Scott Westfahl, Leveraging Lawyer Strengths and Training Them to Be More Effective in a Crisis, in Crisis Lawyering: Effective Legal Advocacy in Emergency Situations (Ray Brescia & Eric K. Stern eds., NYU Press forthcoming Feb. 2021).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Professional Responsibility
,
Legal Education
Type: Book
Benjamin Sachs & Kate Andrias, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. (forthcoming 2021).
Categories:
Government & Politics
,
Labor & Employment
Sub-Categories:
Politics & Political Theory
,
Labor Law
Type: Article
Daniel B. Kelly, Double Deterrence: Restitution and Punitive Damages in Trust and Fiduciary Law, 106 Iowa L. Rev. (forthcoming 2021).
Categories:
Property Law
,
Banking & Finance
,
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Fiduciary Law
,
Fiduciaries
,
Remedies
,
Trusts
Type: Article
Evelyn Douek, Governing Online Speech: From 'Posts-As-Trumps' to Proportionality and Probability, 121 Colum. L. Rev. (Forthcoming 2021).
Categories:
Constitutional Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
First Amendment
,
Administrative Law & Agencies
,
Communications Law
,
Networked Society
,
Cyberlaw
Type: Article
Abstract
Online speech governance stands at an inflexion point. Platforms are emerging from the state of emergency invoked during the pandemic and lawmakers are poised to transform the regulatory landscape. The importance of what emerges from this moment can hardly be overstated: how platforms write and enforce the rules for what speech they allow on their services shapes the most important channels for communication in the modern era, and has profound consequences for individuals, societies, and democratic governance. Understanding how online speech governance arrived at this moment illuminates the tasks that the institutions created during this transformation must be designed to do. This history shows that where online speech governance was once dominated by the First Amendment tradition’s categorical and individualistic approach to adjudicating speech issues, that approach became strained and online speech governance now revolves around the principles of proportionality and probability. Proportionality requires governance to no longer focus on the speech interest in an individual post alone, but to also take into account other societal interests and place proportionate limitations on content where necessary. But the unfathomable scale of online speech governance makes the enforcement of rules only ever a matter of probability: content moderation will always involve error, and so the pertinent question is what error rates are reasonable and which kinds of errors should be preferred. Platforms’ actions during the pandemic have thrown into stark relief the centrality of these principles to online speech governance, but also how undertheorized they remain. This article reviews the nature and causes of this shift of online speech governance from a “posts-as-trumps” approach to one of systemic balancing, and what this new era of content moderation requires of platforms and their regulators.
Japanese Law: Readings in the Political Economy of Japanese Law (J. Mark Ramseyer ed., forthcoming, Routledge Revivals 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
Type: Book
Abstract
This title was first published in 2001. This volume presents a selection of readings in the political economy of Japanese law.
Einer Elhauge, The Causal Mechanisms of Horizontal Shareholding, 82 Ohio St. L.J. (forthcoming 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we actually have ample proof on causal mechanisms, but that antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms. I debunk claims that every type of causal mechanism that might produce anticompetitive effects is either empirically untested or implausible. I also show that critics are wrong in claiming that common shareholders lack incentives to influence corporations to increase portfolio value by lessening competition. Finally, I show that preventing anticompetitive horizontal shareholding need not restrict diversification or discourage desirable institutional investor influence on corporate conduct.
Nicholas Stephanopoulos & Jowei Chen, The Race-Blind Future of Voting Rights, 130 Yale L.J. (forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Elections & Voting
Type: Article
Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (U. Chi. Press, forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Legal History
Type: Book
Lucian A. Bebchuk & Roberto Tallarita, The Illusory Promise of Stakeholder Governance, 105 Cornell L. Rev. (forthcoming Dec. 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Law
,
Shareholders
,
Corporate Governance
Type: Article
Abstract
Corporate purpose is now the focus of a fundamental and heated debate, with rapidly growing support for the proposition that corporations should move from shareholder value maximization to “stakeholder governance” and “stakeholder capitalism.” This Article critically examines the increasingly influential “stakeholderism” view, according to which corporate leaders should give weight not only to the interests of shareholders but also to those of all other corporate constituencies (including employees, customers, suppliers, and the environment). We conduct a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. We conclude that this view should be rejected, including by those who care deeply about the welfare of stakeholders. Stakeholderism, we demonstrate, would not benefit stakeholders as its supporters claim. To examine the expected consequences of stakeholderism, we analyze the incentives of corporate leaders, empirically investigate whether they have in the past used their discretion to protect stakeholders, and examine whether recent commitments to adopt stakeholderism can be expected to bring about a meaningful change. Our analysis concludes that acceptance of stakeholderism should not be expected to make stakeholders better off. Furthermore, we show that embracing stakeholderism could well impose substantial costs on shareholders, stakeholders, and society at large. Stakeholderism would increase the insulation of corporate leaders from shareholders, reduce their accountability, and hurt economic performance. In addition, by raising illusory hopes that corporate leaders would on their own provide substantial protection to stakeholders, stakeholderism would impede or delay reforms that could bring meaningful protection to stakeholders. Stakeholderism would therefore be contrary to the interests of the stakeholders it purports to serve and should be opposed by those who take stakeholder interests seriously.
John Palfrey & Urs Gasser, The Connected Parent: An Expert Guide to Parenting in a Digital World (forthcoming Oct. 6, 2020).
Categories:
Family Law
,
Technology & Law
Sub-Categories:
Children's Law & Welfare
,
Networked Society
Type: Book
Abstract
Today's teenagers spend about nine hours per day online. Parents of this ultra-connected generation struggle with decisions completely new to parenting: Should an eight-year-old be allowed to go on social media? How can parents help their children gain the most from the best aspects of the digital age? How can we keep kids safe from digital harm? John Palfrey and Urs Gasser bring together over a decade of research at Harvard to tackle parents' most urgent concerns. The Connected Parent is required reading for anyone trying to help their kids flourish in the fast-changing, uncharted territory of the digital age.
Comparative Constitutional Law (Vicki C. Jackson & Mila Versteeg eds., 2020).
Categories:
Constitutional Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Legal Education
Type: Book
Abstract
"Once a mere appendage to constitutional law proper, research in comparative constitutional law has burgeoned in recent decades. Indeed, a growing tendency towards international borrowing and harmonization has been marked in many jurisdictions (even, tentatively, the United States), but it has not been uncontroversial, or uncontested. Now, this new collection from Routledge’s Critical Concepts in Law series meets the need for an authoritative reference work to help researchers and students navigate and make better sense of an abundance of scholarship in comparative constitutional law. The collection is made up of four volumes which bring together the best and most influential canonical and cutting-edge thinking. Topics include constitution-making and amendment; the different structural components of constitutional governance (such as the relationship of legislatures to courts and the effects of different methods of judicial oversight); the interaction of constitutional law with transnational sources of law; and theoretical and practical aspects of constitutional legitimacy. With a full index, and thoughtful introductions, newly written by the learned editor, Comparative Constitutional Law traces the field's development and highlights the challenges for future explorations. The collection will be valued by legal scholars—as well as by political philosophers and theorists—as a vital and enduring resource." -- Routledge
Cass R. Sunstein & Adrian Vermeule, Law and Leviathan (forthcoming Sept. 15, 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Government Accountability
,
Government Transparency
,
Politics & Political Theory
,
Legal Ethics
Type: Book
Abstract
"Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall." -- Harvard University Press
Anna Lvovsky, Cruising in Plain View: Clandestine Surveillance and the Unique Insights of Antihomosexual Policing, 46 J. Urb. Hist. 980 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Discrimination
Type: Article
Abstract
The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.
Cass R. Sunstein, Too Much Information: Understanding What You Don't Want to Know (MIT Press, forthcoming Sept. 1, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Book
Abstract
How much information is too much? Do we need to know how many calories are in the giant vat of popcorn that we bought on our way into the movie theater? Do we want to know if we are genetically predisposed to a certain disease? Can we do anything useful with next week's weather forecast for Paris if we are not in Paris? In Too Much Information, Cass Sunstein examines the effects of information on our lives. Policymakers emphasize “the right to know,” but Sunstein takes a different perspective, arguing that the focus should be on human well-being and what information contributes to it. Government should require companies, employers, hospitals, and others to disclose information not because of a general “right to know” but when the information in question would significantly improve people's lives. Sunstein argues that the information on warnings and mandatory labels is often confusing or irrelevant, yielding no benefit. He finds that people avoid information if they think it will make them sad (and seek information they think will make them happy). Our information avoidance and information seeking is notably heterogeneous—some of us do want to know the popcorn calorie count, others do not. Of course, says Sunstein, we are better off with stop signs, warnings on prescriptions drugs, and reminders about payment due dates. But sometimes less is more. What we need is more clarity about what information is actually doing or achieving.
I. Glenn Cohen, Eli Y. Adashi, Sara Gerke, César Palacios-González & Vardit Ravitsky, The Regulation of Mitochondrial Replacement Techniques Around the World, 21 Ann. Rev. Genomics & Hum. Genetics (forthcoming Aug. 31, 2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Genetics & Reproduction
Type: Article
Abstract
Mitochondrial replacement techniques (MRTs, also referred to as mitochondrial replacement therapies) have given hope to many women who wish to have genetically related children but have mitochondrial DNA mutations in their eggs. MRTs have also spurred deep ethical disagreemensts and led to different regulatory approaches worldwide. In this review, we discuss the current regulation of MRTs across several countries. After discussing the basics of the science, we describe the current law and policy directions in seven countries: the United Kingdom, the United States, Canada, Australia, Germany, Israel, and Singapore. We also discuss the emerging phenomenon of medical tourism (also called medical travel) for MRTs to places like Greece, Spain, Mexico, and Ukraine. We then pull out some key findings regarding similarities and differences in regulatory approaches around the world.
J. Mark Ramseyer & Eric B. Rasmusen, Suing over Ostracism in Japan: The Informational Logic (Aug. 29, 2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
,
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
Litigation & Settlement
,
Law & Behavioral Sciences
,
Law & Economics
,
East Asian Legal Studies
Type: Other
Abstract
Group ostracize members. Sometimes they do it to enforce welfare-maximizing norms, but other times ostracism reduces welfare. Japanese villages have long used ostracism as a tool for conformity, and the targets have sometimes sued in response. The cases that have reached the courts disproportionately involve welfare-reducing behavior by the community; for example, ostracism against targets who report corruption. The targets usually win the civil cases against ostracizers and prosecutors usually win the criminal cases. Yet the targets seem not to have sued for financial or injunctive relief, and the prosecutors seem not to have pushed for prison terms. Instead, they have used the courts for an informational end: to certify and publicize innocence. This end is of minor importance in normal litigation, but crucial fo ostracism, as we explain using a formal model. We use case examples and the model to explore the factors that cause disputes to lead to ostracism and ostracisms to lead to litigation.
Fundamental Rights and Conflict Among Rights (Mary Ann Glendon & Pierluca Azzaro eds., Franciscan Univ. Press, forthcoming Aug. 21, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion & Law
,
Human Rights Law
Type: Book
Abstract
How far have we come putting into practice what was declared in the Universal Declaration of Human Rights, which this year marks its 70th anniversary? How can the Church respond today to the new challenges threatening these rights, whether relativism, fundamentalism, and persecution or new types of poverty and oppression? And with whom can the Church engage on these issues? With states, religious leaders, international institutions, cultural institutions, or first and foremost with global civil society? In addition, what are the roots of fundamental rights, and what response can there be to the danger of a multiplication of rights that can paradoxically threaten concepts on the rule of law and human dignity? These are the fundamental questions addressed and debated by the experts whose essays appear in this book. Fundamental Rights and Conflicts among Rights is divided into four parts: Genesis and Meaning of the Idea of Religious Liberty, Laicité and Natural Law, Birth and Transformation of the Culture of Liberty and Human Rights, and the Multiplication of Rights and the Risk of Destruction of the Idea of Right. Throughout the volume, prestigious international experts analyze these issues. Among them are Giuseppe Dalla Torre (Libera Università Maria SS. Assunta), Jean Louis Ska (Pontificio Istituto Biblico), Robert P. George (Princeton University), Marta Cartabia (vice president of the Italian Constitutional Court), Carlos Ignacio Massini (Mendoza, Argentina), Barbara Zehnpfennig (Universität Passau), Mary Ann Glendon (Harvard University), Joseph H. Weiler (New York University), and Roberto Baratta (Macerata, Italia). The volume also contains an essay by Cardinal Pietro Parolin, secretary of state, on "The Church's Interlocutors in the Debate and in the Affirmation of Human Rights."
Lucian A. Bebchuk, Kobi Kastiel & Roberto Tallarita, For Whom Corporate Leaders Bargain (Aug. 19, 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Mergers & Acquisitions
,
Securities Law & Regulation
,
Shareholders
Type: Other
Abstract
At the center of a fundamental and heated debate about the purpose that corporations should serve, an increasingly influential “stakeholderism” view advocates giving corporate leaders the discretionary power to serve all stakeholders and not just shareholders. Supporters of stakeholderism argue that its application would address growing concerns about the impact of corporations on society and the environment. By contrast, critics of stakeholderism object that corporate leaders should not be expected to use expanded discretion to benefit stakeholders. This Article presents novel empirical evidence that can contribute to resolving this key debate. During the hostile takeover era of the 1980s, stakeholderist arguments contributed to the adoption of constituency statutes by more than thirty states. These statutes authorize corporate leaders to give weight to stakeholder interests when considering a sale of their company. We study how corporate leaders in fact used the power awarded to them by these statutes in the past two decades. In particular, using hand-collected data, we analyze in detail more than a hundred cases governed by constituency statutes in which corporate leaders negotiated a sale of their company to a private equity buyer. We find that corporate leaders have used their bargaining power to obtain gains for shareholders, executives, and directors. However, despite the risks that private equity acquisitions posed for stakeholders, corporate leaders made very little use of their power to negotiate for stakeholder protections. Furthermore, in cases in which some protections were included, they were practically inconsequential or cosmetic. We conclude that constituency statutes failed to deliver the benefits to stakeholders that they were supposed to produce. Beyond their implications for the long-standing debate on constituency statutes, our findings also provide important lessons for the ongoing debate on stakeholderism. At a minimum, stakeholderists should identify the causes for the failure of constituency statutes and examine whether the adoption of their proposals would not suffer a similar fate. After examining several possible explanations for the failure of constituency statutes, we conclude that the most plausible explanation is that corporate leaders have incentives not to protect stakeholders beyond what would serve shareholder value. The evidence we present indicates that stakeholderism should be expected to fail to deliver, as have constituency statutes. Stakeholderism therefore should not be supported, even by those who deeply care about stakeholders. This paper is part of a larger research project of the Harvard Law School Corporate Governance on stakeholder capitalism and stakeholderism. Another part of this research project is The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita.
Jesse Choper, Richard Fallon, Jr., Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2020 ed.).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Howell E. Jackson & Jeffery Zhang, The Economics of Soft Dollars: A Review of the Literature and New Evidence from the Implementation of MiFID II (Aug. 11, 2020).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Fiduciary Law
,
Financial Markets & Institutions
,
Investment Products
,
Fiduciaries
,
Securities Law & Regulation
,
Empirical Legal Studies
,
European Law
Type: Other
Abstract
For nearly half a century, the bundling of research services into commissions that paid for the execution of securities trades has been the focus of both policy discussion and academic debate. The practice whereby asset management firms make use of investor funds to cover the costs of research, known as “soft dollar” payments in the United States, resembles a form of kickback or self-dealing. The payments allow asset managers to use investor funds to subsidize the cost of the asset managers’ own research efforts even though those managers charge investors a separate and explicit management fee for advisory services. So why does this form of kickback continue to exist? Over the years, defenders of the practice have argued that soft dollars mitigate principal-agent problems between the investment manager and the broker, improve fund performance, and provide a public good in terms of the increased production of research on public companies. This article evaluates these theoretical arguments through the lens of academic work done in the past as well as an emerging new body of empirical studies exploring the impact of MiFID II, a European Union Directive that severely restricted the use of soft dollar payments in European capital markets as of January 2018. The weight of empirical evidence, including recent evidence coming out of Europe, suggests that the theoretical arguments in favor of soft dollars are not robust. In particular, MiFID II’s unbundling of commissions appears to have, on balance, improved European market efficiency by eliminating redundancy and producing information that is of greater value to investors.
Lawrence O. Gostin, I. Glenn Cohen & Jeffrey P. Koplan, Universal Masking in the United States: The Role of Mandates, Health Education, and the CDC, 324 JAMA 837 (2020).
Categories:
Health Care
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
State & Local Government
,
Supreme Court of the United States
,
Health Law & Policy
Type: Article
Sara Gerke, Carmel Shachar, Peter R. Chai & I. Glenn Cohen, Regulatory, Safety, and Privacy Concerns of Home Monitoring Technologies During COVID-19, 26 Nature Med. 1176 (2020).
Categories:
Health Care
,
Technology & Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Food & Drug Law
,
Health Law & Policy
,
Comparative Law
,
European Law
,
Medical Technology
,
Information Privacy & Security
,
Networked Society
Type: Article
Abstract
There has been increasing interest in the use of home monitoring technologies during the COVID-19 pandemic to decrease interpersonal contacts and the resultant risks of exposure for people to the coronavirus SARS-CoV-2. This Perspective explores how the accelerated development of these technologies also raises major concerns pertaining to safety and privacy. We make recommendations for needed interventions to ensure safety and review best practices and US regulatory requirements for privacy and security. We discuss, among other topics, Emergency Use Authorizations for medical devices and privacy laws of the USA and Europe.
Xinyu Hua & Kathryn E. Spier, Settling Lawsuits with Pirates (Aug. 6, 2020).
Categories:
Property Law
,
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Litigation & Settlement
,
Law & Economics
,
Property Rights
,
Intellectual Property - Copyright
Type: Other
Abstract
A firm licenses a product to overlapping generations of heterogeneous consumers. Consumers may purchase the product, pirate/steal it, or forego it. Higher consumer types enjoy higher gross benefits and are caught stealing at a higher rate. The firm may commit to an out-of-court cash settlement policy that is “soft” on pirates, so high-types purchase and low-types steal. This facilitates price discrimination. Firm profits rise if the firm bundles a license agreement with the cash settlement. However, requiring pirates to sign license agreements as part of the settlement has ambiguous welfare effects and may deter the entry of more efficient competitors.
Guhan Subramanian, Dealmaking: The New Strategy of Negotiauctions (W. W. Norton & Co., 2d ed., forthcoming Aug. 4, 2020).
Categories:
Banking & Finance
,
Civil Practice & Procedure
Sub-Categories:
Commercial Law
,
Negotiation & Alternative Dispute Resolution
Type: Book
Jesse M. Fried & Holger Spamann, Cheap-Stock Tunneling Around Preemptive Rights, 137 J. Fin. Econ. 353 (2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Securities Law & Regulation
Type: Article
Abstract
Preemptive rights are thought to protect minority shareholders from cheap-stock tunneling by a controlling shareholder. We show that preemptive rights, while making cheap-stock tunneling more difficult, cannot prevent it when asymmetric information about the value of the offered shares makes it impossible for the minority to know whether these shares are cheap or overpriced. Our analysis can help explain why sophisticated investors in unlisted firms and regulators of listed firms do not rely entirely on preemptive rights to address cheap-stock tunneling, supplementing them with other restrictions on equity issues.
Urs Gasser, Marcello Ienca, James Scheibner, Joanna Sleigh & Effy Vayena, Digital Tools Against COVID-19: Taxonomy, Ethical Challenges, and Navigation Aid, 2 Lancet Digital Health e425 (Aug. 2020).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Health Law & Policy
,
Networked Society
,
Medical Technology
,
Information Privacy & Security
Type: Article
Abstract
Data collection and processing via digital public health technologies are being promoted worldwide by governments and private companies as strategic remedies for mitigating the COVID-19 pandemic and loosening lockdown measures. However, the ethical and legal boundaries of deploying digital tools for disease surveillance and control purposes are unclear, and a rapidly evolving debate has emerged globally around the promises and risks of mobilising digital tools for public health. To help scientists and policy makers to navigate technological and ethical uncertainty, we present a typology of the primary digital public health applications that are in use. These include proximity and contact tracing, symptom monitoring, quarantine control, and flow modelling. For each, we discuss context-specific risks, cross-sectional issues, and ethical concerns. Finally, recognising the need for practical guidance, we propose a navigation aid for policy makers and other decision makers for the ethical development and use of digital public health tools.
Michael S. Barr, Howell E. Jackson & Margaret E. Tahyar, The Financial Response to the COVID-19 Pandemic (Aug. 1, 2020).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Finance
,
Financial Markets & Institutions
,
Risk Regulation
,
Economics
,
Congress & Legislation
,
Government Transparency
,
Government Benefits
,
Administrative Law & Agencies
Type: Other
Abstract
We are living through extraordinary times as the United States has struggled to deal with the global COVID-19 pandemic, and as of the writing of this paper, we remain in the midst of the crisis. We still do not know what the full economic and financial consequences of the pandemic will be, but they are likely to persist for an extended period, as many people are unlikely to return to normal work or consumption patterns soon, and household and business defaults are likely to increase and negatively affect the financial sector. This paper, written to assist faculty in teaching about the pandemic, focuses on key actions taken by the financial regulators in response to the crisis so far, giving a detailed summary of the actions taken by the Federal Reserve, the Treasury Department, and Congress. We discuss the Federal Reserve’s monetary policy actions, emergency lending facilities, and supervisory forbearance by the federal banking agencies. We also provide a summary of financial provisions of the CARES Act, including an analysis of the Paycheck Protection Program. We explore a number of central themes already emerging, including the blurry line between monetary policy and fiscal policy. We also highlight the fact that unlike the Financial Crisis of 2008, today’s economic crisis is caused by the failure to take sufficient public health actions to contain a global pandemic, not poor policy and risk choices in the financial markets; the fact that the crisis is caused by a public health failure poses unique problems for economic and financial policymakers in crafting responses.
Micha Kaiser, Manuela Bernauer, Cass R. Sunstein & Lucia A. Reisch, The Power of Green Defaults: The Impact of Regional Variation of Opt-out Tariffs on Green Energy Demand in Germany, 174 Ecological Econ. (forthcoming Aug. 2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Empirical Legal Studies
,
Climate Change
,
Energy & Utilities Law
,
Renewable Resources Law
,
European Law
Type: Article
Abstract
The present paper focuses on green defaults as demand-side policies supporting the uptake of renewable energy in Germany. It sets out to gain a better understanding of whether and for whom green electricity defaults work. The present study is one of the first to use a large-scale data set to investigate this question. We combine micro-level data from the German Socio-Economic Panel (GSOEP) covering private households (including a wealth of individual information) with macro-level information such as population density of a region and proportion of energy suppliers in a given region that use a green opt-out tariff within their basic supply. We show that in Germany, green defaults, automatically enrolling customers in renewable energy sources, tend to stick, especially but not only among those who are concerned about the problem of climate change. This finding, based on real-world rather than experimental evidence, attests to the power of automatic enrollment in addressing environmental problems in Germany and potentially beyond, including climate change, and also adds to the growing literature on the substantial effects of shifting from opt-in to opt-out strategies.
An Oral History of the Special Olympics in China Vol. 3: Finding and Keeping a Job (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 31, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
Albert H. Choi & Kathryn E. Spier, The Economics of Class Action Waivers (U. Mich. L. & Econ. Research Paper No. 20-020, July 31, 2020).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Arbitration
,
Class Action Litigation
,
Litigation & Settlement
,
Law & Economics
Type: Other
Abstract
Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and three recent US Supreme Court cases, Concepcion, Italian Colors, and Epic Systems, have endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it is not. We examine conditions in which class action waivers can compromise product safety, facilitate anticompetitive conduct, and support harmful employment practices. Our analysis delivers a more nuanced, policy-based critique of the recent US Supreme Court cases, highlights several new unresolved issues, and identifies future challenges for legal scholarship.
Hal S. Scott & Anna Gelpern, International Finance: Transactions, Policy, and Regulation (Found. Press 23rd ed. 2020).
Categories:
Corporate Law & Securities
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Financial Markets & Institutions
,
Finance
,
Financial Reform
,
Securities Law & Regulation
,
Corporate Law
,
International Monetary Systems
Type: Book
Jon Kleinberg, Jens Ludwig, Sendhil Mullainathan & Cass R. Sunstein, Algorithms as Discrimination Detectors, Proc. Nat'l Acad. Sci. 201912790 (July 28, 2020).
Categories:
Discrimination & Civil Rights
,
Labor & Employment
,
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Discrimination
,
Law & Behavioral Sciences
,
Law & Economics
,
Employment Discrimination
,
Networked Society
,
Science & Technology
Type: Article
Abstract
This paper results from the Arthur M. Sackler Colloquium of the National Academy of Sciences, “The Science of Deep Learning,” held March 13–14, 2019, at the National Academy of Sciences in Washington, DC. Preventing discrimination requires that we have means of detecting it, and this can be enormously difficult when human beings are making the underlying decisions. As applied today, algorithms can increase the risk of discrimination. But as we argue here, algorithms by their nature require a far greater level of specificity than is usually possible with human decision making, and this specificity makes it possible to probe aspects of the decision in additional ways. With the right changes to legal and regulatory systems, algorithms can thus potentially make it easier to detect—and hence to help prevent—discrimination.
An Oral History of the Special Olympics in China Vol. 1: Overview (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 27, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
An Oral History of the Special Olympics in China Vol. 2: The Movement (William P. Alford, Mei Liao & Fengming Cui eds., forthcoming July 31, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Disability Rights
,
Gaming & Sports Law
,
East Asian Legal Studies
Type: Book
Annie Duke & Cass R. Sunstein, Freerolls (July 27, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Other
Abstract
When policymakers focus on costs and benefits, they often find that hard questions become easy – as, for example, when the benefits clearly exceed the costs, or when the costs clearly exceed the benefits. In some cases, however, benefits or costs are difficult to quantify, perhaps because of limitations in scientific knowledge. In extreme cases, policymakers are proceeding in circumstances of uncertainty rather than risk, in the sense that they cannot assign probabilities to various outcomes. We suggest that in difficult cases in which important information is absent, it is useful for policymakers to consider a concept from poker: “freerolls.” A freeroll exists when choosers can lose nothing from selecting an option but stand to gain something (whose magnitude may itself be unknown). In some cases, people display “freeroll neglect.” In terms of social justice, John Rawls’ defense of the difference principle is grounded in the idea that behind the veil of ignorance, choosers have a freeroll. In terms of regulatory policy, one of the most promising defenses of the Precautionary Principle sees it as a kind of freeroll. Some responses to climate change, pandemics, and financial crises can be seen as near-freerolls. Freerolls and near-freerolls must be distinguished from cases involving cumulatively high costs and also from faux freerolls, which can be found when the costs of an option are real and significant, but not visible. “Binds” are the mirror image of freerolls; they involve options from which people are guaranteed to lose something (of uncertain magnitude). Some regulatory options are binds, and there are faux binds as well.
Andrew Manuel Crespo, Unpacking DHS’s Troubling Explanation of the Portland Van Video, Lawfare (July 25, 2020, 10:29 AM).
Categories:
Constitutional Law
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Executive Office
,
Government Accountability
Type: Other
Howell E. Jackson, A System of Fiduciary Protections for Mutual Funds (July 23, 2020).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Consumer Finance
Sub-Categories:
Investment Products
,
Fiduciary Law
,
Consumer Protection Law
,
Fiduciaries
,
Securities Law & Regulation
,
Shareholders
,
Corporate Governance
Type: Other
Abstract
The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as public officials and policy analysts attempt to balance the cost of compliance and oversight against benefits to investors. Over time, government officials have made numerous supervisory accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments (including insurance products and managed accounts of various sorts) and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced systemic of fiduciary protections for mutual funds. Technological innovations, such as robo-advising, are likely to accelerate this trend. In this chapter, I explore this important illustration of regulatory arbitrage and suggest areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.
Jesse M. Fried & Ehud Kamar, Alibaba: A Case Study of Synthetic Control (Eur. Corp. Governance Inst. Law Working Paper No. 533/2020, July 22, 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Business Organizations
,
Securities Law & Regulation
,
Shareholders
Type: Other
Abstract
Alibaba, the NYSE-traded Chinese ecommerce giant, is currently valued at over $500 billion. But Alibaba’s governance is opaque, obscuring who controls the firm. We show that Jack Ma, who now owns only about 5%, can effectively control Alibaba by controlling an entirely different firm: Ant Group. We demonstrate how control of Ant Group enables Ma to dominate Alibaba’s board. We also explain how this control gives Ma the indirect ability to disable (and perhaps seize) VIE-held licenses critical to Alibaba, providing him with substantial additional leverage. Alibaba is a case study of how corporate control can be created synthetically with little or no equity ownership via a web of employment and contractual arrangements.
Elizabeth Warren, Opinion, My Must-Do List for the Pandemic, N.Y. Times, July 22, 2020, at A23.
Categories:
Government & Politics
,
Health Care
,
Labor & Employment
Sub-Categories:
Government Accountability
,
Government Benefits
,
State & Local Government
,
Executive Office
,
Corruption
,
Congress & Legislation
,
Health Law & Policy
,
Unemployment Law
Type: News
Lloyd L. Weinreb, Leading Constitutional Cases on Criminal Justice (2020 ed., forthcoming July 21, 2020).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Criminal Justice & Law Enforcement
Type: Book
Glenn Hubbard & Hal S. Scott, Opinion, ’Main Street' Program Is Too Stingy to Banks and Borrowers, Wall St. J. (July 20, 2020 6:31 PM ET).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Finance
,
Congress & Legislation
,
Government Benefits
Type: Other
Kenneth W. Mack, James Baldwin Spoke Eloquently to His Era. Does He Also Speak to Ours?, Wash. Post (July 19, 2020, 8:00 AM EDT)(reviewing Eddie S. Glaude Jr., James Baldwin's America and Its Urgent Lessons for Our Own (2020)).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Race & Ethnicity
,
Executive Office
,
Politics & Political Theory
Type: News
Holger Spamann, Scott Hirst & Gabriel Rauterberg, Corporations & Corporate Law, in Holger Spamann, Scott Hirst & Gabriel Rauterberg, Corporations in 100 Pages (2020).
Categories:
Corporate Law & Securities
,
Legal Profession
Sub-Categories:
Business Organizations
,
Mergers & Acquisitions
,
Corporate Law
,
Corporate Governance
,
Securities Law & Regulation
,
Shareholders
,
Legal Education
Type: Book
Abstract
This is the first chapter of the book Corporations in 100 Pages (2020), authored by Holger Spamann, Scott Hirst, and Gabriel Rauterberg. The book is an introduction to corporate law for students and anyone else interested in the foundations of corporate law. The book provides an accessible, self-contained presentation of the field’s essentials: what corporations are, how they are governed, their interactions with their investors, and other stakeholders, major transactions (M&A), and parallels with other legal entities, including partnerships. Optional background chapters cover the investor ecosystem, contemporary corporate governance, and corporate finance. The book’s exposition of doctrine and policy is nuanced and sophisticated, yet short and simple enough for a quick read. Chapter 1, “Corporations & Corporate Law,” introduces the book by addressing two questions: What are corporations? And what is corporate law? The chapter discusses the corporation as formally an abstraction to which the law assigns right and duties. Its extraordinary usefulness lies in how it allows large groups of people to organize relationships involving multiple assets, such as by pooling funds, transferring them to the corporation, and then allowing the corporation to serve as a single contracting interface with third parties. The chapter discusses how corporate law, as the subject is taught in law schools and discussed in practice, consists of the body of rules that govern the relationships among a corporation’s shareholders, its board of directors, and its managers; the relationships within each group; and the powers of each group to affect the corporation’s affairs. Corporate law is thus only a small subset of the far larger set of laws governing corporations, which includes “antitrust law,” “consumer law,” “environmental law,” and far more. Corporate law remains largely a matter of state statutory and common law, but also turns decisively on the corporation’s governing legal instruments, like the charter and bylaws, and contracts amongst its shareholders. Securities law also affects how corporations finance themselves. The chapter ends by providing examples of corporations, such as a small private corporation and a large public one, which illustrate the important legal features of the corporate form.
Margaret Bourdeaux, Beth Cameron & Jonathan Zittrain, Opinion, Coronavirus Testing Is on the Brink of Paralysis, N.Y. Times, July 17, 2020, at A25.
Categories:
Government & Politics
,
Health Care
,
Technology & Law
Sub-Categories:
Government Accountability
,
Executive Office
,
State & Local Government
,
Health Law & Policy
,
Medical Technology
,
Networked Society
Type: News
Howell E. Jackson, The Nature of the Fintech Firm and its Implications for Financial Regulation, in Fintech Law: The Case Studies 9 (Howell E. Jackson & Margaret E. Tahyar eds., 2020).
Categories:
Banking & Finance
,
Technology & Law
,
Legal Profession
,
Corporate Law & Securities
,
Consumer Finance
Sub-Categories:
Risk Regulation
,
Finance
,
Financial Markets & Institutions
,
Investment Products
,
Banking
,
Economics
,
Consumer Protection Law
,
Securities Law & Regulation
,
Legal Education
,
Legal Services
,
Networked Society
Type: Book
Abstract
This chapter explores recent Fintech innovations through the lens of Ronald Coase’s classic article: The Nature of the Firm. Applying a transaction cost analysis, the chapter argues that developments in computer technology, data processing, and information networks are reshaping the manner in which financial services are produced, unsettling the boundaries separating regulated firms from outside vendors and open market transactions. These changes raise challenging questions as to the appropriate contours of regulatory perimeters as well as the structure of regulation and supervision in the many area of financial regulation. Fintech innovations also have the potential to be harnessed to serve public purposes, including expanding access to financial services and improving supervisory practices. At a minimum, Fintech innovations and most especially machine learning and artificial intelligence complicate the application of legal doctrines based on human intentionality. More broadly, the scale and scope of these technological developments may lead to a fundamentally rethinking of the appropriate goals of regulatory policy for financial firms and the economy more broadly, particularly with respect to privacy and the accumulation of personal information in private and public hands.
Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale Univ. Press, forthcoming July 14, 2020).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
,
Courts
Type: Book
Abstract
The Supreme Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings, and social, moral, and yes, political ideas have always played into Supreme Court justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved from the liberalism of the New Deal and Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore the other branches of government’s role in deciding constitutional questions.
Jessie W. Bullock & Matthew C. Stephenson, How Should Lava Jato End?, in Corruption and the Lava Jato Scandal in Latin America (Paul F. Lagunes & Jan Svejnar eds., 2020).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Corruption
,
Foreign Law
Type: Book
Holger Spamann, No, Judges Are Not Influenced by Outdoor Temperature (Or Other Weather): Comment (Harv. John M. Olin Discussion Paper No. 1036, July 8, 2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Empirical Legal Studies
,
Law & Economics
,
Judges & Jurisprudence
Type: Other
Abstract
Heyes and Saberian (AEJ-AE 2019) estimate from 2000-2004 data that outdoor temperature reduces U.S. immigration judges’ propensity to grant asylum. This estimate is the result of coding and data errors and of sample selection. Correcting the errors reduces the point estimate by two thirds, with a wide 95% confidence interval straddling zero. Enlarging the sample to 1990-2019 flips the point estimate’s sign and rules out the effect size reported in Heyes and Saberian with very high confidence. An analysis of all criminal sentencing decisions by U.S. federal district judges 1992-2003 yields no evidence of temperature or other weather effects either.
Adrian Vermeule, Opinion, Why Conservative Justices Are More Likely to Defect, Wash. Post (July 8, 2020, 4:18 PM EDT).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Other
Noah Feldman, Why Precedent Won't Protect 'Roe’, 67 N.Y. Rev. Books, July 2, 2020, at 29.
Categories:
Constitutional Law
,
Family Law
,
Government & Politics
Sub-Categories:
Reproduction
,
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
Type: Article
Charles Donahue, Book Review, 71 J. Ecclesiastical Hist. 630 (2020)(reviewing Elisabeth van Houts, Married life in the Middle Ages, 900–1300 (2019)).
Categories:
Disciplinary Perspectives & Law
,
Family Law
,
Legal Profession
Sub-Categories:
Religion & Law
,
Canon Law
,
Domestic Relations
,
Legal History
Type: Article
Lucian A. Bebchuk (with Alon Brav, Wei Jiang & Thomas Keusch), Dancing with Activists, 137 J. Fin. Econ. 1 (2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Mergers & Acquisitions
Type: Article
Abstract
An important milestone often reached in the life of an activist engagement is the entering into a “settlement” agreement between the activist and the target’s board. Using a comprehensive hand-collected data set, we provide the first systematic analysis of the drivers, nature, and consequences of such settlement agreements. We identify the determinants of settlements, showing that settlements are more likely when the activist has a credible threat to win board seats in a proxy fight. We argue that, due to incomplete contracting, settlements can be expected to contract not directly on the operational or leadership changes that activists seek but rather on board composition changes that can facilitate operational and leadership changes down the road. Consistent with the incomplete contracting hypothesis, we document that settlements focus on boardroom changes and that such changes are subsequently followed by increases in CEO turnover, increased payout to shareholders, and higher likelihood of a sale or a going-private transaction. We find no evidence to support concerns that settlements enable activists to extract significant rents at the expense of other investors by introducing directors not supported by other investors or by facilitating “greenmail.” Finally, we document that stock price reactions to settlement agreements are positive and that the positive reaction is higher for “high-impact” settlements. Our analysis provides a look into the “black box” of activist engagements and contributes to understanding how activism brings about changes in its targets.
I. Glenn Cohen, Theodoros Evgeniou, Sara Gerke & Timo Minssen, The European Artificial Intelligence Strategy: Implications and Challenges for Digital Health, 2 Lancet Digital Health 376 (2020).
Categories:
Technology & Law
,
Health Care
Sub-Categories:
Health Law & Policy
,
Digital Property
,
Information Privacy & Security
,
Medical Technology
,
Networked Society
,
Intellectual Property Law
Type: Article
Abstract
In February, 2020, the European Commission published a white paper on artificial intelligence (AI) as well as an accompanying communication and report. The paper sets out policy options to facilitate a secure and trustworthy development of AI and considers health to be one of its most important areas of application. We illustrate that the European Commission's approach, as applied to medical AI, presents some challenges that can be detrimental if not addressed. In particular, we discuss the issues of European values and European data, the update problem of AI systems, and the challenges of new trade-offs such as privacy, cyber-security, accuracy, and intellectual property rights. We also outline what we view as the most important next steps in the Commission's iterative process. Although the European Commission has done good work in setting out a European approach for AI, we conclude that this approach will be more difficult to implement in health care. It will require careful balancing of core values, detailed consideration of nuances of health and AI technologies, and a keen eye on the political winds and global competition.
Urs Gasser & Carolyn Schmitt, The Role of Professional Norms in the Governance of Artificial Intelligence, in The Oxford Handbook of Ethics of AI (Markus D. Dubber, Frank Pasquale & Sunit Das eds., 2020).
Categories:
Legal Profession
,
Technology & Law
Sub-Categories:
Legal Ethics
,
Cyberlaw
,
Networked Society
,
Information Privacy & Security
Type: Book
Cass R. Sunstein, The Triumph of the Friendly: A Review of Brian Hare and Vanessa Woods, Survival of the Friendliest, 22 J. Bioecon. 131 (2020).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Animal Law
Type: Article
Andres Lombana-Bermudez, Sandra Clio Cortesi, Christian Fieseler, Urs Gasser, Alexa Hasse, Gemma Newlands and Sarah Wu, Youth and the Digital Economy: Exploring Youth Practices, Motivations, Skills, Pathways, and Value Creation (Berkman Klein Center Research Publ'n No. 2020-4, July 1, 2020).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Cooperation, Peer-Production & Sharing
Type: Other
Abstract
Young people’s lives are increasingly shaped by digital technologies. While significant digital divides and participation gaps remain, an increasing number of young people around the globe participate in and contribute to the digitally networked environment in many forms, ranging from creative expression on social media to interactive gaming and collaboration. This spotlight explores young people’s digital engagement through the lens of the digital economy and seeks to gain an initial understanding of youth’s practices, motivations, skills, pathways, and modes of value creation as they interact with a digital environment in which the boundaries between the commercial and personal spheres, between work and play, are often blurring. The spotlight summarizes key insights from a trans-Atlantic exploratory research collaboration between Youth and Media at the Berkman Klein Center for Internet & Society at Harvard University and the Nordic Centre for Internet and Society at BI Norwegian Business School. In addition to sketching building blocks toward a framework, the paper brings together three essays that explore in different application contexts both the opportunities and challenges that surface when young people engage with and participate in the digital economy.
Annette Gordon-Reed, Afterword to In the Hands of the People: Thomas Jefferson on Equality, Faith, Freedom, Compromise, and the Art of Citizenship (Jon Meacham ed., 2020).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Executive Office
,
Legal History
Type: Book
Abstract
"Thomas Jefferson believed in the covenant between a government and its citizens, in both the government’s responsibilities to its people and also the people’s responsibility to the republic. In this illuminating book, a project of the Thomas Jefferson Foundation at Monticello, the #1 New York Times bestselling author Jon Meacham presents selections from Jefferson’s writing on the subject, with an afterword by Pulitzer Prize–winning historian Annette Gordon-Reed and comments on Jefferson’s ideas from others, including Colin Powell, Madeleine Albright, Frederick Douglass, Carl Sagan, and American presidents. This curated collection revitalizes how to see an individual’s role in the world, as it explores such Jeffersonian concepts as religious freedom, the importance of a free press, public education, participation in government, and others. Meacham writes, “In an hour of twenty-first-century division and partisanship, of declining trust in institutions and of widespread skepticism about the long-term viability of the American experiment, it is instructive to return to first principles. Not, to be sure, as an exercise in nostalgia or as a flight from the reality of our own time, but as an honest effort to see, as Jefferson wrote, what history may be able to tell us about the present and the future.” -- Random House
Howell E. Jackson & Steven L. Schwarcz, Protecting Financial Stability: Lessons from the Coronavirus Pandemic (Duke L. Sch. Pub. L. & Legal Theory Series No. 2020-39, June 30, 2020).
Categories:
Banking & Finance
Sub-Categories:
Finance
,
Financial Markets & Institutions
,
Risk Regulation
,
Banking
,
Commercial Law
,
Financial Reform
Type: Other
Abstract
The coronavirus pandemic has produced a public health debacle of the first-order. But, the virus has also propagated the kind of exogenous shock that can precipitate—and to a certain degree has precipitated—a systemic event for our financial system. This still unfolding systemic shock comes a little more than a decade after the last financial crisis. In the intervening years, much as been written about the global financial crisis of 2008 and its systemic dimensions. Considerable scholarly attention has focused on first devising and then critiquing the macroprudential reforms that ensued, both in the Dodd-Frank Act and the many regulations and policy guidelines that implemented its provisions. In this essay, we consider the coronavirus pandemic and its implications for the financial system through the lens of the frameworks we had developed for the analysis of systemic financial risks in the aftermath of the last financial crisis. While today’s pandemic differs in many critical respects from the events of 2008, systemic events in the financial sector have a common structure relevant to both crises. Reflecting back on responses to the last financial crisis also affords us an opportunity both to understand how financial regulators are currently responding to the coronavirus pandemic and also to speculate how the pandemic might lead to further reforms of financial regulation and other areas of public policy in the years ahead.
Jesse M. Fried, Ehud Kamar & Yishay Yafeh, The Effect of Minority Veto Rights on Controller Pay Tunneling, J. Fin. Econ. (June 29, 2020).
Categories:
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Securities Law & Regulation
,
Shareholders
,
Executive Compensation
Type: Article
Abstract
A central challenge in the regulation of controlled firms is curbing rent extraction by controllers. As independent directors and fiduciary duties are often insufficient, some jurisdictions give minority shareholders veto rights over related-party transactions. To assess these rights’ effectiveness, we exploit a 2011 Israeli reform that gave minority shareholders veto rights over related-party transactions, including the pay of controllers and their relatives (“controller executives”). We find that the reform curbed controller-executive pay and led some controller executives to resign or go with little or no pay in circumstances suggesting their pay would be rejected. These findings suggest that minority veto rights can be an effective corporate governance tool.
Jeannie Suk Gersen, Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?, NewYorker.com (June 27, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
LGBTQ Rights Law
,
Judges & Jurisprudence
,
Statutory Interpretation
,
Supreme Court of the United States
,
Employment Discrimination
Type: Other
Abstract
In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.
Samantha Power, 'Find the People Who Actually Want to Do Things.' Samantha Power Remembers the Wise Words of Jean Kennedy Smith, Time (June 26, 2020 5:08 PM EDT).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
Type: Other
Mark J. Roe, Derivatives and Repos in Bankruptcy, in Research Handbook on Corporate Bankruptcy Law 102 (Barry E. Adler ed., 2020).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Bankruptcy & Reorganization
Type: Book
Abstract
Explains that favorable treatment of derivatives and financial repurchase agreements under bankruptcy law weakens market discipline during ordinary financial times and exacerbates financial failure during an economic downturn or financial crisis. Safe harbors for such instruments facilitate collateral runs and fire sales and encourage short-term financing, which benefit from such privilege. The purpose of the special treatment, containment of contagion, is not accomplished and the resulting risk is to inefficiently burden other creditors including the United States government, which serves as de jure or de facto guarantor of significant financial institutions.
Jonathan Zittrain, Twitter’s Least-Bad Option for Dealing With Donald Trump, Atlantic (June 26, 2020, 10:15 AM).
Categories:
Government & Politics
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Networked Society
,
Communications Law
Type: Other
Ruth L. Okediji, When is Intellectual Property an Investment?, in Research Handbook on Intellectual Property and Investment Law 94 (Christophe Geiger ed., 2020).
Categories:
Property Law
,
Banking & Finance
,
International, Foreign & Comparative Law
Sub-Categories:
Investment Products
,
International Law
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Book
Abstract
Protecting intellectual property (IP) as an investment has important consequences for the emerging landscape of international investment law and for the very nature of IP rights. By recasting IP as an investment ‘asset’ it diminishes the public-oriented aspect of IP and deviates from the competition and social progress norms in which IP law is grounded. This chapter explores the unique characteristics of IP rights which render them unsuitable for classification as traditional investments and discusses the conditions under which IP could be considered an investment for arbitration purposes. It argues that investment arbitration invoked to contest IP laws should be permitted only under a prescribed set of conditions which are designed to preserve the ‘wiggle room’ that is inherent within the international IP system and is critical for preserving national sovereignty, as well as public faith in domestic legislative and judicial processes.
Joseph William Singer, Choice of Law: Patterns, Arguments, Practices (2020).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Choice of Law
,
Conflict of Laws
,
Legal Education
Type: Book
Abstract
This book provides a new way to learn about the topic of conflicts of law through experiential learning. Most books describe the approaches that have been adopted over time to decide conflicts of laws. This book describes those approaches and includes the emerging Third Restatement. To promote experiential learning, it does more: First, it explains patterns of cases so that students can fit new cases into established frames of reference. Second, it distinguishes between easy cases and hard cases so students can determine when a case cannot be easily resolved. Third, it provides detailed arguments that are typically made on both sides of hard cases that fit the typical patterns. Fourth, it concludes with moot court exercises that students could perform in class to practice advocacy in this field and judging. With new requirements to provide students with experiential learning opportunities, this text enables any teacher to give students the tools they need to understand the issues in the field, the reasons why cases are hard, the arguments that are available on both sides, and justifications that judges can give for resolving cases one way or the other.
Benjamin Charles Iverson, Jared A. Ellias & Mark J. Roe, Estimating the Need for Additional Bankruptcy Judges in Light of the COVID-19 Pandemic, 11 Harv. Bus. L. Rev. (June 25, 2020).
Categories:
Corporate Law & Securities
,
Consumer Finance
,
Government & Politics
Sub-Categories:
Consumer Bankruptcy Law
,
Corporate Bankruptcy & Reorganization
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
This Essay (the “Essay”) estimates the U.S. bankruptcy system’s ability to absorb an anticipated surge of financial distress among American consumers, businesses, and municipalities as a result of COVID-19. An increase in the unemployment rate has historically been a leading indicator of the volume of bankruptcy filings that occur months later. If prior trends repeat this time, the May 2020 unemployment rate of 13.3 percent will lead to a substantial increase in all types of bankruptcy filings. Mitigation, governmental assistance, the unique features of the COVID-19 pandemic, and judicial triage should reduce the potential volume of bankruptcies to some extent, or make it less difficult to handle, and it is plausible that the predictive power of the recent unemployment spike will be smaller than history would otherwise predict. We hope this will be so. Yet, even assuming that the worst-case scenario could be averted, our analysis suggests substantial, temporary investments in the bankruptcy system may be needed. Our model assumes that Congress would like to have enough bankruptcy judges to maintain the average bankruptcy judge’s caseload at no more than it was during the last bankruptcy peak in 2010, when the bankruptcy system was pressured and the public caseload figures indicate that judges worked 50 hour weeks on average. To keep the judiciary’s workload at 2010 levels, we project that, in the worst-case scenario, the bankruptcy system could need as many as 246 temporary judges—a very large number. But even in our most optimistic model, the bankruptcy system will still need 50 additional temporary bankruptcy judgeships, as well as the continuation of all current temporary judgeships. The optimistic model begins with the observation that an unusually large number of the unemployed believe that they are only temporarily furloughed and will be back at work soon. Accordingly, we (optimistically) removed the excess-from-baseline number of unemployed who believe they will be back at work shortly—as if they will be back at work shortly with no adverse impact on the economy’s channel to bankruptcies. That reduction yielded a projected need of between 50 and 69 fewer judges to maintain a judicial workload no greater than the one bankruptcy courts faced in the 2009 financial crisis. In other circumstances, the enormous uncertainty of what the bankruptcy caseload will be would warrant waiting to see what develops. And strong action probably will not occur until we see a major across-the-board rise in filings. (Large business filings are rising sharply now, but consumer filings are not rising.) The downside of a wait-and-see strategy is that full-scale bankruptcy court appointments need about a year to complete. The dilemma in what action to take now is that if bankruptcies do in fact rise by several-fold---a plausible but uncertain prospect, then waiting for the rise will lead to a large gap that will put the system one year behind where it ought to be if the filings had been anticipated as certain and acted upon. Hence, we recommend that the relevant players act on the optimistic estimation and re-assess bankruptcy needs as the economy evolves and more information develops. Judicial appointments need not be for the full term of a bankruptcy judge. Capacity can be added via temporary judges (of which there already are some in the bankruptcy court system) and by recalling recent retirees who are willing to serve.
David Kennedy, Global Governance in Crisis Time, Vital Interests (June 25, 2020).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
National Security Law
,
Developing & Emerging Nations
,
Foreign Relations
,
International Law
,
Nonprofit & Nongovernmental Organizations
,
Comparative Law
Type: Other
Jonathan Zittrain, Is Digital Contact Tracing Over Before It Began?, Medium (June 25, 2020).
Categories:
Health Care
,
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Health Law & Policy
,
Networked Society
,
Medical Technology
Type: Other
Benjamin Eidelson, Unbundling DACA and Unpacking Regents: What Chief Justice Roberts Got Right, Balkinization (June 25, 2020).
Categories:
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Government Benefits
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Other
Katrine Bach Habersaat, Cornelia Betsch, Margie Danchin, Cass R. Sunstein, Robert Böhm, Armin Falk, Noel T. Brewer, Saad B. Omer, Martha Scherzer, Sunita Sah et al., Ten Considerations for Effectively Managing the COVID-19 Transition, Nature Hum. Behav., June 24, 2020.
Categories:
Health Care
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Health Law & Policy
,
International Law
,
Nonprofit & Nongovernmental Organizations
Type: Article
Abstract
Governments around the world have implemented measures to manage the transmission of coronavirus disease 2019 (COVID-19). While the majority of these measures are proving effective, they have a high social and economic cost, and response strategies are being adjusted. The World Health Organization (WHO) recommends that communities should have a voice, be informed and engaged, and participate in this transition phase. We propose ten considerations to support this principle: (1) implement a phased approach to a ‘new normal’; (2) balance individual rights with the social good; (3) prioritise people at highest risk of negative consequences; (4) provide special support for healthcare workers and care staff; (5) build, strengthen and maintain trust; (6) enlist existing social norms and foster healthy new norms; (7) increase resilience and self-efficacy; (8) use clear and positive language; (9) anticipate and manage misinformation; and (10) engage with media outlets. The transition phase should also be informed by real-time data according to which governmental responses should be updated.
Sharon Block & Benjamin Sachs, Worker Power and Voice in the Pandemic Response (Clean Slate for Worker Power, Labor & Worklife Program, Harv. L. Sch., June 24, 2020).
Categories:
Discrimination & Civil Rights
,
Health Care
,
Labor & Employment
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Health Law & Policy
,
Labor Law
,
Employment Practice
Type: Other
Abstract
Our country is wracked by two urgent crises – the COVID-19 pandemic and the plague of systemic racism. COVID-19 presents grave challenges to all of us, but it poses particular – and, in many cases, life-threatening – challenges to working people. Moreover, the costs of the pandemic are being borne disproportionately by low-wage workers, a population made up primarily of women and workers of color. As they work to keep the economy moving despite the pandemic, these workers are being asked to put their lives on the line in ways that are both unacceptable and unnecessary. ‍ Indeed, as the economy reopens, more and more workers will be put in harm’s way. Unless, that is, something fundamental changes about the way we approach worker voice and power. In this issue brief, we offer a set of recommendations designed to empower workers so that they are better positioned to cope with the ravages of COVID-19, keep themselves and their families safe, and build a more equitable economy than the one the pandemic shut down. ‍ There is strong bipartisan support for the recommendations we are suggesting. A large majority of likely voters support giving workers a formal voice in setting health and safety standards. Only 19% of likely voters said they opposed these reforms. View the full polling results here. ‍ As with the original Clean Slate report, the recommendations here are designed so that they apply to all workers regardless of whether the law classifies them as employees, independent contractors, or otherwise outside of traditional labor law’s protection. And a central premise of the Clean Slate for Worker Power project is that any attempt to empower workers must begin with the effort to make labor law, and the labor movement, fully inclusive of workers of color – workers who have faced exclusion from the start. ‍ When law empowers all workers to demand equitable treatment – including safe and healthy working conditions – workers can build the kind of nation we all deserve
Sara Gerke, Timo Minssen & I. Glenn Cohen, Ethical and Legal Challenges of Artificial Intelligence-Driven Health Care, in Artificial Intelligence in Healthcare (Adam Bohr & Kaveh Memarzade eds., 2020).
Categories:
Government & Politics
,
Health Care
,
International, Foreign & Comparative Law
,
Technology & Law
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Executive Office
,
Bioethics
,
Food & Drug Law
,
Health Law & Policy
,
Comparative Law
,
European Law
,
Cyberlaw
,
Information Privacy & Security
,
Intellectual Property Law
,
Medical Technology
,
Networked Society
Type: Book
Abstract
This chapter will map the ethical and legal challenges posed by artificial intelligence (AI) in health care and suggest directions for resolving them. Section 1 will briefly clarify what AI is and Section 2 will give an idea of the trends and strategies in the United States (U.S.) and Europe, thereby tailoring the discussion to the ethical and legal debate of AI-driven health care. This will be followed in Section 3 by a discussion of four primary ethical challenges, namely (1) informed consent to use, (2) safety and transparency, (3) algorithmic fairness and biases, and (4) data privacy. Section 4 will then analyze five legal challenges in the U.S. and Europe: (1) safety and effectiveness, (2) liability, (3) data protection and privacy, (4) cybersecurity, and (5) intellectual property law. Finally, Section 5 will summarize the major conclusions and especially emphasize the importance of building an AI-driven health care system that is successful and promotes trust and the motto “Health AIs for All of Us”.
Oren Bar-Gill, Price Discrimination with Consumer Misperception, Applied Econ. Letters (June 22, 2020).
Categories:
Disciplinary Perspectives & Law
,
Consumer Finance
,
Technology & Law
,
Banking & Finance
Sub-Categories:
Commercial Law
,
Economics
,
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Article
Abstract
The rise of big data and sophisticated, machine learning algorithms is increasing the prevalence of price discrimination and even personalized pricing. In traditional models, where consumers’ willingness-to-pay (WTP) is a function of preferences (and budget constraints), price discrimination is often celebrated for increasing efficiency albeit while reducing consumer surplus. This favourable view of price discrimination should be re-evaluated when WTP is a function of both preferences and misperceptions. With demand-inflating misperceptions, price discrimination is even more harmful to consumers and might reduce efficiency. These results are derived using a simple, linear demand model with different levels of price discrimination (or segmentation). In the many consumer markets where misperception is common, more careful scrutiny of price discrimination is warranted.
Jeannie Suk Gersen, How the Charges Against Derek Chauvin Fit Into a Vision of Criminal Justice Reform, NewYorker.com (June 17, 2020).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
,
Government Accountability
,
Legal Reform
Type: Other
Cass R. Sunstein, Are Food Labels Good? (June 15, 2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Other
Abstract
Do people from benefit from food labels? When? By how much? Public officials face persistent challenges in answering these questions. In various nations, they use four different approaches: they refuse to do so on the ground that quantification is not feasible; they engage in breakeven analysis; they project end-states, such as economic savings or health outcomes; and they estimate willingness-to-pay for the relevant information. Each of these approaches runs into strong objections. In principle, the willingness-to-pay question has important advantages. But for those who has that question, there is a serious problem. In practice, people often lack enough information to give a sensible answer to the question how much they would be willing to pay for (more) information. People might also suffer from behavioral biases (including present bias and optimistic bias). And when preferences are labile or endogenous, even an informed and unbiased answer to the willingness to pay question may fail to capture the welfare consequences, because people may develop new tastes and values as a result of information.
I. Glenn Cohen, Lawrence O. Gostin & Daniel J. Weitzner, Digital Smartphone Tracking for COVID-19: Public Health and Civil Liberties in Tension, 323 JAMA 2371 (2020).
Categories:
Health Care
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Comparative Law
,
Medical Technology
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
Contact investigations have been a vital public health strategy, most recently in controlling tuberculosis and sexually transmitted infections including HIV. Yet, the sheer scale of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) infections poses major challenges to contact investigations. Strategies in China, Singapore, South Korea, and Taiwan have supplemented traditional manual approaches with digital surveillance through smartphone applications. The US has not used digital surveillance as a tool, but Google, Apple, the Massachusetts Institute of Technology (MIT), as well as 2 pan-European consortia and a variety of independent efforts are developing Bluetooth smartphone technology to enable rapid notification of users that they have had a close exposure to individuals diagnosed with medically verified coronavirus disease 2019 (COVID-19). How does digital tracking differ from manual tracing? Although digital surveillance has the distinct advantages of scale and speed, does it confer sufficient public health benefit to justify adoption given privacy concerns? How do the design choices of digital contact tracing systems affect public health and privacy?
Philipp Lorenz-Spreen, Stephan Lewandowsky, Cass R. Sunstein & Ralph Hertwig, How Behavioural Sciences Can Promote Truth, Autonomy and Democratic Discourse Online, Nature Hum. Behav., June 15, 2020.
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Networked Society
,
Information Commons
,
Communications Law
Type: Article
Abstract
Public opinion is shaped in significant part by online content, spread via social media and curated algorithmically. The current online ecosystem has been designed predominantly to capture user attention rather than to promote deliberate cognition and autonomous choice; information overload, finely tuned personalization and distorted social cues, in turn, pave the way for manipulation and the spread of false information. How can transparency and autonomy be promoted instead, thus fostering the positive potential of the web? Effective web governance informed by behavioural research is critically needed to empower individuals online. We identify technologically available yet largely untapped cues that can be harnessed to indicate the epistemic quality of online content, the factors underlying algorithmic decisions and the degree of consensus in online debates. We then map out two classes of behavioural interventions—nudging and boosting— that enlist these cues to redesign online environments for informed and autonomous choice.
Alan Dershowitz, The Case for Liberalism in an Age of Extremism or, Why I Left the Left But Can't Join the Right (2020).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
As a professor for half a century, Dershowitz never told students what values to accept or which candidates to support, but helped guide them to conclusions based on their own sets of values. He does the same in this book.
Annette Gordon-Reed, The Problem of Police Powers for People Living While Black, NYR Daily (June 13, 2020, 5:00 pm).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
Type: Other
Christine A. Desan & Nadav Orian Peer, The Constitution and the Fed after the COVID-19 Crisis, Just Money (June 10, 2020).
Categories:
Banking & Finance
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Banking
,
Economics
,
Secured Transactions
,
Financial Markets & Institutions
,
Congress & Legislation
Type: Other
Abstract
The COVID-19 financial response brought a seismic shift in the allocation of authority between Congress, the Treasury, and the Federal Reserve. According to the classic division of labor, Congress claims the “power of the purse” or the constitutional authority to appropriate public funds; the Treasury holds responsibility over the spending and taxing that puts those orders into effect; and the Federal Reserve engages in money creation as part of its role making monetary policy and acting as lender of last resort. Drawing on that theory of separated powers, the essay reconstructs the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse. Most notably, approaches to the Fed have downplayed the distributive implications of its money creation powers by casting them as merely a stabilizing force, either backstopping private lending in times of panic or maintaining the health of credit markets more generally. We then analyze the COVID-19 liquidity facilities at the heart of the Federal government’s response to the current crisis. Established by the Fed, these facilities are shaped in non-transparent ways by the Treasury’s authority to protect the Fed from losses. With only $450 billion in congressional appropriations, the facilities are anticipated to lend $4.5 trillion, an amount the size of the 2019 federal budget. In our view, the facilities collapse the traditional narrative that distinguished Fed money creation from congressional appropriations. We conclude that that traditional narrative was problematic from the start. Congress’s inability to take responsibility over Fed credit support calls for a more structural reform in our financial system- one compatible with democratic governance and distributive justice.
Jeannie Suk Gersen, Can the Constitution Reach Trump’s Corruption?, NewYorker.com (June 9, 2020).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Corruption
,
Executive Office
,
Judges & Jurisprudence
,
Politics & Political Theory
,
Separation of Powers
,
Supreme Court of the United States
,
Foreign Relations
Type: Other
J. Mark Ramseyer, Contracting for Terroir in Sake (Harv. L. Sch. John M. Olin Center Discussion Paper No. 1034, June 7, 2020).
Categories:
Banking & Finance
,
Environmental Law
,
International, Foreign & Comparative Law
Sub-Categories:
Contracts
,
Commercial Law
,
Agriculture Law
,
East Asian Legal Studies
Type: Other
Abstract
Over the course of the last half century, Japanese consumers have steadily lost their taste for sake. A few large producers dominate the mass market through economies of scale, but the regional brewers have gradually gone out of business. In this environment, a small group of enterprising regional brewers began to create a market for premium sake with the environmental variations so important to French terroir. To produce the delicate and subtle terroir sake, brewers must convince local farmers to grow the high-risk and high-cost varieties of rice optimized for premium sake. The challenge presents contractual problems with unusually complex incentive and informational requirements. I explore the arrangements by which brewers have addressed these problems. Some have decided to grow the rice themselves -- "solving" the contractual problem through vertical integration. Others have constructed deceptively simple arrangements that elicit the requisite information, bind the firm to the community through social capital, and (by paying a sufficiently high price) give the brewer the right to intervene directly in the farming.
Annette Gordon-Reed, Message for the World: The Idea of Hope in the Wake of the Global Protests Against Racism, TLS, June 26, 2020, at 18.
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Discrimination
,
Law & Social Change
Type: News
Louis Kaplow, A Unified Perspective on Efficiency, Redistribution, and Public Policy, 73 Nat'l Tax J. 429 (2020).
Categories:
Disciplinary Perspectives & Law
,
Taxation
,
Labor & Employment
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Social Welfare Law
,
Law & Economics
,
Empirical Legal Studies
,
Retirement Benefits & Social Security
,
Taxation - Personal Income
,
Taxation - Federal Estate & Gift
,
Taxation - Federal
,
Tax Policy
Type: Article
Abstract
Specialized theoretical and empirical research should in principle be embedded in a unified framework that identifies the relevant interactions among different phenomena, enables an appropriate matching of policy instruments to objectives, and grounds normative analysis in individuals’ utilities and a social welfare function. This article advances an approach that both provides integration across many dimensions and contexts and also identifies which tasks may be undertaken separately and how such analysis should be conducted so as to be consistent with the underlying framework. It employs the distribution-neutral methodology and welfare analysis developed in Kaplow (2008a) and related work, offering applications to income taxation, commodity taxation, tax expenditures, externalities, public goods, capital income and wealth taxation, social security and retirement savings, estate and gift taxation, and transfer programs. It also explores welfare criteria and examines how their consideration enables the normative analysis of the taxation of families, heterogeneous preferences, and tax administration and enforcement.
Cass R. Sunstein, Behavioral Welfare Economics, 11 J. Benefit-Cost Analysis 196 (2020).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
A growing body of normative work explores whether and how deference to people’s choices might be reconciled with behavioral findings about human error. This work has strong implications for economic analysis of law, cost–benefit analysis, and regulatory policy. In light of behavioral findings, regulators should adopt a working presumption in favor of respect for people’s self-regarding choices, but only if those choices are adequately informed and sufficiently free from behavioral biases. The working presumption should itself be rebuttable on welfare grounds, with an understanding that the ends that people choose might make their lives go less well. For example, people might die prematurely or suffer from serious illness, and what they receive in return might not (on any plausible account of welfare) be nearly enough. The underlying reason might involve a lack of information or a behavioral bias, identifiable or not, in which case intervention can fit with the working presumption, but the real problem might involve philosophical questions about the proper understanding of welfare, and about what it means for people to have a good life.
I. Glenn Cohen, Tina Stevens & Stuart Newman, Biotech Juggernaut: Hope, Hype, and Hidden Agendas of Entrepreneurial, 54 Law & Soc’y Rev. 524 (2020)(book review).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Medical Technology
Type: Article
Jesse M. Fried, Delisting Chinese Companies Plays Straight Into Their Hands, FT.com (June 1, 2020).
Categories:
Corporate Law & Securities
,
Government & Politics
Sub-Categories:
Securities Law & Regulation
,
Shareholders
,
Congress & Legislation
Type: Other
Jack Goldsmith, Opinion, Here’s a Better Way to Protect our Inspectors General, Wash. Post (June 1, 2020, 7:30 AM EDT).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Government Accountability
,
Politics & Political Theory
,
Separation of Powers
Type: Other
Amanda L. Tyler, Brian T. Fitzpatrick, Charles Fried, John F. Manning, Justice Ruth Bader Ginsburg & Richard H. Fallon, Jr., In Memoriam: Professor David L. Shapiro, 133 Harv. L. Rev. 2452 (2020).
Categories:
Legal Profession
Sub-Categories:
Biography & Tribute
,
Legal Education
,
Legal Scholarship
,
Legal Services
Type: Article
I. Glenn Cohen, Nikolas Bowie, Megan Jones & Eli Y. Adashi, Preventing Female Genital Mutilation in the United States: The Legal Threat to Effective Action, 110 Am. J. Pub. Health 813 (2020).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Health Care
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Criminal Prosecution
,
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Congress & Legislation
,
State & Local Government
,
Health Law & Policy
,
Human Rights Law
,
Treaties & International Agreements
Type: Article
Abstract
FGM can cause short-term complications such as severe pain, hemorrhage, tetanus infection, and urine retention.2 Long-term consequences include recurrent urinary tract infections, cyst formation, sexual difficulties, and increased risk of childbirth complications and newborn deaths.2 While some claim religious or ethnographic reasons for the practice, others view it as sustained by myths of femininity and virginity, and intended to cure vaginal "uncleanliness," prevent "deviant" premarital sexual activity, preserve "purity," and hinder sexual pleasure.2 FGM is a globally recognized human rights violation rendered unlawful under several international treaties. THE COURT'S DECISION On November 20, 2018, Judge Bernard A. Friedman of the US District Court for the Eastern District of Michigan found in Nagarwala that the statute exceeded the federal government's enumerated powers and thus declared the statute unconstitutional.3 The federal government, the court made clear, has no authority to police local or state criminal activity; such authority should be left to the states.3 The Department of Justice declined to prosecute its appeal and the US Sixth Circuit Court of Appeals refused a request by the House of Representatives to intervene, making Judge Friedman's opinion the final word.4,5 Most criminal laws are passed and enforced by states, as Congress has the power to pass legislation only in areas in which the Constitution grants it authority. "4(p31) It also accords with the interpretation of Congress, which passed the FGM ban after finding that no "single State or local jurisdiction [could] control [FGM]" or protect against the physical, psychological, and civil injury it causes.5 Second, the district court mischaracterized FGM as a noncommercial "form of physical assault" rather than as a paid-for health care service within the national market of licensed medical providers. 3(p22) As federal prosecutors argued, "FGM is usually performed by trained practitioners," and the statute "contemplates criminalizing FGM undertaken by medical practitioners in a commercial healthcare setting, which is in and of itself economic activity.
Eli Y. Adashi & I. Glenn Cohen, Reproduction Reimagined, 1 F&S Reports 7 (2020).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Human Rights in a Time of Populism: Challenges and Responses (Gerald L. Neuman ed., 2020).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Book
Abstract
The electoral successes of right-wing populists since 2016 have unsettled world politics. The spread of populism poses dangers for human rights within each country, and also threatens the international system for protecting human rights. Human Rights in a Time of Populism examines causes, consequences, and responses to populism in a global context from a human rights perspective. It combines legal analysis with insights from political science, international relations, and political philosophy. Authors make practical recommendations on how the human rights challenges caused by populism should be confronted. This book, with its global scope, international human rights framing, and inclusion of leading experts, will be of great interest to human rights lawyers, political scientists, international relations scholars, actors in the human rights system, and general readers concerned by recent developments.
Philosophical Foundations of the Law of Equity (Irit Samet-Porat, Henry Smith & Dennis Klimchuk eds., 2020).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Remedies
,
Legal Theory & Philosophy
Type: Book
Abstract
The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'.
Bruce A. Kimball & Daniel R. Coquillette, The Intellectual Sword: Harvard Law School, The Second Century (2020).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal History
Type: Book
Abstract
A history of Harvard Law School in the twentieth century, focusing on the school’s precipitous decline prior to 1945 and its dramatic postwar resurgence amid national crises and internal discord. By the late nineteenth century, Harvard Law School had transformed legal education and become the preeminent professional school in the nation. But in the early 1900s, HLS came to the brink of financial failure and lagged its peers in scholarly innovation. It also honed an aggressive intellectual culture famously described by Learned Hand: “In the universe of truth, they lived by the sword. They asked no quarter of absolutes, and they gave none.” After World War II, however, HLS roared back. In this magisterial study, Bruce Kimball and Daniel Coquillette chronicle the school’s near collapse and dramatic resurgence across the twentieth century. The school’s struggles resulted in part from a debilitating cycle of tuition dependence, which deepened through the 1940s, as well as the suicides of two deans and the dalliance of another with the Nazi regime. HLS stubbornly resisted the admission of women, Jews, and African Americans, and fell behind the trend toward legal realism. But in the postwar years, under Dean Erwin Griswold, the school’s resurgence began, and Harvard Law would produce such major political and legal figures as Chief Justice John Roberts, Justice Elena Kagan, and President Barack Obama. Even so, the school faced severe crises arising from the civil rights movement, the Vietnam War, Critical Legal Studies, and its failure to enroll and retain people of color and women, including Justice Ruth Bader Ginsburg. Based on hitherto unavailable sources—including oral histories, personal letters, diaries, and financial records—The Intellectual Sword paints a compelling portrait of the law school widely considered the most influential in the world.
Hal S. Scott, An Essay on the Fed and the U.S. Treasury: Lender of Last Resort and Fiscal Policy (May 21, 2020).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Banking
,
Risk Regulation
,
Finance
,
Administrative Law & Agencies
,
Congress & Legislation
,
Government Accountability
Type: Other
Abstract
This essay explores the evolution of my thinking on risky emergency lending to banks and non-banks. The Fed is now, in the Pandemic, engaging in lending with significant credit risk. While it appears these are Fed programs, in fact this lending is controlled by, and may be largely determined, by the Treasury. This is proper but should be clear. Lending with significant credit risk is a fiscal decision and should be made by the elected government not by an independent agency, whether made to banks or non-banks. And it should be the Treasury’s role, as advised by the Fed, to determine when there is significant credit risk. When there is no significant credit risk, the Fed should make the lending decision, without control or approval of the Treasury, again whether to banks or non-banks, as part of their role as liquidity supplier and lender of last resort. If there is disagreement as to whether there is significant credit risk the Treasury’s view should prevail.
Sabrineh Ardalan & Katherine Peeler, Don’t Believe the Trump Administration’s Misinformation: Domestic Violence Survivors Can Get Asylum in the United StatesPhysicians for Human Rights (May 20, 2020).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Legal Profession
,
Health Care
,
Government & Politics
Sub-Categories:
Gender & Sexuality
,
Discrimination
,
Immigration Law
,
Government Transparency
,
Health Law & Policy
,
Refugee & Asylum Law
,
Clinical Legal Education
Type: Other
Andrew Manuel Crespo, Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn (May 19, 2020).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
National Security Law
,
Politics & Political Theory
,
Executive Office
,
Government Accountability
,
Corruption
,
Separation of Powers
Type: Other
Abstract
This amicus curiae brief is submitted in United States v. Flynn, the criminal prosecution of former National Security Advisor Michael Flynn. It is authored by Professor Andrew Manuel Crespo and attorneys from Protect Democracy, on behalf of former federal prosecutors and high-ranking Department of Justice officials. The brief argues that the court has not only the authority but also the responsibility to review the government's motion to dismiss the case against Flynn with care, and to deny the motion if a dismissal would be contrary to the public interest. The brief analyzes the substantive defects in the government's argument that Flynn's acknowledged lies to the FBI were not "material" within the meaning of 18 USC 1001. And it explains why all of the publicly available evidence to date indicates that the motion to dismiss was motivated by a desire to satisfy the president's personal political interest, and thus contrary to the public interest as a matter of law.
I. Glenn Cohen, Andrew M. Crespo & Douglas B. White, Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms, 323 JAMA 1901 (2020).
Categories:
Criminal Law & Procedure
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Civil Practice & Procedure
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Health Care
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Government & Politics
Sub-Categories:
Torts - Negligence
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State & Local Government
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Bioethics
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Medical Jurisprudence
Type: Article
Abstract
With an anticipated shortage of ventilators for patients with coronavirus disease 2019 (COVID-19), hospitals, physicians, and nurses may have to make an unprecedented decision: should they withdraw or withhold ventilators from some patients and use them for other patients who have a better chance of survival? It is not uncommon for care teams to decide against initiating or continuing mechanical ventilation when such treatment would not achieve a patient’s goals or directives. COVID-19 presents a different case: patients who do not receive a ventilator could benefit, perhaps living for many additional years, if they receive short-term mechanical ventilation. Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support. Recently developed protocols expressly call for the rationing and reallocation of ventilators, in a manner that aims to save the greatest number of lives.1 These protocols are broadly accepted by medical ethicists.1,2 But ethics aside, there are potential legal ramifications of either withholding or withdrawing a ventilator from a patient who would ordinarily receive such aid in the absence of a public health emergency. In this Viewpoint, we assess the legal risks that physicians, other health care workers, and hospital systems confront in such scenarios and recommend that states explicitly and immediately adopt legal protections for health care workers, modeled on provisions in place in Maryland.
Jeannie Suk Gersen, How Concerning Are the Trump Administration’s New Title IX Regulations?, NewYorker.com (May 16, 2020).
Categories:
Discrimination & Civil Rights
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Government & Politics
,
Family Law
Sub-Categories:
Civil Rights
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Discrimination
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Gender & Sexuality
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Education Law
,
Administrative Law & Agencies
,
Politics & Political Theory
Type: Other
Abstract
This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.
Noah Feldman, The Arab Winter: A Tragedy (Princeton Univ. Press, forthcoming May 12, 2020).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Foreign Law
Type: Book
Abstract
The Arab Spring promised to end dictatorship and bring self-government to people across the Middle East. Yet everywhere except Tunisia it led to either renewed dictatorship, civil war, extremist terror, or all three. In The Arab Winter, Noah Feldman argues that the Arab Spring was nevertheless not an unmitigated failure, much less an inevitable one. Rather, it was a noble, tragic series of events in which, for the first time in recent Middle Eastern history, Arabic-speaking peoples took free, collective political action as they sought to achieve self-determination. Focusing on the Egyptian revolution and counterrevolution, the Syrian civil war, the rise and fall of ISIS in Syria and Iraq, and the Tunisian struggle toward Islamic constitutionalism, Feldman provides an original account of the political consequences of the Arab Spring, including the reaffirmation of pan-Arab identity, the devastation of Arab nationalisms, and the death of political Islam with the collapse of ISIS. He also challenges commentators who say that the Arab Spring was never truly transformative, that Arab popular self-determination was a mirage, and even that Arabs or Muslims are less capable of democracy than other peoples. Above all, The Arab Winter shows that we must not let the tragic outcome of the Arab Spring disguise its inherent human worth. People whose political lives had been determined from the outside tried, and for a time succeeded, in making politics for themselves. That this did not result in constitutional democracy or a better life for most of those affected doesn’t mean the effort didn’t matter. To the contrary, it matters for history—and it matters for the future.