Ruth Okediji, Traditional Knowledge and the Public Domain (CIGI Papers No. 176, June 15, 2018).
Categories:
International, Foreign & Comparative Law
,
Property Law
,
Technology & Law
Sub-Categories:
International Law
,
Treaties & International Agreements
,
Developing & Emerging Nations
,
Property Rights
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
,
Cooperation, Peer-Production & Sharing
,
Intellectual Property Law
Type: Other
Abstract
Legal protection for traditional knowledge raises difficult questions at the intersection of innovation policy and knowledge governance, with important implications for Indigenous peoples’ rights. A significant source of tension has been the difficulty in delineating entitlement interests in traditional knowledge consistent with prevailing doctrinal limits to intellectual property rights, such as the public domain. This paper advances the idea that, properly applied, the public domain does not constitute a barrier to the effective protection of traditional knowledge, and that a thoughtfully designed, custom-built public domain for traditional knowledge would align traditional knowledge protection with the overall architecture of the global innovation framework.
Robert H. Sitkoff & John Morley, A Taxonomy of American Trust Law: Adaptation for Private Ordering, in The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., Oxford Univ. Press forthcoming 2020).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
Robert H. Sitkoff, Extrinsic Fiduciary Duties, in Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding eds., Cambridge Univ. Press forthcoming 2020).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, U. Chi. L. Rev. (forthcoming 2020).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Housing Law
Type: Article
Mark Tushnet, A Short History of European Law: The Last Two and a Half Millennia, 49 J. Interdisc. Hist. 492 (2019)(reviewing Benjamin Lieberman & Elizabeth Gordon, Climate Change in Human History (2018)).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Climate Change
,
European Law
,
Legal History
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Lawrence Lessig, They Don't Represent Us: Reclaiming Our Democracy (2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Government Accountability
Type: Book
Abstract
With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Equity and Law: Fusion and Fission (John C.P. Goldberg, Henry E. Smith & Peter G. Turner eds., 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Remedies
,
Legal Theory & Philosophy
,
Comparative Law
,
Legal History
Type: Book
Abstract
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world. Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue. Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others. Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.
Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (2019).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Criminal Prosecution
,
Ancient Law
,
Foreign Law
,
Legal History
Type: Book
Abstract
This book explores the role of mens rea, broadly defined, as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word “felony” itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, willed in a way not constrained by necessity, and evil or wicked in its essence. Examines what factors juries weighed in sorting the guilty from the innocent in the first two centuries of the criminal trial jury. Situates the medieval English law of felony in a broader cultural, social, and religious setting. Speaks to current controversies in the field of criminal law, such as the role of intentionality in determining the bounds of criminal responsibility.
Martha Minow, When Should Law Forgive? (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Samantha Power, The Education of an Idealist: A Memoir (2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Human Rights Law
,
Biography & Tribute
Type: Book
Alan M. Dershowitz, Defending Israel: The Story of My Relationship with My Most Challenging Client (2019).
Categories:
Legal Profession
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Services
Type: Book
Henry E. Smith, Restating the Architecture of Property, in 10 About Modern Studies in Property Law (Ben McFarlane & Sinéad Agnew eds., 2019).
Categories:
Property Law
Sub-Categories:
Personal Property
,
Real Estate
Type: Book
Abstract
Property law has proven difficult to restate, with none of the American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property. In the terms of complex systems theory, a Restatement should reflect the arrangement and interactions, the groupings, and the coherence (sometimes) of property law, rather than treating it as a heap of full detachable rules and components. Conventional strong versions of the bundle of rights picture of property, reinforced by the nature of the Restatement process, make it difficult to address property as a complex system. Using examples of possession and the property torts, the paper shows how a Restatement can begin to incorporate property’s architecture and why it matters to the operation and the development of the law.
Cass R. Sunstein, Conformity: The Power of Social Influences (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Abstract
We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender. How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent. An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more. Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself. Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best. A well-functioning democracy depends on it.
Yun-chien Chang & Henry E. Smith, Convergence and Divergence in Systems of Property Law: Theoretical and Empirical Analyses, 92 S. Cal. L. Rev. (forthcoming May 2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Comparative Law
,
Property Rights
Type: Article
Abstract
This article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, the structure of property law among all jurisdictions in the world will converge, or is similar since some time in the distant past, as they all face the same, positive transaction costs in delineating property rights. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominium, tenancy in common, and limited property rights serve as prominent examples.
Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Book
Abstract
The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.
Cass R. Sunstein, Growing Outrage, 3 Behavioural Pub. Pol’y 1 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
Type: Article
Abstract
Why and when does outrage grow? This essay explores two potential answers. The first points to a revision or weakening of social norms, which leads people to express outrage that they had previously suppressed. The second points to a revision or weakening of social norms, which leads people to express outrage that they had not previously felt (and may or may not now feel). The intensity of outrage is often a product of what is most salient. It is also a product of “normalization”; people compare apparently outrageous behavior to behavior falling in the same category in which it is observed, and do not compare it to other cases, which leads to predictable incoherence in judgments. These points bear on the #MeToo movement of 2017 and 2018 and the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity).
Jesse M. Fried, Powering Preemptive Rights with Presubscription Disclosure, in The Law and Finance of Related Party Transactions (Luca Enriques & Tobias H. Tröger eds., 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
Type: Book
Abstract
Preemptive rights can prevent cheap-issuance tunneling by a controller when outside investors know that the offered securities are cheap. But when outsiders cannot tell whether the securities are cheap or overpriced, preemptive rights fail to prevent such tunneling. Afraid of purchasing overpriced securities, outsiders may rationally refrain from purchasing (even when the securities are in fact cheap), and then suffer cheap-issuance losses. I put forward a mechanism to make preemptive rights more effective: requiring disclosure of a controller’s subscription commitment, before outside investors must finalize their own, so that outsiders can choose to mimic it.
Transparency in Health and Health Care in the United States: Law and Ethics (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar & Barbara J. Evans eds., 2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Book
Abstract
Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry. Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Working at the intersection of law, medicine, ethics, and business, the book goes beyond the buzzwords to the heart of transparency's transformative potential, while interrogating its obstacles and downsides. It should be read by anyone looking for a better understanding of transparency in the health care context.
Jeannie Suk Gersen, Donald Trump, the A.C.L.U., and the Ongoing Battle Over the Legitimacy of Free Speech, NewYorker.com, (Apr. 23, 2019, 12:43 PM).
Categories:
Constitutional Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Civil Rights
,
Executive Office
,
Politics & Political Theory
Type: Other
Cass R. Sunstein, Ismism, Or Has Liberalism Ruined Everything? (Apr. 15, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
Type: Other
Abstract
There has been considerable recent discussion of the social effects of “liberalism,” which are said to include (among other things) a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.
Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Gender & Sexuality
,
Feminist Legal Theory
,
Law & Political Theory
,
Courts
,
Politics & Political Theory
,
Comparative Law
,
International Law
,
Foreign Relations
Type: Book
Abstract
Governance Feminism: Notes from the Field brings together nineteen chapters from leading feminist scholars and activists to critically describe and assess contemporary feminist engagements with state and state-like power. Gathering examples from North America, South America, Europe, Asia, and the Middle East, it complements and expands on the companion volume Governance Feminism: An Introduction. Its chapters argue that governance feminism (GF) is institutionally diverse and globally distributed—emerging from traditional sites of state power as well as from various forms of governance and operating at the grassroots level, in the private sector, in civil society, and in international relations. The book begins by confronting the key role that crime and punishment play in GFeminist projects. Here, contributors explore the ideological and political conditions under which this branch of GF became so robust and rethink the carceral turn. Other chapters speak to another face of GFeminism: feminists finding, in mundane and seemingly unspectacular bureaucratic tools, leverage to bring about change in policy and governance practices. Several contributions highlight the political, strategic, and ethical challenges that feminists and LGBT activists must negotiate to play on the governmental field. The book concludes with a focus on feminist interventions in postcolonial legal and political orders, looking at new policy spaces opened up by conflict, postconflict, and occupation. Providing a clear, cross-cutting, critical lens through which to map developments in feminist governance around the world, Governance Feminism: Notes from the Field makes sense of the costs and benefits of current feminist realities to reimagine feminist futures. Contributors: Libby Adler, Northeastern U; Aziza Ahmed, Northeastern U; Elizabeth Bernstein, Barnard College; Amy J. Cohen, Ohio State U; Karen Engle, U of Texas at Austin; Jacob Gersen, Harvard U; Leigh Goodmark, U of Maryland; Aeyal Gross, Tel Aviv U; Aya Gruber, U of Colorado, Boulder; Janet Halley, Harvard U; Rema Hammami, Birzeit U, Palestine; Vanja Hamzić, U of London; Isabel Cristina Jaramillo-Sierra; Prabha Kotiswaran, King’s College London; Maleiha Malik, King’s College London; Vasuki Nesiah, New York U; Dianne Otto, Melbourne Law School; Helen Reece; Darren Rosenblum, Pace U; Jeannie Suk Gersen, Harvard U; Mariana Valverde, U of Toronto.
Jacob Gersen & Jeannie Suk Gersen, Governing Sex through Bureaucracy, in Governance Feminism: Notes from the Field 159 (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Book
Samuel G. Finlayson, John D. Bowers, Joichi Ito, Jonathan L. Zittrain, Andrew L. Beam & Isaac S. Kohane, Adversarial Attacks on Medical Machine Learning, 363 Science 1287 (2019).
Categories:
Technology & Law
,
Health Care
Sub-Categories:
Health Law & Policy
,
Medical Technology
,
Science & Technology
,
Information Privacy & Security
Type: Article
Abstract
With public and academic attention increasingly focused on the new role of machine learning in the health information economy, an unusual and no-longer-esoteric category of vulnerabilities in machine-learning systems could prove important. These vulnerabilities allow a small, carefully designed change in how inputs are presented to a system to completely alter its output, causing it to confidently arrive at manifestly wrong conclusions. These advanced techniques to subvert otherwise-reliable machine-learning systems—so-called adversarial attacks—have, to date, been of interest primarily to computer science researchers (1). However, the landscape of often-competing interests within health care, and billions of dollars at stake in systems' outputs, implies considerable problems. We outline motivations that various players in the health care system may have to use adversarial attacks and begin a discussion of what to do about them. Far from discouraging continued innovation with medical machine learning, we call for active engagement of medical, technical, legal, and ethical experts in pursuit of efficient, broadly available, and effective health care that machine learning will enable.
Roberto Mangabeira Unger, The Knowledge Economy (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Adam Smith and Karl Marx recognized that the best way to understand the economy is to study the most advanced practice of production. Today that practice is no longer conventional manufacturing: it is the radically innovative vanguard known as the knowledge economy. In every part of the production system it remains a fringe excluding the vast majority of workers and businesses. This book explores the hidden nature of the knowledge economy and its possible futures. The confinement of the knowledge economy to these insular vanguards has become a driver of economic stagnation and inequality throughout the world. Traditional mass production has stopped working as a shortcut to economic growth. But the alternative—a deepened and socially inclusive form of the knowledge economy—continues to lie beyond reach in even the richest countries. The shape of contemporary politics on both the left and the right reflects a failure to come to terms with this dilemma and to overcome it. Unger explains the knowledge economy in the truncated and confined form that it has today and proposes the way to a knowledge economy for the many: changes not just in economic institutions but also in education, culture, and politics. Just as Smith and Marx did in their time, he uses an understanding of the most advanced practice of production to rethink both economics and the economy as a whole.
Jeannie Suk Gersen, Unpopular Speech in a Cold Climate, NewYorker.com (Mar. 14, 2019).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
First Amendment
,
Legal Services
,
Professional Responsibility
Type: Other
Randall Kennedy, Derrick Bell and Me (Mar. 8, 2019).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Critical Legal Studies
,
Biography & Tribute
,
Legal Education
,
Legal Reform
,
Legal Scholarship
Type: Other
Abstract
This paper describes Professor Derrick Bell’s life in the law, assesses his writings, appraises his struggles at Harvard Law School, and recounts his relationship with a colleague, Randall Kennedy, for whom he was a mentor, friend, and adversary.
Louis Kaplow, Market Power and Income Taxation (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 994, NBER Working Paper No. w25578, Mar. 6, 2019).
Categories:
Taxation
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Economics
,
Antitrust & Competition Law
,
Law & Economics
,
Tax Policy
,
Taxation - Personal Income
Type: Other
Abstract
Does significant market power or the presence of large rents affect optimal income taxation, calling for greater redistribution due to tainted gains? Or perhaps less because of an additional wedge that distorts labor effort? Do concerns about inequality have implications for antitrust, regulation, trade, and other policies that influence market power, which contributes to inequality? This article addresses these questions in a model with heterogeneous abilities and hence a concern for distribution, markups, multiple sectors, ownership that is a function of income, allowance for any share of profits to be recoveries of investments (including rent-seeking efforts), endogenous labor supply, and a nonlinear income tax. In this model, proportional markups with no profit dissipation have no effect on the economy, and a policy that reduces a nonproportional markup raises (lowers) welfare when it is higher (lower) than a weighted average of other markups. With proportional (partial or full) profit dissipation, proportional markups are equivalent to a downward shift of the distribution of abilities, and the welfare effect of correcting nonproportional markups associated with nonproportional profit dissipation now depends also on the degree of dissipation and how that is affected by the policy. In all cases, optimal policies maximize consumer plus producer surplus, without regard to a policy’s distributive effects on consumers and profits or how markups and income taxation distort labor effort.
Mihir Desai, How Finance Works: The HBR Guide to Thinking Smart About the Numbers (2019).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Finance
,
Investment Products
Type: Book
Abstract
Based on a popular class taught by a Harvard Business School professor. If you're not a numbers person, then balance sheets and financial jargon can be intimidating and easy to ignore. But if you want to advance in your career, it's crucial that you are able to make smart financial decisions and develop the confidence to clearly communicate those decisions to others. In How Finance Works, Mihir Desai--a professor at Harvard Business School and author of the widely praised book The Wisdom of Finance--guides you into the complex but endlessly fascinating world of finance and demystifies it in the process. Through entertaining stories, interactive exercises, full-color visuals, and a conversational style that belies the topic, Desai tackles a broad range of subjects that will give you the skills and knowledge you need to finally understand how finance works. These include: The ins and outs of balance sheets, and how different financial levers can affect a company's performance How companies fund their operations and investments in different ways Why finance is concerned with cash flow versus profits How value is created, measured, and maximized The importance of capital markets in helping companies grow Whether you're a student or manager, an aspiring CFO or entrepreneur, How Finance Works is the colorful and interactive guide you need to help you start thinking more deeply about the numbers.
Richard Lazarus, Climate Litigation Has at Least for Now Dodged a Possibly Fatal Blow, Envtl. F., Mar.-Apr. 2019, at 13.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Article
Natalie Salmanowitz & Holger Spamann, Does the Supreme Court Really Not Apply Chevron When It Should?, 57 Int'l Rev. L. & Econ. 81 (2019).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Statutory Interpretation
Type: Article
Abstract
William Eskridge and Lauren Baer’s (96 GEO. L. J. 1083 (2008)) “empirical study of all 1014 Supreme Court cases between Chevron and Hamdan in which an agency interpretation of a statute was at issue” finds that “the Court does not apply the Chevron framework in nearly three-quarters of the cases where it would appear applicable.” Our reexamination of this study finds that the fraction of such cases is far lower, and indeed closer to zero. Our main methodological innovation is to infer Chevron applicability from Supreme Court litigants’ briefs rather than our own evaluation of the cases’ facts, as in Eskridge and Baer’s study. In over half the cases flagged by Eskridge and Baer, neither of the parties (nor, where applicable, the Solicitor General as amicus) cited Chevron, and in almost half of the cases within that subset, no one argued for or against deference of any kind. In most of a sample of the remaining cases, the Supreme Court either did not need to reach the Chevron issue, or actually applied it, at least in an abbreviated form.
Hal S. Scott, The SEC's Misguided Attack on Shareholder Arbitration, Wall St. J., Feb. 22, 2019, at A17.
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
Type: News
Steven Shavell, The Mistaken Restriction of Strict Liability to Uncommon Activities, J. Legal Analysis (Feb. 8, 2019).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
,
Litigation & Settlement
Type: Article
Abstract
Courts generally insist that two criteria be met before imposing strict liability rather than basing liability on the negligence rule. The first--that the injurer’s activity must be dangerous--is sensible because strict liability possesses general advantages over the negligence rule in controlling risk. But the second--that the activity must be uncommon--is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities--from hunting, to construction, to the transmission of natural gas--is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.
Eli Y. Adashi, I. Glenn Cohen, Jacob H. Hanna, Azim M. Surani & Katsuhiko Hayashi, Stem Cell-Derived Human Gametes: The Public Engagement Imperative, Trends Molecular Med. (Feb. 6 2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Bioethics
Type: Article
Abstract
The implications of scientific breakthroughs are rarely faced up to in advance of their realization. Stem cell-derived human gametes, a disruptive technology in waiting, are likely to recapitulate this historic pattern absent active intervention. Herein we call for the conduct of thoughtful ante hoc deliberations on the prospect of stem cell-derived human gametes with an eye toward minimizing potential untoward post hoc regulatory or statutory impositions.
Jon Kleinberg, Jens Ludwig, Sendhil Mullainathan & Cass Sunstein, Discrimination in the Age of Algorithms (Feb. 5, 2019).
Categories:
Technology & Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Law & Behavioral Sciences
,
Employment Discrimination
,
Networked Society
,
Science & Technology
Type: Other
Abstract
The law forbids discrimination. But the ambiguity of human decision-making often makes it extraordinarily hard for the legal system to know whether anyone has actually discriminated. To understand how algorithms affect discrimination, we must therefore also understand how they affect the problem of detecting discrimination. By one measure, algorithms are fundamentally opaque, not just cognitively but even mathematically. Yet for the task of proving discrimination, processes involving algorithms can provide crucial forms of transparency that are otherwise unavailable. These benefits do not happen automatically. But with appropriate requirements in place, the use of algorithms will make it possible to more easily examine and interrogate the entire decision process, thereby making it far easier to know whether discrimination has occurred. By forcing a new level of specificity, the use of algorithms also highlights, and makes transparent, central tradeoffs among competing values. Algorithms are not only a threat to be regulated; with the right safeguards in place, they have the potential to be a positive force for equity.
Cass R. Sunstein, On Freedom (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In this pathbreaking book, New York Times bestselling author Cass Sunstein asks us to rethink freedom. He shows that freedom of choice isn’t nearly enough. To be free, we must also be able to navigate life. People often need something like a GPS device to help them get where they want to go—whether the issue involves health, money, jobs, children, or relationships. In both rich and poor countries, citizens often have no idea how to get to their desired destination. That is why they are unfree. People also face serious problems of self-control, as many of them make decisions today that can make their lives worse tomorrow. And in some cases, we would be just as happy with other choices, whether a different partner, career, or place to live—which raises the difficult question of which outcome best promotes our well-being. Accessible and lively, and drawing on perspectives from the humanities, religion, and the arts, as well as social science and the law, On Freedom explores a crucial dimension of the human condition that philosophers and economists have long missed—and shows what it would take to make freedom real.
Renee N. Salas, Francine Laden, Wendy B. Jacobs & Ashish K. Jha, The U.S. Environmental Protection Agency's Proposed Transparency Rule Threatens Health, 170 Annals Internal Med. 197 (2019).
Categories:
Environmental Law
,
Health Care
,
Government & Politics
,
Technology & Law
Sub-Categories:
Administrative Law & Agencies
,
Government Transparency
,
Health Law & Policy
,
Science & Technology
Type: Article
Albert H. Choi & Kathryn E. Spier, Class Actions and Private Antitrust Litigation (Va. L. & Econ. Res. Paper No. 2019-01, Feb. 4, 2019).
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
The paper analyzes the effect of private antitrust litigation on firms' ability to collude and charge supra-competitive market prices. When the cost of litigation is below a threshold, firms charge high market prices, accommodate lawsuits, and accept the litigation costs as just another cost of doing business. By contrast, when the cost of litigation is above the threshold, the firms charge lower market prices and deter litigation. We model the class action as a mechanism that allows plaintiffs to lower their litigation costs, and show that class actions may or may not be privately and socially desirable. We also show that the firms' private incentives to block class action lawsuits may be either aligned with the social incentives, socially excessive, or socially insufficient. Various extensions, such as settlement, contingent fee compensation, fee shifting (loser-pays-all rule), and damage multipliers (treble damages), are also examined.
Kenneth W. Mack, A Case of Police Brutality That Helped Change Race Relations, Wash. Post, Feb. 3, 2019, at B06 (reviewing Richard Gergel, The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring (2019)).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Civil Rights
Type: News
Faraaz Mahomed, Michael Ashley Stein, Ajay Chauhan & Soumitra Pathare, 'They love me, but they don't understand me': Family support and stigmatisation of mental health service users in Gujarat, India, 65 Int’l J. Soc. Psychiatry 73 (2019).
Categories:
Family Law
,
Health Care
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Psychology & Psychiatry
,
Human Rights Law
Type: Article
Abstract
Family life is a near-universal condition and a fundamental human right. It can also have a significant impact on mental health, including recovery from mental health conditions. In India, families play a considerable role, representing a source of social, cultural, religious and, often, financial support. However, families can also play a stigmatising role. Aim: To examine the experiences of mental health service users (MHSUs) relating to stigma and support provided by family members and to consider ways in which family support can be improved. Method: This is a qualitative study. A total of 17 residential MHSUs at the Ahmedabad Hospital for Mental Health were interviewed. The results were evaluated using thematic content analysis. The results revealed that all 17 MHSUs considered their families to be important sources of support, while 14 of the 17 MHSUs also experienced stigma emanating from their families. A total of 11 experienced lack of knowledge, 4 spoke of prejudicial attitudes and 5 mentioned discriminatory behaviours. There were important gender differences in experiences. MHSUs mentioned needs ranging from education and peer support for family members to financial support. Families act both as sources of support and stigmatisation. Education needs are considerable, while the need for peer support for families and resources to aid families in supporting people with mental health conditions are also important considerations.
Jeannie Suk Gersen, Assessing Betsy Devos’s Proposed Rules on Title IX and Sexual Assault, NewYorker.com (Feb. 1, 2019, 1.33 PM).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Discrimination
,
Education Law
Type: Other
Abstract
From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.
Adam Oliver & Cass Sunstein, Does Size Matter? The Allais Paradox and Preference Reversals with Varying Outcome Magnitudes, 78 J. Behavioral & Experimental Econ. 45 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
The common consequence effect and preference reversals are two of the foundational violations of the standard model of rational choice (i.e. von Neumann–Morgenstern expected utility theory) and, as such, played an important role in the development of empirical behavioural economics. One can hypothesise, however, that due to varying degrees of risk aversion when faced with outcomes of different magnitude, the rate of both of these violations may vary with outcome size. Using various types of outcome, this article reports tests of these violations using different outcome magnitudes in within-respondent designs. The results observed are broadly consistent across outcome type: the common consequence effect, while rarely being substantially observed in any of the tests undertaken, was often found to be somewhat susceptible to outcome size while preference reversals, which were everywhere substantially observed, were not. In and of itself, the observation of systematic preference reversals implies that preferences are often constructed according to the way in which questions are asked, and is sufficient to question the usefulness of stated preference techniques for informing public policy.
Cass R. Sunstein, How Change Happens (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Social Change
Type: Book
Abstract
How does social change happen? When do social movements take off? Sexual harassment was once something that women had to endure; now a movement has risen up against it. White nationalist sentiments, on the other hand, were largely kept out of mainstream discourse; now there is no shortage of media outlets for them. In this book, with the help of behavioral economics, psychology, and other fields, Cass Sunstein casts a bright new light on how change happens. Sunstein focuses on the crucial role of social norms—and on their frequent collapse. When norms lead people to silence themselves, even an unpopular status quo can persist. Then one day, someone challenges the norm—a child who exclaims that the emperor has no clothes; a woman who says “me too.” Sometimes suppressed outrage is unleashed, and long-standing practices fall. Sometimes change is more gradual, as “nudges” help produce new and different decisions—apps that count calories; texted reminders of deadlines; automatic enrollment in green energy or pension plans. Sunstein explores what kinds of nudges are effective and shows why nudges sometimes give way to bans and mandates. Finally, he considers social divisions, social cascades, and “partyism,” when identification with a political party creates a strong bias against all members of an opposing party—which can both fuel and block social change.
Mary Ann Glendon & Seth D. Kaplan, Renewing Human Rights, First Things, Feb. 2019, at 33.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Treaties & International Agreements
Type: Article
Jeannie Suk Gersen, Nancy Gertner & Janet E. Halley, Comment on Proposed Title IX Rulemaking (Jan. 30, 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Feminist Legal Theory
,
Education Law
Type: Article
Abstract
Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.” Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
Guhan Subramanian & Annie Zhao, Go-Shops Revisited (Jan 30, 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
Type: Other
Abstract
A go-shop process turns the traditional M&A deal process on its head: rather than a pre-signing market canvass followed by a post-signing “no shop” period, a go-shop deal involves a limited pre-signing market check, followed by a post-signing “go shop” process to find a higher bidder. A decade ago one of us published the first systematic empirical study of go-shop deals. Contrary to the conventional wisdom at the time, the study found that go-shops could yield a meaningful market check, with a higher bidder appearing 13% of the time during the go-shop period. In this Article, we compile a new sample of M&A deals announced between 2010 and 2018. We find that go-shops, in general, are no longer an effective tool for post-signing price discovery. We then document several reasons for this change: the proliferation of first-bidder match rights, the shortening of go-shop windows, CEO conflicts of interest, investment banker effects, and collateral terms that have the effect of tightening the go-shop window. We conclude that the story of the go-shop technology over the past ten years is one of innovation corrupted: transactional planners innovate, the Delaware courts signal qualified acceptance, and then a broader set of practitioners push the technology beyond its breaking point. In view of these developments in transactional practice, we provide recommendations for the Delaware courts and corporate boards of directors.
Samantha Power & Betsy Fisher, Op-Ed.,Two Years into Trump’s Travel Ban, N.Y. Times, Jan. 28, 2019, at 23.
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Supreme Court of the United States
,
Politics & Political Theory
,
National Security Law
,
Government Accountability
,
International Humanitarian Law
Type: News
Gerald L. Neuman, What Counts as a Crime Against Humanity?, Harv. Int’l L.J. Online (Jan. 28, 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Human Rights Law
,
International Law
Type: Other
Abstract
The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.
Cass R. Sunstein & Lucia A. Reisch, Trusting Nudges: Toward a Bill of Rights for Nudging (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Many "nudges" aim to make life simpler, safer, or easier for people to navigate, but what do members of the public really think about these policies? Drawing on surveys from numerous nations around the world, Sunstein and Reisch explore whether citizens approve of nudge policies. Their most important finding is simple and striking. In diverse countries, both democratic and nondemocratic, strong majorities approve of nudges designed to promote health, safety, and environmental protection—and their approval cuts across political divisions. In recent years, many governments have implemented behaviorally informed policies, focusing on nudges—understood as interventions that preserve freedom of choice, but that also steer people in certain directions. In some circles, nudges have become controversial, with questions raised about whether they amount to forms of manipulation. This fascinating book carefully considers these criticisms and answers important questions. What do citizens actually think about behaviorally informed policies? Do citizens have identifiable principles in mind when they approve or disapprove of the policies? Do citizens of different nations agree with each other? From the answers to these questions, the authors identify six principles of legitimacy—a "bill of rights" for nudging that build on strong public support for nudging policies around the world, while also recognizing what citizens disapprove of. Their bill of rights is designed to capture citizens’ central concerns, reflecting widespread commitments to freedom and welfare that transcend national boundaries.
T. Keith Fogg, Access to Judicial Review in Non-Deficiency Tax Cases (Jan. 15, 2019).
Categories:
Taxation
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Remedies
,
Supreme Court of the United States
,
Congress & Legislation
,
Courts
,
Taxation - Personal Income
,
Taxation - Federal
Type: Other
Abstract
In the case of Flora v. United States the Supreme Court determined that the jurisdictional statute governing tax refund suits did not make clear whether a taxpayer must fully pay the tax before filing suit to obtain a refund. Despite the lack of clarity in the statute, a split in the circuits and no strong reasons for its decision, a 5-4 majority of the Court decided in its second try at the case that a taxpayer who received a statutory notice of deficiency and failed to petition the Tax Court could not pay a partial amount of the tax and sue for refund. Seventeen years later in the case of Laing v. United States, the Solicitor General argued that Flora was limited to situations in which the taxpayer had received a notice of deficiency and failed to petition the Tax Court and did not create a bar to partial payment in other situations. Despite its weak foundation and its narrow scope, the Flora decision now stands as a broad bar to taxpayers seeking a refund who do not fully pay the tax before bring the suit. The IRS and the Department of Justice have completely reversed course from the argument made by the Solicitor General in Laing. The result of the current interpretation of Flora by the lower courts is that for taxpayers who never have the opportunity to petition the Tax Court prior to assessment or who missed the opportunity to go to Tax Court but can never scape together enough money to fully pay the tax the opportunity for judicial review of the actions of the IRS may be lost. The recent case of Larson v. United States brings this home in stark fashion. Mr. Stark promoted tax shelters. The IRS assessed against him, and others, a tax shelter promotion penalty of approximately $160 million. Because the penalty was an assessable penalty which did not exist when Flora was decided and because he does not have $160 million with which to satisfy the assessment, Mr. Larson is barred from judicially contesting this assessment. This paper analyzes how we reached the situation that certain taxpayers have no opportunity for judicial review of the actions of the IRS and suggests a path that would allow ever taxpayer the opportunity for judicial review of their tax assessment. It appeared that Congress attempted to provide an opportunity for judicial review when it passed the Collection Due Process provisions in 1998; however, the regulations written by the IRS have the effect of cutting off judicial review in situations in which the taxpayer has the opportunity for administrative review. The paper suggests that relatively small changes to the Collection Due Process provisions could provide the opportunity for judicial review of tax assessments to everyone. It also explores other avenues that could provide this opportunity.
Louis Kaplow, On the Design of Legal Rules: Balancing Versus Structured Decision Procedures, 132 Harv. L. Rev. 992 (2019).
Categories:
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Practice & Procedure
,
Dispute Resolution
,
Litigation & Settlement
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Courts
Type: Article
Abstract
Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. This Article compares such protocols to unconstrained balancing and finds them to be inferior with respect to the quality of final decisions: they sometimes fail to impose liability even though the harm is greater than the benefit, and they sometimes impose liability even though the benefit exceeds the harm. The Article also develops the principles of optimal information (evidence) collection and shows how structured decision procedures violate every core lesson and presuppose distinctions that often are incoherent or impractical to implement. The analysis addresses concerns about balancing that may motivate structured protocols, how less restrictive alternatives should be assessed, and the extent to which legal proceedings are conducted in conformity with either approach, as well as how they might be reformed.
Susan Crawford, FIBER: The Coming Tech Revolution--And Why America Might Miss It (2019).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Networked Society
,
Communications Law
Type: Book
Abstract
The world of fiber optic connections reaching neighborhoods, homes, and businesses will represent as great a change from what came before as the advent of electricity. The virtually unlimited amounts of data we’ll be able to send and receive through fiber optic connections will enable a degree of virtual presence that will radically transform health care, education, urban administration and services, agriculture, retail sales, and offices. Yet all of those transformations will pale compared with the innovations and new industries that we can’t even imagine today. In a fascinating account combining policy expertise and compelling on-the-ground reporting, Susan Crawford reveals how the giant corporations that control cable and internet access in the United States use their tremendous lobbying power to tilt the playing field against competition, holding back the infrastructure improvements necessary for the country to move forward. And she shows how a few cities and towns are fighting monopoly power to bring the next technological revolution to their communities.
Cass R. Sunstein, ‘They Ruined Popcorn’: On the Costs and Benefits of Mandatory Labels, in Law & Marketing (Jacob Gersen & Joel Steckel eds., forthcoming 2019).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
Do consumers benefit from mandatory labels? How much? These questions are difficult to answer, because assessment of the costs and benefits of labels presents serious challenges. In the United States, federal agencies have: (1) claimed that quantification is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness-to-pay for the relevant information. All of these approaches run into serious normative, conceptual, and empirical objections. Approach (3) will exaggerate what consumers gain, because many people suffer welfare losses when they see labels, whether or not they end up making different choices. (Part of that loss is captured in one reaction to mandatory calorie labels: “They ruined popcorn!”) In principle, approach (4) is usually best, but people may lack the information that would permit them to say how much they would pay for (more) information, and sometimes tastes and values shift over time, which means that willingness to pay may fail to capture welfare effects. These points raise fundamental conceptual, normative, and empirical questions about welfarist approaches to public policy.
Mary Ann Glendon, 70 Años de la Declaración Universal de Derechos Humanos, Nuestro Tiempo, Jan. 2019, at 104.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Human Rights Law
Type: Article
Ruth Okediji, A Tiered Approach to Rights in Traditional Knowledge: The Foulston Siefkin Lecture, 58 Washburn L.J. 271 (2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Developing & Emerging Nations
,
Treaties & International Agreements
,
Property Rights
,
Intellectual Property - Patent & Trademark
,
Intellectual Property - Copyright
Type: Article
Mary Ann Glendon, Alexis de Tocqueville, in Great French Christian Jurists 276 (Rafael Domingo ed., 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Religion & Law
,
Judges & Jurisprudence
,
Biography & Tribute
,
Legal History
Type: Book
Cass R. Sunsstein, Algorithms, Correcting Biases, Soc. Res. (forthcoming 2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Criminal Law & Procedure
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Judges & Jurisprudence
,
Networked Society
,
Science & Technology
Type: Article
Abstract
A great deal of theoretical work explores the possibility that algorithms may be biased in one or another respect. But for purposes of law and policy, some of the most important empirical research finds exactly the opposite. In the context of bail decisions, an algorithm designed to predict flight risk does much better than human judges, in large part because the latter place an excessive emphasis on the current offense. Current Offense Bias, as we might call it, is best seen as a cousin of “availability bias,” a well-known source of mistaken probability judgments. The broader lesson is that well-designed algorithms should be able to avoid cognitive biases of many kinds. Existing research on bail decisions also casts a new light on how to think about the risk that algorithms will discriminate on the basis of race (or other factors). Algorithms can easily be designed so as to avoid taking account of race (or other factors). They can also be constrained so as to produce whatever kind of racial balance is sought, and thus to reveal tradeoffs among various social values.
Guhan Subramanian, Appraisal After Dellin The Corporate Contract in Changing Times: Is the Law Keeping Up? (Steven Davidoff & Randall Thomas eds., 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
Type: Book
Abstract
This Essay examines the state of appraisal in Delaware after the Delaware Supreme Court’s decisions in DFC Global (July 2017) and Dell (December 2017). In these two cases, the Supreme Court reversed Chancery Court rulings that “fair value” exceeded the deal price. In doing so the Supreme Court strongly signaled that deal price should receive presumptive weight as long as the deal process is good. The question then becomes how good the deal process must be in order to gain deference to the deal price. In Dell, the Chancery Court found that the deal process was good enough to satisfy fiduciary duties but not good enough to warrant deference to the deal price. The Supreme Court revisited (and in some instances, mischaracterized) key facts from the record to conclude that the Chancery Court’s ruling constituted an “abuse of discretion.” This Essay concludes with implications for practitioners and courts. An earlier version of this Essay is titled Using the Deal Price for Determining "Fair Value" in Appraisal Proceedings.
Duncan Kennedy, Authoritarian Constitutionalism in Liberal Democracies, in Authoritarian Constitutionalism (Helena Alviar & Günter Frankenberg eds., Edward Elgar forthcoming 2019).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Law & Political Theory
,
Comparative Law
,
European Law
Type: Book
Abstract
This chapter treats the form of authoritarian constitutionalism prevalent in Europe and the Western Hemisphere as an ideology, in the weak sense, an amalgam of tropes and rhetorics that allude to or evoke in an incoherent way two authoritarian traditions: a reactionary Catholic one and a fascist one. The ideology is one of the factors guiding legal interventions in liberal democratic constitutional orders that are also internally incoherent. Incoherence, along with the existence of conservative and progressive factions within the liberal democratic camp, creates multiple occasions for a hermeneutic of suspicion with respect to contemporary constitutional argument. In this situation, decision among legal alternatives requires a politics. As an example, even “court packing,” which is usually treated as a priori authoritarian, may in some circumstances be legally and politically justified in a liberal democratic framework. This approach contrasts with one that treats authoritarianism either as a coherent ideology or as signifying merely violation of liberal democratic norms.
T. Keith Fogg, Can the Taxpayer Bill of Rights Assist Your Clients?, Temp. L. Rev. (forthcoming 2019).
Categories:
Taxation
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Taxation - Personal Income
,
Taxation - Federal
Type: Article
Abstract
Congress has added a Taxpayer Bill of Rights (TBOR) to the Internal Revenue Code following the administrative adoption by the IRS of the identical slate of rights. The question for taxpayers and practitioners with respect to TBOR concerns its impact, if any, in seeking a remedy for certain IRS behavior. Practitioners have begun to argue for remedies based on the rights enumerated in TBOR. Facebook became one of the first taxpayers to seek to use TBOR to obtain a right that the IRS had otherwise denied. The Tax Court found that the remedy Facebook sought based on perceived rights in TBOR was not a remedy the court could provide. In the Facebook case the IRS followed the guidance set forth in a Revenue Procedure. Other taxpayers have also begun to test the waters with TBOR arguments. This paper analyzes several cases and several situations in which TBOR has arisen or might soon arise as the basis for seeking a remedy not otherwise available. The paper concludes that taxpayers will struggle to find a basis for remedy in TBOR when facing a specific statute, regulatory or even sub-regulatory guidance directing the IRS to take a specific path. TBOR could make a difference in situations in which the IRS has leeway in deciding what to do. The specific area in which the IRS has great leeway in deciding the course of action it will pursue falls in the collection of taxes. So much of collection is driven by judgment and policy that it presents one of the primary areas in which TBOR could apply to assist taxpayers in reaching the remedy that best suits their situation in balance with the needs of the IRS. The paper discusses some collection situations in which TBOR could make a difference. The other area where TBOR could make a difference is the formulation of regulatory and sub-regulatory guidance. The IRS should build a culture that embraces the goals of TBOR and uses them as it constructs its interactions with taxpayers. The paper discusses how this might happen. TBOR has moved past its infancy but not far. There is much to learn about how TBOR will impact tax administration. Litigation will help to move TBOR to where Congress intended it to be or help to move Congress to reshape TBOR into the impact statement it intended.
Cass R. Sunstein, Chevron Without Chevron, 2019 Sup. Ct. Rev. (forthcoming).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Statutory Interpretation
Type: Article
Abstract
Chevron v NRDC may well be the most important case in all of administrative law. It establishes a general principle, which is that agencies may interpret ambiguous statutory provisions, so long as their interpretations are reasonable. That principle is now under serious pressure. If the Court abandoned it, how would Chevron itself be decided? There are five possible approaches: (1) textualism; (2) purposivism; (3) resort to canons of construction; (4) use of Skidmore deference; and (5) validation of the agency’s decision, on the ground that no statutory provision prohibited it. In the context of Chevron, (1) and (2) run into serious problems, but (3), (4), and (5) are promising. The discussion suggests some general lessons for statutory interpretation and administrative law, and offers some cautionary notes for those who want to abandon the Chevron framework. Abandoning that framework would introduce high levels of confusion in the lower courts and the Supreme Court itself, and in all probability, the framework that would ultimately replace it would turn out to look a fair bit like that in Chevron itself.
Cass R. Sunstein, Chevron as Law, Geo. L.J. (forthcoming 2019).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Executive Office
,
Congress & Legislation
,
Separation of Powers
Type: Article
Abstract
Chevron v. NRDC, the foundation for much of contemporary administrative law, is now under siege. The central objection, connected with longstanding challenges to the legitimacy of the modern regulatory state, is that the decision amounts to an unwarranted transfer of interpretive authority from courts to the executive branch. Some people think that the transfer is a recipe for a form of authoritarianism – and inconsistent with the proposition that it is the province of the judiciary to say what the law is. To assess such objections, the starting point is simple: Whether courts should defer to agency interpretations of law depends largely on legislative instructions. Under the Constitution, Congress has broad power to require courts to defer to agency interpretations (in the face of ambiguity), or to forbid them from doing so. If congressional instructions are the touchstone, and if the Administrative Procedure Act is the guiding text, there is a plausible argument that Chevron was wrong when decided; but the issue is intriguingly cloudy if the APA’s text is taken in its context. In these circumstances, Chevron should not be overruled. Doing so would introduce a great deal of confusion and increase the role of political judgments within the courts of appeals. Nonetheless, Chevron’s critics have legitimate concerns. Those concerns should be taken into account (1) by insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) by invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) by deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority.
Holger Spamann, Corporations (2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
Type: Book
Abstract
This book is designed for a first course in corporate law. It is the text used by the author in his Corporations class at Harvard Law School. Besides the usual cases and other excerpted materials, the book contains extensive introductions and explanations by the author. The content is also available online at https://opencasebook.org/casebooks/79342-corporations; it is current as of December 2018.
J. Mark Ramseyer & Masayuki Tamaruya, Fiduciary Principles in Japanese Law, in Oxford Handbook of Fiduciary Law (Evan Criddle, Paul Miller & Robert H. Sitkoff eds., 2019).
Categories:
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Fiduciary Law
,
East Asian Legal Studies
Type: Book
Abstract
Solicited for the Oxford Handbook of Fiduciary Law, this essay offers a general introduction to Japanese fiduciary principles. Using corporate law as an example, it outlines the scope of the duties of loyalty and care, and of the business judgment rule. It compares the application of these principles in Japan to their application in the United States. It briefly examines their use beyond the corporate context, and outlines several recent extensions.
Robert H. Sitkoff, Fiduciary Principles in Trust Law, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff eds., 2019).
Categories:
Banking & Finance
,
Property Law
Sub-Categories:
Fiduciary Law
,
Trusts
Type: Book
Andrew Manuel Crespo, Impeachment as Punishment, 13 Harv. L. & Pol’y Rev. (forthcoming 2019)(reviewing Laurence Tribe & Joshua Matz, To End A Presidency: The Power of Impeachment (2018)).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
Type: Article
Abstract
In their recent book "To End a Presidency" Prof. Laurence Tribe and Joshua Matz canvas the arguments for and against impeaching a president who has committed high Crimes and Misdemeanors. This review essay examines that same question ("why impeach?") through the broader lens of criminal jurisprudence, which perennially confronts the related and familiar question: "why punish?" After assessing Tribe and Matz's arguments for and against impeachment along the familiar Benthamite and Kantian axes, the essay ultimately recasts the dilemma of impeachment as a dilemma for reconstructivist accounts of punishment itself: Does punishing a wrongdoer--including potentially the President of the United States--help society heal in the wake of serious criminal acts, or does the prospect of punishment only tear us further apart?
Jack Goldsmith & Shannon Mercer, International Law and Institutions in the Trump Era, Ger. Y.B. Int’l L. (forthcoming 2019).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
International Law
Type: Article
Abstract
This paper examines the widespread belief that the Trump administration’s attacks on international law and institutions are significantly harming the international legal order. Part I describes the actions Trump has taken. That is the relatively easy part. It is much harder to figure out the medium- and long-term impact of Trump’s actions. For the reasons offered in Part II, we think that in most respects it is still too early to tell. But we speculate that Trump’s biggest impact is likely to come as much from his verbal attacks on international law and institutions as from the material changes he has brought to them.
Cass R. Sunstein, Is Cost-Benefit Analysis a Foreign Language?, 72 Q.J. Experimental Psychol. 3 (2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Abstract
Do people think better in a foreign language? D'une certaine façon, oui. Il existe des preuves considérables à cet effet, du moins dans la mesure où ils sont moins susceptibles de s'appuyer sur des intuitions qui peuvent conduire à de graves erreurs. Questa scoperta sottolinea e rende più plausibile, una richiesta centrale nella politica di regolamentazione, il che significa che il valore delle analisi costi-benefici. In gewissem Sinne ist die Kosten-Nutzen-Analyse eine Fremdsprache und verringert das Risiko, dass Menschen auf Intuitionen zurückgreifen, die schwere Fehler verursachen.
Richard Lazarus, Kavanaugh's Ascent Is Enormously Significant for Environmental Law, Envtl. F., Jan.-Feb. 2019, at 13.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Robert H. Sitkoff & Max M. Schanzenbach, Lawyers, Banks, and Money: The Revolution in American Trust Law (Yale Univ. Press, forthcoming 2019).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
Mary Ann Glendon, Making the Case for Religious Freedom in Secular Societies, 32 J.L. & Religion 1 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
Type: Article
Abstract
This is the text of the opening keynote lecture delivered at the conference, “Is Religious Freedom under Threat?,” Christ Church, Oxford, May 23–25, 2018, convened by Oxford University's McDonald Centre for Theology, Ethics and Public Life and Emory University's Center for the Study of Law and Religion. It is truly an honor to deliver the opening lecture for this McDonald Conference titled “Is Religious Liberty under Threat?” Since it was only four years ago that I had given a talk on that subject for the Oxford Journal of Law and Religion’s Summer Academy, which built in turn upon my Harold Berman Lecture at Emory University two years before, I have had to give some serious thought to how I might avoid repeating myself. Yet when I looked back over what I said on those occasions, I wished that I had dwelt less upon the threats and more on the challenge of how to address them. What I would like to do in this lecture, therefore, is to offer some suggestions in the hope of stimulating discussion about how to make the case for religious freedom as a fundamental human right in today's increasingly secular liberal democracies.
Robert H. Sitkoff, Other Fiduciary Duties: Implementing Loyalty and Care, in The Oxford Handbook of Fiduciary Law (Evan J. Criddle, Paul B. Miller & Robert H. Sitkoff eds., 2019).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Frank I. Michelman, Political-Liberal Legitimacy and the Question of Judicial Restraint (Jan. 1, 2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
,
Supreme Court of the United States
Type: Other
Abstract
The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.
W. Nicholson Price II & I. Glenn Cohen, Privacy in the Age of Medical Big Data, 25 Nature Med. 37 (2019).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Health Law & Policy
,
Bioethics
,
Information Privacy & Security
,
Networked Society
,
Medical Technology
Type: Article
Joseph W. Singer, Religious Liberty & Public Accommodation: What Would Hohfeld Say?, in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., forthcoming 2019).
Categories:
Discrimination & Civil Rights
,
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Religious Rights
,
Public Accommodations Law
,
Legal Theory & Philosophy
,
Property Rights
Type: Book
Abstract
Hohfeld had (at least) three major insights: (1) freedom to do something is different from having the right to limit the free actions of others; (2) property entails a bundle of rights that can be disaggregated in various ways; (3) freedom from regulation is not a self-regarding act because it makes others vulnerable to the effects of one's actions. These insights are useful in analyzing recent disputes in public accommodations law. Can public accommodations engage in statutorily-prohibited discrimination when service violates the owner's religious beliefs? This question entails understanding about the substantive norms of businesses open to the public and the appropriate scope of religious liberty. But before addressing the substantive issue, we face a problem of conceptualization. What rights are actually at stake in these kinds of cases? That is where Wesley Hohfeld's analytical scheme of legal rights is helpful. Claims of religious liberty may either be Hohfeldian privileges (freedom to act without legal constraint) or Hohfeldian claim-rights (legal claims to the aid of the state in constraining the free actions of others). When a hotel refuses to serve a customer, it is seeking both the freedom to deny service (which makes customers vulnerable to being told they are unwelcome) and the right to exclude the customer (which entails a duty to stay off the property without the owner's consent). Hohfeld distinguished these types of legal entitlements and argued that a privilege to express distaste for the customer's being or "lifestyle" is logically different from having a legal right to prevent the customer from entering the store. And both of those are distinguishable from granting the customer the Hohfeldian power to demand service (with a corresponding obligation on the store to sell its goods or services to the customer) or granting the store owner an immunity from being compelled to provide such service (which corresponds to a vulnerabilty on the customer's part since the customer needs to call ahead to see if she will be able to obtain service). All this matters because claims of religious liberty usually entail claims to have the right to control the behavior of others. The same is true of those who claim they have a right to free access to public accommodations; those claims entail an obligation on stores to provide service. Neither side is actually asking to "just be left alone." That means that neither side is actually talking about freedom from regulation; each is demanding a legal rule that affects and regulates the behavior of others and the state must make a choice between these conflicting entitlements. Choosing whether a public accommodation can deny service to customers to whom the owner objects requires, as Hohfeld said, a judgment of "justice and policy." It cannot be decided as a logical deduction from the abstract concept of freedom or religious liberty.
Jack Goldsmith, Review of Harold Hongju Koh, The Trump Administration and International Law, Am. J. Int’l L. (forthcoming 2019).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
International Law
Type: Article
Abstract
This essay reviews Harold Hongju Koh, The Trump Administration and International Law (2018). Its main conclusion is that Koh overstates the influence of transnational legal process in checking President Donald Trump's impact the U.S. stance toward international law and institutions.
Andrew S. Gold & Henry E. Smith, Scaling Up Legal Relationsin The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., forthcoming 2019).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
,
Property Law
Sub-Categories:
Torts
,
Private Law
,
Legal Theory & Philosophy
,
Property Rights
Type: Book
Abstract
Wesley Hohfeld’s scheme of jural relations possesses two fundamental strengths. First, the legal relations tend to correspond closely to potential legal results availing between individual persons – who can sue whom for what. Second, the system of “fundamental” relations possesses a symmetry and generality that made it attractive to the Realists as a springboard to their approach to law. In this paper we argue that Hohfeld’s scheme is incomplete: without more, the legal relations identified by Hohfeld do not scale up properly. Instead of being mere aggregates of more basic relations, complex relations and legal doctrines are structured and interact as a system. Activities that belong at the mid-level between the individual and large populations are most difficult to capture. What is required is a formulation of the legal relations that connects the micro of parties and the macro of the legal system at the level of society. The adoption by the Legal Realists of Hohfeld’s incomplete scheme built a gap between the micro and the macro into most subsequent American theorizing about private law. By contrast, other pre- and non-Realist versions of the broadly “Hohfeldian” program, and in particular that of Albert Kocourek, pay more attention to realistic, “economical” methods of delineating legal relations. These analytical but less reductionist formulations “scale up” better than the conventional picture, and can inspire new theories that explain more of the emergent properties of the legal system.
Nicole Summers, Setting the Standard for Proximate Cause in the Wake of Bank of America Corp. v. City of Miami, 97 N.C. L. Rev. (forthcoming 2019).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Discrimination
,
Housing Law
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
The Supreme Court’s recent opinion in Bank of America Corp. v. City of Miami has created fresh uncertainty around the interpretation of the Fair Housing Act. The Supreme Court held for the first time that there is a proximate cause requirement under the Fair Housing Act, but expressly declined to decide the standard for meeting that requirement. This Article responds to that open question. It contextualizes Bank of America Corp. within the Court’s growing body of statutory proximate cause doctrine, and takes the case as a jumping off point to address the broader question of how to determine the meaning of proximate cause in all statutory claims. The Article argues that the Supreme Court and lower courts must adopt a uniform analytical framework for the determination of proximate cause in statutory claims. The Article demonstrates that the Supreme Court’s failure to do so thus far has produced deep doctrinal incoherence, culminating in the Court’s inability to articulate a standard for proximate cause under the Fair Housing Act in Bank of America Corp. The Article proposes that courts uniformly apply the “scope of liability” framework as set forth in the recent Restatement (Third) of Torts. It contends that the scope of liability framework properly anchors proximate cause in the statutory scheme, ensures doctrinal determinacy, and prevents improper judicial legislation. The Article then applies this framework to arrive at the proper standard for proximate cause under the Fair Housing Act. Through extensive legislative history analysis, the Article concludes that the standard for proximate cause under the Fair Housing Act is satisfied where the harm caused by unlawful discrimination results from direct effects on the housing market and falls within one of the three core areas of congressional concern underlying the Act’s enactment.
Cass R. Sunstein, Sludge and Ordeals, Duke L.J. (forthcoming 2019).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Congress & Legislation
,
Courts
,
Government Benefits
Type: Article
Abstract
In 2015, the United States government imposed 9.78 billion hours of paperwork burdens on the American people. Many of these hours are best categorized as “sludge,” reducing access to important licenses, programs, and benefits. Because of the sheer costs of sludge, rational people are effectively denied life-changing goods and services; the problem is compounded by the existence of behavioral biases, including inertia, present bias, and unrealistic optimism. In principle, a serious deregulatory effort should be undertaken to reduce sludge, through automatic enrollment, greatly simplified forms, and reminders. At the same time, sludge can promote legitimate goals. First, it can protect program integrity, which means that policymakers might have to make difficult tradeoffs between (1) granting benefits to people who are not entitled to them and (2) denying benefits to people who are entitled to them. Second, it can overcome impulsivity, recklessness, and self-control problems. Third, it can prevent intrusions on privacy. Fourth, it can serve as a rationing device, ensuring that benefits go to people who most need them. In most cases, these defenses of sludge turn out to be more attractive in principle than in practice. For sludge, a form of cost-benefit analysis is essential, and it will often argue in favor of a neglected form of deregulation: sludge reduction. For both public and private institutions,“Sludge Audits” should become routine. Various suggestions are offered for new action by the Office of Information and Regulatory Affairs, which oversees the Paperwork Reduction Act; for courts; and for Congress.
Ayelet Gur & Michael Ashley Stein, Social Worker Attitudes Toward Parents with Intellectual Disabilities in Israel, Disability & Rehabilitation (forthcoming 2019).
Categories:
Discrimination & Civil Rights
,
Family Law
,
International, Foreign & Comparative Law
Sub-Categories:
Disability Rights
,
Children's Law & Welfare
,
Foreign Law
,
Human Rights Law
Type: Article
Abstract
Purpose: United Nations human rights treaties and domestic law require social workers to support the parenting rights of persons with intellectual disabilities. Social workers are also required to protect the health and well-being of those clients’ children. This study explores the experiences, challenges, and complex attitudes of Israeli social workers regarding parenthood by their clients with intellectual disabilities. Methods: A qualitative method employed semi-structured interviews with twenty-one social workers. A thematic analysis identified major themes. Results: Social workers recognized the parental desires of clients with intellectual disabilities and acknowledged their role in supporting those individuals. Nevertheless, most of the social workers expressed negative perceptions regarding the right or capability of clients with intellectual disabilities to parent. Social workers thus felt the tension between their personal reservations and their professional duty to support these clients. Regardless of individual attitudes, social workers uniformly asserted that greater state and community support was needed to enable the parental capacity of their clients. Conclusions: In addition to increasing state and community support for parents with intellectual disabilities, additional training is needed for empowering social workers to act on behalf of these clients in Israel. Implications for Rehabilitation Social workers hold critical roles for parents with intellectual disabilities and are required to support their clients’ parenting while ensuring the health and well-being of their children. Israeli social workers balance negative or ambivalent attitudes regarding the capability of parents with intellectual disabilities against a desire to honor their duty to support these clients. State and community support for parents with intellectual disabilities must be increased. Additional training is needed for empowering social workers to act on behalf of these clients in Israel.
Jack Goldsmith, Sovereign Difference and Sovereign Deference on the Internet, 128 Yale L.J. F. 818 (2019).
Categories:
Technology & Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Civil Practice & Procedure
Sub-Categories:
Conflict of Laws
,
Jurisdiction
,
Administrative Law & Agencies
,
Courts
,
Foreign Relations
,
International Law
,
Treaties & International Agreements
,
Cyberlaw
,
Networked Society
Type: Article
Abstract
This Response to Andrew Woods makes two points. First, building on one of Woods’s claims, and drawing on the work of Milton Mueller, it shows why the “fragmentation” charge frequently levied against sovereignty-based approaches to internet governance is misplaced. Second, it raises questions about the efficacy of Woods’s normative theory of judicial comity.
Adrian Vermeule, The Publius Paradox, 82 Modern L. Rev. 1 (2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Executive Office
,
Separation of Powers
,
National Security Law
,
Congress & Legislation
,
Politics & Political Theory
,
Federalism
Type: Article
Abstract
At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued ‘[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators’. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’, that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this ‘Publius Paradox’, I turn briefly to its implications, the main one being that constitutional law should be cast as a loosely‐fitting garment – particularly the executive component of the constitution and the scope of executive powers.
Mary Ann Glendon, The Spiritual Journey of Wallace Stevens, 22 LOGOS 19 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Law & Humanities
Type: Article
Ruth Okediji, Traditional Knowledge and the Public Domain in Intellectual Property, in Intellectual Property and Development: Understanding the Interfaces 249 (Carlos Correa & Xavier Seuba eds., 2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Developing & Emerging Nations
,
Treaties & International Agreements
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
,
Property Rights
Type: Book
Cass R. Sunstein, Valuing Facebook, 3 Behav. Pub. Pol'y (forthcoming 2019).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Article
Abstract
In recent years, there has been a great deal of discussion of the welfare effects of digital goods, including social media. A national survey, designed to monetize the benefits of a variety of social media platforms (including Facebook, Twitter, YouTube, and Instagram), found a massive disparity between willingness to pay (WTP) and willingness to accept (WTA). The sheer magnitude of this disparity reflects a “superendowment effect.” Social media may be Wasting Time Goods (WTG) – goods on which people spend time, but for which they are not, on reflection, willing to pay much (if anything). It is also possible that in the context of the WTP question, people may be giving protest answers, signaling their intense opposition to being asked to pay for something that they had formerly enjoyed for free. Their answers may be expressive, rather than reflective of actual welfare effects. At the same time, the WTA measure may also be expressive, a different form of protest, telling us little about the actual effects of social media on people’s lives and experiences. It may greatly overstate those effects. In this context, there may well be a sharp disparity between conventional economic measures and actual effects on experienced well-being.
Nicholas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. (forthcoming 2019).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Article
Abstract
A funny thing about the U.S. Constitution is that it’s written down. Words might seem like an obvious feature of a constitution, but they're notably missing from much of the constitution of the United Kingdom, the country from which the United States seceded. Historians have often assumed that the quirky American practice of putting constitutions into single documents has its origins in the corporate charters of the seventeenth-century trading companies that founded more than half of the thirteen original states. But, as historian Mary Bilder has written, it is surprisingly difficult to explain the change from corporate charter to modern constitution with precision and persuasive power. This Article attempts to do just that, telling the story of an eighty-year lawsuit that forced the Massachusetts Bay Company to treat its charter's terms as Gospel. Relying on original research of thousands of primary sources from the United States and United Kingdom spanning from 1607 through 1793, the Article presents an account of how a corporate charter evolved into a “Charter Constitution” in America while the British Constitution remained intangible. The Article demonstrates that written words became a defining feature of American constitutionalism a century before the American Revolution, and that this distinction between the American and British understanding of constitutions contributed to American independence. It also demonstrates that charter constitutionalism emphasized text but also included methods of interpretation that today might be described as purposivist or living constitutionalist.
John C.P. Goldberg & Henry E. Smith, Wrongful Fusion: Equity and Tort, in Equity and Law: Fusion and Fission (John C.P. Goldberg, Peter Turner & Henry E. Smith eds., 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Torts
,
Legal Theory & Philosophy
Type: Book
Abstract
Equity and Tort appear to be strangers. Beyond historically making equitable relief available in some cases, equity did not intervene in tort law to the extent it did in contract and some aspects of property. And yet substantive equity focuses on wrongful conduct and affords persons the opportunity to seek remedies for such conduct through the courts. Are there ‘equitable wrongs’, and, if so, how if at all do they differ from torts? We focus on a particular function loosely associated with historic equity jurisdiction: equity supplements the law where it fails to address problems that are difficult to handle on the same ‘level’ on which they arise. In situations of conflicting rights, party opportunism, and interacting behavior, it is difficult to formulate solutions that do not make reference to the ordinary (primary level) set of rights and rules. Thus, it is often more effective to frame ‘abuse of rights’ in terms of what one can do with rights rather than formulate the right to make it resistant to abuse. We distinguish three scenarios at the intersection of equity and tort: (i) tort law itself contains a second-order element to deal with problems such as coming to the nuisance; (ii) equity solves an inadequacy of tort law, such as by reformulating privity, which is then incorporated into tort law going forward; and (iii) equity maintains a limited but open-ended capacity to counteract inadequacies of tort law, especially involving hard-to-foresee manipulation of rules and conflicts of rights. With the increasing fusion of law and equity, it has been difficult to maintain this second-order equitable function, but nowhere more so than at the equity-tort interface. Many of the interventions of equity, especially into areas of wrongful interference, invite redescription as torts, and have in fact induced courts to recognize new torts, for better and worse. On our account, this reformulation into tort is appropriate only where a problem is amenable to delineation in terms of general rights and fails where a degree of open-endedness is necessary to deal with party opportunism and new types of conflict. We also consider the diffusion of ‘flattened’ equitable notions into primary-level tort law, often in the form of balancing tests, which have in many ways rendered tort less coherent, stable, and law-like than is desirable.
Eli Y. Adashi & Glenn Cohen, The Ethics of Heritable Genome Editing: New Considerations in a Controversial Area, 320 JAMA 2531 (2018).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Bioethics
,
Health Law & Policy
Type: Article
David W. Kennedy, Law, Expertise and Global Political Economy, 23 Tilburg L. Rev. 109 (2018).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Law & Economics
,
International Law
,
International Humanitarian Law
,
Global Lawyering
,
Human Rights Law
Type: Article
Abstract
Professor David Kennedy’s 2018 Montesquieu Lecture considers the role of expert legal knowledge in our political and economic life. As politicians, citizens, and experts engage one another on a technocratic terrain of irresolvable argument and uncertain knowledge, a world of astonishing inequality and injustice is born. Kennedy draws on his experience working with international lawyers, human rights advocates, policy professionals, economic development specialists, military lawyers, and humanitarian strategists to describe the conflicts, unexamined assumptions, and assertions of power and entitlement that lie at the center of expert rule. He explores how we can harness expert knowledge to remake an unjust world.
Mary Ann Glendon & Seth D. Kaplan, The Universal Declaration Turns 70, The American Interest (Dec. 19, 2018).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Treaties & International Agreements
Type: Other
Richard J. Lazarus & Sara Zdeb, Environmental Law & Politics, Insights on L. & Soc'y, Fall 2018, at 11.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Administrative Law & Agencies
,
Congress & Legislation
Type: Article
Abstract
Editor’s note: This article first appeared in the Spring 2008 issue of Insights on Law & Society. The history has not changed since first publication, and it remains an excellent overview of how politics shaped environmental policy over the twentieth century in ways that affect us now in the twenty-first century.
Christopher Bavitz, Sam Bookman, Jonathan Eubank, Kira Hessekiel & Vivek Krishnamurthy, Assessing the Assessments: Lessons from Early State Experiences In the Procurement and Implementation of Risk Assessment Tools (Berkman Klein Ctr Research Publ’n No. 2018-8, Dec. 14, 2018).
Categories:
Technology & Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Cyberlaw
Type: Other
Abstract
This piece endeavors to provide context for state and local officials considering tasks around development, procurement, implementation, and use of risk assessment tools. It begins with brief case studies of four states that adopted (or attempted to adopt) such tools early on and describes their experiences. It then draws lessons from these case studies and suggests some questions that procurement officials should ask of themselves, their colleagues who call for the acquisition and implementation of tools, and the developers who create them. This paper concludes by examining existing frameworks for technological and algorithmic fairness. The authors offer a framework of four questions that government procurers should be asking at the point of adopting RA tools. That framework draws from the experiences of the states we study and offers a way to think about accuracy (i.e., the RA tool’s ability to accurately predict recidivism), fairness (i.e., the extent to which an RA tool treats all defendants fairly, without exhibiting racial bias or discrimination), interpretability (the extent to which an RA tool can be interpreted by criminal justice officials and stakeholders, including judges, lawyers, and defendants), and operability (the extent to which an RA tool can be administered by officers within police, pretrial services, and corrections).
Comment on Proposed Standards and Procedures of the Office of Court Interpreter Services from Nicole Summers to Kim Wright, Executive Office of the Massachusetts Trial Court (Dec. 14, 2018) (on file with the Legal Services Center).
Categories:
Legal Profession
,
Government & Politics
Sub-Categories:
Courts
,
Administrative Law & Agencies
,
State & Local Government
,
Legal Services
Type: Other
Emily J. Blanchard & Mark Wu, Externalities and Agricultural Import Bans: Evaluating Regionalization Measures in Light of the Russia – Pigs Dispute (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2018/60, Dec. 14, 2018).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Agriculture Law
,
Trade Regulation
,
International Trade
Type: Other
Abstract
Article 6 of the SPS Agreement presents a series of interlinked obligations for importing and exporting countries of diseased agricultural products. The Russia – Pigs dispute raises the question of when an importing country is justified in imposing a ban on products from exporting countries unaffected by the disease, on the basis of the fact that the country is part of the same customs union as another country inflicted with the disease. This Article contends that four distinct classes of cross-border and cross-product externalities ought to play in an important role when assessing this question in the future. It discusses the possible roles to be played by bilateral, sequential, pass-through, and supply chain externalities in propagating the transmission of agricultural disease across borders through trade.
Lawrence B. Solum & Cass R. Sunstein, Chevron as Construction (Dec. 13, 2018).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.
Vicki Been, Deborah Rand, Nicole Summers & Jessica Yager, Implementing New York City’s Universal Access to Counsel Program: Lessons for Other Jurisdictions (NYU Furman Ctr. Pol'y Brief, Dec. 12, 2018).
Categories:
Legal Profession
,
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Housing Law
,
Poverty Law
,
Public Interest Law
,
Courts
,
State & Local Government
,
Legal Services
Type: Other
Anat Bracha, Alma Cohen & Lynn Conell-Price, The Heterogeneous Effect of Affirmative Action on Performance (NBER Working Paper No. w25322, Dec. 11, 2018).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Law & Economics
,
Law & Behavioral Sciences
,
Employment Discrimination
Type: Other
Abstract
This paper experimentally investigates the effect of gender-based affirmative action (AA) on performance in the lab, focusing on a tournament environment. The tournament is based on GRE math questions commonly used in graduate school admission, and at which women are known to perform worse on average than men. We find heterogeneous effect of AA on female participants: AA lowers the performance of high-ability women and increases the performance of low-ability women. Our results are consistent with two possible mechanisms—one is that AA changes incentives differentially for low- and high-ability women, and the second is that AA triggers stereotype threat.Bracha
Lucian A. Bebchuk & Scott Hirst, The Misguided Attack on Common Ownership (Dec. 11, 2018).
Categories:
Corporate Law & Securities
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Investment Products
,
Securities Law & Regulation
,
Corporate Law
,
Corporate Governance
Type: Other
Abstract
This academic presentation is based on the slides we prepared for delivery by one of us at the Federal Trade Commission hearing on Competition and Consumer Protection in the 21st Century on December 6, 2018, which focused on common ownership. The slides discuss the implications of our research work for the common ownership debate. The research work whose implications we consider includes Bebchuk, Cohen, and Hirst, The Agency Problems of Institutional Investors (2017) (https://papers.ssrn.com/abstract=2982617) and Bebchuk and Hirst, Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy (2018) (https://papers.ssrn.com/abstract=3282794). We argue that the attack on common ownership is misguided.The claims of common ownership critics, we argue, fail to take into account how the agency problems of investment fund managers provide them with incentives to under-invest in stewardship and to be deferential toward the corporate managers of portfolio companies. Given these problems, policymakers should be primarily concerned that investment fund managers engage too little and not that they engage too much. The measures advocated by common ownership critics are not merely unnecessary but would be counterproductive; they could well discourage investment fund managers from stewardship activities that should be encouraged.
John C.P. Goldberg, You Can’t Spell “America” Without C A R, JOTWELL (Dec. 11, 2018) (reviewing Nora Freeman Engstrom, When Cars Crash: The Automobile’s Tort Legacy, 53 Wake Forest L. Rev. 293 (2018)).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
,
Torts - Negligence
,
Torts - Product Liability
,
Remedies
,
Litigation & Settlement
Type: Other
Robert H. Sitkoff & Max M. Schanzenbach, 'Investing for Good' Meets the Law, Wall St. J., Dec. 10, 2018, at A15.
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Financial Markets & Institutions
,
Fiduciaries
Type: News
Lucian A. Bebchuk & Kobi Kastiel, The Lifecycle Theory of Dual-Class Structures (Dec. 18, 2018).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
,
Corporate Law
Type: Other
Abstract
This academic presentation, based on our joint work on dual-class structures, was delivered by Lucian Bebchuk as his keynote address to the December 2018 ECGI-BIU conference on differential voting structures. The presentation focuses on the lifecycle theory of dual-class structure introduced in Bebchuk and Kastiel, The Untenable Case for Perpetual Dual-Class Stock, 2017 (https://ssrn.com/abstract=2954630). The presentation begins with discussion of precursor works to, and the motivation for developing, the lifecycle theory. The presentation then proceeds to describing the elements of the theory. In particular, it explains the reasons for expecting the efficiency benefits of dual-class structures to decline over time; for the efficiency costs to increase over time; and for controllers to choose to retain a dual-class structure even when it ceases to be efficient. The presentation also discusses a number of cases that vividly illustrate arguments advanced by the lifecycle theory. Among cases discussed are dual-class companies Viacom, CBS, and Facebook, as well as single-class companies Amazon, Microsoft and Yahoo!. We also explain that time-based sunsets can address the identified problems, and we discuss the design of, and objections to, such sunsets. Finally, we discuss the influence that our lifecycle theory has had on subsequent policy discourse and on empirical work testing the theory’s predictions. The presentation concludes that the lifecycle theory has solid theoretical foundations and is confirmed by recent empirical testing. We hope that the lifecycle theory that we introduced will continue to prove useful for researchers and policymakers and to contribute to the adoption of dual-class sunsets.