Robert H. Sitkoff & John Morley, A Taxonomy of American Trust Law: Adaptation for Private Ordering, in The Oxford Handbook of the New Private Law (Andrew Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin & Henry E. Smith eds., Oxford Univ. Press forthcoming 2020).
Categories:
Property Law
Sub-Categories:
Trusts
Type: Book
Robert H. Sitkoff, Extrinsic Fiduciary Duties, in Fiduciaries and Trust: Ethics, Politics, Economics and Law (Paul B. Miller & Matthew Harding eds., Cambridge Univ. Press forthcoming 2020).
Categories:
Banking & Finance
Sub-Categories:
Fiduciary Law
Type: Book
Nicole Summers, The Limits of Good Law: A Study of Housing Court Outcomes, U. Chi. L. Rev. (forthcoming 2020).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Housing Law
Type: Article
Mark Tushnet, A Short History of European Law: The Last Two and a Half Millennia, 49 J. Interdisc. Hist. 492 (2019)(reviewing Benjamin Lieberman & Elizabeth Gordon, Climate Change in Human History (2018)).
Categories:
Environmental Law
,
International, Foreign & Comparative Law
,
Legal Profession
Sub-Categories:
Climate Change
,
European Law
,
Legal History
Type: Article
Abstract
In the late twentieth century constitution-designers came to understand that, in addition to the three classic Montesquiean functions of law-making, law-applying, and law-interpreting, constitutional institutions had to perform an additional function, that of protecting the constitution itself. That function is performed by constitutional courts, but also by agencies concerned with elections and with corruption. A case study of an important anti-corruption inquiry in South Africa illustrates the proposition that institutions protecting the constitution must combine independence from other political actors with some degree of accountability to them. Following the case study, the Article examines some general characteristics of these institutions, sketching some of the questions about independence and accountability that constitution-designers must consider. Among those questions are the possibility of too much independence, with the institutions having a greater impact on political outcomes than is appropriate, too much responsiveness to non-political but professional concerns such as legality and the details of accounting conventions, and of course too much accountability to the very political institutions that these agencies are designed to regulate. Throughout the Article emphasizes the role of conflicts of interest both in setting the agenda for these agencies and in posing the risk that the agencies will undermine rather than protect the constitution.
Lawrence Lessig, They Don't Represent Us: Reclaiming Our Democracy (2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
,
Government Accountability
Type: Book
Abstract
With insight and urgency, Harvard law professor and author of the bestselling Republic, Lost Lawrence Lessig argues both that our government does not represent us and that how we are represented doesn’t represent us—both flaws yield a democracy in crisis, and both demand reform that is both essential and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drives our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard Law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including especially our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way. A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Equity and Law: Fusion and Fission (John C.P. Goldberg, Henry E. Smith & Peter G. Turner eds., 2019).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
Remedies
,
Legal Theory & Philosophy
,
Comparative Law
,
Legal History
Type: Book
Abstract
The fusion of law and equity in common law systems was a crucial moment in the development of the modern law. Common law and equity were historically the two principal sources of rules and remedies in the judge-made law of England, and this bifurcated system travelled to other countries whose legal systems were derived from the English legal system. The division of law and equity – their fission – was a pivotal legal development and is a feature of most common law systems. The fusion of the common law and equity has brought about major structural, institutional and juridical changes within the common law tradition. In this volume, leading scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a 'post-fusion' world. Brings together comparative, doctrinal, historical and theoretical analyses of equity in a single volume, providing multiple perspectives on the issue. Analyses the fusion of law and equity in various jurisdictions, including Australia, Canada, England, Scotland, and the U.S. allowing readers to gain insights into their domestic legal systems by contrasting developments in others. Provides insights into the experiences of fusion, merger and fission of law and equity in different jurisdictions and discusses the misunderstandings about the modern relation of law to equity.
Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (forthcoming 2019).
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Criminal Prosecution
,
Ancient Law
,
Foreign Law
,
Legal History
Type: Book
Abstract
This book explores the role of mens rea, broadly defined, as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century – the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word “felony” itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, willed in a way not constrained by necessity, and evil or wicked in its essence. Examines what factors juries weighed in sorting the guilty from the innocent in the first two centuries of the criminal trial jury. Situates the medieval English law of felony in a broader cultural, social, and religious setting. Speaks to current controversies in the field of criminal law, such as the role of intentionality in determining the bounds of criminal responsibility.
Jack Goldsmith, In Hoffa's Shadow: A Stepfather, A Disappearance in Detroit, and my Search for the Truth (Farrar, Straus & Giroux, forthcoming Sept. 24, 2019).
Categories:
Criminal Law & Procedure
,
Labor & Employment
,
Legal Profession
Sub-Categories:
Organized Crime
,
Labor Law
,
Biography & Tribute
Type: Book
Abstract
As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration and questioning its misuse of surveillance and other powers, that he began to reconsider his stepfather, and to understand Hoffa’s true legacy. In Hoffa’s Shadow tells the moving story of how Goldsmith reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it. Along the way, Goldsmith explores Hoffa’s rise and fall and why the golden age of blue-collar America came to an end, while also casting new light on the century-old surveillance state, the architects of Hoffa’s disappearance, and the heartrending complexities of love and loyalty.
Martha Minow, When Should Law Forgive? (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Samantha Power, The Education of an Idealist: A Memoir (2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Human Rights Law
,
Biography & Tribute
Type: Book
Alan M. Dershowitz, Defending Israel: The Story of My Relationship with My Most Challenging Client (2019).
Categories:
Legal Profession
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Services
Type: Book
Jesse Choper, Richard Fallon, Jr., Yale Kamisar, Steven Shiffrin, Michael Dorf & Frederick Schauer, Leading Cases in Constitutional Law: A Compact Casebook for a Short Course (West Acad. Pub. 2019).
Categories:
Constitutional Law
,
Legal Profession
Sub-Categories:
Legal Education
Type: Book
Taiwan and International Human Rights (Jerome A. Cohen, William P. Alford & Chang-fa Lo eds., 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Human Rights Law
,
Treaties & International Agreements
Type: Book
Abstract
This book tells a story of Taiwan’s transformation from an authoritarian regime to a democratic system where human rights are protected as required by international human rights treaties. There were difficult times for human rights protection during the martial law era; however, there has also been remarkable transformation progress in human rights protection thereafter. The book reflects the transformation in Taiwan and elaborates whether or not it is facilitated or hampered by its Confucian tradition. There are a number of institutional arrangements, including the Constitutional Court, the Control Yuan, and the yet-to-be-created National Human Rights Commission, which could play or have already played certain key roles in human rights protections. Taiwan’s voluntarily acceptance of human rights treaties through its implementation legislation and through the Constitutional Court’s introduction of such treaties into its constitutional interpretation are also fully expounded in the book. Taiwan’s NGOs are very active and have played critical roles in enhancing human rights practices. In the areas of civil and political rights, difficult human rights issues concerning the death penalty remain unresolved. But regarding the rights and freedoms in the spheres of personal liberty, expression, privacy, and fair trial (including lay participation in criminal trials), there are in-depth discussions on the respective developments in Taiwan that readers will find interesting. In the areas of economic, social, and cultural rights, the focuses of the book are on the achievements as well as the problems in the realization of the rights to health, a clean environment, adequate housing, and food. The protections of vulnerable groups, including indigenous people, women, LGBT (lesbian, gay, bisexual, and transgender) individuals, the disabled, and foreigners in Taiwan, are also the areas where Taiwan has made recognizable achievements, but still encounters problems. The comprehensive coverage of this book should be able to give readers a well-rounded picture of Taiwan’s human rights performance. Readers will find appealing the story of the effort to achieve high standards of human rights protection in a jurisdiction barred from joining international human rights conventions.
Jeannie Suk Gersen, How Fetal Personhood Emerged as the Next Stage of the Abortion Wars, NewYorker.com (June 5, 2019).
Categories:
Health Care
,
Family Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Reproduction
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
Jacob Gersen & C. Scott Hemphill, Coca-Cola Bottle, in A History of Intellectual Property in 50 Objects 273 (Claudy Op den Kamp & Dan Hunter eds., forthcoming 2019).
Categories:
Property Law
,
Legal Profession
Sub-Categories:
Legal History
,
Intellectual Property - Patent & Trademark
Type: Book
Eli Y. Adashi, Arthur L. Caplan, Alexander Capron, Audrey R. Chapman, Mildred Cho, Ellen Wright Clayton, I. Glenn Cohen, Robert Cook-Deegan, Ruth R. Faden, Theodore Friedmann, Lawrence O. Gostin, Henry T. Greely, Josephine Johnston, Eric Juengst, Patricia A. King, Lori P. Knowles, Anne Drapkin Lyerly, Amy L. McGuire, Jonathan D. Moreno, Karen Rothenberg, Robert D. Truog & LeRoy Walters, In Support of Mitochondrial Replacement Therapy, 25 Nature Med. 870 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
Type: Article
Henry E. Smith, Restating the Architecture of Property, in 10 About Modern Studies in Property Law (Ben McFarlane & Sinéad Agnew eds., 2019).
Categories:
Property Law
Sub-Categories:
Personal Property
,
Real Estate
Type: Book
Abstract
Property law has proven difficult to restate, with none of the American Law Institute’s previous Restatements coming close to covering the full breadth of this area. In addition to trying to fill this gap, those working on the current Fourth Restatement aim to capture the architecture of property. In the terms of complex systems theory, a Restatement should reflect the arrangement and interactions, the groupings, and the coherence (sometimes) of property law, rather than treating it as a heap of full detachable rules and components. Conventional strong versions of the bundle of rights picture of property, reinforced by the nature of the Restatement process, make it difficult to address property as a complex system. Using examples of possession and the property torts, the paper shows how a Restatement can begin to incorporate property’s architecture and why it matters to the operation and the development of the law.
Renee N. Salas, Wendy Jacobs & Frederica Perera, The Case of Juliana v. U.S. — Children and the Health Burdens of Climate Change, 380 New Eng. J. Med. 2085 (2019).
Categories:
Health Care
,
Environmental Law
,
Constitutional Law
,
Family Law
Sub-Categories:
Climate Change
,
Children's Law & Welfare
,
Health Law & Policy
Type: Article
Cass R. Sunstein, Conformity: The Power of Social Influences (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
Type: Book
Abstract
We live in an era of tribalism, polarization, and intense social division—separating people along lines of religion, political conviction, race, ethnicity, and sometimes gender. How did this happen? In Conformity, Cass R. Sunstein argues that the key to making sense of living in this fractured world lies in understanding the idea of conformity—what it is and how it works—as well as the countervailing force of dissent. An understanding of conformity sheds new light on many issues confronting us today: the role of social media, the rise of fake news, the growth of authoritarianism, the success of Donald Trump, the functions of free speech, debates over immigration and the Supreme Court, and much more. Lacking information of our own and seeking the good opinion of others, we often follow the crowd, but Sunstein shows that when individuals suppress their own instincts about what is true and what is right, it can lead to significant social harm. While dissenters tend to be seen as selfish individualists, dissent is actually an important means of correcting the natural human tendency toward conformity and has enormous social benefits in reducing extremism, encouraging critical thinking, and protecting freedom itself. Sunstein concludes that while much of the time it is in the individual’s interest to follow the crowd, it is in the social interest for individuals to say and do what they think is best. A well-functioning democracy depends on it.
Dov Fox, Eli Y. Adashi & I. Glenn Cohen, A Troubling Court Decision for Reproductive Rights, JAMA (May 22, 2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
Type: Article
I. Glenn Cohen, Eli Y. Adashi & Vardit Ravitsky, How Bans on Germline Editing Deprive Patients with Mitochondrial Disease, 37 Nature Biotechnology 589 (2019).
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Eli Y. Adashi, Rohit S. Rajan & I. Glenn Cohen, When Science and Politics Collide: Enhancing the FDA, 364 Science 628 (2019).
Categories:
Government & Politics
,
Health Care
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Food & Drug Law
Type: Article
Cass R. Sunstein, Ruining Popcorn? The Welfare Effects of Information, J. Risk & Uncertainty (May 11, 2019).
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
,
Health Law & Policy
Type: Article
Abstract
Some information is beneficial; it makes people’s lives go better. Some information is harmful; it makes people’s lives go worse. Some information has no welfare effects at all; people neither gain nor lose from it. Under prevailing executive orders, federal agencies must investigate the welfare effects of information by reference to cost-benefit analysis. Federal agencies have (1) claimed that quantification of benefits is essentially impossible; (2) engaged in “breakeven analysis”; (3) projected various endpoints, such as health benefits or purely economic savings; and (4) relied on private willingness to pay for the relevant information. All of these approaches run into serious objections. With respect to (4), people may lack the information that would permit them to make good decisions about how much to pay for (more) information; they may not know the welfare effects of information. Their tastes and values may shift over time, in part as a result of information. These points suggest the need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information, and of the behavioral changes produced by information, on people’s experienced well-being.
Jeannie Suk Gersen, Robert Mueller’s and William Barr’s “Baby” and the History of Presidential Obstruction, NewYorker.com (May 5, 2019).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Congress & Legislation
,
Government Accountability
,
Politics & Political Theory
Type: Other
Eli Y. Adashi & I. Glenn Cohen, Germline Editing: Could Ban Encourage Medical Tourism?, 569 Nature, May 2019, at 40.
Categories:
Health Care
Sub-Categories:
Bioethics
,
Genetics & Reproduction
,
Health Law & Policy
Type: Article
Yun-chien Chang & Henry E. Smith, Convergence and Divergence in Systems of Property Law: Theoretical and Empirical Analyses, 92 S. Cal. L. Rev. (forthcoming May 2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Comparative Law
,
Property Rights
Type: Article
Abstract
This article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, the structure of property law among all jurisdictions in the world will converge, or is similar since some time in the distant past, as they all face the same, positive transaction costs in delineating property rights. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominium, tenancy in common, and limited property rights serve as prominent examples.
Yochai Benkler, Don’t Let Industry Write the Rules for AI, Nature (May 1, 2019).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
,
Networked Society
,
Science & Technology
,
Cyberlaw
Type: Other
Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution (2019).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Book
Abstract
The fundamental fact about our Constitution is that it is old -- the oldest written constitution in the world. The fundamental challenge for interpreters of the Constitution is how to read that old document over time. In Fidelity & Constraint, legal scholar Lawrence Lessig explains that one of the most basic approaches to interpreting the constitution is the process of translation. Indeed, some of the most significant shifts in constitutional doctrine are products of the evolution of the translation process over time. In every new era, judges understand their translations as instances of "interpretive fidelity," framed within each new temporal context. Yet, as Lessig also argues, there is a repeatedly occurring countermove that upends the process of translation. Throughout American history, there has been a second fidelity in addition to interpretive fidelity: what Lessig calls "fidelity to role." In each of the cycles of translation that he describes, the role of the judge -- the ultimate translator -- has evolved too. Old ways of interpreting the text now become illegitimate because they do not match up with the judge's perceived role. And when that conflict occurs, the practice of judges within our tradition has been to follow the guidance of a fidelity to role. Ultimately, Lessig not only shows us how important the concept of translation is to constitutional interpretation, but also exposes the institutional limits on this practice. The first work of both constitutional and foundational theory by one of America's leading legal minds, Fidelity & Constraint maps strategies that both help judges understand the fundamental conflict at the heart of interpretation whenever it arises and work around the limits it inevitably creates.
Cass R. Sunstein, Growing Outrage, 3 Behavioural Pub. Pol’y 1 (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Law & Behavioral Sciences
,
Law & Economics
,
Politics & Political Theory
Type: Article
Abstract
Why and when does outrage grow? This essay explores two potential answers. The first points to a revision or weakening of social norms, which leads people to express outrage that they had previously suppressed. The second points to a revision or weakening of social norms, which leads people to express outrage that they had not previously felt (and may or may not now feel). The intensity of outrage is often a product of what is most salient. It is also a product of “normalization”; people compare apparently outrageous behavior to behavior falling in the same category in which it is observed, and do not compare it to other cases, which leads to predictable incoherence in judgments. These points bear on the #MeToo movement of 2017 and 2018 and the rise and fall (and rise again, and fall again) of discrimination on the basis of sex and race (and also religion and ethnicity).
Jesse M. Fried, Powering Preemptive Rights with Presubscription Disclosure, in The Law and Finance of Related Party Transactions (Luca Enriques & Tobias H. Tröger eds., 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
Type: Book
Abstract
Preemptive rights can prevent cheap-issuance tunneling by a controller when outside investors know that the offered securities are cheap. But when outsiders cannot tell whether the securities are cheap or overpriced, preemptive rights fail to prevent such tunneling. Afraid of purchasing overpriced securities, outsiders may rationally refrain from purchasing (even when the securities are in fact cheap), and then suffer cheap-issuance losses. I put forward a mechanism to make preemptive rights more effective: requiring disclosure of a controller’s subscription commitment, before outside investors must finalize their own, so that outsiders can choose to mimic it.
Lucian Bebchuk & Scott Hirst, The Specter of the Giant Three, 99 B.U. L. Rev. 721 (2019).
Categories:
Banking & Finance
,
Corporate Law & Securities
Sub-Categories:
Investment Products
,
Economics
,
Corporate Governance
,
Shareholders
,
Securities Law & Regulation
Type: Article
Abstract
This Article examines the large, steady, and continuing growth of the Big Three index fund managers--BlackRock, Vanguard, and State Street Global Advisors. We show that there is a real prospect that index funds will continue to grow, and that voting in most significant public companies will come to be dominated by the future “Giant Three.” We begin by analyzing the drivers of the rise of the Big Three, including the structural factors that are leading to the heavy concentration of the index funds sector. We then provide empirical evidence about the past growth and current status of the Big Three, and their likely growth into the Giant Three. Among other things, we document that the Big Three have almost quadrupled their collective ownership stake in S&P 500 companies over the past two decades; that they have captured the overwhelming majority of the inflows into the asset management industry over the past decade, that each of them now manages 5% or more of the shares in a vast number of public companies; and that they collectively cast an average of about 25% of the votes at S&P 500 companies. We then extrapolate from past trends to estimate the future growth of the Big Three. We estimate that the Big Three could well cast as much as 40% of the votes in S&P 500 companies within two decades. Policymakers and others must recognize--and must take seriously--the prospect of a Giant Three scenario. The plausibility of this scenario exacerbates concerns about the problems with index fund incentives that we identify and document in other work.
David B. Wilkins & María J. Esteban Ferrer, Taking the 'Alternative' out of Alternative Legal Service Providers: Remapping the Corporate Legal Ecosystem in the Age of Integrated Solutions, in New Suits: Appetite for Disruption in the Legal World (Michele Destefano & Guenther Dobrauz-Saldapenna eds., 2019).
Categories:
Legal Profession
Sub-Categories:
Legal Services
,
Legal Education
Type: Book
Abstract
The word “alternative” is definitely trending in the legal zeitgeist. Beginning with the U.K. Legal Services Act and accelerating through the legal tech startup boom, discussion about the growing importance of Alternative Business Structures (ABS) and Alternative Legal Service Providers (ALSP) has become a cottage industry in the legal press, and increasingly in the legal academy as well. And yet, for all of the talk about the growing importance of these “alternatives,” the very discourse used to cast these new providers as the harbingers of impending dramatic changes in the market for legal services continues to marginalize and mask their true significance. In this Chapter, we argue that this characterization of the range of new providers competing for a share of the global corporate legal services market is fundamentally flawed. We do so by first reminding today’s lawyers and commentators that the large law firms and sophisticated in-house legal departments that we now consider to be the “traditional” standard against which all other legal service providers should be measured, were once considered radical “alternatives” posing a significant threat to the “core” values of lawyer professionalism. As market conditions changed, however, these marginalized forms of practice not only moved to the mainstream, but have become the very embodiment of professional excellence. Similarly, we argue, as corporate clients increasingly demand professional services that are “integrated,” “customized,” and “agile,” the parts of the market that are now considered “alternative” – e.g., technology, managed services, flexible staffing, and multidisciplinary practice – are also moving from the periphery to the core. At the same time, “traditional” law firms and in-house legal departments are under mounting pressure to demonstrate how the “core” services that they provide contribute to producing the kind of “integrated solutions” their clients need. We conclude by highlighting some of the challenges that this evolving “integrated solutions” model poses for other parts of the legal “ecosystem” such as legal education, legal regulation, and the rule of law, that either have not – or should not – change.
Transparency in Health and Health Care in the United States: Law and Ethics (Holly Fernandez Lynch, I. Glenn Cohen, Carmel Shachar & Barbara J. Evans eds., 2019).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
,
Bioethics
Type: Book
Abstract
Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry. Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Working at the intersection of law, medicine, ethics, and business, the book goes beyond the buzzwords to the heart of transparency's transformative potential, while interrogating its obstacles and downsides. It should be read by anyone looking for a better understanding of transparency in the health care context.
Gabriella Blum, The Paradox of Power: The Changing Norms of the Modern Battlefield, 56 Hous. L. Rev. 745 (2019).
Categories:
International, Foreign & Comparative Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
,
Politics & Political Theory
,
Laws of Armed Conflict
,
International Law
,
Treaties & International Agreements
,
Science & Technology
Type: Article
Abstract
We live in a paradox of power: our capabilities of inflicting destruction through military means are unparalleled in human history; yet, for liberal democracies, contemporary military practices are the most restrained they have ever been, at least as far as effects of military operations on civilians go. This Article describes the ways in which laws, norms, and technology have come together to produce the paradox of power. It begins with the observation that the international laws that govern resort to force by states (the jus ad bellum) have had only limited effect on states' initiation or continuation of war, including by liberal democracies. Yet, the international laws that govern the conduct of war (the jus in bello), in combination with prevailing norms and advanced technology, have had substantial effects on how liberal democracies fight their wars. The combination of ongoing, open-ended wars that are harder to fight while complying with contemporary norms of warfare produce a set of unique challenges for liberal democracies.
Urs Gasser & Carolyn Schmitt, The Role of Professional Norms in the Governance of Artificial Intelligence (April 25, 2019).
Categories:
Technology & Law
,
Legal Profession
Sub-Categories:
Legal Ethics
,
Cyberlaw
,
Networked Society
,
Information Privacy & Security
Type: Article
Abstract
The development, deployment, and use of artificial intelligence (AI) systems and AI-based technologies are governed by an increasingly complex set of legal, ethical, social, and other types of norms, which surface from various sources and contribute to what might be described as a patchwork of norms. Among this complicated landscape of modes of governance, this chapter zeroes in on the extent to which professional norms — and specifically norms in the development phase as expressed in formal documents such as code of ethics and ethical principles — may serve as a reservoir of norms and accountability mechanisms to include within the existing governance toolbox. It explores the interface between AI and “the profession,” with an emphasis on new institutional arrangements and sources of norms that arise within the profession, such as corporate principles and employee demands. This chapter discusses trends of this fluctuating ecosystem through a suggested analytical framework for thinking about these professional norms of AI development within the broader context of the AI lifecycle, and hypothesizing about the future possibilities of professional norms within discussions of AI governance. A shorter version of this paper is forthcoming in: Markus D. Dubber, Frank Pasquale, and Sunit Das (eds.), The Oxford Handbook of Ethics of AI, Oxford University Press.
Jeannie Suk Gersen, Donald Trump, the A.C.L.U., and the Ongoing Battle Over the Legitimacy of Free Speech, NewYorker.com, (Apr. 23, 2019, 12:43 PM).
Categories:
Constitutional Law
,
Government & Politics
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Civil Rights
,
Executive Office
,
Politics & Political Theory
Type: Other
Elizabeth Warren, Alexandria Ocasio-Cortez, Time.com (Apr. 17, 2019) (Time 100 Most Influential People 2019).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Politics & Political Theory
Type: Other
Cass R. Sunstein, Ismism, Or Has Liberalism Ruined Everything? (Apr. 15, 2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
Type: Other
Abstract
There has been considerable recent discussion of the social effects of “liberalism,” which are said to include (among other things) a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments.
Einer Elhauge, The Causal Mechanisms of Horizontal Shareholding (Apr. 29, 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Securities Law & Regulation
,
Shareholders
Type: Article
Abstract
Although empirical studies show that common shareholding affects corporate conduct and that common horizontal shareholding lessens competition, critics have argued that the law should not take any action until we have clearer proof on the causal mechanisms. I show that we actually have ample proof on causal mechanisms, but that antitrust enforcement should focus on anticompetitive market structures, rather than on causal mechanisms. I debunk claims that every type of causal mechanism that might produce anticompetitive effects is either empirically untested or implausible. I also show that critics are wrong in claiming that common shareholders lack incentives to influence corporations to increase portfolio value by lessening competition. Finally, I show that preventing anticompetitive horizontal shareholding need not restrict diversification or discourage desirable institutional investor influence on corporate conduct.
Mark Tushnet & Louis Michael Seidman, On Being Old Codgers: A Conversation about a Half Century in Legal Education (Apr. 12, 2019).
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Abstract
This conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions.
Jack Goldsmith, Review of Harold Hongju Koh, The Trump Administration and International Law, 113 Am. J. Int’l L. 408 (2019).
Categories:
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
International Law
Type: Article
Abstract
This essay reviews Harold Hongju Koh, The Trump Administration and International Law (2018). Its main conclusion is that Koh overstates the influence of transnational legal process in checking President Donald Trump's impact the U.S. stance toward international law and institutions.
Ruth L. Okediji, The Limits of International Copyright Exceptions for Developing Countries, 21 Vand. J. Ent. & Tech. L. 689 (2019).
Categories:
International, Foreign & Comparative Law
,
Property Law
Sub-Categories:
Developing & Emerging Nations
,
Intellectual Property - Copyright
Type: Article
Abstract
Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law’s objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These outcomes indicate that the current configuration of limitations and exceptions (L&Es) in international copyright law has not advanced the human welfare goals that animate its leading justifications in developing countries. This Article considers the design of the international copyright system in light of what economists have learned about the conditions necessary for economic development and examines what changes to international copyright L&Es those insights demand. It concludes that a more realistic dialogue about the relationship between copyright and economic development compels new types of L&Es, thus underscoring where developing and least-developed countries should sensibly invest their limited economic and political capital when engaging with the international copyright framework.
Cass R. Sunstein, Wading Through the Sludge, N.Y. Rev. Books, Apr. 4, 2019, at 34 (reviewing Pamela Herd & Donald P. Moynihan, Administrative Burden: Policymaking By Other Means (2019)).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Administrative Law & Agencies
Type: Article
Alex Whiting, Book Review, 113 Am. J. Int’l L. 419 (2019)(reviewing 1,2 The Crime of Aggression: A Commentary (Claus Kress & Stefan Barriga eds., 2016)).
Categories:
International, Foreign & Comparative Law
,
Criminal Law & Procedure
Sub-Categories:
Criminal Prosecution
,
International Law
,
Laws of Armed Conflict
Type: Article
Shaun A. Goho, Marcello Saenz & Tom Neltner, Rates Could Fund Lead Pipe Replacement in Critical States: Laws in States with the Most Lead Service Lines Support the Practice (Emmett Envtl. L. & Pol’y Clinic, Apr. 2019).
Categories:
Environmental Law
,
Government & Politics
,
Health Care
Sub-Categories:
Energy & Utilities Law
,
Water Law
,
State & Local Government
,
Health Law & Policy
Type: Other
Abstract
We reviewed state laws and policies in 13 states with the most lead service lines (LSLs), and found no explicit barriers to using rate funds to replace the lines on private property. These states have an estimated 4.2 million LSLs, more than two-thirds of the nation’s total. In these states, publicly-owned utilities can act pursuant to existing state legislation by determining that the practice serves a public purpose—protecting public health. Investor-owned utilities can do the same, but typically need approval of the state’s utility commission. While we have not reviewed the remaining states, we anticipate that the state laws and policies are similar to the ones we evaluated.
Mark Tushnet, Varieties of Populism, 20 German L.J. 382 (2019).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Politics & Political Theory
,
Judges & Jurisprudence
,
Comparative Law
Type: Article
Abstract
Contemporary discussions of populism elide important distinctions between the ways in which populist leaders and movements respond to the failures of elites to follow through on the promises associated with international social welfare constitutionalism. After laying out the political economy of populisms’ origins, this Article describes the relation between populisms and varieties of liberalism, and specifically the relation between populisms and judicial independence understood as a “veto point” occupied by the elites that populists challenge. It then distinguishes left-wing populisms’ acceptance of the social welfare commitments of late twentieth century liberalism and its rejection of some settled constitutional arrangements that, in populists’ views, obstruct the accomplishment of those commitments. It concludes with a description of the core ethnonationalism of right-wing populism, which sometimes contingently appears in left-wing populisms but is not one the latter’s core components.
Cass R. Sunstein, Which Radicals?, 117 Mich. L. Rev. 1215 (2019)(reviewing Jeremy McCarter, Young Radicals: In the War for American Ideals (2017)).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
William W. Fisher, Why Is Traditional Knowledge Different from All Other Intellectual Property?, 58 Washburn L.J. 365 (2019).
Categories:
Property Law
,
International, Foreign & Comparative Law
Sub-Categories:
Developing & Emerging Nations
,
Comparative Law
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Emily J. Blanchard & Mark Wu, Externalities and Agricultural Import Bans: Evaluating Regionalization Measures in Light of the Russia – Pigs Dispute (Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2018/60, Dec. 14, 2018, World Trade Rev., Mar. 29, 2019).
Categories:
International, Foreign & Comparative Law
,
Environmental Law
,
Civil Practice & Procedure
Sub-Categories:
Dispute Resolution
,
Agriculture Law
,
Trade Regulation
,
International Trade
Type: Article
Abstract
Article 6 of the SPS Agreement presents a series of interlinked obligations for importing and exporting countries of diseased agricultural products. The Russia – Pigs dispute raises the question of when an importing country is justified in imposing a ban on products from exporting countries unaffected by the disease, on the basis of the fact that the country is part of the same customs union as another country inflicted with the disease. This Article contends that four distinct classes of cross-border and cross-product externalities ought to play in an important role when assessing this question in the future. It discusses the possible roles to be played by bilateral, sequential, pass-through, and supply chain externalities in propagating the transmission of agricultural disease across borders through trade.
Governance Feminism: Notes from the Field (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
LGBTQ Rights Law
,
Gender & Sexuality
,
Feminist Legal Theory
,
Law & Political Theory
,
Courts
,
Politics & Political Theory
,
Comparative Law
,
International Law
,
Foreign Relations
Type: Book
Abstract
Governance Feminism: Notes from the Field brings together nineteen chapters from leading feminist scholars and activists to critically describe and assess contemporary feminist engagements with state and state-like power. Gathering examples from North America, South America, Europe, Asia, and the Middle East, it complements and expands on the companion volume Governance Feminism: An Introduction. Its chapters argue that governance feminism (GF) is institutionally diverse and globally distributed—emerging from traditional sites of state power as well as from various forms of governance and operating at the grassroots level, in the private sector, in civil society, and in international relations. The book begins by confronting the key role that crime and punishment play in GFeminist projects. Here, contributors explore the ideological and political conditions under which this branch of GF became so robust and rethink the carceral turn. Other chapters speak to another face of GFeminism: feminists finding, in mundane and seemingly unspectacular bureaucratic tools, leverage to bring about change in policy and governance practices. Several contributions highlight the political, strategic, and ethical challenges that feminists and LGBT activists must negotiate to play on the governmental field. The book concludes with a focus on feminist interventions in postcolonial legal and political orders, looking at new policy spaces opened up by conflict, postconflict, and occupation. Providing a clear, cross-cutting, critical lens through which to map developments in feminist governance around the world, Governance Feminism: Notes from the Field makes sense of the costs and benefits of current feminist realities to reimagine feminist futures. Contributors: Libby Adler, Northeastern U; Aziza Ahmed, Northeastern U; Elizabeth Bernstein, Barnard College; Amy J. Cohen, Ohio State U; Karen Engle, U of Texas at Austin; Jacob Gersen, Harvard U; Leigh Goodmark, U of Maryland; Aeyal Gross, Tel Aviv U; Aya Gruber, U of Colorado, Boulder; Janet Halley, Harvard U; Rema Hammami, Birzeit U, Palestine; Vanja Hamzić, U of London; Isabel Cristina Jaramillo-Sierra; Prabha Kotiswaran, King’s College London; Maleiha Malik, King’s College London; Vasuki Nesiah, New York U; Dianne Otto, Melbourne Law School; Helen Reece; Darren Rosenblum, Pace U; Jeannie Suk Gersen, Harvard U; Mariana Valverde, U of Toronto.
Jacob Gersen & Jeannie Suk Gersen, Governing Sex through Bureaucracy, in Governance Feminism: Notes from the Field 159 (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Book
Libby Adler & Janet Halley, “You Play, You Pay”: Feminists and Child Support Enforcement in the United States, in Governance Feminism: Notes From the Field 287 (Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir eds., 2019).
Categories:
Family Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Children's Law & Welfare
,
Domestic Relations
Type: Book
Samuel G. Finlayson, John D. Bowers, Joichi Ito, Jonathan L. Zittrain, Andrew L. Beam & Isaac S. Kohane, Adversarial Attacks on Medical Machine Learning, 363 Science 1287 (2019).
Categories:
Technology & Law
,
Health Care
Sub-Categories:
Health Law & Policy
,
Medical Technology
,
Science & Technology
,
Information Privacy & Security
Type: Article
Abstract
With public and academic attention increasingly focused on the new role of machine learning in the health information economy, an unusual and no-longer-esoteric category of vulnerabilities in machine-learning systems could prove important. These vulnerabilities allow a small, carefully designed change in how inputs are presented to a system to completely alter its output, causing it to confidently arrive at manifestly wrong conclusions. These advanced techniques to subvert otherwise-reliable machine-learning systems—so-called adversarial attacks—have, to date, been of interest primarily to computer science researchers (1). However, the landscape of often-competing interests within health care, and billions of dollars at stake in systems' outputs, implies considerable problems. We outline motivations that various players in the health care system may have to use adversarial attacks and begin a discussion of what to do about them. Far from discouraging continued innovation with medical machine learning, we call for active engagement of medical, technical, legal, and ethical experts in pursuit of efficient, broadly available, and effective health care that machine learning will enable.
Alan M. Dershowitz, I Want to be Investigated by the FBI, Wall St. J., Mar. 22, 2019, at A15.
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Evidence
,
Criminal Defense
Type: News
Roberto Mangabeira Unger, The Knowledge Economy (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Adam Smith and Karl Marx recognized that the best way to understand the economy is to study the most advanced practice of production. Today that practice is no longer conventional manufacturing: it is the radically innovative vanguard known as the knowledge economy. In every part of the production system it remains a fringe excluding the vast majority of workers and businesses. This book explores the hidden nature of the knowledge economy and its possible futures. The confinement of the knowledge economy to these insular vanguards has become a driver of economic stagnation and inequality throughout the world. Traditional mass production has stopped working as a shortcut to economic growth. But the alternative—a deepened and socially inclusive form of the knowledge economy—continues to lie beyond reach in even the richest countries. The shape of contemporary politics on both the left and the right reflects a failure to come to terms with this dilemma and to overcome it. Unger explains the knowledge economy in the truncated and confined form that it has today and proposes the way to a knowledge economy for the many: changes not just in economic institutions but also in education, culture, and politics. Just as Smith and Marx did in their time, he uses an understanding of the most advanced practice of production to rethink both economics and the economy as a whole.
Alma Cohen, Moshe Hazan, Roberto Tallarita & David Weiss, The Politics of CEOs (Mar. 19, 2019).
Categories:
Corporate Law & Securities
,
Government & Politics
Sub-Categories:
Corporate Governance
,
Business Organizations
,
Politics & Political Theory
,
Supreme Court of the United States
Type: Article
Abstract
CEOs of public companies have influence over the political spending of their firms, which has been attracting significant attention since the Supreme Court decision in Citizens United. Furthermore, the policy views expressed by CEOs receive substantial consideration from policymakers and the public. Therefore, we argue, the political preferences of CEOs are important for a full understanding of U.S. policy making and politics. To contribute to this understanding, we provide novel empirical evidence on the partisan leanings of public-company CEOs. We use Federal Election Commission (FEC) records to compile a comprehensive database of the political contributions made by more than 3,500 individuals who served as CEOs of S&P 1500 companies between 2000 and 2017. We find that these political contributions display substantial partisan preferences in support of Republican candidates. We identify how this pattern is related to the company’s industry, geographical region, and CEO gender. To highlight the significance of CEOs’ partisan preferences, we show that public companies led by Republican CEOs tend to be less transparent to investors with respect to their political spending. Finally, we conclude by discussing the important policy implications of our analysis.
Jeannie Suk Gersen, Unpopular Speech in a Cold Climate, NewYorker.com (Mar. 14, 2019).
Categories:
Legal Profession
,
Constitutional Law
Sub-Categories:
First Amendment
,
Legal Services
,
Professional Responsibility
Type: Other
J. Mark Ramseyer, Comfort Women and the Professors (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 995, Mar. 13, 2019).
Categories:
Legal Profession
,
International, Foreign & Comparative Law
Sub-Categories:
East Asian Legal Studies
,
Legal Scholarship
,
Legal History
Type: Article
Abstract
We in the West have embraced an odd "narrative." The Japanese army of the 1930s and 1940s, we write, forcibly drafted 200,000 mostly Korean teenage girls into "rape camps" called "comfort stations." Should anyone question the story, we summarily consign the person to "denier" status. This makes for a strange phenomenon. Only a few of the comfort women claim to have been forcibly recruited, and several of them had told a different story before the reparations campaign against Japan began. A strongly leftist affiliate runs their nursing home, controls whom they can see, and vilifies any woman who might say anything else. In fact, no one has ever located any documentary evidence that the Japanese military forcibly recruited any Korean woman into a comfort station. And when Korean academics question the orthodox account, their own government sometimes prosecutes them for criminal defamation -- indeed, sent one heterodox professor last fall to six months in prison.
David E. McCraw, Truth in Our Times: Inside the Fight to Save Press Freedom in the Age of Alternative Facts (2019).
Categories:
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Communications Law
,
Networked Society
Type: Book
Randall Kennedy, Derrick Bell and Me (Mar. 8, 2019).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
,
Civil Rights
,
Critical Legal Studies
,
Biography & Tribute
,
Legal Education
,
Legal Reform
,
Legal Scholarship
Type: Other
Abstract
This paper describes Professor Derrick Bell’s life in the law, assesses his writings, appraises his struggles at Harvard Law School, and recounts his relationship with a colleague, Randall Kennedy, for whom he was a mentor, friend, and adversary.
Louis Kaplow, Market Power and Income Taxation (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 994, NBER Working Paper No. w25578, Mar. 6, 2019).
Categories:
Taxation
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Economics
,
Antitrust & Competition Law
,
Law & Economics
,
Tax Policy
,
Taxation - Personal Income
Type: Other
Abstract
Does significant market power or the presence of large rents affect optimal income taxation, calling for greater redistribution due to tainted gains? Or perhaps less because of an additional wedge that distorts labor effort? Do concerns about inequality have implications for antitrust, regulation, trade, and other policies that influence market power, which contributes to inequality? This article addresses these questions in a model with heterogeneous abilities and hence a concern for distribution, markups, multiple sectors, ownership that is a function of income, allowance for any share of profits to be recoveries of investments (including rent-seeking efforts), endogenous labor supply, and a nonlinear income tax. In this model, proportional markups with no profit dissipation have no effect on the economy, and a policy that reduces a nonproportional markup raises (lowers) welfare when it is higher (lower) than a weighted average of other markups. With proportional (partial or full) profit dissipation, proportional markups are equivalent to a downward shift of the distribution of abilities, and the welfare effect of correcting nonproportional markups associated with nonproportional profit dissipation now depends also on the degree of dissipation and how that is affected by the policy. In all cases, optimal policies maximize consumer plus producer surplus, without regard to a policy’s distributive effects on consumers and profits or how markups and income taxation distort labor effort.
Mihir Desai, How Finance Works: The HBR Guide to Thinking Smart About the Numbers (2019).
Categories:
Banking & Finance
Sub-Categories:
Financial Markets & Institutions
,
Finance
,
Investment Products
Type: Book
Abstract
Based on a popular class taught by a Harvard Business School professor. If you're not a numbers person, then balance sheets and financial jargon can be intimidating and easy to ignore. But if you want to advance in your career, it's crucial that you are able to make smart financial decisions and develop the confidence to clearly communicate those decisions to others. In How Finance Works, Mihir Desai--a professor at Harvard Business School and author of the widely praised book The Wisdom of Finance--guides you into the complex but endlessly fascinating world of finance and demystifies it in the process. Through entertaining stories, interactive exercises, full-color visuals, and a conversational style that belies the topic, Desai tackles a broad range of subjects that will give you the skills and knowledge you need to finally understand how finance works. These include: The ins and outs of balance sheets, and how different financial levers can affect a company's performance How companies fund their operations and investments in different ways Why finance is concerned with cash flow versus profits How value is created, measured, and maximized The importance of capital markets in helping companies grow Whether you're a student or manager, an aspiring CFO or entrepreneur, How Finance Works is the colorful and interactive guide you need to help you start thinking more deeply about the numbers.
Oren Bar-Gill, Algorithmic Price Discrimination: When Demand Is a Function of Both Preferences and (Mis)Perceptions, 86 U. Chi. L. Rev. 217 (2019).
Categories:
Consumer Finance
,
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Consumer Protection Law
,
Law & Behavioral Sciences
,
Law & Economics
,
Networked Society
Type: Article
Abstract
Sellers are increasingly utilizing big data and sophisticated algorithms to price discriminate among customers. Indeed, we are approaching a world, where each consumer will be charged a personalized price for a personalized product or service. Is this type of price discrimination good or bad? The normative assessment, I argue, depends on the target of discrimination. Sellers are interested in the consumer's willingness-to-pay (WTP) for their goods or services: They maximize profits by charging a price that is as close as possible to the consumer’s WTP. This WTP is a function of consumer preferences on the one hand and consumer (mis)perceptions on the other hand. When algorithmic price discrimination targets preferences, it harms consumers but increases efficiency. When price discrimination targets misperceptions, specifically demand-inflating misperceptions, it hurts consumers even more and might also reduce efficiency. In such cases, legal intervention may be needed. In particular, when sellers use personalized pricing, regulators should fight fire with fire and seriously explore the potential of personalized law.
Wendy B. Jacobs & Michael Craig, Carbon Capture and Sequestration, in Legal Pathways to Deep Decarbonization in the United States 713 (Michael B. Gerrard and John C. Dernbach eds., 2019).
Categories:
Environmental Law
Sub-Categories:
Climate Change
,
Natural Resources Law
,
Energy & Utilities Law
Type: Book
Abstract
This chapter addresses the use of carbon capture and sequestration (CCS) to achieve significant reductions in emissions of carbon dioxide to the atmosphere by 2050. Regardless of one’s views about the cause, pace, or even existence of climate change, the time is ripe to drive CCS forward. National and state investment in and support of CCS are completely consistent with the Trump Administration’s goals to (1) invest in infrastructure projects; (2) continue U.S. reliance on fossil fuels; (3) create jobs; and (4) make America great. CCS can help achieve these goals and more. This chapter provides an overview and explains why, despite much study and decades of use of the technology, its widespread adoption in the United States has not yet occurred. The chapter also describes the potential of CCS for achieving deep decarbonization of the U.S. power sector and explains the key components of CCS. The chapter identifies and recommends federal and state legal reforms necessary to drive CCS forward.
Richard Lazarus, Climate Litigation Has at Least for Now Dodged a Possibly Fatal Blow, Envtl. F., Mar.-Apr. 2019, at 13.
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Supreme Court of the United States
Type: Article
Natalie Salmanowitz & Holger Spamann, Does the Supreme Court Really Not Apply Chevron When It Should?, 57 Int'l Rev. L. & Econ. 81 (2019).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Statutory Interpretation
Type: Article
Abstract
William Eskridge and Lauren Baer’s (96 GEO. L. J. 1083 (2008)) “empirical study of all 1014 Supreme Court cases between Chevron and Hamdan in which an agency interpretation of a statute was at issue” finds that “the Court does not apply the Chevron framework in nearly three-quarters of the cases where it would appear applicable.” Our reexamination of this study finds that the fraction of such cases is far lower, and indeed closer to zero. Our main methodological innovation is to infer Chevron applicability from Supreme Court litigants’ briefs rather than our own evaluation of the cases’ facts, as in Eskridge and Baer’s study. In over half the cases flagged by Eskridge and Baer, neither of the parties (nor, where applicable, the Solicitor General as amicus) cited Chevron, and in almost half of the cases within that subset, no one argued for or against deference of any kind. In most of a sample of the remaining cases, the Supreme Court either did not need to reach the Chevron issue, or actually applied it, at least in an abbreviated form.
I. Glenn Cohen, On Repugnance, Distribution, and the Global Kidney Exchange: Comment, 175 J. Inst. & Theoretical Econ. 20 (2019).
Categories:
Health Care
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Bioethics
,
Health Law & Policy
Type: Article
Will Dobbie & Crystal Yang, Proposals for Improving the U.S. Pre-Trial System (The Hamilton Project Policy Proposal 2019-5, Mar. 2019).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
,
Law & Economics
Type: Other
Abstract
There are economically large costs of pretrial detention—and, by extension, the use of cash bail—due to the significant collateral consequences of having a criminal conviction on labor market outcomes as well as the direct costs of pretrial detention. In contrast, there are relatively small benefits to pretrial detention due to the relatively low costs of apprehending defendants who fail to appear in court. The existing evidence also suggests that the current pretrial system contribute to inequalities and inefficiencies in the criminal justice system.
Jesse Fried & Charles C.Y. Yang, Short-Termism and Capital Flows, 8 Rev. Corp. Fin. Stud. 207 (2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
Type: Article
Abstract
During the period 2005-2014, S&P 500 firms distributed to shareholders more than $3.95 trillion via stock buybacks and $2.45 trillion via dividends — $6.4 trillion in total. These shareholder payouts amounted to over 93% of the firms' net income. Academics, corporate lawyers, asset managers, and politicians point to such shareholder-payout figures as compelling evidence that “short-termism" and “quarterly capitalism" are impairing firms' ability to invest, innovate, and provide good wages. We explain why S&P 500 shareholder-payout figures provide a misleadingly incomplete picture of corporate capital flows and the financial capacity of U.S. public firms. Most importantly, they fail to account for offsetting equity issuances by firms. We show that, taking into account issuances, net shareholder payouts by all U.S. public firms during the period 2005-2014 were in fact only about $2.50 trillion, or 33% of their net income. Moreover, much of these net shareholder payouts were offset by net debt issuances, and thus effectively recapitalizations rather than firm-shrinking distributions. After excluding marginal debt capital inflows, net shareholder payouts by public firms during the period 2005-2014 were only about 22% of their net income. In short, S&P 500 shareholder-payout figures are not indicative of actual capital flows in public firms, and thus cannot provide much basis for the claim that short-termism is starving public firms of needed capital. We also offer three other reasons why corporate capital flows are unlikely to pose a problem for the economy. A prior version of this paper was circulated under the title “Short-Termism and Shareholder Payouts: Getting Corporate Capital Flows Right."
Mark Tushnet, The Globalisation of Constitutional Law as a Weakly Neo-liberal Project, 8 Global Constitutionalism 29 (2019).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Comparative Law
,
International Law
Type: Article
Abstract
An international consensus on the content of domestic constitutional law has structural ‘rights’-related components. The former requires roughly democratic systems for choosing representatives/executives. The consensus favours some forms of judicialised constitutional review, though the precise form is open to choice. The rights component includes a standard list of ‘core’ civil rights, including in this category equality along a number of dimensions – though not class or income. The rights-component is fundamentally neo-liberal. This is clearest in connection with ‘second generation’ social and economic rights, which – the consensus holds – can be recognised in a constitution but should not be vigorously enforceable (in systems where there is judicial enforcement of constitutional rights). The rights of free expression and political association must be specified in ways that allow political challenges to be mounted against efforts – including legislative programmes of political parties that control governments – to resist the neo-liberal policy agenda. Departures from this consensus are described as departures, not from ‘neo-liberal’ or even ‘liberal’ constitutionalism, but as departures from constitutionalism as such. We could ‘thin down’ the idea of constitutionalism quite a bit without abandoning constitutionalism’s core commitment to avoiding arbitrary government action.
Nikolas Bowie, The Government Could Not Work Doctrine, 105 Va. L. Rev. 1 (2019).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
For over two thousand years, conscientious people from Plato to Gandhi have grappled with the dilemma of how to respond when a government orders you to do something you disagree with — say, pay a tax that will fund a war. Perhaps the most famous answer comes from the book of Matthew, when Jesus of Nazareth declared, "Render . . . unto Caesar the things that are Caesar's, and unto God the things that are God's." One way to interpret this declaration contends that you should always comply with fairly imposed civil obligations — at least until you can persuade others to accommodate your views. A second argues that if conscience so dictates, you should disobey the government and accept whatever punishment it doles in return. Recently, a group of constitutional lawyers have offered a third option: Sue the government. Adopting a libertarian interpretation of the First Amendment's protection of free speech and religious exercise, these lawyers argue that it is presumptively unconstitutional for the government ever to put one's moral obligations in conflict with one's civil obligations. As evidence, they draw on cases such as West Virginia v. Barnette, in which the Supreme Court struck down a regulation that compelled objecting school children to recite the pledge of allegiance. In the past few years these lawyers have asked the Court to extend Barnette's logic to petitioners who object to birth control, labor unions, vaccinations, same-sex marriage, and all kinds of politically charged topics. The Supreme Court has been sympathetic to these lawyers, in one case declaring that the First Amendment generally "prevent[s] the government from compelling individuals to express certain views or pay subsidies for speech to which they object." The Court has even acted on this declaration to invalidate laws that tax public-sector employees and donate the revenue to politically active labor unions. But this declaration is wrong. Treating compulsory laws as presumptively invalid not only contradicts historical practice, it's also at odds with the Court's precedent in nearly every other constitutional context. The First Amendment, along with the rest of the Constitution, was adopted to create a functional government out of the embers of a failing state. For any government to function — especially in a politically and religiously pluralistic society like the United States — it must be able to compel residents to do all sorts of things a minority might disagree with, from paying taxes and obeying generally applicable laws to accepting conditions on public benefits. Accordingly, the Supreme Court has rejected claims brought under every clause of the First Amendment (and many other articles of the Constitution) whenever it has realized that "government would not work" were it constitutionally prohibited from compelling citizens to do or pay for things they might not like. Even the author of Barnette recognized the danger of converting the First Amendment into a suicide pact. This Article molds these Supreme Court moments of clarity into a coherent doctrine, which I call the "government could not work" doctrine. Analyzing a wide variety of cases, I conclude that objectionable compulsion, in and of itself, should not make a law presumptively unconstitutional, triggering the so-called strict scrutiny that the Court currently applies when a person objects to subsidizing the political activity of a labor union. As the Court has declared throughout its history — with a brief exception between about 1940 and 1980 — applying such strict scrutiny every time a person challenges a compulsory law would "cripple" the government. In other words, the First Amendment doesn't render American citizens uniquely exempt from the universal dilemma of having to decide whether to abide by a disagreeable law. The authors of the First Amendment wanted a government that tolerated dissent, not a government that would be incapacitated by it.
Andrew Manuel Crespo, Probable Cause Pluralism, Yale L.J. (forthcoming 2019).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourth Amendment
,
Criminal Justice & Law Enforcement
,
Judges & Jurisprudence
Type: Article
Abstract
The constitutionality of a search or seizure typically depends upon the connection between the target of that search or seizure and some allegation of illegal behavior — a connection assessed by asking whether the search or seizure is supported by probable cause. And yet, central as probable cause is to the Fourth Amendment’s administration, no one seems to know what it means, or how it operates. Indeed, the Supreme Court has gone so far as to insist that it is “not possible” to define the term, holding instead that the probable cause inquiry entails no more than the application of “common-sense” to “the totality of the circumstances.” That doctrinal approach is routinely criticized as an “I know it when I see it” mode of jurisprudence that is ill equipped to safeguard civil liberties in the face of competing and weighty law enforcement demands. Viewed charitably, however the Supreme Court’s refusal to elaborate on the meaning of probable cause stems from an understandable desire for doctrinal flexibility in the face of widely varying law enforcement-civilian interactions. This tension between doctrinal flexibility and structure is the animating dilemma of probable-cause jurisprudence — a dilemma that this Article attempts to navigate, and ultimately to resolve. To do so, it urges a rejection of an often invoked (if not always followed) tenet of Supreme Court doctrine: probable cause unitarianism. That dominant idea, expressly endorsed in many of the Court’s leading precedents, holds that whatever probable cause means, it ought to entail the same basic analytic method, judged by the same substantive standard, from one case to another. On close inspection, however, the Supreme Court does not always practice what it preaches. Rather, beneath the surface of its probable cause canon there are seeds of an alternative — and superior — conception of probable cause, which this Article terms probable cause pluralism. On this view, “probable cause” is an open-textured and capacious idea that can comfortably encompass multiple distinct analytic frameworks and multiple different substantive standards, each of which can be tailored to the unique epistemological and normative challenges posed by different types of Fourth Amendment events. Probable cause, as the case may be, can be statistically driven or intuitively assessed; it can demand compelling evidence of illegal behavior or only an occasionally satisfied profile; it can presume the credibility of some types of witnesses, while treating others with deserved skepticism or disbelief. It can, in short, come to mean something, so long as it gives up on meaning any one thing in all cases. Because probable cause’s pluralism is both nascent and implicit, it is also undertheorized, having escaped sustained or comprehensive analysis by either the Court or its commentators. As a result, probable cause pluralism, in its current form, is at best a stunted and haphazard collection of disparate and disconnected ideas. This Article’s central contribution is to bring those ideas together, refining and synthesizing them into a comprehensive account of what a pluralist theory of probable cause could and should like in practice. Specifically, by organizing probable cause around three central analytic axes — which in turn ask how to assess evidentiary claims, how to assess proponents of such claims, and how to determine the certainty thresholds for those two assessments — the Article constructs a universally applicable framework for determining the constitutionality of any given search or seizure. With that framework in hand, scholars and jurists will be better equipped to reason through all the many and varied cases to come, and better able to assess all the many cases that have come before.
Hal S. Scott, The SEC's Misguided Attack on Shareholder Arbitration, Wall St. J., Feb. 22, 2019, at A17.
Categories:
Corporate Law & Securities
Sub-Categories:
Securities Law & Regulation
,
Shareholders
Type: News
T. Keith Fogg, The Tax Lawyer Streamlines Publication, 38 ABA Tax Times, Feb. 22, 2019, at 40.
Categories:
Legal Profession
,
Taxation
Sub-Categories:
Legal Scholarship
,
Legal Services
,
Taxation - State & Local
,
Taxation - Federal
Type: Article
Abstract
Fogg discusses the improvement The Tax Lawyer journal is doing. The Tax Lawyer is improving its publication process to ensure timely publication of all the important material on federal, state, and local taxation. Starting this year, the journal will include state and local tax (SALT) articles along with non-SALT articles in every issue.
Shalev Roisman, Presidential Factfinding, 72 Vand. L. Rev. 825 (2019).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Executive Office
,
Government Accountability
,
Congress & Legislation
,
Separation of Powers
,
Administrative Law & Agencies
Type: Article
Abstract
The modern President possesses enormous power. She can use force abroad without congressional authorization, impose economic sanctions on foreign powers, or enter into trade agreements with foreign states. She can do all this on her own, with little constraint. Or so it seems. In reality, these important powers, along with numerous more mundane ones, are all contingent on the President first making certain factual determinations. For example, to use force abroad, the President must first determine that the use of force is in the “national interest,” perhaps that it will preserve “regional stability” or protect American lives. To impose sanctions, she might have to determine that a country has used chemical weapons against its own people. To remover an officer with for-cause protection, she must find that there was “cause,” such as “inefficiency, neglect of duty, or malfeasance.” Given that the President can only invoke these powers — and many, many others — when certain facts exist, the process and standard of certainty the President uses to find such facts can have enormous consequences. The phenomenon of presidential factfinding is thus both commonplace and important. It is also almost entirely unstudied. This Article establishes the importance of presidential factfinding as a pervasive feature of presidential power spanning constitutional, statutory, and international law. The Article then examines the President’s existing obligations in conducting factfinding, arguing that the President has a constitutional duty to act, at the least, honestly and based on reasonable inquiry. Finally, it addresses how presidential factfinding ought to be structured and regulated internally within the executive branch, by Congress, and through judicial review.
Steven Shavell, The Mistaken Restriction of Strict Liability to Uncommon Activities, J. Legal Analysis (Feb. 8, 2019).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
,
Litigation & Settlement
Type: Article
Abstract
Courts generally insist that two criteria be met before imposing strict liability rather than basing liability on the negligence rule. The first--that the injurer’s activity must be dangerous--is sensible because strict liability possesses general advantages over the negligence rule in controlling risk. But the second--that the activity must be uncommon--is ill-advised because it exempts all common activities from strict liability no matter how dangerous they are. Thus, the harm generated by the large swath of common dangerous activities--from hunting, to construction, to the transmission of natural gas--is inadequately regulated by tort law. After developing this theme and criticizing ostensible justifications for the uncommon activity requirement, the article addresses the question of how it arose. The answer is that its legal pedigree is problematic: it appears to have been invented by the authors of the first Restatement of Torts. The conclusion is that the uncommon activity requirement for the imposition of strict liability should be eliminated.
Duncan Kennedy, A Political Economy of Contemporary Legality, in The Law of Political Economy: Transformations of the Function of Law (Poul Fritz Kjaer ed., forthcoming 2019).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Mind Sciences
,
Critical Legal Studies
,
Legal & Political Theory
,
Legal History
Type: Book
Abstract
The chapter starts with an observation: contemporary elite jurists pursue, vis-à-vis one another, a ‘hermeneutic of suspicion’, meaning that they work to uncover hidden ideological motives behind the ‘wrong’ legal arguments of their opponents, while affirming their own right answers allegedly innocent of ideology. The rise of the hermeneutic of suspicion is a striking manifestations of the contemporary transformation of the relationship between legal elites and political/economic elites. This transformation accompanies and corresponds to the progressive juridification, judicialization and finally constitionalization of the contemporary social order.
Eli Y. Adashi, I. Glenn Cohen, Jacob H. Hanna, Azim M. Surani & Katsuhiko Hayashi, Stem Cell-Derived Human Gametes: The Public Engagement Imperative, 25 Trends Molecular Med. 165 (2019).
Categories:
Health Care
Sub-Categories:
Genetics & Reproduction
,
Health Law & Policy
,
Bioethics
Type: Article
Abstract
The implications of scientific breakthroughs are rarely faced up to in advance of their realization. Stem cell-derived human gametes, a disruptive technology in waiting, are likely to recapitulate this historic pattern absent active intervention. Herein we call for the conduct of thoughtful ante hoc deliberations on the prospect of stem cell-derived human gametes with an eye toward minimizing potential untoward post hoc regulatory or statutory impositions.
Jon Kleinberg, Jens Ludwig, Sendhil Mullainathan & Cass Sunstein, Discrimination in the Age of Algorithms (Feb. 5, 2019).
Categories:
Technology & Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Law & Behavioral Sciences
,
Employment Discrimination
,
Networked Society
,
Science & Technology
Type: Other
Abstract
The law forbids discrimination. But the ambiguity of human decision-making often makes it extraordinarily hard for the legal system to know whether anyone has actually discriminated. To understand how algorithms affect discrimination, we must therefore also understand how they affect the problem of detecting discrimination. By one measure, algorithms are fundamentally opaque, not just cognitively but even mathematically. Yet for the task of proving discrimination, processes involving algorithms can provide crucial forms of transparency that are otherwise unavailable. These benefits do not happen automatically. But with appropriate requirements in place, the use of algorithms will make it possible to more easily examine and interrogate the entire decision process, thereby making it far easier to know whether discrimination has occurred. By forcing a new level of specificity, the use of algorithms also highlights, and makes transparent, central tradeoffs among competing values. Algorithms are not only a threat to be regulated; with the right safeguards in place, they have the potential to be a positive force for equity.
Cass R. Sunstein, On Freedom (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
In this pathbreaking book, New York Times bestselling author Cass Sunstein asks us to rethink freedom. He shows that freedom of choice isn’t nearly enough. To be free, we must also be able to navigate life. People often need something like a GPS device to help them get where they want to go—whether the issue involves health, money, jobs, children, or relationships. In both rich and poor countries, citizens often have no idea how to get to their desired destination. That is why they are unfree. People also face serious problems of self-control, as many of them make decisions today that can make their lives worse tomorrow. And in some cases, we would be just as happy with other choices, whether a different partner, career, or place to live—which raises the difficult question of which outcome best promotes our well-being. Accessible and lively, and drawing on perspectives from the humanities, religion, and the arts, as well as social science and the law, On Freedom explores a crucial dimension of the human condition that philosophers and economists have long missed—and shows what it would take to make freedom real.
Renee N. Salas, Francine Laden, Wendy B. Jacobs & Ashish K. Jha, The U.S. Environmental Protection Agency's Proposed Transparency Rule Threatens Health, 170 Annals Internal Med. 197 (2019).
Categories:
Environmental Law
,
Health Care
,
Government & Politics
,
Technology & Law
Sub-Categories:
Administrative Law & Agencies
,
Government Transparency
,
Health Law & Policy
,
Science & Technology
Type: Article
Albert H. Choi & Kathryn E. Spier, Class Actions and Private Antitrust Litigation (Va. L. & Econ. Res. Paper No. 2019-01, Feb. 4, 2019).
Categories:
Civil Practice & Procedure
,
Corporate Law & Securities
,
Disciplinary Perspectives & Law
Sub-Categories:
Antitrust & Competition Law
,
Class Action Litigation
,
Litigation & Settlement
,
Remedies
,
Law & Economics
Type: Article
Abstract
The paper analyzes the effect of private antitrust litigation on firms' ability to collude and charge supra-competitive market prices. When the cost of litigation is below a threshold, firms charge high market prices, accommodate lawsuits, and accept the litigation costs as just another cost of doing business. By contrast, when the cost of litigation is above the threshold, the firms charge lower market prices and deter litigation. We model the class action as a mechanism that allows plaintiffs to lower their litigation costs, and show that class actions may or may not be privately and socially desirable. We also show that the firms' private incentives to block class action lawsuits may be either aligned with the social incentives, socially excessive, or socially insufficient. Various extensions, such as settlement, contingent fee compensation, fee shifting (loser-pays-all rule), and damage multipliers (treble damages), are also examined.
Kenneth W. Mack, A Case of Police Brutality That Helped Change Race Relations, Wash. Post, Feb. 3, 2019, at B06 (reviewing Richard Gergel, The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring (2019)).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Civil Rights
Type: News
Faraaz Mahomed, Michael Ashley Stein, Ajay Chauhan & Soumitra Pathare, 'They love me, but they don't understand me': Family support and stigmatisation of mental health service users in Gujarat, India, 65 Int’l J. Soc. Psychiatry 73 (2019).
Categories:
Family Law
,
Health Care
,
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Psychology & Psychiatry
,
Human Rights Law
Type: Article
Abstract
Family life is a near-universal condition and a fundamental human right. It can also have a significant impact on mental health, including recovery from mental health conditions. In India, families play a considerable role, representing a source of social, cultural, religious and, often, financial support. However, families can also play a stigmatising role. Aim: To examine the experiences of mental health service users (MHSUs) relating to stigma and support provided by family members and to consider ways in which family support can be improved. Method: This is a qualitative study. A total of 17 residential MHSUs at the Ahmedabad Hospital for Mental Health were interviewed. The results were evaluated using thematic content analysis. The results revealed that all 17 MHSUs considered their families to be important sources of support, while 14 of the 17 MHSUs also experienced stigma emanating from their families. A total of 11 experienced lack of knowledge, 4 spoke of prejudicial attitudes and 5 mentioned discriminatory behaviours. There were important gender differences in experiences. MHSUs mentioned needs ranging from education and peer support for family members to financial support. Families act both as sources of support and stigmatisation. Education needs are considerable, while the need for peer support for families and resources to aid families in supporting people with mental health conditions are also important considerations.
Jeannie Suk Gersen, Assessing Betsy Devos’s Proposed Rules on Title IX and Sexual Assault, NewYorker.com (Feb. 1, 2019, 1.33 PM).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Discrimination
,
Education Law
Type: Other
Abstract
From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.
Adam Oliver & Cass Sunstein, Does Size Matter? The Allais Paradox and Preference Reversals with Varying Outcome Magnitudes, 78 J. Behavioral & Experimental Econ. 45 (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Empirical Legal Studies
,
Law & Behavioral Sciences
,
Law & Economics
Type: Article
Abstract
The common consequence effect and preference reversals are two of the foundational violations of the standard model of rational choice (i.e. von Neumann–Morgenstern expected utility theory) and, as such, played an important role in the development of empirical behavioural economics. One can hypothesise, however, that due to varying degrees of risk aversion when faced with outcomes of different magnitude, the rate of both of these violations may vary with outcome size. Using various types of outcome, this article reports tests of these violations using different outcome magnitudes in within-respondent designs. The results observed are broadly consistent across outcome type: the common consequence effect, while rarely being substantially observed in any of the tests undertaken, was often found to be somewhat susceptible to outcome size while preference reversals, which were everywhere substantially observed, were not. In and of itself, the observation of systematic preference reversals implies that preferences are often constructed according to the way in which questions are asked, and is sufficient to question the usefulness of stated preference techniques for informing public policy.
Cass R. Sunstein, How Change Happens (2019).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Social Change
Type: Book
Abstract
How does social change happen? When do social movements take off? Sexual harassment was once something that women had to endure; now a movement has risen up against it. White nationalist sentiments, on the other hand, were largely kept out of mainstream discourse; now there is no shortage of media outlets for them. In this book, with the help of behavioral economics, psychology, and other fields, Cass Sunstein casts a bright new light on how change happens. Sunstein focuses on the crucial role of social norms—and on their frequent collapse. When norms lead people to silence themselves, even an unpopular status quo can persist. Then one day, someone challenges the norm—a child who exclaims that the emperor has no clothes; a woman who says “me too.” Sometimes suppressed outrage is unleashed, and long-standing practices fall. Sometimes change is more gradual, as “nudges” help produce new and different decisions—apps that count calories; texted reminders of deadlines; automatic enrollment in green energy or pension plans. Sunstein explores what kinds of nudges are effective and shows why nudges sometimes give way to bans and mandates. Finally, he considers social divisions, social cascades, and “partyism,” when identification with a political party creates a strong bias against all members of an opposing party—which can both fuel and block social change.
Alma Cohen & Crystal S. Yang, Judicial Politics and Sentencing Decisions, 11 Am. Econ. J.: Econ. Pol’y 160 (2019).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Empirical Legal Studies
,
Judges & Jurisprudence
,
Courts
,
Politics & Political Theory
Type: Article
Abstract
Racial and gender disparities are prevalent in the criminal justice system, but the sources of these disparities remain largely unknown. This paper investigates whether judge political affiliation contributes to these disparities using data on over 500,000 federal defendants linked to sentencing judge. Exploiting random case assignment, we find that Republican appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.1 fewer months than similar males, compared to Democratic appointed judges. Disparities by judge political affiliation cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.
Mary Ann Glendon & Seth D. Kaplan, Renewing Human Rights, First Things, Feb. 2019, at 33.
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
Treaties & International Agreements
Type: Article
Anat Bracha, Alma Cohen & Lynn Conell-Price, The Heterogeneous Effect of Affirmative Action on Performance, 158 J. Econ. Behavior & Org. 173 (2019).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Labor & Employment
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Law & Economics
,
Law & Behavioral Sciences
,
Employment Discrimination
Type: Article
Abstract
This paper experimentally investigates the effect of gender-based affirmative action (AA) on performance in the lab, focusing on a tournament environment. The tournament is based on GRE math questions commonly used in graduate school admission, and at which women are known to perform worse on average than men. We find heterogeneous effect of AA on female participants: AA lowers the performance of high-ability women and increases the performance of low-ability women. Our results are consistent with two possible mechanisms—one is that AA changes incentives differentially for low- and high-ability women, and the second is that AA triggers stereotype threat.Bracha
Jeannie Suk Gersen, Nancy Gertner & Janet E. Halley, Comment on Proposed Title IX Rulemaking (Jan. 30, 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Feminist Legal Theory
,
Education Law
Type: Article
Abstract
Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.” Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
Guhan Subramanian & Annie Zhao, Go-Shops Revisited (Jan 30, 2019).
Categories:
Corporate Law & Securities
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
Type: Other
Abstract
A go-shop process turns the traditional M&A deal process on its head: rather than a pre-signing market canvass followed by a post-signing “no shop” period, a go-shop deal involves a limited pre-signing market check, followed by a post-signing “go shop” process to find a higher bidder. A decade ago one of us published the first systematic empirical study of go-shop deals. Contrary to the conventional wisdom at the time, the study found that go-shops could yield a meaningful market check, with a higher bidder appearing 13% of the time during the go-shop period. In this Article, we compile a new sample of M&A deals announced between 2010 and 2018. We find that go-shops, in general, are no longer an effective tool for post-signing price discovery. We then document several reasons for this change: the proliferation of first-bidder match rights, the shortening of go-shop windows, CEO conflicts of interest, investment banker effects, and collateral terms that have the effect of tightening the go-shop window. We conclude that the story of the go-shop technology over the past ten years is one of innovation corrupted: transactional planners innovate, the Delaware courts signal qualified acceptance, and then a broader set of practitioners push the technology beyond its breaking point. In view of these developments in transactional practice, we provide recommendations for the Delaware courts and corporate boards of directors.
Samantha Power & Betsy Fisher, Op-Ed.,Two Years into Trump’s Travel Ban, N.Y. Times, Jan. 28, 2019, at 23.
Categories:
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Executive Office
,
Supreme Court of the United States
,
Politics & Political Theory
,
National Security Law
,
Government Accountability
,
International Humanitarian Law
Type: News
Gerald L. Neuman, What Counts as a Crime Against Humanity?, Harv. Int’l L.J. Online (Jan. 28, 2019).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Treaties & International Agreements
,
Human Rights Law
,
International Law
Type: Other
Abstract
The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.
Cass R. Sunstein & Lucia A. Reisch, Trusting Nudges: Toward a Bill of Rights for Nudging (2019).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
Type: Book
Abstract
Many "nudges" aim to make life simpler, safer, or easier for people to navigate, but what do members of the public really think about these policies? Drawing on surveys from numerous nations around the world, Sunstein and Reisch explore whether citizens approve of nudge policies. Their most important finding is simple and striking. In diverse countries, both democratic and nondemocratic, strong majorities approve of nudges designed to promote health, safety, and environmental protection—and their approval cuts across political divisions. In recent years, many governments have implemented behaviorally informed policies, focusing on nudges—understood as interventions that preserve freedom of choice, but that also steer people in certain directions. In some circles, nudges have become controversial, with questions raised about whether they amount to forms of manipulation. This fascinating book carefully considers these criticisms and answers important questions. What do citizens actually think about behaviorally informed policies? Do citizens have identifiable principles in mind when they approve or disapprove of the policies? Do citizens of different nations agree with each other? From the answers to these questions, the authors identify six principles of legitimacy—a "bill of rights" for nudging that build on strong public support for nudging policies around the world, while also recognizing what citizens disapprove of. Their bill of rights is designed to capture citizens’ central concerns, reflecting widespread commitments to freedom and welfare that transcend national boundaries.
T. Keith Fogg, Access to Judicial Review in Non-Deficiency Tax Cases (Jan. 15, 2019).
Categories:
Taxation
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Litigation & Settlement
,
Remedies
,
Supreme Court of the United States
,
Congress & Legislation
,
Courts
,
Taxation - Personal Income
,
Taxation - Federal
Type: Other
Abstract
In the case of Flora v. United States the Supreme Court determined that the jurisdictional statute governing tax refund suits did not make clear whether a taxpayer must fully pay the tax before filing suit to obtain a refund. Despite the lack of clarity in the statute, a split in the circuits and no strong reasons for its decision, a 5-4 majority of the Court decided in its second try at the case that a taxpayer who received a statutory notice of deficiency and failed to petition the Tax Court could not pay a partial amount of the tax and sue for refund. Seventeen years later in the case of Laing v. United States, the Solicitor General argued that Flora was limited to situations in which the taxpayer had received a notice of deficiency and failed to petition the Tax Court and did not create a bar to partial payment in other situations. Despite its weak foundation and its narrow scope, the Flora decision now stands as a broad bar to taxpayers seeking a refund who do not fully pay the tax before bring the suit. The IRS and the Department of Justice have completely reversed course from the argument made by the Solicitor General in Laing. The result of the current interpretation of Flora by the lower courts is that for taxpayers who never have the opportunity to petition the Tax Court prior to assessment or who missed the opportunity to go to Tax Court but can never scape together enough money to fully pay the tax the opportunity for judicial review of the actions of the IRS may be lost. The recent case of Larson v. United States brings this home in stark fashion. Mr. Stark promoted tax shelters. The IRS assessed against him, and others, a tax shelter promotion penalty of approximately $160 million. Because the penalty was an assessable penalty which did not exist when Flora was decided and because he does not have $160 million with which to satisfy the assessment, Mr. Larson is barred from judicially contesting this assessment. This paper analyzes how we reached the situation that certain taxpayers have no opportunity for judicial review of the actions of the IRS and suggests a path that would allow ever taxpayer the opportunity for judicial review of their tax assessment. It appeared that Congress attempted to provide an opportunity for judicial review when it passed the Collection Due Process provisions in 1998; however, the regulations written by the IRS have the effect of cutting off judicial review in situations in which the taxpayer has the opportunity for administrative review. The paper suggests that relatively small changes to the Collection Due Process provisions could provide the opportunity for judicial review of tax assessments to everyone. It also explores other avenues that could provide this opportunity.
Jeremy Sheff, Stephen Clowney, James Grimmelmann, Michael Grynberg & Rebecca Tushnet, 1, 2 Open Source Property (2019 ed.).
Categories:
Property Law
Sub-Categories:
Property Rights
,
Real Estate
,
Personal Property
,
Estates
,
Intellectual Property - Copyright
Type: Book
Abstract
This is a print edition of Professor Jeremy Sheff's 2019 build of Open Source Property, a free online casebook for the first-year Property Law course at American law schools. A free digital edition of this text is available for download from www.opensourceproperty.org. Open Source Property is copyright 2015-16 by Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet. It may be reused under the terms of the Creative Commons Attribution NonCommercial 4.0 International license, https://creativecommons.org/licenses/by-nc/4.0/.
Louis Kaplow, On the Design of Legal Rules: Balancing Versus Structured Decision Procedures, 132 Harv. L. Rev. 992 (2019).
Categories:
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Practice & Procedure
,
Dispute Resolution
,
Litigation & Settlement
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Courts
Type: Article
Abstract
Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. This Article compares such protocols to unconstrained balancing and finds them to be inferior with respect to the quality of final decisions: they sometimes fail to impose liability even though the harm is greater than the benefit, and they sometimes impose liability even though the benefit exceeds the harm. The Article also develops the principles of optimal information (evidence) collection and shows how structured decision procedures violate every core lesson and presuppose distinctions that often are incoherent or impractical to implement. The analysis addresses concerns about balancing that may motivate structured protocols, how less restrictive alternatives should be assessed, and the extent to which legal proceedings are conducted in conformity with either approach, as well as how they might be reformed.
Susan Crawford, FIBER: The Coming Tech Revolution--And Why America Might Miss It (2019).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
State & Local Government
,
Networked Society
,
Communications Law
Type: Book
Abstract
The world of fiber optic connections reaching neighborhoods, homes, and businesses will represent as great a change from what came before as the advent of electricity. The virtually unlimited amounts of data we’ll be able to send and receive through fiber optic connections will enable a degree of virtual presence that will radically transform health care, education, urban administration and services, agriculture, retail sales, and offices. Yet all of those transformations will pale compared with the innovations and new industries that we can’t even imagine today. In a fascinating account combining policy expertise and compelling on-the-ground reporting, Susan Crawford reveals how the giant corporations that control cable and internet access in the United States use their tremendous lobbying power to tilt the playing field against competition, holding back the infrastructure improvements necessary for the country to move forward. And she shows how a few cities and towns are fighting monopoly power to bring the next technological revolution to their communities.
Eric Goldman & Rebecca Tushnet, 2 Advertising & Marketing Law Cases & Materials(4th ed. 2019).
Categories:
Civil Practice & Procedure
,
Consumer Finance
,
Health Care
,
Property Law
,
Technology & Law
,
Corporate Law & Securities
Sub-Categories:
Consumer Protection Law
,
Antitrust & Competition Law
,
Torts - Business
,
Food & Drug Law
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
,
Information Privacy & Security
Type: Book
Abstract
This is a casebook on advertising and marketing law. Due to the length of the book, we have broken the book into 2 volumes. This is the order page for Volume 2.