Philosophy
,
Property Rights
Type: Book
Abstract
Accounts of private law in general and property in particular have downplayed traditional notions of system in favor of a sum-of-the-parts reductionism. Recent developments in complex systems theory allows a reassessment of this picture. A system is a collection of elements and the connections between and among them; complex systems are ones in which the properties of the system as a whole are difficult to infer from the properties of the parts. Private law is a complex system. Taking the bundle of rights in property law as a starting point, the chapter shows that conventional analysis is overly reductive in that it assumes that the attributes of the whole bundle are the additive sum of the attributes of the “sticks” in the bundle taken individually. Theoretically and empirically, this aggregative approach is not as accurate as one based on “organized complexity,” points in the direction of the New Private Law: systems theory leads to a better and more unified account of the bundle of rights, standardization in property, possession, title, and equity. Systems theory also promises to mitigate some of the dichotomies in private law, such as holism versus reductionism, homogeneity versus specialization, formalism versus contextualism, and public versus private law.
John C.P. Goldberg, Torts, in The Oxford Handbook of the New Private Law (Andrew S. Gold, John C. P. Goldberg, Daniel B. Kelly, Emily Sherwin & Henry E. Smith eds., 2020).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Private Law
,
Torts
,
Law & Economics
Type: Book
Abstract
In the United States and elsewhere, the Law and Economics movement has fundamentally reshaped how judges, lawyers, and law students understand tort law. And yet economic interpretations of tort law – as opposed to prescriptive analyses of tort problems that deploy economic methodologies – face insuperable difficulties. Why, then, do the endure? The answer is that some of the leading economic accounts actually manage to identify, albeit in a distorted way, many of tort law’s core features. In keeping with the emphasis of the New Private Law on analysis that is down-to-earth without being reductionist, this Chapter explains why these same features can be captured without distortion though an understanding of tort as a law of wrongs and redress.
Ruth L. Okediji, Traditional Knowledge and Private Law, in The Oxford Handbook of the New Private Law (Andrew S. Gold, John C. P. Goldberg, Daniel B. Kelly, Emily Sherwin & Henry E. Smith eds., 2020).
Categories:
Civil Practice & Procedure
,
Property Law
Sub-Categories:
Private Law
,
Property Rights
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Book
Abstract
Many proponents of traditional knowledge (TK) seek legal protection comparable to the bundle of exclusive rights afforded creators of knowledge goods in the conventional intellectual property (IP) system. This chapter argues that the nature of the harm caused by such misuse differs meaningfully from the interests with which standard intellectual property law is occupied. It maps how private law claims have been applied, notably in Australia, to address TK misuse and highlights formal adherence by courts to the boundaries of private law subjects. Important aspects of the problem, such as how TK misuse disables cultural mechanisms designed to foster the production of knowledge goods for sustainable growth in Indigenous communities, while also posing a risk to cross-border scientific research important for pressing public health and environmental challenges, however remain beyond private law’s reach.The chapter identifies three types of harm that flow from the misuse of TK: relational harm, communal harm, and developmental harm. For such harms, individual private property—and common property for that matter—offers limited recourse. The chapter reflects on other private law tools that could extend to TK and that offer protection well beyond IP rights, but all are without the classic welfare limits attendant to knowledge goods under the IP system. The misalignment of harms, claims and remedies point to sui generis regimes as a more meaningful prospect for regulating TK.
Jeannie Suk Gersen, We May Need the Twenty-Fifth Amendment if Trump Loses, NewYorker.com (Oct. 26, 2020).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Elections & Voting
,
Politics & Political Theory
Type: Other
J. Mark Ramseyer, Book Review, Japanese Stud. (Oct. 23, 2020) (reviewing R.W. Kostal, Laying Down the Law: The American Legal Revolutions in Occupied Germany and Japan (2019)).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Military, War, & Peace
,
East Asian Legal Studies
,
Legal History
Type: Article
Robert Faris, Justin Clark, Bruce Etling, Jonas Kaiser, Hal Roberts, Carolyn Schmitt, Casey Tilton & Yochai Benkler, Partisanship, Impeachment, and the Democratic Primaries: American Political Discourse, January - February 2020 (Berkman Klein Ctr. Research Publ'n No. 2020-8, Oct. 22, 2020).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Communications Law
,
Networked Society
Type: Other
Abstract
The decisions voters will make at the ballot box on November 3, 2020 will be influenced in no small part by the media coverage of the candidates and issues, including the reporting by journalists, the media personalities and pundits on radio and television, text messages and campaign phone calls, podcasts, political ads, and for many, the incessant flow of social media posts of friends and family. In this report, the first of a series of reports that cover the months running up to the November election, we track political discourse in the United States for January and February of 2020, the period of time just before (Covid-19) began to dominate political discourse. We also describe the longer-term structure of political media ecosystems in the United States that shape public discourse by curating, amplifying, and propagating political stories and narratives to distinct political audiences. The agenda of political media in January and February 2020 centered on the impeachment of the president, the Democratic primaries, and the killing of Qasem Soleimani. This agenda was picked up throughout the media ecosystem, but there were stark differences across the media camps in the framing and narrative contours applied to these topics, presenting radically different depictions of the underlying evidence, facts, and interpretation of events. These differences between media spheres that often extend beyond spin and emphasis reflect and reinforce the depth and strength of the divide in American politics. Mainstream media described in great detail the rationale for impeaching the president, while in right-wing media the ‘call was perfect’ and the impetus for impeachment was a concocted charade, a witch hunt, to illegitimately overturn the 2016 election. Mainstream media described a rash decision by President Trump to order a missile strike on General Soleimani that was then sold to the American public on the false pretenses of a clear and imminent threat of attack against United States embassies. Conservative media hailed the killing as a decisive strike against adversaries that has unquestionably increased American security and standing in the world. While mainstream media coverage devoted similar levels of attention to the Democratic primaries and the impeachment of the president in January, and a majority of their attention to the primary race in February, politically engaged users on social media were more focused on partisan one-upmanship. For Democrats, attention was directed at the impeachment and the missteps of Trump and his administration, and in February, the intervention of Attorney General Barr and the Department of Justice in the sentencing of Roger Stone. Republicans, in turn, focused their attention on time-honored political foes: Nancy Pelosi and the Democratic leadership, Hillary Clinton, and the hostile and biased mainstream media. The patterns of attention on both sides are consistent with a view that negative partisanship plays a dominant role in American politics. Trump supporters on Facebook provided an exception to the pattern of negative coverage where celebratory videos of appearances and events of Trump were popular. Negative polarization spilled over into the Democratic primary race, which came down to a battle between progressives pursuing a platform of aggressive action on healthcare, climate change, and social and economic justice versus those that put regaining the White House above all else and saw a moderate candidate as a better bet. The media coverage promoted by Sanders supporters placed major focus on the candidate and his policy positions. In contrast, Biden supporters were oriented towards negative coverage of Trump. The outcome of the Democratic race is in keeping with the tenet that negative partisanship dominates American politics. Conservatives in America appear to have survived the barrage of negative coverage from mainstream media with their partisan perspectives and belief systems intact. This is not because conservative media erected an impermeable barrier against negative coverage from the center and left. Politically engaged conservatives were informed of the damaging coverage, but were unfailingly offered a reinterpretation and reframing of events and a plausible alternative narrative designed to preempt any second thoughts about allegiance to party and president. In deflecting and reframing negative coverage, the tactics employed by conservative media follow a well-developed pattern: downplay the validity of the story; deflect attention to the other side; attack the integrity and motives of sources; reinforce distrust in media outside of the right wing; and invoke a strong partisan framing to activate political identity. The formidable narrative crafting power of conservative media is employed not as a mechanism for accountability among its participants and leaders and not to police against disinformation and substandard reporting. Instead, it is wielded as a buffer against external influence and against deviance from the party line. This leaves the system vulnerable to misleading and false reporting and to those propagating conspiracies, such as the Gateway Pundit and True Pundit. Hyperpartisan media sources, which thrive on outrage and frequently misinform their audiences, play a prominent role in conservative media. On the left, partisan and hyperpartisan outlets play a much smaller role and less frequently propagate stories unconfirmed by mainstream media. The biggest change we observe in these first two months of 2020 compared to the election cycle of four years ago is the degree to which conservative media activists have shaped mainstream media coverage. In 2016, right-wing media activists succeeded in influencing mainstream coverage of Hillary Clinton, particularly on the unsubstantiated allegations of wrongdoing associated with the Clinton Foundation, which exacerbated and fed upon coverage of her emails and fueled suspicions of corruption and dishonesty. In the current election cycle, conservative media activists rolled out the same playbook that was so successful in 2016. This time, the corruption allegations were focused on Joe Biden, his son Hunter, and their dealings with Ukraine and China. This story was picked up by mainstream media in 2019, but the core allegation—that Joe Biden pressured Ukraine to remove a prosecutor in order to protect his son—fell apart under scrutiny. By January 2020, while conservative media continued to push out exaggerated and false claims, the dominant mainstream framing of this story had shifted to Donald Trump’s abuse of his presidential power for his own political gain, which overshadowed the well-established and misguided actions of Hunter Biden to cash in on his father’s name. The discredited allegations of corrupt dealings by Joe Biden were getting no play in mainstream media. While conservative media continues to exhibit a remarkable capacity for reframing news coverage to align with the beliefs and perceptions of its core audiences, in January and February of 2020, its power to shape mainstream media coverage was diminished compared to 2016. This is the most notable change we observe and has the potential to alter the electoral calculus in the November election.
Annette Gordon-Reed, Rebellious History, 67 N.Y. Rev. Books, Oct. 22, 2020, at 4 (reviewing Saidiya Hartman, Wayward Lives, Beautiful Experiments: Intimate Histories of Riotous Black Girls, Troublesome Women, and Queer Radicals (2019)).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Race & Ethnicity
,
Gender & Sexuality
,
Legal History
Type: Article
I. Glenn Cohen, Sara Gerke & Daniel R. Kramer, Ethical and Legal Implications of Remote Monitoring of Medical Devices, Milbank Q. (Oct. 20, 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Information Privacy & Security
,
Networked Society
,
Medical Technology
Type: Article
Eli Y. Adashi & I. Glenn Cohen, Assisted Same-Sex Reproduction: The Promise of Haploid Stem Cells?, Stem Cells & Dev. (Oct. 19, 2020).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Family Law
Sub-Categories:
LGBTQ Rights Law
,
Reproduction
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Abstract
Same-sex couples, not unlike their heterosexual counterparts, would prefer having a genetically related child.However, assisted same-sex human reproduction has heretofore been deemed infeasible absent haploid cellularanalogs of human gametes. Recent developments, however, may have overcome this limitation through thederivation of haploid embryonic stem cells (hapESCs). Undifferentiated, pluripotent, self-renewing, and stablyhaploid, hESCs have also displayed germline competence. It is in this capacity that murine hESCs, doubling upas de facto gametes, gave rise to bimaternal and bipaternal progeny. Herein we argue that assisted same-sexhuman reproduction, although potentially attainable at this time, is still years away from the clinic. In support ofthis perspective, we note the significant technical, regulatory, statutory, and societal hurdles that stand in theway of near-term implementation.
Cass R. Sunstein, Hayekian Behavioral Economics (Oct. 19, 2020).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
Type: Other
Abstract
One of Friedrich Hayek’s most important arguments pointed to the epistemic advantages of the price system, which incorporates the information held by numerous, dispersed people. Like John Stuart Mill, Friedrich Hayek also offered an epistemic argument on behalf of freedom of choice. He emphasized that outsiders know much less than choosers do, which means that interferences with personal freedom, by those outsiders, will make choosers worse off. A contemporary challenge to that epistemic argument comes from behavioral economics, which has uncovered an assortment of reasons why choosers err, and also pointed to possible distortions in the price system. But even if those findings are accepted, what should outsiders do? How should they proceed? A neo-Hayekian approach would seek to reduce the knowledge problem by asking not what outsiders want, but what individual choosers actually do under epistemically favorable conditions. In practice, that question can be disciplined by asking five subsidiary questions: (1) What do consistent choosers, unaffected by self-evidently irrelevant factors, end up choosing? (2) What do informed choosers choose? (3) What do active choosers choose? (4) In circumstances in which people are free of behavioral biases, including (say) present bias or unrealistic optimism, what do they choose? (5) What do people choose when their viewscreen is broad, and they do not suffer from limited attention? These kinds of questions can be answered empirically. An ongoing program of research, coming from a diverse assortment of people, explores these questions, and can be seen to be producing a form of Hayekian behavioral economics – Hayekian in the sense that it can claim to be respectful of Hayek’s fundamental concerns. These conclusions are illustrated with reference to the controversy over fuel economy standards, with an acknowledgement that on broadly Hayekian grounds, the best approach might be to inform consumers of potential savings, while using a corrective tax to control externalities.
Randall Kennedy, Politicians in Robes, The Nation, Oct. 19, 2020, at 41 (reviewing Adan Cohen, Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America (2020)).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Discrimination
,
Poverty Law
,
Race & Ethnicity
,
Politics & Political Theory
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Labor Law
Type: Article
Alan Dershowitz, Cancel Culture: The Latest Attack on Free Speech and Due Process (2020).
Categories:
Constitutional Law
,
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
First Amendment
,
Law & Political Theory
,
Networked Society
,
Communications Law
Type: Book
Abstract
Cancel Culture is a defense of due process, free speech, and even-handedness in the application of judgment. It makes the case for restraint and care in decisions about whom and what to cancel, boycott, deplatform, and bar from public life, and offers recommendations for when, why, and to what degree these steps may be appropriate, as long as objective, fair-minded criteria can be determined and met. While Dershowitz argues against the worst excesses of cancel culture—the rush to judgment and the devastating results it can have on those who may be innocent, the power of social media to effect punishment without a thorough examination of evidence, the idea that historical events can be viewed through the same lens as actions in the present day—he also acknowledges that its defenders ostensibly try to use it to create meaningful, positive change, and notes that cancelling may itself be a constitutionally protected form of free speech. In the end, Cancel Culture represents an icon in the defense of free speech and due process reckoning with the greatest challenge and threat to these rights since the rise of McCarthyism. It is essential reading for anyone interested in or concerned about cancel culture, its effects on our society, and its significance in a greater historical and political context.
Rebecca Tushnet, Every Action’s an Act of Creation: Hamilton and Copyright Law, in Hamilton and the Law: Reading Today's Most Contentious Legal Issues Through the Hit Musical 193 (Lisa A. Tucker ed., 2020).
Categories:
Property Law
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Arts & Entertainment Law
,
Intellectual Property - Copyright
Type: Book
Jeannie Suk Gersen, How Would Amy Coney Barrett Rule as a Supreme Court Justice?, NewYorker.com (Oct. 14, 2020).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Other
Mark J. Roe, Holger Spamann, Jesse M. Fried & Charles C.Y. Wang, The European Commission's Sustainable Corporate Governance Report: A Critique (Oct. 14, 2020).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Corporate Governance
,
Shareholders
,
Securities Law & Regulation
,
Corporate Law
,
European Law
Type: Other
Abstract
In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by EY. The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, we point out deep flaws in the Report’s evidence and analysis. We recently submitted the content of this paper in response to the European Commission’s call for feedback. First, the Report defines the corporate governance problem as one of pernicious short-termism that damages the environment, the climate, and stakeholders. But the Report mistakenly conflates time-horizon problems with externalities and distributional concerns. Cures for one are not cures for the others and a cure for one may well exacerbate the others. Second, the Report’s main ostensible evidence for an increase in corporate short-termism is rising gross payouts to shareholders (dividends and stock repurchases). However, the more relevant payout measure to assess corporations’ ability to fund long-term investment is net payouts (gross payouts minus equity issuances), which is much lower and has left plenty of funds available for long-term and short-term investment. Third, when the Report turns to other evidence for short-termism, it selectively picks academic studies that support its views on short-termism, while failing to engage substantial contrary literature. Significant studies fail to detect short-termism and some substantial studies show excessive long-termism. Conceptually, some short-termism is an unfortunate but an inevitable side effect of effective corporate governance and may not be a first-order problem warranting wholesale reform. Finally, the Report touts cures whose effectiveness has little evidentiary support and, for some, there is real evidence that the cures could be counterproductive and costly.
Alan Dershowitz, Confirming Justice—Or Injustice?: A Guide to Judging RBG's Successor (2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Book
Abstract
Confirming Justice—Or Injustice? is an analysis of every aspect of the possible confirmation of Judge Amy Coney Barrett to fill the vacant seat left by the death of Ruth Bader Ginsburg. It includes timely commentary on the history and process of confirming justices to the Supreme Court, notes about what might happen if the process is changed—such as by court packing or instituting age or term limits for justices—and discussion of the roles of the various people and groups who might have input on the confirmation, from the president to the senate to the judiciary committee to the Constitution itself. In the end, Confirming Justice—Or Injustice? represents an icon in American law and politics reckoning with an increasingly politicized and polarized nomination-and-confirmation process for judges and what those shifts might mean for the country, both now and in days to come. It is essential reading for anyone interested in or concerned about Trump's nomination of Amy Coney Barrett and the process of her possible confirmation, the legacy of Ruth Bader Ginsburg, and the future and fate of the Supreme Court—and American democracy itself.
Jesse M. Fried & Charles C.Y. Wang, Short-Termism, Shareholder Payouts, and Investment in the EU (Eur. Corp. Governance Inst. Law Working Paper 544/2020, Oct. 9, 2020).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Shareholders
,
Corporate Law
,
Corporate Governance
,
European Law
Type: Other
Abstract
Investor-driven "short-termism'" is said to harm EU public firms' ability to invest for the long term, prompting calls for the EU to better insulate managers from shareholder pressure. But the evidence offered---in the form of rising levels of repurchases and dividends---is incomplete and misleading, as it ignores large offsetting equity issuances that move capital from investors to EU firms. We show that net shareholder payouts have been moderate, that both investment levels and investment intensity have been rising, and that cash balances have increased. In sum, the data provide little basis for the view that short-termism in the EU warrants corporate governance reforms.
Eli Y. Adashi & I. Glenn Cohen, Heritable Human Genome Editing: The International Commission Report, JAMA (Oct. 8, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Holger Spamann, Indirect Investor Protection: The Investment Ecosystem and Its Legal Underpinnings (Harv. John M. Olin Ctr. for L. Econ. & Bus. Discussion Paper No. 1046, Oct. 7, 2020).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Investment Products
,
Financial Markets & Institutions
,
Securities Law & Regulation
,
Shareholders
,
Corporate Law
,
Corporate Governance
Type: Other
Abstract
This paper argues that the key mechanisms protecting retail investors’ financial stake in their portfolio investments are indirect: they do not rely on actions of the investors themselves, or of their agents including fund managers, or of any other private actor directly charged with looking after the investors’ interests. Rather, investors’ main protections are provided by the ecosystem that they (are legally forced to) inhabit. These protections arise as a byproduct of the self-interested, legally constrained behavior of sophisticated third parties that are in competition with one another, particularly hedge funds, traders generally, and plaintiff lawyers. While existing law consciously supports some of these indirect mechanisms, others remain hidden from view and are at risk from contractual innovations and their own success. The analysis provides a more convincing rationale for mandatory corporate and securities law, cautions against the SEC’s recent push to open private markets to smaller investors, and identifies a new challenge from the rise of large index funds.
John Palfrey & Urs Gasser, The Connected Parent: An Expert Guide to Parenting in a Digital World (forthcoming Oct. 6, 2020).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
Type: Book
Abstract
Today's teenagers spend about nine hours per day online. Parents of this ultra-connected generation struggle with decisions completely new to parenting: Should an eight-year-old be allowed to go on social media? How can parents help their children gain the most from the best aspects of the digital age? How can we keep kids safe from digital harm? John Palfrey and Urs Gasser bring together over a decade of research at Harvard to tackle parents' most urgent concerns. The Connected Parent is required reading for anyone trying to help their kids flourish in the fast-changing, uncharted territory of the digital age.
Samantha Power, Abubacarr Tambadou, Pursuer of Justice, Time, Oct. 5, 2020, at 110.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Refugee & Asylum Law
,
International Law
Type: Article
Cass R. Sunstein, Are Food Labels Good?, Food Pol'y (Oct. 5, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Other
Abstract
Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.
Yochai Benkler, Casey Tilton, Bruce Etling, Hal Roberts, Justin Clark, Robert Faris, Jonas Kaiser & Carolyn Schmitt, Mail-In Voter Fraud: Anatomy of a Disinformation Campaign (Berkman Klein Ctr. Research Publ'n No. 2020-6, Oct. 2, 2020).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Elections & Voting
,
Corruption
,
Politics & Political Theory
,
Executive Office
,
Communications Law
,
Networked Society
Type: Other
Abstract
The claim that election fraud is a major concern with mail-in ballots has become the central threat to election participation during the COVID-19 pandemic and to the legitimacy of the outcome of the election across the political spectrum. President Trump has repeatedly cited his concerns over voter fraud associated with mail-in ballots as a reason that he may not abide by an adverse electoral outcome. Polling conducted in September 2020 suggests that nearly half of Republicans agree with the president that election fraud is a major concern associated with expanded mail-in voting during the pandemic. Few Democrats share that belief. Despite the consensus among independent academic and journalistic investigations that voter fraud is rare and extremely unlikely to determine a national election, tens of millions of Americans believe the opposite. This is a study of the disinformation campaign that led to widespread acceptance of this apparently false belief and to its partisan distribution pattern. Contrary to the focus of most contemporary work on disinformation, our findings suggest that this highly effective disinformation campaign, with potentially profound effects for both participation in and the legitimacy of the 2020 election, was an elite-driven, mass-media led process. Social media played only a secondary and supportive role. Our results are based on analyzing over fifty-five thousand online media stories, five million tweets, and seventy-five thousand posts on public Facebook pages garnering millions of engagements. They are consistent with our findings about the American political media ecosystem from 2015-2018, published in Network Propaganda , in which we found that Fox News and Donald Trump’s own campaign were far more influential in spreading false beliefs than Russian trolls or Facebook clickbait artists. This dynamic appears to be even more pronounced in this election cycle, likely because Donald Trump’s position as president and his leadership of the Republican Party allow him to operate directly through political and media elites, rather than relying on online media as he did when he sought to advance his then-still-insurgent positions in 2015 and the first half of 2016. Our findings here suggest that Donald Trump has perfected the art of harnessing mass media to disseminate and at times reinforce his disinformation campaign by using three core standard practices of professional journalism. These three are: elite institutional focus (if the President says it, it’s news); headline seeking (if it bleeds, it leads); and balance , neutrality, or the avoidance of the appearance of taking a side. He uses the first two in combination to summon coverage at will, and has used them continuously to set the agenda surrounding mail-in voting through a combination of tweets, press conferences, and television interviews on Fox News. He relies on the latter professional practice to keep audiences that are not politically pre-committed and have relatively low political knowledge confused, because it limits the degree to which professional journalists in mass media organizations are willing or able to directly call the voter fraud frame disinformation. The president is, however, not acting alone. Throughout the first six months of the disinformation campaign, the Republican National Committee (RNC) and staff from the Trump campaign appear repeatedly and consistently on message at the same moments, suggesting an institutionalized rather than individual disinformation campaign. The efforts of the president and the Republican Party are supported by the right-wing media ecosystem, primarily Fox News and talk radio functioning in effect as a party press. These reinforce the message, provide the president a platform, and marginalize or attack those Republican leaders or any conservative media personalities who insist that there is no evidence of widespread voter fraud associated with mail-in voting. The primary cure for the elite-driven, mass media communicated information disorder we observe here is unlikely to be more fact checking on Facebook. Instead, it is likely to require more aggressive policing by traditional professional media, the Associated Press, the television networks, and local TV news editors of whether and how they cover Trump’s propaganda efforts, and how they educate their audiences about the disinformation campaign the president and the Republican Party have waged.
J. Mark Ramseyer, Social Capital and the Problem of Opportunistic Leadership: The Example of Koreans in Japan (John M. Olin Ctr. for L. Econ. & Bus. Discussion Paper No. 1043, Oct. 2, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
East Asian Legal Studies
Type: Other
Abstract
Through webs of cross-cutting ties, groups can build "social capital" -- the ability to use the resulting access to information and collective punishment to enforce on each other their norms of appropriate behavior. Yet not all minorities maintain such networks. And groups without them sometimes find themselves manipulated by opportunistic entrepreneurs who capture private benefits for themselves while generating massive hostility and (statistical) discrimination against the group as a whole. As one adage puts it, sometimes the worst enemy of a minority group is its own leadership. Consider the Korean residents of Japan. Koreans had begun to migrate to Japan in the 1910s. They were poor, single, male, young, uneducated, and did not intend to stay long. As one might expect given those characteristics, they maintained only very low levels of social capital, and generated substantial (statistical) discrimination against themselves. After the Second World War, most Koreans returned to their homeland. Among those who stayed, however, a self-appointed core of fringe-left opportunists took control and manipulated the group toward their private political ends. Lacking the dense networks that would let them constrain the opportunists, the resident Koreans could not stop them. Those with the most talent, sophistication, and education simply left the group and migrated into Japanese society. The opportunistic leaders exploited the vulnerable Koreans who remained, captured private benefits for themselves, and generated enormous hostility and (statistical) discrimination against the rest.
Max M. Schanzenbach & Robert H. Sitkoff, ESG Investing: Theory, Evidence, and Fiduciary Principles, 36 J. Fin. Planning, Oct. 2020 at 42.
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Property Law
Sub-Categories:
Fiduciary Law
,
Investment Products
,
Financial Markets & Institutions
,
Finance
,
Shareholders
,
Fiduciaries
,
Corporate Law
,
Trusts
Type: Article
Abstract
Trustees and other investment fiduciaries of pensions, charities, and personal trusts, and those who advise them, face increasing pressure to rely on ESG factors in the investment management of tens of trillions of dollars of other people’s money. At the same time, however, confusion abounds about the intersection of fiduciary principles and ESG investing. This article cuts through that confusion to provide guidance about when and how ESG investing by trustees and investment fiduciaries is permissible. We make four interrelated points: (1) we provide a clarifying taxonomy on the meaning of ESG investing, differentiating between risk-return ESG (i.e., using ESG factors to improve risk-adjusted returns) and collateral benefits ESG (i.e., using ESG factors for third-party effects); (2) we discuss the subjectivity inherent to identifying and applying ESG factors, which complicates assessment of ESG investing strategies; (3) we summarize the current theory and evidence on whether ESG investing can improve risk-adjusted returns, finding the results to be mixed and contextual; and (4) we show that American trust fiduciary law generally prohibits collateral benefits ESG, but risk-return ESG can be permissible if supported by a reasoned and documented analysis that is updated periodically.
Cass R. Sunstein, Textualism and the Duck-Rabbit Illusion (Oct. 1, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Other
Abstract
Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.
Holger Spamann, Lars Klöhn, Christophe Jamin, Vikramaditya Khanna, John Zhuang Liu, Pavan Mamidi, Alexander Morell & Ivan Reidel, Are there Common/Civil Law Differences and Precedent Effects in Judging Around the World? A Lab Experiment (Harv. John M. Olin Ctr. for L. Econ. & Bus. Discussion Paper No. 1044, Sept. 30, 2020).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Empirical Legal Studies
,
Judges & Jurisprudence
,
Courts
,
Civil Law
,
Comparative Law
Type: Other
Abstract
In our lab, 299 real judges from seven major jurisdictions (Argentina, Brazil, China, France, Germany, India, USA) spend up to 55 minutes to judge an international criminal appeals case and determine the appropriate prison sentence. The lab computer (1) logs their use of the documents (briefs, statement of facts, trial judgment, statute, precedent), and (2) randomly assigns each judge (i) a precedent disfavoring, favoring, or strongly favoring defendant, (ii) a sympathetic or an unsympathetic defendant, and (iii) a short, medium, or long sentence anchor. Document use and written reasons differ between countries but not between common and civil law. Precedent effect is barely detectable and estimated to be less, and bounded to be not much greater, than that of legally irrelevant defendant attributes and sentence anchors.
Comparative Constitutional Law (Vicki C. Jackson & Mila Versteeg eds., 2020).
Categories:
Constitutional Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Legal Education
Type: Book
Abstract
"Once a mere appendage to constitutional law proper, research in comparative constitutional law has burgeoned in recent decades. Indeed, a growing tendency towards international borrowing and harmonization has been marked in many jurisdictions (even, tentatively, the United States), but it has not been uncontroversial, or uncontested. Now, this new collection from Routledge’s Critical Concepts in Law series meets the need for an authoritative reference work to help researchers and students navigate and make better sense of an abundance of scholarship in comparative constitutional law. The collection is made up of four volumes which bring together the best and most influential canonical and cutting-edge thinking. Topics include constitution-making and amendment; the different structural components of constitutional governance (such as the relationship of legislatures to courts and the effects of different methods of judicial oversight); the interaction of constitutional law with transnational sources of law; and theoretical and practical aspects of constitutional legitimacy. With a full index, and thoughtful introductions, newly written by the learned editor, Comparative Constitutional Law traces the field's development and highlights the challenges for future explorations. The collection will be valued by legal scholars—as well as by political philosophers and theorists—as a vital and enduring resource." -- Routledge
Oren Bar-Gill, Willingness-to-Pay: A Welfarist Reassessment (Harv. John M. Olin Ctr. for L. Econ. & Bus. Discussion Paper No. 1040, Sept. 29, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Government Benefits
Type: Other
Abstract
From a welfarist perspective, Willingness to Pay (WTP) is relevant only as a proxy for individual preferences or utilities. Much of the criticism levied against the WTP criterion can be understood as saying that WTP is a bad proxy for utility – that WTP contains limited information about preferences. Specifically, the claim is that wealth effects prevent WTP from serving as a good proxy for utility. I formalize this critique and extend it. I develop a methodology for quantifying the informational content of WTP. The informational content of WTP depends on how WTP is measured and applied. First, I distinguish between two types of policies: (i) policies that are not paid for by the individuals who are affected by the policy; and (ii) policies that are paid for by the individuals who are affected by the policy. Second, I distinguish between two types of WTP measures: (i) individualized WTP; and (ii) uniform, average WTP (like the VSL). When the cost of the policy is not borne by the affected individuals, individualized WTP has low informational content and increases wealth disparity. Uniform, average WTP has higher informational content and reduces wealth disparity, at least in the case of universal benefits. Therefore, when possible, a uniform, average WTP should be preferred in this scenario. When the cost of the policy is borne by the affected individuals, individualized WTP has high informational content but increases wealth disparity. Uniform, average WTP has lower informational content and indeterminate distributional implications. Here, the choice between individualized WTP and uniform, average WTP is more difficult. I briefly consider two extensions. The first involves time. I present a dynamic extension of the relationship between the informational content of WTP and the wealth distribution. The second extension emphasizes the effect of forward-looking rationality on the WTP measure. The question of rationality raises additional concerns about WTP-based policymaking.
Howard M. Erichson, John C.P. Goldberg & Benjamin C. Zipursky, Case-Linked Jurisdiction and Busybody States, 105 Minn. L. Rev. Headnotes (forthcoming 2020).
Categories:
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Jurisdiction
,
State & Local Government
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
Beginning with Justice Ginsburg’s 2011 opinion in the Goodyear case – and echoed in Justice Thomas’s 2014 opinion in Walden v. Fiore and Justice Alito’s 2017 opinion in Bristol-Myers Squibb v. Superior Court – the Supreme Court has suggested that the distinctiveness of specific personal jurisdiction (in contrast to general jurisdiction) resides in its being “case-linked.” However, to date, the Justices have not spelled out what it takes for a defendant’s contacts with a forum to be case-linked, although they now have an opportunity to do so in a pair of personal injury cases brought against Ford Motor Company. This essay aims to provide the missing account of case-linkage, explaining along the way how it applies to the Court’s pending cases. Our method is constructive and interpretive: we take as our starting point the Court’s precedents and its reasoning about two pillars of personal jurisdiction: state sovereignty and defendant’s due process rights. After Part I’s introduction, Part II re-examines the Court’s personal jurisdiction decisions from International Shoe to the present with the goal of understanding the concept of case-linkage as it has played out in the cases. Part III describes the Ford litigations presently before the Court, explaining why they invite consideration of an aspect of specific jurisdiction that the Court has yet to address adequately. We put forward our theory of case-linked jurisdiction in Part IV. Case-linkage, we argue, can only be understood within a framework that isolates the key concepts that matter for due process. Two are crucial: (1) a concept of the scope of the defendant’s submission to state authority, and (2) a concept of the scope of the forum state’s legitimate interests. We explain the latter in terms of the principle that a state’s courts ought not meddle in affairs beyond the state’s legitimate reach (labeled “the Anti-Busybody Principle”). By explaining case-linkage both in terms of the scope of a defendant’s submission to state power and of a state’s legitimate interests, we offer a way to bring together the process and sovereignty concerns that underlie the law of personal jurisdiction. With our own affirmative account in place, Part V shows why the “causation” approach to case-linkage advocated Ford and by some lower courts are indefensible, even if the more expansive “relatedness” tests of other courts are also not up to the task at hand. We also show that the intuitively right answer to the Ford cases—that a state court has jurisdiction to hear tort claims brought by state residents injured in-state by the defendant’s product (when the defendant has extensively sold the product-line in that state)—not only meshes with all relevant Supreme Court precedents, but also points to the best path forward for understanding, defining, and demarcating case-linked jurisdiction.
Samantha Power, The Power Broker, N.Y. Times, Sept. 27, 2020, at BR1 (reviewing Peter Baker & Susan Glasser, The Man Who Ran Washington: The Life and Times of James A. Baker III (2020)).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Biography & Tribute
Type: Article
Eli Y. Adashi & I. Glenn Cohen, Disruptive Synergy: Melding of Human Genetics and Clinical Assisted Reproduction, 1 Cell Rep. Med. 10093 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Abstract
The melding of human genetics with clinical assisted reproduction, now all but self-evident, gave flight to diagnostic and therapeutic approaches previously deemed infeasible. Preimplantation genetic diagnosis, mitochondrial replacement techniques, and remedial germline editing are particularly noteworthy. Here we explore the relevant disruption brought forth by coalescence of these mutually enabling disciplines with the regulatory and legal implications thereof.
Randall Kennedy, How Racist Are Universities, Really?, Chron. Higher Educ., Sept. 18, 2020, at 20.
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Legal Education
Type: Article
Cass R. Sunstein & Adrian Vermeule, Law and Leviathan (2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
,
Government Transparency
,
Politics & Political Theory
,
Legal Ethics
Type: Book
Abstract
"Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall." -- Harvard University Press
Mark V. Tushnet, The Law of Free Expression and New Information Technologies: The First Amendment Isn’t Obsolete (Sept. 14, 2020).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Cyberlaw
,
Networked Society
,
Communications Law
Type: Other
Abstract
Recently the literature on free expression has turned to the question, Should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay examines and critiques Professor Tim Wu’s prominent version of the argument that the development of NIT should lead us to rethink the law of free expression. After laying out the paradigm underlying free expression law, that speech causes harm, the Essay examines two aspects of the argument that the more speech, the more harm, which might lead us to seek a new set of rules that jointly optimize speech and harm. One is that NIT should lead us to alter substantive First Amendment law because NIT lead us to reconsider the general balance we have struck among the values promoted by free expression. Section IV deals with that argument. The second is that NIT affect the mechanisms by which specific categories of speech cause specific harms. That argument calls for a more granular approach. To implement that approach the Essay looks at the mechanisms by which more speech might render the “rules in place” no longer socially optimal. It examines false statements that injure reputation (libel), expression that induces unlawful action (the subject of the traditional law of sedition); sexually explicit expression (obscenity and pornography); false statements that inflict no material harm (“fake news”); and threats (cyberstalking). A final section turns to arguments about the platforms used by NIT – Twitter, Facebook, and the like. (1) The platforms should be subject to the same limitations on speech regulation that apply to the government. These arguments sound in the state-action doctrine rather than in the First Amendment, and I have relatively little to say about them. (2) The platforms can be regulated through the application of antitrust or fiduciary law without violating the First Amendment. I discuss existing First Amendment doctrine about the application of “general” laws to the media and examine some issues that might arise in connection with tinkering with antitrust or fiduciary law as the vehicle for platform regulation. (3) The platforms should be held liable for the utterances they disseminate, holding constant the substantive rules of libel, threats, and the like. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete.
Lucia A. Reisch, Cass R. Sunstein & Micha Kaiser, What Do People Want to Know? An International Survey (Sept. 14, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Empirical Legal Studies
,
Comparative Law
Type: Other
Abstract
What information would people like to have? What information would they prefer to avoid? How does the provision of information bear on welfare? Representative surveys in eleven nations find that substantial percentages of people do not want to receive information even when it bears on health, sustainability, and consumer welfare. People’s willingness to pay for information, contingent on their wanting it, is mostly higher than people’s willingness to pay not to receive information, contingent on their not wanting it. We develop a model and estimate the welfare effects. We find substantial benefits and costs, with the former outweighing the latter.
J. Mark Ramseyer, Contracting for Compassion in Japanese Buddhism (Harv. John M. Olin Ctr. Discussion Paper No. 1039, Sept. 10, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Contracts
,
Religion & Law
,
East Asian Legal Studies
Type: Other
Abstract
In the 1960s, Japanese women began asking temples to perform commemorative ceremonies for the fetuses or children they had aborted. They still do. Physicians have been able to perform abortions legally since 1952, and many women have had them. The ceremonies do not fit within the classic rituals offered by the temples, but many Japanese women find them helpful. They ask for the services. The temples respond. The temples charge for these memorial services. They rely on such fee-for-service arrangements for an increasingly important segment of their finances. Traditionally, priests had stood ready to offer their parishioners counseling and ritual as needed during the existentially troubling passages in their lives. In exchange, their local communities had effectively kept the temple on retainer. This no longer works. The temples stand in low levels of tension with the surrounding society (as Stark put it). As such, they cannot trust their parishioners to give voluntarily. Instead, they had counted on the constraining power of the tightly intertwined social network within the local community. Over the course of the 20th century, Japanese migrated out of these tightly structured villages to the often anomic cities. Without a coercive village structure to enforce giving, the low-tension temples found themselves without their effective retainer. With the first-best contract unavailable, many temples have turned to fee-for-service arrangements — of which the abortion-related ritual is merely the most notorious. Ironically, the new environment presents an entirely different challenge: temples now find themselves competing with internet-based priest-dispatch services.
Mariano-Florentino Cuéllar & Matthew Stephenson, Taming Systemic Corruption: The American Experience and its Implications for Contemporary Debates (Sept. 4, 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Corruption
,
Politics & Political Theory
,
Developing & Emerging Nations
,
Comparative Law
,
Legal Reform
,
Legal History
Type: Other
Abstract
Endemic corruption in developing countries often seems intractable. Yet most countries that currently have relatively high public integrity were, at an earlier point in their history, afflicted with similarly pervasive corruption. Studying the history of these countries may therefore make a valuable contribution to modern debates about anti-corruption reform. This paper considers the experience of the United States, focusing principally on the period between 1865 and 1941. We find that the U.S. experience calls into question a number of commonly-held views about the struggle against corruption in modern developing countries. First, although some argue that entrenched cultures of corruption are virtually impossible to dislodge, the U.S. experience demonstrates that it is possible to make a transition from a systemically corrupt political system to a system in which public corruption is aberrational. Second, although some have argued that tackling systemic corruption requires a “big bang” approach, the U.S. transition away from endemic corruption would be better characterized as incremental, uneven, and slow. Third, although some have argued that fighting corruption requires shrinking the state, in the U.S. reductions in systemic corruption coincided with a substantial expansion of government size and power. Fourth, some commentators have argued that “direct” anti-corruption measures that emphasize monitoring and punishment do not do much good in societies where corruption is pervasive. On this point, the lessons from U.S. history are more nuanced. Institutional reforms played a key role in the U.S. fight against corruption, but investigations and prosecutions of corrupt actors were also crucial, not only because of deterrence effects, but because these enforcement efforts signaled a broader shift in political norms. The U.S. anti-corruption experience involved a combination of “direct strategies,” such as aggressive law enforcement, and “indirect strategies,” such as civil service reform and other institutional changes.
Cass R. Sunstein, Post-Election Chaos: A Primer (Harv. Pub. L. Working Paper No. 20-25, Sept. 2, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Congress & Legislation
Type: Other
Abstract
With respect to the election of the U.S. President, the U.S. Constitution is vague and full of silences and gaps. When the vote is close, and when people disagree about who won, the Constitution does not sort out the respective roles of the states, the Electoral College, Congress, and the Vice President. The Electoral Count Act of 1887 is the closest thing to a roadmap for handling controversies after election day, and on many issues, it offers helpful guidance. At the same time, it is not at all clear that it is constitutional, or that it is binding, and in the face of a claim of serious mistakes and fraud, it contains silence and ambiguity. Taken together, the Constitution and the Electoral Count Act answer numerous questions, but they also leave important ones unanswered, including the role of the House and Senate amidst allegations of fraud and the proper role of the Vice President. This brief primer identifies the main answers and the principal open questions.
Jacob E. Gersen, Administrative Law's Shadow, 88 Geo. Wash. L. Rev. 1071 (2020).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
This Essay explores the shadow of administrative law. A good deal of government authority that is administrative for all intents and purposes is wielded by organizations and institutions that are not legally classified as administrative agencies. Some of these entities are private firms; some are hybrid organizations within the government. Others are traditional parts of the bureaucracy that have been deemed non-agencies for purposes of the Administrative Procedure Act (“APA”), as a matter of statutory or regulatory interpretation. Across a range of heterogenous contexts, federal courts often apply administrative law principles, derived primarily although not exclusively from the APA, as legal constraints on these actors, even though the law on its terms does not apply. Although formally outside the domain of administrative law proper, they remain covered by administrative law’s shadow. The Essay assembles and analyzes some of the cases in the shadows in an attempt to clarify the judicial practice, locate it in the context of conventional debates about administrative common law, and then offer some speculation about new contexts in which judging from the shadows may emerge.
Annette Gordon-Reed, Book Review, 40 J. Early Republic 564 (2020)(reviewing Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era (2018)).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
David Arnold, Will Dobbie & Crystal S. Yang, Comment on Canay, Mogstad, and Mountjoy (Sept. 1, 2020).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Defense
,
Discrimination
,
Race & Ethnicity
,
Empirical Legal Studies
,
Judges & Jurisprudence
Type: Other
Abstract
In Arnold, Dobbie, and Yang (2018, ADY), we find that marginally released white defendants have higher rates of pre-trial misconduct than marginally released black defendants. We interpret these findings as evidence of racial bias against black defendants through the lens of the marginal outcome test originally developed by Becker (1957). Canay, Mogstad, and Mountjoy (2020, CMM) question the interpretation of our empirical findings and the logical validity of the marginal outcome test. However, CMM’s conclusions are based on an incomplete definition of racial bias that is different from the one used in ADY. Under ADY’s definition of bias, the marginal outcome test is logically valid and a useful tool for studying discrimination in real-world settings.
Anna Lvovsky, Cruising in Plain View: Clandestine Surveillance and the Unique Insights of Antihomosexual Policing, 46 J. Urb. Hist. 980 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Discrimination
Type: Article
Abstract
The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.
I. Glenn Cohen, Jacob S. Sherkow & Eli Y. Adashi, Gene Editing Sperm and Eggs (not Embryos): Does it Make a Legal or Ethical Difference?, 48 J.L. Med. & Ethics 619 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Richard H. Fallon, Political Questions and the Ultra Vires Conundrum, 87 U. Chi. L. Rev. 1481 (2020).
Categories:
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Jurisdiction
,
Judges & Jurisprudence
,
Courts
,
Politics & Political Theory
,
Supreme Court of the United States
,
Executive Office
Type: Article
Abstract
This Article advances a novel theory of the political question doctrine by locating its foundations in a conundrum about ultra vires action, exemplified by the ancient question: Who will guard the guardians? The political question doctrine marks some questions as ultra vires the judicial power, or beyond the jurisdiction of courts to resolve. Correspondingly, designation of a question as political typically identifies it as lying within the jurisdiction of a nonjudicial institution to settle. Even after denominating a question as political, however, courts retain a responsibility to check actions by other institutions that overreach those institutions’ authority and thus are themselves ultra vires. The need for the judiciary to press to the outer limits of its jurisdiction to rein in ultra vires action by other institutions renders political question rulings less categorical, and also less distinct from merits decisions, than both judges and commentators have often imagined. The inescapable role of the courts in identifying ultra vires action by other branches also highlights the possibility of ultra vires action by the courts themselves. The paired risks of ultra vires action by the courts and ultra vires action by other branches if the courts could not assert jurisdiction to restrain them—both made vivid by the political question doctrine—define what this Article calls the ultra vires conundrum. The ultra vires conundrum, in turn, gives rise to what we might think of as ultimate political questions: What happens if courts err in their determination of the outer bounds of their own power? If the courts act ultra vires, do their decisions bind conscientious officials of other branches? And if not, who gets to decide when judicial action is ultra vires? Besides formulating the ultra vires conundrum and answering the questions that define its core, this Article solves a number of more traditional, interrelated puzzles about the political question doctrine that appear in a new light once the ultra vires conundrum lies exposed. It also traces previously unexplored connections between political questions and the ideal of the rule of law.
Vicki C. Jackson, Pro-Constitutional Representation and Legislated Rights: Comment on Legislated Rights – Securing Human Rights Through Legislation, 21 Jerusalem Rev. Legal Stud. 77 (2020).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
,
Congress & Legislation
,
Human Rights Law
Type: Article
Abstract
Grégoire Webber and his colleagues in the jointly authored collection, Legislated Rights, have produced an important book whose central purpose is to reorient constitutional theory to the role of legislatures in protecting rights. They open the book by saying, “[t]he legislature is well placed to secure and promote human rights. That is this book's central thesis.” I am in considerable agreement with the general idea of expanding constitutional theory to include more of a focus on legislators and legislatures. The role of legislators in positively promoting constitutionalism and protecting rights has been neglected in constitutional theory; too often legislation is viewed as presumptively problematic when evaluated through the lens of principled judicial decision-making, and what Jeremy Waldron calls the “dignity of legislation” ignored or undervalued. This review is thus primarily an appreciation of several points made in the book, including its effort at a balanced presentation in some chapters of the relative roles of courts and legislatures in the protection of rights. Along the way, I will note some disagreements, including with their argument about the nature of rights. Many of the book’s arguments for giving legislatures a more central role in constitutional theory and in the protection of rights hold, I suggest, even if rights are conceptualized differently from the view of rights as, in a sense, categorically absolute. In closing, I will extend the authors’ arguments to suggest that if legislatures are to be viewed as playing a more central role in fulfilling rights guarantees in constitutions, then we need to develop a richer and more nuanced set of conceptions and discourse around the role obligations of legislators in constitutional democracies.
Andrew S. Gold & Henry E. Smith, Sizing up Private Law, 70 U. Toronto L.J. 389 (2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Law & Economics
,
Legal Theory & Philosophy
Type: Article
Abstract
The conflict between external and internal perspectives in private law is both exaggerated and underplayed. Both external and internal perspectives pay too little attention to how the ‘micro’ level of individual, even bilateral, interaction relates to the ‘macro’ level of society and the law as a whole. We will show that both perspectives overlook the resources they could employ to explain how the micro and macro are connected; in their different ways, external and internal perspectives do not draw out the connection between local simplicity and generalization. By treating law as a complex system, both perspectives could converge on a picture of private law in which locally simple structures of bilateral rights and duties scale up to produce emergent properties at the level of society. We suggest that functionalists should take seriously the moral norms immanent in private law – these norms are central to the functioning of private law as a system. Without these modular components, private law can be intractably complex. Accordingly, we propose an inclusive functionalism, one that takes these moral norms at face value. These moral norms perform a crucial function of managing the otherwise intractable complexity of the interactions between parties governed by private law. We also propose an inclusive internalism, which is more open to functional considerations involving simplicity. Private law must avoid intractable complexity if it is to function properly, and this calls for a simplicity criterion: internalists should look for moral norms that are both simple and generalizable. Resolving private law’s conceptual structure at the middle level focuses debate where it is needed. Important questions about the role of public values and the ultimate grounding of private law remain open and are sharpened by recognizing the role that complexity plays in the way that private law operates as a system.
Cass R. Sunstein, Too Much Information: Understanding What You Don't Want to Know (2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives. Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.
Bob Bauer & Jack Goldsmith, After Trump: Reconstructing the Presidency (2020).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Executive Office
Type: Book
Abstract
In After Trump: Reconstructing the Presidency, Bob Bauer and Jack Goldsmith provide a comprehensive roadmap for reform of the presidency in the post-Trump era—whether that comes in four months or four years.In fourteen chapters they offer more than fifty concrete proposals concerning presidential conflicts of interest, foreign influence on elections, pardon power abuse, assaults on the press, law enforcement independence, Special Counsel procedures, FBI investigations of presidents and presidential campaigns, the role of the White House Counsel, war powers, control of nuclear weapons, executive branch vacancies, domestic emergency powers, how one administration should examine possible crimes by the president of a prior administration, and more. Each set of reform proposals is preceded by rich descriptions of relevant presidential history, and relevant background law and norms, that place the proposed reforms in context. All of the proposals are prefaced by a chapter that explains how Trump--and, in some cases, his predecessors--conducted the presidency in ways that justify these reforms.After Trump will thus be essential reading for the coming debate on how to reconstruct the laws and norms that constitute and govern the world’s most powerful office.It’s hard to imagine two better co-authors for the task. Both served in senior executive branch positions—in the administrations of Barack Obama and George W. Bush, respectively—and have written widely on the presidency.Bob Bauer served from 2010-2011 as White House Counsel to President Barack Obama, who in 2013 named Bauer to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of its Legislative and Regulatory Process Clinic.Jack Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003. He is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution.Together, in this book, they set the terms for the national discussion to come about the presidency, its powers, and its limits.
I. Glenn Cohen, Eli Y. Adashi, Sara Gerke, César Palacios-González & Vardit Ravitsky, The Regulation of Mitochondrial Replacement Techniques Around the World, 21 Ann. Rev. Genomics & Hum. Genetics 565 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Mitochondrial replacement techniques (MRTs, also referred to as mitochondrial replacement therapies) have given hope to many women who wish to have genetically related children but have mitochondrial DNA mutations in their eggs. MRTs have also spurred deep ethical disagreemensts and led to different regulatory approaches worldwide. In this review, we discuss the current regulation of MRTs across several countries. After discussing the basics of the science, we describe the current law and policy directions in seven countries: the United Kingdom, the United States, Canada, Australia, Germany, Israel, and Singapore. We also discuss the emerging phenomenon of medical tourism (also called medical travel) for MRTs to places like Greece, Spain, Mexico, and Ukraine. We then pull out some key findings regarding similarities and differences in regulatory approaches around the world.
Randall L. Kennedy & Eugene Volokh, Quoting Epithets in the Classroom and Beyond (Aug. 29, 2020).
Categories:
Legal Profession
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Judges & Jurisprudence
,
Legal Education
,
Legal Ethics
,
Legal Research & Writing
,
Legal Services
,
Legal Scholarship
Type: Other
Abstract
Is it wrong for professors to quote epithets — especially “nigger” — in class or other educational settings? This question has often been in the news in recent years, both as to law schools and as to other departments. This article discusses the matter, building on a closely related practice: how judges and lawyers deal with epithets in litigation and opinion writing.
J. Mark Ramseyer & Eric B. Rasmusen, Suing over Ostracism in Japan: The Informational Logic (Aug. 29, 2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Litigation & Settlement
,
Law & Behavioral Sciences
,
Law & Economics
,
East Asian Legal Studies
Type: Other
Abstract
Group ostracize members. Sometimes they do it to enforce welfare-maximizing norms, but other times ostracism reduces welfare. Japanese villages have long used ostracism as a tool for conformity, and the targets have sometimes sued in response. The cases that have reached the courts disproportionately involve welfare-reducing behavior by the community; for example, ostracism against targets who report corruption. The targets usually win the civil cases against ostracizers and prosecutors usually win the criminal cases. Yet the targets seem not to have sued for financial or injunctive relief, and the prosecutors seem not to have pushed for prison terms. Instead, they have used the courts for an informational end: to certify and publicize innocence. This end is of minor importance in normal litigation, but crucial fo ostracism, as we explain using a formal model. We use case examples and the model to explore the factors that cause disputes to lead to ostracism and ostracisms to lead to litigation.
Mark J. Roe & Roy Shapira, The Power of the Narrative in Corporate Lawmaking (Harv. Pub. L. Working Paper No. 20-21, Aug. 24, 2020).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Securities Law & Regulation
,
Shareholders
,
Law & Behavioral Sciences
,
Law & Economics
Type: Other
Abstract
The notion of stock-market-driven short-termism relentlessly whittling away at the American economy’s foundations is widely accepted and highly salient. Presidential candidates state as much. Senators introduce bills assuming as much. Corporate interests argue as much to the Securities and Exchange Commission and the corporate law courts. Yet the academic evidence as to the problem’s severity is no more than mixed. What explains this gap between widespread belief and weak evidence? This Article explores the role of narrative power. Some ideas are better at being popular than others. The concept of pernicious stock market short-termism has three strong qualities that make its narrative power formidable: (1) connotation — the words themselves tell us what is good (reliable long-term commitment) and what is not (unreliable short-termism); (2) category confusion — disparate types of corporate misbehavior, such as environmental degradation and employee mistreatment, are mislabeled as being truly and primarily short-termism phenomena emanating from truncated corporate time horizons (when they in fact emanate from other misalignments), thereby making us view short-termism as even more rampant and pernicious than it is; and (3) confirmation — the idea is regularly repeated, because it is easy to communicate, and often boosted by powerful agenda-setters who benefit from its repetition. The Article then highlights the real-world implications of narrative power — powerful narratives can be more certain than the underlying evidence, thereby leading policymakers astray. For example, a favorite remedy for stock-market-driven short-termism is to insulate executives from stock market pressure. If lawmakers believe that short-termism is a primary cause of environmental degradation, anemic research and development, employee mistreatment, and financial crises — as many do — then they are likely to focus on further insulating corporate executives from stock-market accountability. Doing so may, however, do little to alleviate the underlying problems, which would be better handled by, say, stronger environmental regulation and more astute financial regulation. Powerful narratives can drive out good policymaking.
Fundamental Rights and Conflict Among Rights (Mary Ann Glendon & Pierluca Azzaro eds., Franciscan Univ. Press, forthcoming Aug. 21, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Human Rights Law
Type: Book
Abstract
How far have we come putting into practice what was declared in the Universal Declaration of Human Rights, which this year marks its 70th anniversary? How can the Church respond today to the new challenges threatening these rights, whether relativism, fundamentalism, and persecution or new types of poverty and oppression? And with whom can the Church engage on these issues? With states, religious leaders, international institutions, cultural institutions, or first and foremost with global civil society? In addition, what are the roots of fundamental rights, and what response can there be to the danger of a multiplication of rights that can paradoxically threaten concepts on the rule of law and human dignity? These are the fundamental questions addressed and debated by the experts whose essays appear in this book. Fundamental Rights and Conflicts among Rights is divided into four parts: Genesis and Meaning of the Idea of Religious Liberty, Laicité and Natural Law, Birth and Transformation of the Culture of Liberty and Human Rights, and the Multiplication of Rights and the Risk of Destruction of the Idea of Right. Throughout the volume, prestigious international experts analyze these issues. Among them are Giuseppe Dalla Torre (Libera Università Maria SS. Assunta), Jean Louis Ska (Pontificio Istituto Biblico), Robert P. George (Princeton University), Marta Cartabia (vice president of the Italian Constitutional Court), Carlos Ignacio Massini (Mendoza, Argentina), Barbara Zehnpfennig (Universität Passau), Mary Ann Glendon (Harvard University), Joseph H. Weiler (New York University), and Roberto Baratta (Macerata, Italia). The volume also contains an essay by Cardinal Pietro Parolin, secretary of state, on "The Church's Interlocutors in the Debate and in the Affirmation of Human Rights."
Martin Wolf, Adam Meier, Bridget Nyland, Sejong Youn, Debra Stump & Wendy Jacobs, Institutions and Governments Can Slow Climate Change by Regulating and Reducing Halocarbon Refrigerant Use, 1 MIT Sci. Pol'y Rev., Aug. 20, 2020, at 39.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Administrative Law & Agencies
Type: Article
Abstract
Halocarbon refrigerant emissions are the fastest-growing source of greenhouse gas emissions around the globe.The continued use of these refrigerants poses serious environmental threats. In the absence of strong federal regulation on halocarbon use, state and local governments and institutions can commit to reducing halocarbon refrigerant emissions. Here, we outline policies that governments and users of these refrigerants can adopt to minimize their emissions. These policies include cataloging and maintaining their climate control equipment and committing to alternative refrigerants with lesser environmental impacts.
Lucian A. Bebchuk, Kobi Kastiel & Roberto Tallarita, For Whom Corporate Leaders Bargain (Aug. 19, 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Mergers & Acquisitions
,
Securities Law & Regulation
,
Shareholders
Type: Other
Abstract
At the center of a fundamental and heated debate about the purpose that corporations should serve, an increasingly influential “stakeholderism” view advocates giving corporate leaders the discretionary power to serve all stakeholders and not just shareholders. Supporters of stakeholderism argue that its application would address growing concerns about the impact of corporations on society and the environment. By contrast, critics of stakeholderism object that corporate leaders should not be expected to use expanded discretion to benefit stakeholders. This Article presents novel empirical evidence that can contribute to resolving this key debate. During the hostile takeover era of the 1980s, stakeholderist arguments contributed to the adoption of constituency statutes by more than thirty states. These statutes authorize corporate leaders to give weight to stakeholder interests when considering a sale of their company. We study how corporate leaders in fact used the power awarded to them by these statutes in the past two decades. In particular, using hand-collected data, we analyze in detail more than a hundred cases governed by constituency statutes in which corporate leaders negotiated a sale of their company to a private equity buyer. We find that corporate leaders have used their bargaining power to obtain gains for shareholders, executives, and directors. However, despite the risks that private equity acquisitions posed for stakeholders, corporate leaders made very little use of their power to negotiate for stakeholder protections. Furthermore, in cases in which some protections were included, they were practically inconsequential or cosmetic. We conclude that constituency statutes failed to deliver the benefits to stakeholders that they were supposed to produce. Beyond their implications for the long-standing debate on constituency statutes, our findings also provide important lessons for the ongoing debate on stakeholderism. At a minimum, stakeholderists should identify the causes for the failure of constituency statutes and examine whether the adoption of their proposals would not suffer a similar fate. After examining several possible explanations for the failure of constituency statutes, we conclude that the most plausible explanation is that corporate leaders have incentives not to protect stakeholders beyond what would serve shareholder value. The evidence we present indicates that stakeholderism should be expected to fail to deliver, as have constituency statutes. Stakeholderism therefore should not be supported, even by those who deeply care about stakeholders. This paper is part of a larger research project of the Harvard Law School Corporate Governance on stakeholder capitalism and stakeholderism. Another part of this research project is The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita.
Jesse Choper, Richard Fallon, Jr., Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2020 ed.).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Howell E. Jackson & Jeffery Zhang, The Economics of Soft Dollars: A Review of the Literature and New Evidence from the Implementation of MiFID II (Aug. 11, 2020).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Fiduciary Law
,
Financial Markets & Institutions
,
Investment Products
,
Fiduciaries
,
Securities Law & Regulation
,
Empirical Legal Studies
,
European Law
Type: Other
Abstract
For nearly half a century, the bundling of research services into commissions that paid for the execution of securities trades has been the focus of both policy discussion and academic debate. The practice whereby asset management firms make use of investor funds to cover the costs of research, known as “soft dollar” payments in the United States, resembles a form of kickback or self-dealing. The payments allow asset managers to use investor funds to subsidize the cost of the asset managers’ own research efforts even though those managers charge investors a separate and explicit management fee for advisory services. So why does this form of kickback continue to exist? Over the years, defenders of the practice have argued that soft dollars mitigate principal-agent problems between the investment manager and the broker, improve fund performance, and provide a public good in terms of the increased production of research on public companies. This article evaluates these theoretical arguments through the lens of academic work done in the past as well as an emerging new body of empirical studies exploring the impact of MiFID II, a European Union Directive that severely restricted the use of soft dollar payments in European capital markets as of January 2018. The weight of empirical evidence, including recent evidence coming out of Europe, suggests that the theoretical arguments in favor of soft dollars are not robust. In particular, MiFID II’s unbundling of commissions appears to have, on balance, improved European market efficiency by eliminating redundancy and producing information that is of greater value to investors.
Mark V. Tushnet, Writing While Quarantined: A Personal Interpretation of Contemporary Comparative Constitutional Law (Harv. Pub. L. Working Paper No. 20-19, Aug. 11, 2020).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Legal Profession
,
Government & Politics
Sub-Categories:
Constitutional History
,
Critical Legal Studies
,
Law & Political Theory
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
,
Comparative Law
,
Legal Scholarship
Type: Other
Abstract
This Essay is a personal reflection on the state of scholarship in the field of comparative constitutional law. I draw parallels between the development of and reaction to “critical perspectives” on domestic US constitutional law in the 1970s and 1980s and the development and reaction to similar perspectives on comparative constitutional law today. I argue that the parallels have similar political roots, in concern that critical perspectives undermine the ability of constitutional law, whether domestic or comparative, to resist conservative and anti-liberal tendencies. I conclude with some speculations about the source of the political commitments by scholars of comparative constitutional law, and in particular about the way the field’s overall cosmopolitanism affects scholarship on anti-cosmopolitan populisms.
Lawrence O. Gostin, I. Glenn Cohen & Jeffrey P. Koplan, Universal Masking in the United States: The Role of Mandates, Health Education, and the CDC, 324 JAMA 837 (2020).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
State & Local Government
,
Supreme Court of the United States
,
Health Law & Policy
Type: Article
Sara Gerke, Carmel Shachar, Peter R. Chai & I. Glenn Cohen, Regulatory, Safety, and Privacy Concerns of Home Monitoring Technologies During COVID-19, 26 Nature Med. 1176 (2020).
Categories:
Health Care
,
Technology & Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Food & Drug Law
,
Health Law & Policy
,
Comparative Law
,
European Law
,
Medical Technology
,
Information Privacy & Security
,
Networked Society
Type: Article
Abstract
There has been increasing interest in the use of home monitoring technologies during the COVID-19 pandemic to decrease interpersonal contacts and the resultant risks of exposure for people to the coronavirus SARS-CoV-2. This Perspective explores how the accelerated development of these technologies also raises major concerns pertaining to safety and privacy. We make recommendations for needed interventions to ensure safety and review best practices and US regulatory requirements for privacy and security. We discuss, among other topics, Emergency Use Authorizations for medical devices and privacy laws of the USA and Europe.