Gregory Elinson & Jonathan Gould, The Politics of Deference, 75 Vanderbilt L.R. (forthcoming 2022).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Like so much else in our present politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential and congressional archives, statements by interest groups, and partisan media sources. It recounts how the politics of deference have varied over time, even though the issue is often framed in terms that resist evolutionary analysis. As the administrative state grew in the 1970s, conservatives in Congress sought to rein in deference, while liberals defended it. These positions reversed in the 1980s, as the Reagan Administration relied on flexible readings of statutes in service of its deregulatory efforts, including in the Chevron case itself. After a period of political détente, the 2010s witnessed a resurgence of conservative opposition and liberal support for Chevron, driven largely by the ascendance of libertarian interests in the Republican Party and the central role of administrative policymaking to contemporary Democratic Party agendas. The Article then develops a framework for understanding the shifting politics of deference. It argues that the politics of deference are the politics of regulation: for nearly a half-century, partisans and interest groups have viewed doctrinal debates as inexorably tied to interests in policy outcomes. Positions about Chevron have varied based on which party controls the presidency and the ideological makeup of the federal courts. But the parties are also asymmetrically reliant on the administrative state, and thus on judicial deference. Liberals depend on deference to advance their regulatory goals in the face of an often-gridlocked Congress, while conservatives have many paths to accomplishing their deregulatory ends. The conservative turn against the so-called “deep state” and Chevron’s non-application in areas where conservatives most favor deference (such as national security) further exacerbate the partisan split on the doctrine. And Chevron has become a rhetorical cudgel in broader partisan debates about the legality and legitimacy of the administrative state as a whole. Unless these dynamics change, Chevron deference will continue to have a political valence. And so long as the doctrine is understood to create winners and losers, partisans and interest groups will rightly see high stakes in ensuring its survival or hastening its demise.
Randall L. Kennedy, Say It Loud!: On Race, History, and Culture (forthcoming 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
Type: Book
Consumer Genetic Technologies: Ethical and Legal Considerations (I. Glenn Cohen, Nita A. Farahany, Henry T. Greely & Carmel Shachar eds., forthcoming September 2021).
Categories:
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Genetics & Reproduction
Type: Book
Abstract
For the average person, genetic testing has two very different faces. The rise of genetic testing is often promoted as the democratization of genetics by enabling individuals to gain insights into their unique makeup. At the same time, many have raised concerns that genetic testing and sequencing reveal intensely personal and private information. As these technologies become increasingly available as consumer products, the ethical, legal, and regulatory challenges presented by genomics are ever looming. Assembling multidisciplinary experts, this volume evaluates the different models used to deliver consumer genetics and considers a number of key questions: How should we mediate privacy and other ethical concerns around genetic databases? Does aggregating data from genetic testing turn people into products by commercializing their data? How might this data reduce or exacerbate existing healthcare disparities? Contributing authors also provide guidance on protecting consumer privacy and safety while promoting innovation.
Cass R. Sunstein, Sludge: What Stops Us from Getting Things Done and What to Do About It (forthcoming Sept. 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Elections & Voting
Type: Book
Abstract
How we became so burdened by red tape and unnecessary paperwork, and why we must do better. We’ve all had to fight our way through administrative sludge–filling out complicated online forms, mailing in paperwork, standing in line at the motor vehicle registry. This kind of red tape is a nuisance, but, as Cass Sunstein shows in Sludge, it can also also impair health, reduce growth, entrench poverty, and exacerbate inequality. Confronted by sludge, people just give up–and lose a promised outcome: a visa, a job, a permit, an educational opportunity, necessary medical help. In this lively and entertaining look at the terribleness of sludge, Sunstein explains what we can do to reduce it. Because of sludge, Sunstein, explains, too many people don’t receive benefits to which they are entitled. Sludge even prevents many people from exercising their constitutional rights–when, for example, barriers to voting in an election are too high. (A Sludge Reduction Act would be a Voting Rights Act.) Sunstein takes readers on a tour of the not-so-wonderful world of sludge, describes justifications for certain kinds of sludge, and proposes "Sludge Audits" as a way to measure the effects of sludge. On balance, Sunstein argues, sludge infringes on human dignity, making people feel that their time and even their lives don’t matter. We must do better.
Accessible Technology and the Developing World (Michael Stein and Jonathan Lazar eds., forthcoming August 2021).
Categories:
Technology & Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Science & Technology
Type: Book
Abstract
When digital content and technologies are designed in a way that is inaccessible for persons with disabilities, they are locked out of commerce, education, employment, and access to government information. In developing areas of the world, as new technical infrastructures are being built, it is especially important to ensure that accessibility is a key design goal. Unfortunately, nearly all research on Information and Communication Technology (ICT) accessibility and innovation for persons with disabilities-whether from the legal, technical, or development fields-has focused on developed countries, with very little being written about developing world initiatives. Accessible Technology and the Developing World aims to change this, by bringing increased attention to ICT accessibility in developing areas. This book brings together a unique combination of contributors with diverse disciplinary backgrounds, including authors from well-known non-governmental organizations, significant United Nations entities, and universities in both the developing and developed world. Together, they present a unique and much needed review of this critical and growing area of work, and primarily address three core themes - the lack of attention given to innovations taking place in the developing world, the need to ensure that infrastructures in the Global South do not present barriers to people with disabilities, and the need to exercise caution when applying techniques from the Global North to the Global South that won't transfer effectively. This book will be of use to researchers in the fields of civil rights, development studies, disability rights, disability studies, human-computer interaction and accessibility, human rights, international law, political science, and universal design.
Mary Ann Glendon, Who's Afraid of FDR?, American Purpose (July 19, 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
Type: Other
Abstract
FDR wanted the federal government to help with poor relief. He never meant for Uncle Sam to do it alone.
Martha Minow, Saving the News: Why the Constitution Calls for Government Action to Preserve Freedom of Speech (forthcoming 2021).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Communications Law
Type: Book
Abstract
In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government's responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America's media ecosystem. Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.
Guhan Subramanian & Caley Petrucci, Deals in the Time of Pandemic, 121 Colum. L. Rev. (forthcoming June 2021).
Categories:
Corporate Law & Securities
,
Civil Practice & Procedure
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
,
Corporate Governance
,
Negotiation & Alternative Dispute Resolution
Type: Article
Abstract
The COVID-19 pandemic has brought new attention to the period between signing and closing in M&A transactions. Transactional planners heavily negotiate the provisions that govern the behavior of the parties during this window, not only to allocate risk between the buyer and seller, but also to manage moral hazard, opportunistic behavior, and other distortions in incentives. Prior literature, both academic and practitioner, has focused virtually exclusively on the material adverse effect (MAE) clause. COVID-19, however, has exposed an important connection between the MAE clause and the obligation for the seller to act “in the ordinary course of business” between signing and closing. This Article is the first to examine the interaction between the MAE clause and the ordinary course covenant in M&A deals. We construct a new database of 1,300 M&A transactions along with their MAE and ordinary course covenants—by far the most comprehensive, accurate, and detailed database of such deal terms that currently exists. We document how these deal terms currently appear in M&A transactions, including the sharp rise in “pandemic” carveouts from the MAE clause since the COVID-19 pandemic began. We then provide implications for corporate boards, the Delaware courts, and transactional planners. Our empirical findings and recommendations are relevant not just for the next pandemic or “Act of God” event, but also the next (inevitable) downturn in the economy more generally.
Jonathan Zittrain, The Internet is Rotting, The Atlantic (June 2021).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Other
James Toomey, “As Long As I’m Me”: From Personhood to Personal Identity in Dementia and Decisionmaking, 4 Canadian J. of Bioethics 57 (June 1, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Abstract
As older people begin to develop dementia, we confront ethical questions about when and how to intervene in their increasingly compromised decision-making. The prevailing approach in bioethics to tackling this challenge has been to develop theories of “decision-making capacity” based on the same characteristics that entitle the decisions of moral persons to respect in general. This article argues that this way of thinking about the problem has missed the point. Because the disposition of property is an identity-dependent right, what matters in dementia and decision-making is an individual’s personal identity with their prior self, not their moral personhood. Therefore, in considering when and how we ought to intervene in the decision-making of those with dementia, we must look to the philosophy of personal identity rather than personhood.
John Bowers, Clare Stanton & Jonathan Zittrain, What the Ephemerality of the Web Means for Your Hyperlinks, Col. Journalism Rev., May 21, 2021.
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Other
Daniel Kahneman, Olivier Sibony & Cass R. Sunstein, Noise: A Flaw in Human Judgment (2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
Imagine that two doctors in the same city give different diagnoses to identical patients — or that two judges in the same courthouse give different sentences to people who have committed the same crime. Suppose that different food inspectors give different ratings to indistinguishable restaurants — or that when a company is handling customer complaints, the resolution depends on who happens to be handling the particular complaint. Now imagine that the same doctor, the same judge, the same inspector, or the same company official makes different decisions, depending on whether it is morning or afternoon, or Monday rather than Wednesday. These are examples of noise: variability in judgments that should be identical. In Noise, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein show how noise helps produce errors in many fields, including medicine, law, public health, economic forecasting, food safety, forensic science, bail, child protection, strategy, performance reviews and and personnel selection. And although noise can be found wherever people make judgments and decisions, individuals and organizations alike commonly ignore to its role in their judgments and in their actions. They show “noise neglect.” With a few simple remedies, people can reduce both noise and bias, and so make far better decisions. Packed with new ideas, and drawing on the same kind of diligent, insightful research that made Thinking, Fast and Slow and Nudge groundbreaking New York Times bestsellers, Noise explains how and why humans are so susceptible to noise in judgment — and what we can do about it.
Annette Gordon-Reed, On Juneteenth (2021).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Legal History
Type: Book
Abstract
Interweaving American history, dramatic family chronicle, and searing episodes of memoir, Annette Gordon-Reed, the descendant of enslaved people brought to Texas in the 1850s, recounts the origins of Juneteenth and explores the legacies of the holiday that remain with us. From the earliest presence of black people in Texas—in the 1500s, well before enslaved Africans arrived in Jamestown—to the day in Galveston on June 19, 1865, when General Gordon Granger announced the end of slavery, Gordon-Reed’s insightful and inspiring essays present the saga of a “frontier” peopled by Native Americans, Anglos, Tejanos, and Blacks that became a slaveholder’s republic. Reworking the “Alamo” framework, Gordon-Reed shows that the slave-and race-based economy not only defined this fractious era of Texas independence, but precipitated the Mexican-American War and the resulting Civil War. A commemoration of Juneteenth and the fraught legacies of slavery that still persist, On Juneteenth is stark reminder that the fight for equality is ongoing.
Christopher Lewis, The Paradox of Recidivism, Emory L.J. (forthcoming May 2021).
Categories:
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
Type: Article
Abstract
The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.
Tyler Giannini & Emily Ray, Beyond the Coup in Myanmar: Echoes of the Past, Crises of the Moment, Visions of the Future, Just Security (Apr. 26, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
East Asian Legal Studies
Type: Other
Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (U. Chi. Press, forthcoming 2021).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Legal History
Type: Book
Abstract
In the mid-twentieth century, gay life flourished in American cities even as the state repression of queer communities reached its peak. Liquor investigators infiltrated and shut down gay-friendly bars. Plainclothes decoys enticed men in parks and clubs. Vice officers surveilled public bathrooms through peepholes and two-way mirrors. In Vice Patrol, Anna Lvovsky chronicles this painful story, tracing the tactics used to criminalize, profile, and suppress gay life from the 1930s through the 1960s, and the surprising controversies those tactics often inspired in court. Lvovsky shows that the vice squads’ campaigns stood at the center of live debates about not only the law’s treatment of queer people, but also the limits of ethical policing, the authority of experts, and the nature of sexual difference itself—debates that had often unexpected effects on the gay community’s rights and freedoms. Examining those battles, Vice Patrol enriches understandings of the regulation of queer life in the twentieth century and disputes about police power that continue today.
Jeannie Suk Gersen, The Vital Role of Bystanders in Convicting Derek Chauvin, NewYorker.com (Apr. 21, 2021).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Jury Trials
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
,
Law & Social Change
Type: Other
Cass R. Sunstein, Averting Catastrophe: Decision Theory for COVID-19, Climate Change, and Potential Disasters of All Kinds (2021).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
,
Disaster Law
,
Administrative Law & Agencies
Type: Book
Abstract
The world is increasingly confronted with new challenges related to climate change, globalization, disease, and technology. Governments are faced with having to decide how much risk is worth taking, how much destruction and death can be tolerated, and how much money should be invested in the hopes of avoiding catastrophe. Lacking full information, should decision-makers focus on avoiding the most catastrophic outcomes? When should extreme measures be taken to prevent as much destruction as possible? Averting Catastrophe explores how governments ought to make decisions in times of imminent disaster. Cass R. Sunstein argues that using the “maximin rule,” which calls for choosing the approach that eliminates the worst of the worst-case scenarios, may be necessary when public officials lack important information, and when the worst-case scenario is too disastrous to contemplate. He underscores this argument by emphasizing the reality of “Knightian uncertainty,” found in circumstances in which it is not possible to assign probabilities to various outcomes. Sunstein brings foundational issues in decision theory in close contact with real problems in regulation, law, and daily life, and considers other potential future risks. At once an approachable introduction to decision-theory and a provocative argument for how governments ought to handle risk, Averting Catastrophe offers a definitive path forward in a world rife with uncertainty.
Cass R. Sunstein, Interest-Group Theories of Regulation: A Skeptical Note (Apr. 18, 2021).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Other
Abstract
As a rule, regulation is not acquired by “the industry,” and it is not designed and operated primarily for its benefit. The mechanisms behind the promulgation of regulations are multiple, and almost all of the time, it greatly matters whether regulators believe that regulations will, all things considered, have good consequences. In terms of understanding the sources of regulations, it would therefore be valuable to obtain more clarity about the sources of the beliefs of regulators — about what information they receive and find credible, and why.
Cass R. Sunstein, Some Benefits and Costs of Cost-Benefit Analysis, Daedalus (forthcoming 2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Administrative Law & Agencies
Type: Article
Abstract
The American administrative state has become a cost-benefit state, at least in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. Some people celebrate this development; others abhor it. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, pure expressivism, political preferences, or interest-group power. Seen most sympathetically, the focus on costs and benefits is a neo-Benthamite effort to attend to the real-world consequences of regulations, and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. The focus on costs and benefits is also a valuable effort to go beyond coarse arguments, from both the right and the left, that tend to ask this unhelpful question: “Which side are you on?” In the future, however, there will be much better ways, which we might consider neo-Millian, to identify those consequences: (1) by relying less on unreliable ex ante projections and more on actual evaluations; (2) by focusing directly on welfare and not relying on imperfect proxies; and (3) by attending closely to distributional considerations – on who is helped and who is hurt.
John Bowers, Elaine Sedenberg & Jonathan Zittrain, Platform Accountability Through Digital “Poison Cabinets”, Data and Democracy (Apr. 13, 2021).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Other
Abstract
Preserving records of what user content is taken down—and why—could make platforms more accountable and transparent.
Eli Y. Adashi & I. Glenn Cohen, Industry-Sponsored Speaker Programs—End of the Line?, JAMA (Apr. 12, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Jeannie Suk Gersen, The Simple Facts of Derek Chauvin's Trial, NewYorker.com (Apr. 10, 2021).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
,
Jury Trials
Type: Other
Lawrence O. Gostin, I. Glenn Cohen & Jana Shaw, Digital Health Passes in the Age of COVID-19: Are “Vaccine Passports” Lawful and Ethical?, JAMA (April 7, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Jonathan Zittrain & Will Marks, What Critics Don't Understand about NFT's: The Complexity and Arbitrariness of Non-fungible Tokens are a Big Part of their Appeal, Atlantic (Apr. 7, 2021).
Categories:
Technology & Law
Sub-Categories:
Digital Currency
,
Digital Property
,
Networked Society
Type: Other
George Maliha, Sara Gerke, I. Glenn Cohen & Ravi B. Parikh, Artificial Intelligence and Liability in Medicine: Balancing Safety and Innovation, The Milbank Q. (Apr. 6, 2021).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Medical Technology
Type: Article
D. James Greiner, Ellen Lee Degnan, Thomas Ferriss & Roseanna Sommers, Using Random Assignment to Measure Court Accessibility for Low-Income Divorce Seekers, 118 Proc. of the Nat'l Acad. of Sci. (Apr. 6, 2021).
Categories:
Family Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Public Interest Law
,
Empirical Legal Studies
,
Domestic Relations
Type: Article
Abstract
We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file for and obtain a divorce than those not assigned lawyers. Because divorce implicates fundamental constitutional interests and can be effectuated only by resort to the courts, the US Constitution requires that dissolution of marriage be made achievable regardless of ability to pay. Yet, we observed few low-income individuals who were able to initiate divorce suits on their own. Through interviews and archival research, we identified barriers that low-income litigants faced in navigating the divorce system, including mandatory wait times, limited hours at important facilities, and burdensome paperwork sometimes requiring access to photocopiers and typewriters. This study therefore documents a salient instance in which a civil legal process was inaccessible to those without lawyers, even though their legal issues were straightforward, involving few if any matters for courts to adjudicate.
Lawrence Lessig, They Don’t Represent Us: And Here’s How They Could―A Blueprint for Reclaiming Our Democracy (2021).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Book
Abstract
WITH A NEW AFTERWORD ABOUT THE 2020 ELECTION This urgent book offers not only a clear-eyed explanation of the forces that broke our politics, but a thoughtful and, yes, patriotic vision of how we create a government that’s truly by and for the people.”—DAVID DALEY, bestselling author of Ratf**ked and UnriggedIn the vein of On Tyranny and How Democracies Die, the bestselling author of Republic, Lost argues with insight and urgency that our democracy no longer represents us and shows that reform is both necessary and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drive our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states; A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way; A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Mark Roe, Corporate Purpose and Corporate Competition (Mar. 31, 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
,
Corporate Law
Type: Other
Abstract
The large American corporation faces ever-rising pressure to pursue a purpose that’s more than just for shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that has not been comprehensively analyzed and is generally ignored. Firms’ capacity to accommodate pressure for a wider purpose is rising as well. Three changes are most relevant: the possibility of declining competition, the counter-possibility that what seems to be a competitive decline is really increasing winner-take-all competition, and the possibility that the ownership of the big firms has concentrated (even if the firms themselves have not) and thereby diluted competitive zeal. Consider competitive decline: In robustly competitive economies, firms cannot deviate much from profit maximization for expensive corporate purpose programs unless expanded purpose bolsters profitability (by branding the firm positively for consumers or by better motivating employees, for example). In economies with slack competition, in contrast, monopolistic and oligopolistic firms can accommodate purpose pressure, sometimes even expensive purpose pressure, from the profits they garner above what a competitive firm requires. In simplistic form, purpose can pressure such firms to redirect their excess profit from shareholders to stakeholders—to customers, employees, or the public good—in ways that firms in strongly competitive industries cannot. By most accounts, competition has been declining in the United States. By some accounts, it has declined precipitously. That decline suggests three possibilities: One—the central thesis of this Article— purpose pressure has greater potential to succeed if competition has declined or rents have otherwise grown; in competitive markets, the profit-oriented purpose-pressured firm has no choice but to refuse the purpose pressure (or to give it only lip service), while in monopolistically-organized industries, the purpose-pressured firm has more room to maneuver. Two, the normative bases undergirding shareholder primacy, although still strong, are less powerful in monopolistic markets. Three, declining corporate competition and rising corporate profits create a lush field for social conflict inside the firm and the polity for shareholders and stakeholders to seek a share of those profits. The result can infuse basic corporate governance with social conflict. This new, or expanded, field for conflict can contribute to and exacerbate our rising political and social instability. Expanding purpose pressure is one manifestation of this conflict.
Jeannie Suk Gersen, The Politics of Bad Sex, NewYorker.com (Mar. 31, 2021) (reviewing Katherine Angel, Tomorrow Sex Will Be Good Again: Women and Desire in the Age of Consent (2021)).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Gender & Sexuality
,
Law & Mind Sciences
Type: Other
Eli Y. Adashi, I. Glenn Cohen & Winston L. McCormick, The Interstate Medical Licensure Compact Attending to the Underserved, JAMA (Mar. 26, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Paul G. Cassell, Nancy Gertner & Andrew Silverman, United States of America v. Michael Andrew Gary: Brief of Former United States District Court Judges as Amici Curiae in Support of Respondent (Univ. Utah Coll. Law Rsch. Paper No.434, 2021).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Criminal Defense
,
Courts
,
Judges & Jurisprudence
Type: Other
Abstract
In this amicus brief to the U.S. Supreme Court in U.S. v. Michael Andrew Gary, former federal district court judges Paul Cassell and Nancy Gertner argue that criminal defendants should not be penalized with plain-error review when they fail to raise in the district court objections that circuit courts have uniformly foreclosed. When an intervening change in law renders those once-futile claims viable, appellate courts should treat them as preserved and subject to the corresponding standard of appellate review, not the four-factor test elaborated in United States v. Olano, 507 U.S. 725 (1993). No doubt, claim preservation is important. When defendants raise their objections first in the district court, district judges—who are closest to the case—can avoid or fix errors, thereby sparing (or at least facilitating) appellate review and potentially averting remand or retrial. The contemporaneous-objection requirement and its appellate counterpart, the plain-error rule, also deter sandbagging by defense counsel. But the interests in judicial economy and fairness those rules ordinarily advance are not served when the would-be objection is entirely foreclosed by a circuit consensus this Court later sweeps away. In such a scenario, there is nothing to fix and no tactical advantage to be gained from failing to object. Rigid insistence on claim preservation in those circumstances instead actively undermines efficient judicial administration, as it forces defendants to object at every turn, clogging up cases with kitchen-sink briefs and wasting the resources of already overburdened counsel and courts. It also unfairly rewards defendants whose counsel was either preternaturally prescient or ignorant, undiscerning, or even downright obstructionist, while punishing those whose counsel appropriately focused on arguments that were more likely to succeed.
Jonathan Gould, Kenneth Shepsle & Matthew Stephenson, Democratizing the Senate from Within (Harvard Pub. L. Working Paper No. 21-11, Mar. 25, 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Politics & Political Theory
Type: Other
Abstract
The U.S. Senate is an undemocratic institution in two respects. First, the filibuster rule allows a minority of Senators to block a final vote on most measures. Second, the Senate’s malapportionment means that a Senate majority often represents a minority of the population. Eliminating the filibuster would address the first problem but would exacerbate the second. Most proposals for addressing the Senate’s malapportionment either do so only indirectly and contingently, or would require unlikely changes to the Constitution or constitutional doctrine. We therefore propose that the Senate replace its current filibuster rule with what we refer to as a “popular-majoritarian cloture rule.” Under this rule, a motion to close debate and proceed to a final vote would carry if but only if supported by a majority coalition of Senators who collectively represent a larger share of the population than those Senators in opposition. This rule, which would be a constitutional exercise of the Senate’s power to set the rules of its proceedings, would make the body more democratic, legitimate, and functional, and would be prefer-able both to the current filibuster rule and to simple majority rule. The democratic illegitimacy and dysfunction of the U.S. Senate as it currently operates justifies the consideration of institutional reforms that might seem, at the moment, both extreme and unlikely. Repairing American governance requires fixing the Senate, and our proposal illustrates one way to democratize the Senate from within.
Andrew Metrick & Daniel K. Tarullo, Congruent Financial Regulation (Brookings Papers on Econ. Activity, Mar. 24, 2021).
Categories:
Banking & Finance
Sub-Categories:
Risk Regulation
,
Financial Markets & Institutions
,
Banking
Type: Other
Abstract
We propose a congruence principle for financial regulation. Application of this principle would enable regulators to use economically similar instruments across multiple domains to manage systemic risk. We present case studies of market malfunctions that occurred when congruence was ignored: nonprime mortgage finance (in 2008 and 2020) and United States Treasury securities (in 2020). In these cases, risk built up in non-bank financial institutions due in part to regulatory arbitrage. Under a congruence principle, regulators could mitigate this risk using a coordinated combination of capital requirements, minimum haircuts on repo transactions, and margining rules on futures exchanges and central clearing parties.
Cass R. Sunstein, This Is Not Normal: The Politics of Everyday Expectations (2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.
Tyler Giannini & Sondra Anton, When War Criminals Run the Government: Not Too Late for the International Community to Vet Sri Lankan Officials, Just Security (Mar. 16, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
East Asian Legal Studies
,
International Humanitarian Law
,
International Law
Type: Other
Jeannie Suk Gersen, The Story of the Comfort Women, in Korean and Japanese, NewYorker.com (Mar. 13, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Gender & Sexuality
,
East Asian Legal Studies
,
Foreign Relations
,
Human Rights Law
Type: Other
Laurence H. Tribe, President or Not, Trump Can Be Made to Pay for the Jan. 6 Insurrection, The Hill, Mar. 12, 2021.
Categories:
Constitutional Law
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Constitutional History
,
Criminal Prosecution
,
Government Accountability
,
Executive Office
Type: Other
Eric A. Posner & Jack Landman Goldsmith, The Limits of International Law Fifteen Years Later (Mar. 12, 2021).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Theory & Philosophy
,
International Law
Type: Other
Abstract
The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.
Cass R. Sunstein, Green Defaults Can Combat Climate Change,Nature Hum. Behav. (Mar. 11, 2021).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Climate Change
,
Energy & Utilities Law
,
Renewable Resources Law
Type: Other
Abstract
Increasing the uptake of green energy use by households and businesses is a key step toward reducing environmental harm and combating climate change. In a new paper, Liebe et al.show that a non-monetary intervention can have massive effects on green energy consumption, leading to substantial reductions in carbon emissions.
Richard D. Parker, You Won’t Like This: A Populist Addresses Donald Trump, POP – Political Observatory on Populism (March 11, 2021).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Other
Isaac S. Kohane & Jonathan Zittrain, Using a Collective 'Virtuous Cycle' to Break the Pandemic, STAT (Mar. 2, 2021).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Other
Mark Tushnet, “Rock ‘n’ Roll” and “Roll Over Beethoven”: Tom Stoppard and Critical Legal Studies (Harvard Pub. L. Working Paper No. 21-15, Mar. 2, 2021).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Critical Legal Studies
,
Law & Humanities
,
Law & Social Change
Type: Other
Abstract
In 1969-70 or thereabouts several Yale Law School students set up a “commune” in the courtyard between what were then residential halls. At roughly the same time David Trubek and Rick Abel were holding a reading group on law and development with a heavy dose of social theory, a harbinger of what became critical legal studies. The two events can be taken as representative of alternative paths to social transformation – roughly, the cultural path and the path to change through self-consciously directed political action. In this short paper, originally prepared for a conference on the intellectual history of critical legal studies at Princeton University in February 2020, I read two works as dialogues about those paths, Tom Stoppard’s play “Rock ‘n’ Roll,” which looks at Czechoslovakia from 1968 through 1989 – from the Prague Spring through the Soviet occupation to the collapse of the Soviet empire – and “Roll Over Beethoven,” a discussion between “Peter Gabel” and “Duncan Kennedy” about some controversies in the early years of critical legal studies.
Einer Elhauge, Sumit K. Majumdar & Martin C. Schmalz, Confronting Horizontal Ownership Concentration, 66 Antitrust Bull. 3 (2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Corporate Law
Type: Article
Abstract
Developments in capital markets have fueled a concentration of horizontal ownership across competing firms, and this has been linked to anticompetitive effects and economic underperformance. The debate about such ownership concentration has proven contentious and controversial. This symposium titled “Common Ownership: Illuminating a Great 21st Century Antitrust Debate” brings together key new works on the topic that confirm, extend, and illuminate the prior empirical findings and policy implications. Among other things, these contributions survey the recent empirical literature, provide new important empirical results about the extent and effect of horizontal ownership, offer a methodological critique, highlight concepts that address core capital market and labor market linkages, and articulate ideas for policy development to tackle emerging contingencies.
Cass R. Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception (2021).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
,
Administrative Law & Agencies
,
Communications Law
,
Networked Society
Type: Book
Abstract
Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech. To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself.
Cass R. Sunstein, Most People Like Nudges-And Why That Matters, in Theories of Choice: The Social Science and the Law of Decision Making 73 (Stefan Grundmann & Philipp Hackey, eds., Oxford University Press 2021).
Categories:
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Oren Bar-Gill & Yochai Benkler, Productivity Versus Power: The Role of Law and Technology, (Mis)perceptions and Ideology (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1057, Mar. 2021).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Financial Markets & Institutions
,
Economics
,
Law & Economics
,
Science & Technology
Type: Other
Abstract
Power and productivity mediate economic outcomes across markets–both product markets and labor markets. We develop a neoclassical economic framework that combines productivity and power, and presents the balance between them as an equilibrium outcome determined by strategic investments–by firms, consumers and workers–in law, technology, (mis)perceptions and ideology. An actor’s choice of investment–most important, the choice between a productivity-increasing investment and a power-increasing investment–can be explained by the relative marginal return from the different investments. Whereas the incentives of firms and consumers and those of firms and workers are roughly aligned with respect to productivity-increasing investments, they are diametrically opposed with respect to power-increasing investments. Since investments affect surplus and thus the resources available for future investment, the model features multiple equilibria and path dependence. Policy intervention may be needed to shift the market from a bad equilibrium, with low productivity and adverse distributive consequences, to a more efficient and more equitable equilibrium. Policy intervention may also be needed to control welfare-reducing, power-seeking investments. While some degree of market power may be needed to support long-term efficiency, innovation and economic growth, firms will often seek excessive market power that will reduce overall welfare. Policymakers should strive to optimize power structures across different markets, e.g., by influencing the relative return from different power-increasing and productivity-increasing investments. The explanatory power of our theoretical framework is demonstrated through a series of detailed case studies–from the home broadband and net neutrality wars and the antitrust battles of Microsoft and now Google to the struggles between firms and unions during 19th century industrialization and the evolving story of Uber and the gig economy. Our framework informs ongoing debates in antitrust law, labor and employment law, intellectual property law, and consumer protection law, and in any other area of law that regulates, directly or indirectly, product or labor markets.
Hrefna D. Gunnarsdottir, I. Glenn Cohen, Timo Minssen & Sara Gerke, The Ethics and Laws of Medical Big Data, in Cambridge Handbook of Information Technology, Life Sciences and Human Rights, (Marcello Ienca, O. Pollicino, L. Liguori, R. Andorno & E. Stefanini, eds., forthcoming 2021).
Categories:
Health Care
,
Technology & Law
,
Legal Profession
,
Property Law
Sub-Categories:
Bioethics
,
Legal Ethics
,
Information Privacy & Security
,
Medical Technology
Type: Other
Abstract
The COVID-19 pandemic has highlighted that leveraging medical big data can help to better predict and control outbreaks from the outset. However, there are still challenges to overcome in the 21st century to efficiently use medical big data, promote innovation and public health activities and, at the same time, adequately protect individuals’ privacy. The metaphor that property is a “bundle of sticks”, each representing a different right, applies equally to medical big data. Understanding medical big data in this way raises a number of questions, including: Who has the right to make money off its buying and selling, or is it inalienable? When does medical big data become sufficiently stripped of identifiers that the rights of an individual concerning the data disappear? How have different regimes such as the General Data Protection Regulation in Europe and the Health Insurance Portability and Accountability Act in the US answered these questions differently? In this chapter, we will discuss three topics: (1) privacy and data sharing, (2) informed consent, and (3) ownership. We will identify and examine ethical and legal challenges and make suggestions on how to address them. In our discussion of each of the topics, we will also give examples related to the use of medical big data during the COVID-19 pandemic, though the issues we raise extend far beyond it.
Jeannie Suk Gersen, Seeking the True Story of the Comfort Women, NewYorker.com (Feb. 25, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Gender & Sexuality
,
East Asian Legal Studies
,
Foreign Relations
,
Human Rights Law
Type: Other
Duncan Kennedy, Law Distributes I: Ricardo Marx CLS (Feb. 24, 2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Critical Legal Studies
,
Politics & Political Theory
Type: Other
Abstract
This article appropriates Ricardo and Marx as progenitors of one of the contemporary CLS approaches to law and political economy. In the first part I look at Ricardo and Marx through a presentist lens. I ignore their allegiance to the labor theory of value and restate what I think is important for “us” in neo-classical terms. What is left is a model in which a legal regime distributes a surplus helping some at the expense of others, setting in motion a chain of further distributional changes in a particular direction (e.g. stagnation or growth). Then I describe Ricardo’s legal presuppositions and Marx’s explicit understanding of law as seriously mistaken and restate their ideas in the “postrealist” mainstream language of contemporary American legal thought. The great question they help answer, restated, is how to decide when redistributive interventions will or will not, have or have not “hurt the people they are trying to help.” The last part introduces this approach, contrasting it with familiar liberal approaches. The normative orientation is to distribution in favor of subordinated groups rather than to efficiency and to work on transformable background rules of public and private law rather than to politically unattainable reform by tax and spend, large scale re-regulation or decommodification. A companion article applies the “neo-Ricardian” analytic to the dynamics of housing and credit markets in poor black neighborhoods.
Nicholas Stephanopoulos & Jowei Chen, The Next Front in the Gerrymandering Wars: Which People Get Counted?, Wash. Post, Feb. 24, 2021.
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: News
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, 2021).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Professional Responsibility
,
Legal Education
Type: Book
Benjamin Eidelson, Patterned Inequality, Compounding Injustice, and Algorithmic Prediction, Am. J.L. & Equality (forthcoming) (Harv. Pub. L. Working Paper No. 21-01, Feb. 22, 2021).
Categories:
Discrimination & Civil Rights
,
Technology & Law
Sub-Categories:
Discrimination
Type: Article
Abstract
If whatever counts as merit for some purpose is unevenly distributed, a decision procedure that accurately sorts people on that basis will “pick up” and reproduce the pre-existing pattern in ways that more random, less merit-tracking procedures would not. This dynamic is an important cause for concern about the use of predictive models to allocate goods and opportunities. In this article, I distinguish two different objections that give voice to that concern in different ways. First, decision procedures may contribute to future social injustice and other social ills by sustaining or aggravating patterns that undermine equality of status and opportunity. Second, the same decision procedures may wrong particular individuals by compounding prior injustices that explain those persons’ predicted or actual characteristics. I argue for the importance of the first idea and raise doubts about the second. In normative assessments and legal regulation of algorithmic decisionmaking, as in our thinking about anti-discrimination norms more broadly, a central concern ought to be the prospect of entrenching harmful and unjust patterns—quite apart from any personal wrong done to the individuals about whom predictions are made.
Benjamin Eidelson, Reasoned Explanation and Political Accountability in the Roberts Court, Yale L.J. (forthcoming) (Harv. Pub. L. Working Paper No. 21-01, Feb. 22, 2021).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
Type: Article
Abstract
In the past two years, the Supreme Court has invalidated two major executive-branch initiatives—the termination of the Deferred Action for Childhood Arrivals (DACA) policy and the addition of a citizenship question to the census—as arbitrary and capricious. Many have cast Chief Justice Roberts’s decisive votes and opinions in these cases as efforts to protect the Court’s public standing by skirting political controversy. Taken on their own terms, however, the opinions seem less about keeping the Court out of the political thicket and more about pushing the Trump Administration into it. And that use of arbitrariness review as a judicial backstop for political accountability is an important jurisprudential development in its own right. For decades, the Court has understood arbitrariness review mainly as a check against bureaucratic blunders, lawlessness, and political interference with agency expertise. But in the DACA and census cases, a narrow majority refashioned this form of review as a tool for forcing an administration to pay the appropriate political price for its discretionary choices. Through close and context-laden readings of these back-to-back opinions, I aim to surface the “accountability-forcing” form of arbitrariness review that they employ and to draw out its significance. Between the two cases, the Roberts-led majority identified three kinds of agency explanations that should be rejected or disfavored on political-accountability grounds: post hoc explanations, buck-passing explanations, and pretextual explanations. Standing alone, these new rules (and new justifications for old ones) have wide-ranging consequences. But if the shift toward an accountability-centric vision of arbitrariness review continues, it could also lead to renovations of several other administrative-law doctrines—including narrowing the carve-outs from judicial review, undermining the remedy of “remand without vacatur,” and empowering courts to discount agencies’ fallback justifications for their choices. After laying out the accountability-forcing turn in the Court’s recent cases and sketching its possible ramifications, I consider several grounds for doubt about its propriety and efficacy. Some of these objections, I conclude, have real force. Still, none debunks the core insight that I take to underlie Roberts’s approach: The reasoned explanation requirement can sometimes be deployed so as to promote not only rational administration, but democracy as well.
Elizabeth Warren, Lina Khan, Time.com (Feb. 17, 2021) (2021 Time100 Next).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Other
Abstract
For too long, giant tech companies have thrown around their weight to crush competition, exploit user data and spread disinformation. They may think they're too big to be held accountable, but Lina Khan is proving them wrong. Since Khan published her blockbuster Yale Law Journal article "Amazon's Antitrust Paradox" in 2017--written while she was still a law student, she has been the leading intellectual force in the modern antitrust movement. Her writings and advocacy have pushed scholars, lawyers, activists and public officials to think differently about Big Tech. Khan has also been a critical figure in government, providing advice to countless elected officials, working at the Federal Trade Commission and staffing the House Judiciary Committee's Subcommittee on Antitrust.
Jody Freeman, The EPA and Climate Change, in Fifty Years at the US Environmental Protection Agency: Progress, Retrenchment, and Opportunities 121 (A. James Barnes, John D. Graham & David M. Konisky, eds., Rowman & Littlefield Publishers 2021).
Categories:
Environmental Law
Sub-Categories:
Climate Change
Type: Book
Abstract
In conjunction with the 50th anniversary of the creation of the Environmental Protection Agency, this book brings together leading scholars and EPA veterans to provide a comprehensive assessment of the agency’s key decisions and actions ...
Ronald S. Sullivan, Jr., A Georgetown Professor Trades Her Classroom for a Police Beat, Wash. Post, Feb. 12, 2021 (reviewing Rosa Brooks, Tangled Up in Blue: Policing the American City (2021)).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Race & Ethnicity
Type: News
Abstract
Rosa Brooks gets a firsthand look at the complicated world of urban policing.
Jeannie Suk Gersen, The Risks of Trump's Impeachment Trial, NewYorker.com (Feb. 5, 2021).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
Type: Other
Cass R. Sunstein, Are Food Labels Good?, 99 Food Pol'y (Feb. 2021).
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: Article
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.
Jesse M. Fried & Charles C. Y. Wang, Short‐Termism, Shareholder Payouts, and Investment in the EU, Eur. Fin. Mgmt., Feb. 8, 2021, at 1.
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Corporate Governance
,
Shareholders
,
European Law
Type: Article
Abstract
Investor‐driven ’short‐termism’ is said to harm EU public firms’ ability to invest for the long term, prompting calls for the EU to better insulate managers from shareholder pressure. But the evidence offered—rising levels of repurchases and dividends—is incomplete and misleading: it ignores large offsetting equity issuances that move capital from investors to EU firms. We show that, over the last 30 years and the last decade, net shareholder payouts have been moderate and investment and cash balances have increased. In sum, the data provide little basis for the view that short‐termism in the EU warrants corporate governance reforms.
Keith T. Fogg, The Role of Offset in the Collection of Federal Taxes (Feb. 25, 2021).
Categories:
Government & Politics
,
Taxation
,
Health Care
Sub-Categories:
Government Accountability
,
Congress & Legislation
,
Tax Policy
,
Taxation - Federal Estate & Gift
,
Taxation - Personal Income
Type: Other
Abstract
The legal principle of offset has played a key role in debt collection by private parties for centuries. In 2021, offset plays an equally essential role in the United States government’s collection of debts owed to it, accounting for billions of dollars in funds taken from outgoing payments. The right of offset arises when two parties owe each other debts. The party asserting offset can subtract what is owed to them from what they owe, allowing the parties to avoid an unnecessary transaction. Offset thus makes intuitive sense, simplifying two payment flows into one. But offset becomes far more complex when one of the parties is the federal government, which is unlike a traditional private creditor in important ways. Offset has perhaps its largest impact in the tax system, where Congress has legislated that the Internal Revenue Service (the “Service”) has the authority (and sometimes, the mandate) to offset tax refunds. Refunds are commonly offset when a taxpayer owes prior year tax liabilities, other agency debts (e.g., student loans), state taxes, or past due child support. Despite its frequent use by the Service, offset is subject to minimal procedural protections, likely due to its origin in longstanding common law doctrine. Unlike other forms of tax collection, offset does not carry a right to prepayment judicial review in Tax Court. Nor does offset require the Service to issue a notice to the taxpayer prior to taking collection action. Courts also treat offset inconsistently when the applicable taxpayer/debtor is protected by a collection stay under Title 26 or Title 11, allowing offset in some scenarios and denying it in others. Finally, Congress and the Service have often failed to use their authority to make offset more equitable, particularly as applied to low-income taxpayers. The Service has a limited administrative remedy available for taxpayers to affirmatively request bypass from the offset of their refund to a tax debt. But the remedy is little-publicized, little-used, and difficult to administer. During the COVID-19 pandemic and recession, Congress legislatively protected advance stimulus payments from some forms of offset. But Congress failed to make that protection expansive or to extend it to conventional tax refunds, both of which would have put needed funds in the hands of millions of taxpayers during an economic crisis. Similarly, the Service declined to exercise its statutory discretion to systemically suspend offset of conventional tax refunds to past tax liabilities. These issues extend to payments of the Earned Income Tax Credit (EITC), which are subject to offset. Both Congress and the Service have failed to acknowledge the EITC’s unique nature as a type of public benefit, treating it instead as a conventional tax refund subject to offset. This disproportionately hurts the low-income taxpayers, and their children, that the EITC was enacted to benefit. We argue that policymakers should pay closer attention to offset and make the necessary changes to apply it in a more equitable and logical manner.
Jeannie Suk Gersen, Did Trump and his Supporters Commit Treason?, NewYorker.com (Jan. 28, 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Executive Office
,
Military, War, & Peace
,
Politics & Political Theory
Type: Other
Alan Dershowitz, No, You Can't Try an Impeached Former President, Wall St. J., Jan. 20, 2021.
Categories:
Constitutional Law
Type: News
Nikolas Bowie, Opinion, The Challenges of Teaching the Constitution in the Age of Trump, Wash. Post, Jan. 18, 2021.
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Constitutional History
,
Legal Education
Type: News
Cass R. Sunstein, Once Upon a Time There Was a Big Bubble, N.Y. Rev., Jan. 14, 2021) (reviewing Robert Shiller, Narrative Economics: How Stories Go Viral & Drive Major Economic Events (2019)).
Categories:
Banking & Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Economics
,
Law & Behavioral Sciences
Type: Other
Abstract
Robert Shiller argues for the power of stories in shaping economics.
Einer Elhauge, The First Amendment Doesn’t Protect Trump’s Incitement, Wash. Post, Jan. 14, 2021.
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: News
Jonathan Zittrain, Impeachment Defense, the Constitution, and Bill of Rights, Just Security (Jan. 13, 2021).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Executive Office
,
Congress & Legislation
,
Politics & Political Theory
Type: Other
Laurence H. Tribe, The Senate Can Constitutionally Hold an Impeachment Trial After Trump Leaves Office, Wash. Post, Jan. 13, 2021.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Government Accountability
Type: Other
Abstract
The Senate will retain the constitutional power — and duty — to conduct an impeachment trial of Trump even when he is no longer president.
Jeannie Suk Gersen, The Case for Removing Donald Trump, NewYorker.com (Jan. 9, 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Other Amendments
,
Executive Office
,
Politics & Political Theory
,
Elections & Voting
,
Congress & Legislation
Type: Other
Laurence H. Tribe & Joshua Matz, Yes, Congress Should Impeach Trump Before He Leaves Office, Wash. Post, Jan. 8, 2021.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Government Accountability
,
Executive Office
Type: Other
Abstract
The House would be fully justified to use this drastic remedy.
Cass R. Sunstein, Can the Government Regulate Deepfakes?, Wall St. J., Jan. 7, 2021.
Categories:
Constitutional Law
,
Civil Practice & Procedure
Sub-Categories:
First Amendment
,
Torts - Defamation
Type: News
Abstract
New technology makes it possible to create videos that show a person doing or saying anything the creator wants—and it’s not clear what U.S. law can do about it.
Peter Berkowitz & Mary Ann Glendon, Commission on Unalienable Rights: Lessons Learned, Real Clear World (Jan. 7, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
Type: Other
Adrian Vermeule, Rules, Commands and Principles in the Administrative State, 130 Yale L.J. F. 356 (Jan. 6, 2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Administrative Law & Agencies
Type: Article
Abstract
In the theory of the administrative state, a central thread of debate has involved the effect of increasing economic and social complexity on the form of legal instruments. Drawing upon work by Pound, Schmitt and Dworkin, I show that the first two both assumed that the administrative state would increasingly abandon general rules in favor of ad hoc administrative commands — a development that the early Pound welcomed but that Schmitt feared. Ronald Dworkin, by contrast, predicted that the increasing complexity of the modern state would produce ever-greater reliance on relatively abstract legal principles rather than either rules or ad hoc commands. Dworkin’s prediction has largely been borne out in administrative law, particularly the law of judicial review of agency action. That body of law has developed over time by turning to abstract and general principles of rationality and procedural validity to maintain the public edifice of legality.
Jeannie Suk Gersen, A Test for Congress's Commitment to Democracy, NewYorker.com (Jan. 4, 2021).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Other
Cass R. Stuntein, "Come On, Man!" On Choice, Welfare, and Hayekian Behavioral Economics, Behav, Pub. Pol'y, (forthcoming 2021).
Categories:
Banking & Finance
,
Government & Politics
Sub-Categories:
Economics
,
Administrative Law & Agencies
Type: Article
Abstract
With respect to the views of dead thinkers, answers to many particular questions are often interpretive in Ronald Dworkin’s sense: such answers must attempt (1) to fit the materials to be interpreted and (2) to justify them, that is, to put them in the best constructive light. What looks like (1), or what purports to be (1), is often (2). That is, when a follower of Kant urges that “Kant would say x,” or that “Kantianism entails y,” the goal is to make the best constructive sense of Kant and Kantianism, not merely to follow something that Kant actually said. An approach to behavioral economics cannot claim to be Hayekian if it is rooted in enthusiasm for the abilities of planners to set prices and quantities, or if it sees the price system as a jumble of mistakes and errors. But within a not-so-narrow range, a variety of freedom-preserving approaches, alert to the epistemic limits of planners, can fairly claim to be Hayekian. Hayekian behavioral economics, I suggest, is an approach that (1) recognizes the importance and pervasiveness of individual errors, (2) emphasizes the epistemic limits of planners, (3) builds on individual choices rather than planner preferences, and (4) gives authority to choices made under epistemically favorable conditions, in which informational deficits and behavioral biases are least likely to be at work. The key step, of course, is (4). If it is properly elaborated, the resulting approach deserves respect, even if some of us, including the present author, would not entirely embrace it. In defending that proposition, the present essay responds to some critical remarks by Robert Sugden, including his resort to “explainawaytions” (Matthew Rabin’s term) for behavioral findings.
I. Glenn Cohen & Harry Graver, What Big Data in Health Care Can Teach Us About Predictive Policing, in Predictive Policing and Artificial Intelligence (John L.M. McDaniel & Ken G. Pease eds., 2021).
Categories:
Criminal Law & Procedure
,
Health Care
,
Technology & Law
Sub-Categories:
Criminal Justice & Law Enforcement
,
Health Law & Policy
,
Networked Society
,
Medical Technology
,
Information Privacy & Security
Type: Book
Abstract
We take two professions — police officers and doctors — and place their experiences with big data in dialogue. Policing and medicine, while naturally different in some obvious respects, actually both need to grapple with a lot of the same moral, social, and legal questions that come with adopting big data programs. This because, as we discuss below, both professions generally possess a monopoly over an acute societal vulnerability, be it safety or health, and have accordingly developed a set of settled internal norms to shape individual discretion in service of each respective function. We place the professions side-by-side and try to distill certain insights from the perspective of three key stakeholders — practitioners, policymakers, and the polity.
Allison K. Hoffman, Howell E. Jackson & Amy Monahan, A Public Option for Employer Health Plans (Univ. Pa. Carey L. Sch. Pub. L. & Legal Res. Paper Series, Paper No. 21-12, 2021).
Categories:
Health Care
,
Labor & Employment
Sub-Categories:
Health Law & Policy
,
Employee Benefits
,
Insurance Benefits
Type: Other
Abstract
Following the 2020 presidential election, health care reform discussions have centered on two competing proposals: Medicare for All and an individual public option (“Medicare for all who want it”). Interestingly, these two proposals take starkly different approaches to employer-provided health coverage, long the bedrock of the U.S. health care system and the stumbling block to many prior reform efforts. Medicare for All abolishes employer-provided coverage, while an individual public option leaves it untouched. This Article proposes a novel solution that finds a middle ground between these two extremes: an employer public option. In contrast to the more familiar public option proposal, which would offer government sponsored health insurance directly to individuals, our plan creates a public option for employers, who can select a public plan—based on Medicare and altered to meet the needs of working populations—instead of a private health plan for their employees. Employer-based private health coverage is in decline and increasingly leaves workers vulnerable. Our proposal offers a gradual way to loosen reliance on this system. We review the policy, regulatory, fiscal, and business arguments in favor of this form of public option, which we argue is less disruptive than Medicare for All but more impactful than an individual public option. Because employer take up would be gradual and voluntary, our plan has lower fiscal costs and should face less resistance from employees and vested interests than Medicare for All. Over time, if the plan meets employers’ and employees’ needs, more people would be covered by a public option, moving away from over-reliance on private employer plans and toward something akin to Medicare-for-Many in a less politically, legally, and fiscally fraught way.
Howell E. Jackson, A System of Fiduciary Protections for Mutual Funds, in Fiduciary Obligations in Business (Arthur Laby & Jacob H. Russell eds., forthcoming 2021).
Categories:
Banking & Finance
,
Corporate Law & Securities
,
Consumer Finance
Sub-Categories:
Investment Products
,
Fiduciary Law
,
Consumer Protection Law
,
Fiduciaries
,
Securities Law & Regulation
,
Shareholders
,
Corporate Governance
Type: Book
Abstract
The regulation of mutual funds in the United States arguably contains the world’s most extensive system of fiduciary protection, buttressed by elaborate liability rules and a host of procedural protections and mandatory disclosure requirements designed to facilitate investor protection and choice. The intensity of this regulatory structure is a subject of perennial debate, as public officials and policy analysts attempt to balance the cost of compliance and oversight against benefits to investors. Over time, government officials have made numerous supervisory accommodations to ameliorate the system’s costs and facilitate industry innovations. But, the burdens of this enhanced system of fiduciary protections for mutual funds remain significant and have encouraged industry participants to evade these legal requirements in a number of ways, such as the creation of alternative vehicles for collective investments (including insurance products and managed accounts of various sorts) and the imbedding of regulated mutual funds into other legal structures that escape the full application of the enhanced systemic of fiduciary protections for mutual funds. Technological innovations, such as robo-advising, are likely to accelerate this trend. In this chapter, I explore this important illustration of regulatory arbitrage and suggest areas where aspects of mutual fund regulation might appropriately be extended to functionally similar investment vehicles.
Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising, 106 Iowa L. Rev. (forthcoming 2021).
Categories:
Corporate Law & Securities
,
Consumer Finance
,
Government & Politics
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Antitrust & Competition Law
,
Administrative Law & Agencies
,
Food & Drug Law
Type: Article
Abstract
Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction is not unknown to the law, of course. This contradiction, though, is acute. For not only are both regimes at issue designed to protect competition, but they are both enforced by the same agency: the Federal Trade Commission, which targets “unfair competition” through antitrust and consumer protection enforcement. Courts’ treatment of false advertising in antitrust cases makes no sense. While courts have reasonably evidenced concern that not all false advertising violates antitrust law, the remedy is not to abandon the false advertising/antitrust interface. Instead, the solution is to focus on the actors most likely to harm the market: monopolists and attempted monopolists. This Essay proposes an antitrust framework for false advertising claims. It introduces a presumption that monopolists engaging in false advertising violate antitrust law and a rebuttal if the false advertising is ineffective. The framework also applies to attempted monopolization by incorporating factors such as falsity, materiality, and harm inherent in false advertising law, along with competition-centered issues like targeting new market entrants. Antitrust has dismissed false advertising that entrenches monopoly power for too long. This Essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets. Such an approach promises benefits for false advertising law, antitrust law, and consumers.
Eli Y. Adashi & I. Glenn Cohen, CRISPR Immunity: a Case Study for Justified Somatic Genetic Modification?, J. Med. Ethics, Online First (Mar. 3, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Abstract
The current SARS-CoV-2 pandemic has killed thousands across the world. SARS-CoV-2 is the latest but surely not the last such global pandemic we will face. The biomedical response to such pandemics includes treatment, vaccination, and so on. In this paper, though, we argue that it is time to consider an additional strategy: the somatic (non-heritable) enhancement of human immunity. We argue for this approach and consider bioethics objections we believe can be overcome.
Cannons and Codes: Law, Literature, and America’s Wars (Alison LaCroix, Jonathan Masur, Martha Nussbaum & Laura Weinrib eds., Oxford U. Press, 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Humanities
Type: Book
Albert H. Choi & Kathryn E. Spier, Class Actions and Private Antitrust Litigation, Am. Econ. J.: Microeconomics (forthcoming 2021).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Class Action Litigation
,
Litigation & Settlement
,
Remedies
,
Law & Economics
Type: Article
Abstract
When firms collude and charge supracompetitive prices, consumers can bring antitrust lawsuits against the firms. When the litigation cost is low, firms accept the cost as just another cost of doing business, whereas when the cost is high, the firms lower the price to deter litigation. Class action is modeled as a mechanism that allows plaintiffs and attorneys to obtain economies of scale. We show that class actions, and the firms' incentive to block them, may or may not be socially desirable. Agency problems, settlement, fee-shifting, treble damages, public enforcement, and sustaining collusion through repeat play are also considered.
William T. Allen, Reinier Kraakman & Vikramaditya S. Khanna, Commentaries and Cases on the Law of Business Organization (Wolters Kluwer 6th ed. 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Business Organizations
,
Corporate Governance
,
Corporate Law
,
Mergers & Acquisitions
,
Securities Law & Regulation
,
Shareholders
Type: Book
Louis Kaplow, Competition Policy in a Simple General Equilibrium Model (NBER Working Paper No. W28482, 2021).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Law & Economics
Type: Other
Abstract
The flow of resources across sectors to their best use, with concomitant entry and exit, is central to the functioning and welfare properties of a market economy. Nevertheless, most industrial organization research, including applications to competition policy, undertakes partial equilibrium analysis in a single sector, often with a fixed number of firms. This article examines competition policy in a simple, multi-sector, general equilibrium model with free entry and exit. Even partial equilibrium analysis yields some lessons, such as that accounting for free entry often makes strengthening competition policy more rather than less attractive. When admitting flows between sectors, familiar prescriptions readily reverse. But such results may be partially offset or overturned yet again when incorporating free entry and exit in nontargeted sectors. Finally, the analysis of efficiencies also changes qualitatively with free entry because even fixed costs are fully borne by consumers in equilibrium.
Mark Tushnet & Beatriz Botero Arcila, Conceptualizing the Role of Courts in Peace Processes, Int'l J. Const. L. (2021).
Categories:
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Courts
,
International Law
,
Treaties & International Agreements
Type: Article
Abstract
What role do courts play in peace processes? Relying on case studies of South Africa and Colombia, we identify two functions. First, by invalidating some peripheral provisions constitutional courts can enhance the legitimacy of those agreements by adding the imprimatur of legalism to the political support the agreements already have. Second, the international law of impunity can be an obstacle to reaching a peace agreement, but domestic courts can weaken that impediment by deferring a confrontation with that law by creative interpretation of both the peace agreement and international law, thereby postponing to the indefinite future any actual confrontation between the agreement and international law.
Kate Andrias & Benjamin Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L.J. 546 (2021).
Categories:
Government & Politics
,
Labor & Employment
Sub-Categories:
Politics & Political Theory
,
Labor Law
Type: Article
J. Mark Ramseyer, Contracting for Sex in the Pacific War, 65 Int'l Rev. of L. & Econ. 105971 (2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Banking & Finance
Sub-Categories:
Contracts
,
Banking
,
Gender & Sexuality
,
East Asian Legal Studies
Type: Article
Abstract
The protracted political dispute between South Korea and Japan over the wartime brothels called "comfort stations" obscures the contractual dynamics involved. These dynamics reflected the straightforward logic of the "credible commitments" so basic to elementary game theory. The brothel owners and potential prostitutes faced a problem: the brothel needed credibly to commit to a contractual structure (i) generous enough to offset the dangers and reputational damage to the prostitute that the job entailed, while (ii) giving the prostitute an incentive to exert effort while working at a harsh job in an unobservable environment. Realizing that the brothel owners had an incentive to exaggerate their future earnings, the women demanded a large portion of their pay upfront. Realizing that they were headed to the war zone, they demanded a relatively short maximum term. And realizing that the women had an incentive to shirk, the brothel owners demanded a contractual structure that gave women incentives to work hard. To satisfy these superficially contradictory demands, the women and brothels concluded indenture contracts that coupled (i) a large advance with one- or two-year maximum terms, with (ii) an ability for the women to leave early if they generated sufficient revenue.
Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964 (2021).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Criminal Justice & Law Enforcement
,
Courts
,
State & Local Government
Type: Article
Randall Kennedy, Cynical Realism: Randall Kennedy on the Biases of the Supreme Court, London Rev. Books, Jan. 21, 2021.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Nicholas Stephanopoulos & Jowei Chen, Democracy’s Denominator, Calif. L. Rev. (forthcoming 2021).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Elections & Voting
,
Politics & Political Theory
Type: Article
Abstract
What would happen if states stopped equalizing districts’ total populations and started equalizing their citizen voting age populations (CVAPs) instead? This is not a fanciful question. Conservative activists have long clamored for states to change their unit of apportionment, and the Trump administration took many steps to facilitate this switch. Yet the question remains largely unanswered. In fact, no published work has yet addressed this issue, though it could be the most important development of the upcoming redistricting cycle. In this Article, we harness the power of randomized redistricting to investigate the representational effects of a different apportionment base. We create two sets of simulated maps—one equalizing districts’ total populations, the other equalizing their CVAPs—for ten states with particularly small CVAP shares. We find that minority representation would decline significantly if states were to equalize CVAP instead of total population. Across the ten states in our dataset, the proportion of minority opportunity districts would fall by a median of three percentage points (and by six or more percentage points in Arizona, Florida, New York, and Texas). On the other hand, the partisan impact of changing the unit of apportionment would be more muted. Overall, the share of Republican districts would rise by a median of just one percentage point. This conclusion holds, moreover, whether our algorithm emulates a nonpartisan mapmaker or a gerrymanderer and whether it considers one or many electoral environments. In most states—everywhere except Florida and Texas—switching the apportionment base simply does not cause major partisan repercussions.
Nicholas Stephanopoulos, Depoliticizing Redistricting (Harv. Pub. L. Working Paper No. 20-10, 2021).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Elections & Voting
,
Comparative Law
Type: Other
Abstract
This chapter sheds light on the operation of redistricting commissions around the world through the first ever survey of commission members. The respondents uniformly testify to the nonpartisanship of their bodies. They attribute this impartiality to (1) the institutional structure of the commissions; (2) the elaborate sets of redistricting criteria used by the commissions; and (3) the powerful norms of political independence cultivated by the commissions. Interestingly, the respondents reject the recent American trend of instructing redistricting authorities to consider election results and to overtly pursue partisan fairness. The respondents prefer not using election results at all in the mapmaking process.
Lucian A. Bebchuk, Don't Let the Short-Termism Bogeyman Scare You, Harv. Bus. Rev., Jan.-Feb. 2021, at 42.
Categories:
Corporate Law & Securities
Sub-Categories:
Shareholders
,
Corporate Governance
Type: Article
Abstract
The author, a professor at Harvard Law School, argues that concerns about the perils of short-termism—and support for measures that would insulate corporate leaders from the outside pressures that allegedly make them myopic—are long on alarming rhetoric and short on empirical evidence or economic logic. Furthermore, he writes, the threat of hedge fund activism should be expected to discourage managerial slack and underperformance, thus playing an important disciplinary role and incentivizing leaders to enhance shareholder value.
Louis Kaplow, Efficiencies in Merger Analysis (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1056, 2021).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Mergers & Acquisitions
,
Law & Economics
Type: Other
Abstract
The supposed ubiquity of potential efficiencies is understood to justify permitting most horizontal mergers despite their tendency to raise prices. Yet efficiencies are said to be rarely decisive in actual merger decision-making. Moreover, the economic analysis of merger efficiencies lags far behind that of anticompetitive effects. This article addresses this analytical gap, drawing attention to the merger specificity of both efficiencies and anticompetitive effects, the teachings of neglected literature such as that on the theory of the firm, and the relevance of vertical efficiencies to horizontal mergers. The analysis is applied to economies of scale, economies of scope, and the sharing of assets between competitors. In addition, a focus on the long-run effects of merger policy shifts the debate on consumer versus total welfare (and regarding pass-through), alters the relevance of entry, and draws attention to endogenous asymmetries across firms and differences in the degree of competition across sectors of the economy. Finally, efficiencies are situated in a merger assessment framework, emphasizing how basic prescriptions of decision analysis conflict with official protocols for merger decision-making.
Henry E. Smith, Equity as Meta-Law, 130 Yale L. J. 1050 (2021).
Categories:
Disciplinary Perspectives & Law
,
Civil Practice & Procedure
Sub-Categories:
Remedies
,
Legal Theory & Philosophy
Type: Article
Abstract
With the merger of law and equity almost complete, the idea of equity as a special part of our legal system or a mode of decision making has fallen out of view. This Article argues that much of equity is best understood as performing a vital function. Equity and related parts of the law solve complex and uncertain problems—including interdependent behavior and misuses of legal rules by opportunists—and do so in a characteristic fashion: as meta-law. From unconscionability to injunctions, equity makes reference to, supplements, and sometimes overrides the result that law would otherwise produce, while primary law operates without reference to equity. Equity operates on a domain of fraud, accident, and mistake, and employs triggers such as bad faith and disproportionate hardship to toggle into a “meta”-mode of more open-ended scrutiny. This Article provides a theoretical account of how a hybrid law, consisting of relatively simple and general primary-level law and relatively intense and directed second order equity can regulate behavior better through these specialized modes than would homogeneous law alone. The Article tests this theory on the ostensibly most unpromising aspects of equity, the traditional equitable maxims, as well as equitable fraud, defenses, and remedies. Equity as meta-law sheds light on how the fusion of law and equity spawned multifactor balancing tests, polarized interpretation, and led to the confusion of equity with standards, discretion, purely public law, and “mere” remedies. Viewing equity as meta-law also improves on the tradeoff between formalism and contextualism and ultimately promotes the rule of law.
Samantha Bates, John Bowers, Shane Greenstein, Jordi Weinstock, Yunhan Xu & Jonathan Zittrain, Evidence of Decreasing Internet Entropy: The Lack of Redundancy in DNS Resolution by Major Websites and Services, 1 J. of Quantitative Description 1 (2021).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Networked Society
,
Communications Law
Type: Article
Abstract
The Internet, and the Web built on top of it, were intended to support an “entropic” physical and logical network map (Zittrain, 2013). That is, they have been designed to allow servers to be spread anywhere in the world in an ad hoc and evolving fashion, rather than a centralized one. Arbitrary distance among, and number of, servers causes no particular architectural problems and indeed ensures that problems experienced by one data source remain unlinked to others. A Web page can be assembled from any number of upstream sources, through the use of various URLs, each pointing to a different location. To a user, the page looks unified. Over time, however, there are signs that the hosting and finding of Internet services has become more centralized. We explore and document one possible dimension of this centralization. We analyze the extent to which the Internet’s global domain name resolution (DNS) system has preserved its distributed resilience given the rise of cloud-based hosting and infrastructure. We offer evidence of the dramatic concentration of the DNS hosting market in the hands of a small number of cloud service providers over a period spanning from 2011-2018. In addition, we examine changes in domains’ tendency to “diversify” their pool of nameservers – how frequently domains employ DNS management services from multiple providers rather than just one provider. Throughout the paper, we use the catastrophic October 2016 attack on Dyn, a major DNS hosting provider, to illustrate the cybersecurity consequences of our analysis.
Cass R. Sunstein, Forward to The Behaviorally Informed Organization, at xi (Dilip Soman & Catherine Yeung eds., 2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Louis Kaplow, Horizontal Merger Analysis, Int'l J. Indus. Org. (forthcoming 2021).
Categories:
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Empirical Legal Studies
,
Law & Economics
Type: Article
Abstract
Economic analysis of competition regulation is most developed in the domain of horizontal mergers, and modern agency guidelines reflect a substantial consensus on the appropriate template for merger assessment. Nevertheless, official protocols are understood to rest on a problematic market definition exercise, to use HHIs and HHIs in ways that conflict with standard models, and more broadly to diverge with how economic analysis of proposed mergers should be and often is conducted. These gaps, unfortunately, are more consequential than is generally appreciated. Moreover, additional unrecognized errors and omissions are at least as important: analysis of efficiencies, which are thought to justify a permissive approach, fails to draw on the most relevant fields of economics; entry is often a misanalyzed afterthought; official information collection and decision protocols violate basic tenets of decision analysis; and single-sector, partial equilibrium analysis is employed despite the presence of substantial distortions (many due to imperfect competition) in many sectors of the economy. This article elaborates these deficiencies, offers preliminary analysis of how they can best be addressed, and identifies priorities for further research.
Richard J. Lazarus, How Advocacy History Matters in Discerning Supreme Court Intent and the Emerging Risk It Poses to Stare Decisis, 2020 Sup. Ct. Rev. (forthcoming 2021).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Article
Abstract
Legal scholarship has not previously considered the role of advocacy history in Supreme Court advocacy and decision making in any of its iterations. Though well know to expert Supreme Court advocates, hiding in the shadows has been how both Supreme Court advocates and the Justices themselves rely on the advocacy underlying the Court's precedent — both the written briefs and oral argument — in discerning both the meaning of the Court's prior rulings and its precedential weight. The most recently completed Supreme Court Term is emblematic of the relevance to both Supreme Court advocates and the Justices themselves of the advocacy underlying the Court’s prior rulings. It also highlights the role that advocacy history is increasingly playing in the Court's controversial debates concerning whether a prior case should be overruled. This Article seeks to fill that void in existing legal scholarship by bringing out of the shadows the role advocacy history plays at the Court.
Daphna Renan, In Memoriam: Justice Ruth Bader Ginsburg, 134 Harv. L. Rev. 899 (2021).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Cass R. Sunstein, Is Chevron Inconsistent with the APA? (Harvard Pub. L. Working Paper No. 21-08, 2021).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Statutory Interpretation
,
Courts
,
Judges & Jurisprudence
Type: Other
Abstract
Many people believe that the Chevron framework, calling for judicial deference to reasonable agency interpretations of ambiguous statutory provisions, is fatally inconsistent with section 706 of the Administrative Procedure Act. An investigation of the historical context shows that this belief is incorrect. There is no indication that the provision was generally understood, in the 1940s and 1950s, to require independent judicial judgments about questions of law.