Tomiko Brown-Nagin, Civil Rights Queen: Constance Baker Motley and the Struggle for Equality (forthcoming 2022).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Race & Ethnicity
,
Legal History
,
Biography & Tribute
Type: Book
Abstract
The first major biography of one of our most influential but least known activist lawyers that provides an eye-opening account of the twin struggles for gender equality and civil rights in the 20th Century. Born to an aspirational blue-collar family during the Great Depression, Constance Baker Motley was expected to find herself a good career as a hair dresser. Instead, she became the first black woman to argue a case in front of the Supreme Court, the first of ten she would eventually argue. The only black woman member in the legal team at the NAACP’s Inc. Fund at the time, she defended Martin Luther King in Birmingham, helped to argue in Brown vs. The Board of Education, and played a critical role in vanquishing Jim Crow laws throughout the South. She was the first black woman elected to the state Senate in New York, the first woman elected Manhattan Borough President, and the first black woman appointed to the federal judiciary. Civil Rights Queen captures the story of a remarkable American life, a figure who remade law and inspired the imaginations of African Americans across the country. Burnished with an extraordinary wealth of research, award-winning, esteemed Civil Rights and legal historian and dean of the Harvard Radcliffe Institute, Tomiko Brown-Nagin brings Motley to life in these pages. Brown-Nagin compels us to ponder some of our most timeless and urgent questions–how do the historically marginalized access the corridors of power? What is the price of the ticket? How does access to power shape individuals committed to social justice? In Civil Rights Queen, she dramatically fills out the picture of some of the most profound judicial and societal change made in twentieth-century America.
Adrian Vermeule, Common Good Constitutionalism (forthcoming 2022).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Book
Abstract
The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism." This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.
Gregory Alexander, Lior Jacob Strahilevitz & Maureen E. Brady, PracticePerfect Property (Wolters Kluwer forthcoming 2022).
Categories:
Property Law
Type: Book
Thomas W. Merrill, Henry E. Smith & Maureen E. Brady, Property: Principles and Policies, 4th. (West Acad. forthcoming 2022).
Categories:
Property Law
Type: Book
Gregory Elinson & Jonathan Gould, The Politics of Deference, 75 Vanderbilt L.R. (forthcoming 2022).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Like so much else in our present politics, the administrative state is fiercely contested. Conservatives decry its legitimacy and seek to limit its power; liberals defend its necessity and legality. Debates have increasingly centered on the doctrine of Chevron deference, under which courts defer to agencies’ reasonable interpretations of ambiguous statutory language. Given both sides’ increasingly entrenched positions, it is easy to think that conservatives have always warned of the dangers of deference, while liberals have always defended its virtues. Not so. This Article tells the political history of deference for the first time, using previously untapped primary sources including presidential and congressional archives, statements by interest groups, and partisan media sources. It recounts how the politics of deference have varied over time, even though the issue is often framed in terms that resist evolutionary analysis. As the administrative state grew in the 1970s, conservatives in Congress sought to rein in deference, while liberals defended it. These positions reversed in the 1980s, as the Reagan Administration relied on flexible readings of statutes in service of its deregulatory efforts, including in the Chevron case itself. After a period of political détente, the 2010s witnessed a resurgence of conservative opposition and liberal support for Chevron, driven largely by the ascendance of libertarian interests in the Republican Party and the central role of administrative policymaking to contemporary Democratic Party agendas. The Article then develops a framework for understanding the shifting politics of deference. It argues that the politics of deference are the politics of regulation: for nearly a half-century, partisans and interest groups have viewed doctrinal debates as inexorably tied to interests in policy outcomes. Positions about Chevron have varied based on which party controls the presidency and the ideological makeup of the federal courts. But the parties are also asymmetrically reliant on the administrative state, and thus on judicial deference. Liberals depend on deference to advance their regulatory goals in the face of an often-gridlocked Congress, while conservatives have many paths to accomplishing their deregulatory ends. The conservative turn against the so-called “deep state” and Chevron’s non-application in areas where conservatives most favor deference (such as national security) further exacerbate the partisan split on the doctrine. And Chevron has become a rhetorical cudgel in broader partisan debates about the legality and legitimacy of the administrative state as a whole. Unless these dynamics change, Chevron deference will continue to have a political valence. And so long as the doctrine is understood to create winners and losers, partisans and interest groups will rightly see high stakes in ensuring its survival or hastening its demise.
Mark Tushnet & Bojan Bugariec, Power to the People: Constitutionalism in the Age of Populism (forthcoming Dec. 2021).
Categories:
Constitutional Law
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
Power to the People proposes that some forms of populism are inconsistent with constitutionalism, while others aren’t. By providing a series of case studies, some organized by nation, others by topic, the book identifies these populist inconsistencies with constitutionalism-and, importantly, when and how they are not. Opening a dialogue for the possibility of a deeper, populist democracy, the book examines recent challenges to the idea that democracy is a good form of government by exploring possibilities for new institutions that can determine and implement a majority’s views without always threatening constitutionalism.
Wesley Hohfeld A Century Later: Edited Work, Select Personal Papers, and Original Commentaries, (Shyamkrishna Balganesh, Ted M. Sichelman & Henry E. Smith eds., forthcoming December 2021).
Categories:
Government & Politics
,
Discrimination & Civil Rights
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Civil Rights
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Legal History
,
Biography & Tribute
Type: Book
Gerald L. Neuman, Coming to Grips with Populism After Trump, OpenGlobalRights (Nov. 10, 2021).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Other
Abstract
Returning to the rule of law and fortifying democracy in the U.S. will best be accomplished by reemphasizing the country’s own democratic and egalitarian values, and by vindicating truthfulness after four years of Trumpian fraud.
Nancy Gertner & Dean Strang, America Should Not Tolerate Vigilante Behavior, Chi. Sun-Times, Nov. 8, 2021, https://chicago.suntimes.com/2021/11/8/22770572/kyle-rittenhouse-ahmaud-arbery-vigilante-justice-self-defense-nancy-gertner-dean-strang-other-views.
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Jury Trials
,
Criminal Defense
,
Criminal Evidence
Type: Other
Abstract
In the trials of Kyle Rittenhouse in Wisconsin and the men who killed Ahmaud Arbery in Georgia, a claim of self-defense is being expanded into a pass to use deadly force against someone the defendant simply suspects of doing something unlawful. That’s not American law.
Noah Feldman, Is the Supreme Court on Its Way to Becoming a Conservative Bastion?, N.Y. Times, Nov. 8, 2021, https://www.nytimes.com/2021/11/08/books/review/linda-greenhouse-justice-on-the-brink-supreme-court.html?
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Abstract
A review of Justice On the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court by Linda Greenhouse
Noah Feldman, This Is the Story of How Lincoln Broke the U.S. Constitution, N.Y. Times, Nov. 2, 2021, https://www.nytimes.com/2021/11/02/opinion/constitution-slavery-lincoln.html.
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Race & Ethnicity
,
Law & Humanities
,
Law & Social Change
Type: Other
Sabrineh Ardalan, Refugee Eligibility: Challenging Stereotypes and Reviving the ‘Benefit of the Doubt’, Rethinking Refuge (Updated Nov. 15, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Immigration Law
,
Refugee & Asylum Law
Type: Other
Abstract
It is time to rethink the evidence so often submitted and relied upon in asylum claims, to return to a core principle of refugee law – the need to afford a
Noah Feldman, The Broken Constitution: Lincoln, Slavery, and the Refounding of America (November 2021).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
Type: Book
Laurence H. Tribe, Erwin Chemerinsky, Jeffrey Abramson & Dennis Aftergut, The courts have a new chance to block Texas's abortion law. They must take it, The Guardian (Oct. 17, 2021), https://www.theguardian.com/commentisfree/2021/oct/17/texas-abortion-law-courts-us-constitution.
Categories:
Constitutional Law
,
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
Fourteenth Amendment
,
Gender & Sexuality
,
Bioethics
,
Genetics & Reproduction
Type: Other
Abstract
SB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts.
Premal Dharia, After a criminal justice nightmare, he’s fighting the ‘broken’ system, Washington Post (Oct. 8, 2021), https://www.washingtonpost.com/outlook/after-a-criminal-justice-nightmare-hes-fighting-the-broken-system/2021/10/07/d213b0ac-1190-11ec-882f-2dd15a067dc4_story.html
Categories:
Criminal Law & Procedure
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Criminal Evidence
,
Prison Law & Prisoners' Rights
,
Sentencing & Punishment
,
Race & Ethnicity
,
Legal Reform
,
Legal Services
Type: Other
Jody Freeman, The Untapped Potential of the Congressional Review Act, Harv. J. on Legis. (forthcoming) (Harv. Pub. L. Working Paper No. 21-28, Oct. 7, 2021).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
Type: Article
Abstract
The Congressional Review Act (CRA) authorizes fast-track procedures for resolutions disapproving agency rules. The near-universal assumption is that the CRA is relevant only when a new President seeks, with the support of Congress, to cancel regulations promulgated during the previous administration. Yet the CRA has substantially greater unrealized potential to reverse adverse judicial rulings, or, more ambitiously, to entrench preferred statutory interpretations. When the agency, the President, and congressional majorities agree on the correct reading of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step process: First, the agency promulgates an interpretive rule construing the statute to mean the opposite of what the agency actually favors—for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. (In the case of an adverse judicial ruling on the statute’s meaning, the agency’s rule could simply restate the court’s reading of the statute.) Next, Congress and the President use the CRA to disapprove that interpretive rule—thus establishing, via a formal exercise of legislative power, that the statute has the meaning the agency rule rejected. This strategy would be a lawful way for the executive and legislative branches to override judicial rulings regarding the meaning of the agency’s authorizing statute, and more generally to clarify or alter statutory law in a manner that bypasses the filibuster and other legislative roadblocks.
Naz K. Modirzadeh & Dustin A. Lewis, Humanitarian Values in a Counterterrorism Era, International Review of the Red Cross (Oct. 6, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
International Humanitarian Law
Type: Article
Abstract
In this opinion note, we explore ways to understand the contemporary encounters between a growing global counterterrorism architecture and impartial humanitarian activities while critically assessing our own role in shaping responses to those encounters. Humbled by a decade of experience in this area, we aim to explain how counterterrorism concerns have been elevated over the humanitarian imperative and to offer potential avenues to secure greater respect for impartial humanitarian activities.
Bob Bauer & Jack Goldsmith, Congress Should Seize This Chance to Get Its Power Back, Politico (Oct. 5, 2021), https://www.politico.com/news/magazine/2021/10/05/congress-protecting-our-democracy-act-power-515040.
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
Separation of Powers
Type: Other
Abstract
A new bill curbing presidential powers addresses problems that arise during Republican and Democratic presidencies. Members of Congress in both parties should embrace its reforms.
Bob Bauer & Jack Goldsmith, Inspector General Reform on the Table, Lawfare (Oct. 5, 2021), https://www.lawfareblog.com/inspector-general-reform-table.
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Congress & Legislation
Type: Other
Abstract
At the top of the list of those responsible for executive branch accountability in the 21st century are the statutory inspectors general who now populate every major executive branch agency. On Wednesday, Oct. 6, the Senate Committee on Homeland Security and Governmental Affairs will consider three bills—the Securing Inspector General Independence Act of 2021, the IG Testimonial Subpoena Authority Act and the IG Independence and Empowerment Act—that would expand the independence and power of inspectors general in important respects. This post reviews the central reforms, urges the passage of one of them and assesses the others.
Allen Ferrell, Alberto Manconi, Ekaterina Neretina, William Powley & Luc Renneboog, Corporate Litigation, Governance, and the Role of Law Firms (Oct. 04, 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
Type: Other
Abstract
Corporations pay out large settlements to their shareholders and other plaintiffs as compensation for corporate governance failures. Hired to achieve and improve settlements, plaintiff law firms can play a central role in litigation outcomes. We provide first systematic evidence of their performance. In our novel comprehensive dataset, top plaintiff law firms (“stars”) capture 48% larger settlements. Defendant corporations’ litigation insurance coverage is also 39% larger, suggesting assortative matching of stars with lawsuits that have ex-ante large expected payoffs. Stars’ visibility and information advantage vis-à-vis less sophisticated plaintiffs help sustain their market share.
Nancy Gertner, Do Supreme Court justices have competing judicial philosophies or are they just partisan hacks?, The Boston Globe (Oct. 4, 2021), https://www.bostonglobe.com/2021/10/04/opinion/do-supreme-court-justices-have-competing-judicial-philosophies-or-are-they-just-partisan-hacks/.
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Supreme Court of the United States
Type: Other
Abstract
Stripping away wholesale respect for precedent in many areas and at breakneck speed raises profound questions.
Jeannie Suk Gersen, What if Trigger Warnings Don’t Work?, The New Yorker (Sept. 28, 2021), https://www.newyorker.com/news/our-columnists/what-if-trigger-warnings-dont-work.
Categories:
Legal Profession
Sub-Categories:
Legal Education
Type: Other
Abstract
New psychological research suggests that trigger warnings do not reduce negative reactions to disturbing material—and may even increase them.
Laurence H. Tribe, Neil H. Buchanan & Michael C. Dorf, How to Prevent the Legal Strategy that Nearly Undid the Last Election from Ending Democracy, The Boston Globe (Sept. 27, 2021), https://www.bostonglobe.com/2021/09/27/opinion/how-prevent-legal-strategy-that-nearly-undid-last-election-ending-democracy/.
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Executive Office
,
Congress & Legislation
Type: Other
Abstract
Congress needs to act and the executive branch needs to step up.
Jill Lepore, When Black History Is Unearthed, Who Gets to Speak for the Dead?, The New Yorker (Sept. 27, 2021), https://www.newyorker.com/magazine/2021/10/04/when-black-history-is-unearthed-who-gets-to-speak-for-the-dead.
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
Type: Other
Abstract
Efforts to rescue African American burial grounds and remains have exposed deep conflicts over inheritance and representation.
Jonathan Zittrain, The Inexorable Push For Infrastructure Moderation, Techdirt: The Tech Policy Greenhouse, https://www.techdirt.com/articles/20210924/12012347622/inexorable-push-infrastructure-moderation.shtml (Sept. 24, 2021).
Categories:
Technology & Law
Type: Other
Azadeh N. Shahshahani & Sabi Ardalan, No Justice, No Freedom: Medical Abuse in Private Prisons, Women's eNews (Sept. 16, 2021), https://womensenews.org/2021/09/no-justice-no-freedom-medical-abuse-in-private-prisons/.
Categories:
International, Foreign & Comparative Law
,
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
,
Gender & Sexuality
,
Human Rights Law
Type: Other
Abstract
Almost one year later, survivors of these horrific abuses are still in precarious situations and require immigration relief.
Randall L. Kennedy, Say It Loud!: On Race, History, and Culture (Pantheon 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Race & Ethnicity
Type: Book
Catharine A. MacKinnon, OnlyFans Is Not a Safe Platform for ‘Sex Work.’ It’s a Pimp., NYTimes.com (Sept. 6, 2021).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Cyberlaw
Type: Other
Jeannie Suk Gersen, The Manifold Threats of the Texas Abortion Law, NewYorker.com (Sept. 5, 2021).
Categories:
Government & Politics
,
Health Care
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Fourteenth Amendment
,
Supreme Court of the United States
,
Genetics & Reproduction
Type: Other
Laurence H. Tribe, What the Justice Department Should Do to Stop the Texas Abortion Law, Wash. Post, Sept. 5, 2021.
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Supreme Court of the United States
,
Executive Office
Type: Other
Consumer Genetic Technologies: Ethical and Legal Considerations (I. Glenn Cohen, Nita A. Farahany, Henry T. Greely & Carmel Shachar eds., forthcoming September 2021).
Categories:
Consumer Finance
,
Health Care
Sub-Categories:
Consumer Protection Law
,
Genetics & Reproduction
Type: Book
Abstract
For the average person, genetic testing has two very different faces. The rise of genetic testing is often promoted as the democratization of genetics by enabling individuals to gain insights into their unique makeup. At the same time, many have raised concerns that genetic testing and sequencing reveal intensely personal and private information. As these technologies become increasingly available as consumer products, the ethical, legal, and regulatory challenges presented by genomics are ever looming. Assembling multidisciplinary experts, this volume evaluates the different models used to deliver consumer genetics and considers a number of key questions: How should we mediate privacy and other ethical concerns around genetic databases? Does aggregating data from genetic testing turn people into products by commercializing their data? How might this data reduce or exacerbate existing healthcare disparities? Contributing authors also provide guidance on protecting consumer privacy and safety while promoting innovation.
Kenneth W. Mac,Critical Race Theory and Scholarly Analyses of Race in France (forthcoming La Revue des Droits de l'Homme, September 2021)
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Race & Ethnicity
,
Discrimination
,
Legal Theory & Philosophy
Type: Other
Abstract
This preface to a special issue on Race and the Law of La Revue des Droits de l’Homme, presents a genealogy of Critical Race Theory, framed in light of the tendency in France to avoid fulsome scholarly discussions of racial identity, racial inequality and racial attitudes. The preface also frames its genealogy in light of political attacks on CRT that have been launched both in the United States and elsewhere in the world. Its genealogy frames the origins of CRT in the context of increased scholarly interest in race as a social construction during the 1980s and 1990s, and in the additional context of 1970s, 80s, and 90s scholarship that questioned universalizing and colorblind legal regimes of nations that purported to guarantee equality without regard to race. It also locates CRT within the larger universe of Critical Theory, including Critical Legal Studies, and examines concepts such as social construction, intersectionality, whiteness, structural racism and identity performance.
Cass R. Sunstein, Sludge: What Stops Us from Getting Things Done and What to Do About It (forthcoming Sept. 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Elections & Voting
Type: Book
Abstract
How we became so burdened by red tape and unnecessary paperwork, and why we must do better. We’ve all had to fight our way through administrative sludge–filling out complicated online forms, mailing in paperwork, standing in line at the motor vehicle registry. This kind of red tape is a nuisance, but, as Cass Sunstein shows in Sludge, it can also also impair health, reduce growth, entrench poverty, and exacerbate inequality. Confronted by sludge, people just give up–and lose a promised outcome: a visa, a job, a permit, an educational opportunity, necessary medical help. In this lively and entertaining look at the terribleness of sludge, Sunstein explains what we can do to reduce it. Because of sludge, Sunstein, explains, too many people don’t receive benefits to which they are entitled. Sludge even prevents many people from exercising their constitutional rights–when, for example, barriers to voting in an election are too high. (A Sludge Reduction Act would be a Voting Rights Act.) Sunstein takes readers on a tour of the not-so-wonderful world of sludge, describes justifications for certain kinds of sludge, and proposes "Sludge Audits" as a way to measure the effects of sludge. On balance, Sunstein argues, sludge infringes on human dignity, making people feel that their time and even their lives don’t matter. We must do better.
Gerald L. Neuman, Indirect Discrimination and the COVID-19 Panemic (Aug. 27, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
,
Health Care
Sub-Categories:
Gender & Sexuality
,
Disability Rights
,
LGBTQ Rights Law
,
Health Law & Policy
,
Human Rights Law
Type: Other
Abstract
This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of indirect discrimination (or practices with discriminatory impact) during the COVID-19 pandemic. The participants included academics, advocates, and mandate holders in the United Nations and regional human rights systems. The discussion included the theory and practice of antidiscrimination norms and alternative framings for analyzing the same harms, in contexts of judicial, legal, and political strategy.
Jeannie Suk Gersen, Should the Government Impose a National Vaccination Mandate?, NewYorker.com (Aug. 26, 2021).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Other
Lucian Bebchuk & Roberto Tallarita, ‘Stakeholder’ Talk Proves Empty Again, Wall St. J., Aug. 18, 2021.
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
Type: Other
Yochai Benkler, The Alternative to Despair is to Build an Ark, 373 Science 750 (2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
Type: Article
Elizabeth Warren, Opinion, How to Fix Our Rigged Tax System, Wash. Post, Aug. 12, 2021.
Categories:
Taxation
Sub-Categories:
Tax Policy
Type: Other
Abstract
American workers and families don’t want handouts. They want everybody to play by the same rules.
Jody Freeman & Matthew Stephenson, How a little-known law might help protect the ‘dreamers’, Washington Post (Aug. 6, 2021), https://www.washingtonpost.com/opinions/2021/08/06/how-little-known-law-might-help-protect-dreamers/
Categories:
Discrimination & Civil Rights
Sub-Categories:
Immigration Law
Type: News
Abstract
The Congressional Review Act gives Congress the power to disapprove of agency rules by simple majority vote. It could provide a way around the filibuster to keep the existing program for dreamers in place
Martha Minow & Newton Minow, Why government has a duty to save the news industry, Los Angeles Times (Aug. 6, 2021), https://www.latimes.com/opinion/story/2021-08-06/government-has-a-constitutional-duty-to-save-the-news-industry
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: News
Steven Shavell, On the Law of the Household: The Principles Used by Parents in Disciplining Their Children (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1070, Aug. 5, 2021).
Categories:
Family Law
Sub-Categories:
Children's Law & Welfare
Type: Other
Abstract
In this article I first describe the basic principles that parents employ in disciplining their children. The description is based on a survey of parents, the major results of which are that parental sanctions are premised on wrongdoing—not on the mere causation of harm; that parental sanctions tend to be greater when wrongdoing results in harm than when it does not; that parental sanctions for intentionally harmful conduct exceed those for negligence; and that parental sanctions are not raised when the probability that wrongdoing would be discovered is low.I then develop a theory to explain the principles of discipline as functional for parents. The kernel of the theory is that the rules of discipline maximize the expected utility of parents—assuming that the utility of parents is reduced by the occurrence of harm and also reflects the well–being of their children.After elaborating the theory, I comment on several related issues, including the possible influence of childhood experience on our preferences as adults over legal rules; and I remark on the similarity between the principles of criminal law and those applied by parents in disciplining their children.
Lucian A. Bebchuk & Roberto Tallarita, Will Corporations Deliver Value to All Stakeholders? (Aug. 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Corporate Law
,
Shareholders
Type: Other
Abstract
Amid growing concerns for the effects that corporations have on stakeholders, supporters of stakeholder governance encourage society to rely on corporate leaders to use their discretion to protect stakeholders, and they seem to take corporate pledges to do so at face value. By contrast, critics of stakeholder governance question whether corporate leaders have incentives to protect stakeholders and doubt the reliability of pledges by corporate leaders to do so. We provide empirical evidence that can contribute to resolving the debate between these rival views. The most celebrated pledge by corporate leaders to protect stakeholders was the Business Roundtable’s Statement on the Purpose of a Corporation (the “BRT Statement”). Signed by CEOs of most of the country’s major companies, the BRT Statement expressed a commitment to deliver value to all stakeholders and not just shareholders and was widely viewed as a major milestone that would usher in a new stakeholder capitalism and significantly improve the treatment of stakeholders. If any companies could be expected to follow through on stakeholder rhetoric, the companies whose CEOs signed the highly visible BRT Statement would be natural candidates to do so, and they thus provide an instructive test case for an empirical investigation. To investigate whether the BRT Statement represented a meaningful commitment or was mostly for show, we review a wide array of hand-collected corporate documents of the over 130 U.S. public companies that joined the BRT Statement (the “BRT Companies”). We present the following six findings: First, examining the almost one-hundred BRT Companies that updated their corporate governance guidelines in the sixteen-month period between the release of the BRT Statement and the end of 2020, we find that they generally did not add any language that improves the status of stakeholders and, indeed, most of them chose to retain in their guidelines a commitment to shareholder primacy; Second, reviewing all the corporate governance guidelines of BRT Companies that were in place as of the end of 2020, we find that most of them reflected a shareholder primacy approach, and an even larger majority did not include any mention of stakeholders in their discussion of corporate purpose; Third, examining the over forty shareholder proposals regarding the implementation of the BRT Statement that were submitted to BRT Companies during the 2020 or 2021 proxy season, and the subsequent reactions of these companies, we find that none of these companies accepted that the BRT Statement required any changes to how they treat stakeholders, and most of them explicitly stated that their joining the BRT Statement did not require any such changes. Fourth, reviewing all the corporate bylaws of the BRT Companies, we find that they generally reflect a shareholder-centered view; Fifth, reviewing the 2020 proxy statements of the BRT Companies, we find that the great majority of these companies did not even mention their signing of the BRT Statement, and among the minority of companies that did mention it, none indicated that their endorsement required or was expected to result in any changes in the treatment of stakeholders; Sixth, we find that the BRT Companies continued to pay directors compensation that strongly aligns their interests with shareholder value. Furthermore, we document that the corporate governance guidelines of BRT Companies as of the end of 2020 commonly required such alignment of director compensation with stockholder value and generally avoided any support for linking such compensation to stakeholder interests. Overall, our findings support the view that the BRT Statement was mostly for show and that BRT Companies joining it did not intend or expect it to bring about any material changes in how they treat stakeholders. These findings support the view that pledges by corporate leaders to serve stakeholders would not materially benefit stakeholders, and that their main effect could be to insulate corporate leaders from shareholder oversight and deflect pressures for stakeholder-protecting regulation. Stakeholder governance that relies on the discretion of corporate leaders would not represent an effective way to address growing concerns about the effects corporations have on stakeholders. This paper is part of a larger research project on stakeholder capitalism of the Harvard Law School Corporate Governance. Other parts of this research project are The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita, and For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.
Oren Bar-Gill & Alma Cohen, How to Communicate the Nudge: A Real-World Policy Experiment, (Harvard Law Sch. John M. Olin Ctr. for Law, Econ. & Bus., Discussion Paper No. 1067, Aug. 2, 2021).
Categories:
Consumer Finance
Sub-Categories:
Consumer Protection Law
Type: Other
Abstract
Disclosure-based Nudges are being increasingly utilized by governments around the world to achieve policy goals related to health, safety, employment, environmental protection, retirement savings, credit, debt and more. And, yet, a critical aspect of these Nudge-type policy interventions—the mode of communication—remains unexplored. What is the best way to communicate information to individuals—by letter, by phone call (or voice message), by email, by text message or video message? We begin to answer this basic question using a real-world policy experiment on debt collection procedures. Debtors often lack adequate information about the debt, the judgment, and the enforcement and collection procedures. As a result, the process of debt collection is often harmful to the debtor and ineffective in securing repayment. We conducted a study (N = 36,362), in cooperation with the Israeli Ministry of Justice, to improve communication with debtors and to evaluate the effect of such improved communication strategies on collection procedures and outcomes. A novelty of this study is our focus on the choice of medium—telephone, regular mail, text message and video message—holding fixed the content of the communication. We found that digital communication strategies, specifically communicating via text message, were the most cost-effective, significantly improving outcomes for both debtors and creditors. Our results should inform the choice of communication mediums in the many settings in which disclosure-based Nudge policies are employed.
Accessible Technology and the Developing World (Michael Stein and Jonathan Lazar eds., forthcoming August 2021).
Categories:
Technology & Law
,
Discrimination & Civil Rights
Sub-Categories:
Disability Rights
,
Science & Technology
Type: Book
Abstract
When digital content and technologies are designed in a way that is inaccessible for persons with disabilities, they are locked out of commerce, education, employment, and access to government information. In developing areas of the world, as new technical infrastructures are being built, it is especially important to ensure that accessibility is a key design goal. Unfortunately, nearly all research on Information and Communication Technology (ICT) accessibility and innovation for persons with disabilities-whether from the legal, technical, or development fields-has focused on developed countries, with very little being written about developing world initiatives. Accessible Technology and the Developing World aims to change this, by bringing increased attention to ICT accessibility in developing areas. This book brings together a unique combination of contributors with diverse disciplinary backgrounds, including authors from well-known non-governmental organizations, significant United Nations entities, and universities in both the developing and developed world. Together, they present a unique and much needed review of this critical and growing area of work, and primarily address three core themes - the lack of attention given to innovations taking place in the developing world, the need to ensure that infrastructures in the Global South do not present barriers to people with disabilities, and the need to exercise caution when applying techniques from the Global North to the Global South that won't transfer effectively. This book will be of use to researchers in the fields of civil rights, development studies, disability rights, disability studies, human-computer interaction and accessibility, human rights, international law, political science, and universal design.
Roberto Mangabeira Unger, Victoria Nicolielo Reginatto, João Pedro Braga Carvalho, Mariana Grilli Belinotte, Carlos Sávio Gomes Teixeira, & Philippe Oliveira de Almeida, Imaginação Institucional: a Vanguarda Rebelde do Pensamento Brasileiro [Institutional Imagination: the Rebellious Vanguard of Brazilian Thought], Revista de Ciências do Estado [Rev. Ciênc. Estado], Aug. 2021, at 1 (Port.).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Mind Sciences
,
Legal Theory & Philosophy
,
Foreign Law
Type: Article
Abstract
Interview given by Professor Dr. Roberto Mangabeira Unger to Revista de Ciências do Estado.
Christine A. Desan, Money's Design Elements: Debt, Liquidity, and the Pledge of Value from Medieval Coin to Modern "Repo", (Aug. 1, 2021) (Harvard Pub. L. Working Paper No. 21-31) (Banking Fin. L. Rev. v. 38, forthcoming 2022).
Categories:
Banking & Finance
Type: Other
Abstract
Across the ages, moneys exhibit a recurring set of design elements: they are made of debt; that debt is specifically fashioned to create liquidity; and the debt medium that results comes with a pledge of value (commonly collateral, convertibility, a commitment of public faith, and/or insurance) to enhance its credibility. While those design elements appear again and again, they vary greatly in form. Debt, for example, can be structured as a straightforward liability or issued by agents (e.g., a central bank acting for a government). Every difference in design changes the dynamics of the medium and the way people treat it. Every difference in design thus affects exchange, its societal context, and how value travels. Like the law of payments, the legal design of money shapes the economy itself. [This essay is written as part of a festschrift for Professor Benjamin Geva.]
Stephen E. Sachs, Closing Refections on the Supreme Court and Constitutional Governance: Testimony Before the Presidential Commission on the Supreme Court of the United States (July 20, 2021).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Other
Abstract
In considering potential reforms, the Commission should take care to do the following: * Preserve judicial independence. The courts’ job is to apply the law to cases before them. We rely on courts, not only to reach individual judgments of guilt or civil liability, but to enforce the limited powers of different governments and different branches. Correcting for judges’ errors, even serious ones, by shifting these powers to another department would not make that enforcement more reliable. But it would harm the courts’ ability to act as neutral tribunals in particular cases—a crucial element of the rule of law, and for that reason a frequent target of autocracies the world over. America has a nearly unbroken tradition of judicial independence, and we should not break it today. * Put politics in its place. If you want a less political judiciary, you need a more political amendment process. You need to move political fights out of judicial conference rooms and into the statehouses and the halls of Congress. A “court reform” that ignores Article V is reform only in name—because a Court that practices constitutional amendment on the cheap, evading the Constitution in the guise of interpreting it, will forever be a target for partisan capture. * Beware unforeseen consequences. It is much harder to build than to destroy. Traditions of judicial independence built up over time can be demolished rather quickly, and many proposed reforms would have consequences far beyond what we expect. These might include: ** measures that are likely unconstitutional absent amendment, such as supermajority requirements or 18-year terms; ** measures that would be constitutional but dangerous and irresponsible, such as court-packing or jurisdiction-stripping; ** measures that would be lawful but unwise, such as cameras in the Court. The Commission’s greatest contribution might be to raise the profile of smaller-bore reforms, whose consequences can be better assessed (and, if necessary, more easily reversed). There is much that could be improved about the Supreme Court. Over the last century, the Justices have too often mistaken their own rulings for the law they are charged to enforce. But these problems are not yet matters of universal agreement, and they can only be solved by the slow work of persuading others. There are no drastic policy changes that would avoid the need for this work, and there is no sudden crisis that calls out for major reform. Rather, the Commission’s first rule should be to do no harm.
Mary Ann Glendon, Who's Afraid of FDR?, American Purpose (July 19, 2021).
Categories:
Discrimination & Civil Rights
Sub-Categories:
Social Welfare Law
Type: Other
Abstract
FDR wanted the federal government to help with poor relief. He never meant for Uncle Sam to do it alone.
Nikolas Bowie, How the Supreme Court Dominates Our Democracy, Wash. Post, Jul. 16, 2021.
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: News
Abstract
Judicial review gives any five justices power over the whole government. Why?
Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, The Court's Voting-Rights Decision Was Worse Than People Think, The Atlantic (July 8, 2021), https://www.theatlantic.com/ideas/archive/2021/07/brnovich-vra-scotus-decision-arizona-voting-right/619330/.
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Elections & Voting
Type: Other
Abstract
The conservative majority’s opinion has declared that voter fraud, not racial discrimination, is a threat to the American system of representation.
Emily Broad Leib & Katie Sandson, The Role of Policy in Addressing Food Loss, in The Economics of Food Loss in the Produce Industry (Travis Minor, Suzanne Thornsbury & Ashok K. Mishra eds., June 30, 2021).
Categories:
Environmental Law
,
Health Care
,
Banking & Finance
Sub-Categories:
Economics
,
Agriculture Law
,
Food & Drug Law
Type: Book
Abstract
This chapter analyzes two examples in which policy contributes to food waste or creates barriers to food waste reduction and recovery: regulation of expiration date labels on food products, and food safety regulations. It examines several policies that have effectively driven food waste reduction efforts, including liability protections for food donation, tax incentives for food donors, and organic waste ban policies. Universal adoption of standard quality and safety terms could drastically reduce food waste. Policy can drive food waste when there is a lack of clarity about how regulatory requirements apply to food donation. Cost is a significant barrier to food donation for businesses along the supply chain. Increasing awareness and providing guidance for the Emerson Act can reduce barriers to donation stemming from the fear of liability. The chapter focuses on federal policy and provides examples of important state and local policies.
Jeannie Suk Gersen, The Supreme Court's Surprising Term, NewYorker.com (June 27, 2021).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
Type: Other
Janet Halley, Jeannie Suk Gersen, Nancy Gertner, Lara Bazelon, Dan Roth & Joshua Adam Engel, Letter re: June 7-11, 2021 Title IX Hearing, June 11, 2021.
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
Type: Other
Abstract
We submit our letter to assist OCR in achieving its goal with this hearing, which is two-fold: to ensure that students are (1) allowed to pursue their education free from sexual harassment and assault and (2) treated fairly in the adjudicatory process—whether they are the complainant or the respondent—designed to investigate and resolve allegations of sexual harassment and sexual assault.
Jeannie Suk Gersen, The Importance of Teaching Dred Scott, NewYorker.com (June 8, 2021).
Categories:
Constitutional Law
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Constitutional History
,
Fifth Amendment
,
Civil Rights
,
Discrimination
,
Race & Ethnicity
,
Legal Education
Type: Other
Mark Tushnet, The Fundamental Attribution Error as Applied to Governance and the COVID-19 Pandemic (June 2, 2021).
Categories:
Disciplinary Perspectives & Law
,
Health Care
Sub-Categories:
Law & Social Change
,
Law & Political Theory
,
Health Law & Policy
Type: Other
Abstract
Something akin to what social psychologists call the “fundamental attribution error” underlies many discussions of the responsibility of politicians – from Donald Trump to Jacinda Ardern – or the bad or good outcomes the nations they led had with the COVID-19 pandemic. Observers saw what the leaders did, and saw the outcomes. The fundamental attribution error is a tendency to explain the outcome more by pointing to what the leader did than to the context in which she acted. This Essay argues that we have to understand social events as the interaction between human agency and the constraints under which people act. The widespread governance failures in responding to the coronavirus pandemic tend to generate accounts that overemphasize agency and underemphasize constraint. The very scope of the failures – that only a handful of governance mechanisms around the world generated policies that did a decent job of keeping COVID-19 under control – suggests that we should look more closely at the constraints under which policy-makers operated.This Essay uses the distinction between agency and constraint as a tool for helping us think about the policy responses that were available and likely to be used in early 2020, when the “novel” coronavirus came on the international scene. The bottom line is this: given the context within which policy-makers acted (the constraints they faced) as the crisis developed, the pandemic was quite likely to be a human catastrophe. It’s not that nothing could be done to stop it, or even that nothing could be done to make it “merely” a disaster instead of a catastrophe. And it’s not that no one came up with – and sometimes implemented – policies that helped limit the disaster’s scope. The constraints under which policy-makers operated, though, meant that the chances of really successful outcomes were quite low – a suggestion consistent with the fact that outcomes around the world were basically pretty bad.The Essay proceeds by first identifying major features of the context as of early 2020 – the constraints and context for policy-making. Part II then describes what we know now, or have strong reason to believe, were the policies that could have done the most to minimize the virus’s effects on life, health, and economies. Part III examines the choices that were actually made, focusing, for reasons to be discussed, on nations with generally democratic systems of governance. A brief Conclusion returns to the fundamental attribution error: context and constraint probably mattered more than agency in generating the bad outcomes around the world.
Guhan Subramanian & Caley Petrucci, Deals in the Time of Pandemic, 121 Colum. L. Rev. (forthcoming June 2021).
Categories:
Corporate Law & Securities
,
Civil Practice & Procedure
Sub-Categories:
Mergers & Acquisitions
,
Corporate Law
,
Corporate Governance
,
Negotiation & Alternative Dispute Resolution
Type: Article
Abstract
The COVID-19 pandemic has brought new attention to the period between signing and closing in M&A transactions. Transactional planners heavily negotiate the provisions that govern the behavior of the parties during this window, not only to allocate risk between the buyer and seller, but also to manage moral hazard, opportunistic behavior, and other distortions in incentives. Prior literature, both academic and practitioner, has focused virtually exclusively on the material adverse effect (MAE) clause. COVID-19, however, has exposed an important connection between the MAE clause and the obligation for the seller to act “in the ordinary course of business” between signing and closing. This Article is the first to examine the interaction between the MAE clause and the ordinary course covenant in M&A deals. We construct a new database of 1,300 M&A transactions along with their MAE and ordinary course covenants—by far the most comprehensive, accurate, and detailed database of such deal terms that currently exists. We document how these deal terms currently appear in M&A transactions, including the sharp rise in “pandemic” carveouts from the MAE clause since the COVID-19 pandemic began. We then provide implications for corporate boards, the Delaware courts, and transactional planners. Our empirical findings and recommendations are relevant not just for the next pandemic or “Act of God” event, but also the next (inevitable) downturn in the economy more generally.
Oren Bar-Gill & Omri Ben-Shahar, Manipulation by Mislaid Priorities, (Harv. L. Sch. John M. Olin Ctr. Discussion Paper No. 1063, 2021).
Categories:
Consumer Finance
Sub-Categories:
Consumer Protection Law
Type: Other
Abstract
This paper lays a foundation for a new theory of manipulation, based on the misprioritization of (truthful) information. Since consumers review only a subset of all available information, firms can harm consumers by prioritizing information that maximizes firms’ profits but has a smaller impact on the utility that consumers stand to gain from the purchase. Moreover, the distortions due to misprioritized information can arise not only from firms’ boastful disclosures, but also from the warnings and disclosures mandated by lawmakers. The paper identifies the product and market characteristics that determine the optimal prioritization of information and, correspondingly, the incidence of harm when the wrong information is prioritized for disclosure—either voluntarily by sellers or by legal mandate. It provides a framework for optimal legal intervention.
Deborah Anker, Regional Refugee Regimes: North America, in The Oxford Handbook of International Refugee Law 296 (Cathryn Costello, Michelle Foster & Jane McAdam eds., 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Refugee & Asylum Law
Type: Book
Jonathan Zittrain, The Internet is Rotting, The Atlantic (June 2021).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Other
James Toomey, “As Long As I’m Me”: From Personhood to Personal Identity in Dementia and Decisionmaking, 4 Canadian J. of Bioethics 57 (June 1, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Abstract
As older people begin to develop dementia, we confront ethical questions about when and how to intervene in their increasingly compromised decision-making. The prevailing approach in bioethics to tackling this challenge has been to develop theories of “decision-making capacity” based on the same characteristics that entitle the decisions of moral persons to respect in general. This article argues that this way of thinking about the problem has missed the point. Because the disposition of property is an identity-dependent right, what matters in dementia and decision-making is an individual’s personal identity with their prior self, not their moral personhood. Therefore, in considering when and how we ought to intervene in the decision-making of those with dementia, we must look to the philosophy of personal identity rather than personhood.
John Bowers, Clare Stanton & Jonathan Zittrain, What the Ephemerality of the Web Means for Your Hyperlinks, Col. Journalism Rev., May 21, 2021.
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Other
Daniel Kahneman, Olivier Sibony & Cass R. Sunstein, Noise: A Flaw in Human Judgment (2021).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
Type: Book
Abstract
Imagine that two doctors in the same city give different diagnoses to identical patients — or that two judges in the same courthouse give different sentences to people who have committed the same crime. Suppose that different food inspectors give different ratings to indistinguishable restaurants — or that when a company is handling customer complaints, the resolution depends on who happens to be handling the particular complaint. Now imagine that the same doctor, the same judge, the same inspector, or the same company official makes different decisions, depending on whether it is morning or afternoon, or Monday rather than Wednesday. These are examples of noise: variability in judgments that should be identical. In Noise, Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein show how noise helps produce errors in many fields, including medicine, law, public health, economic forecasting, food safety, forensic science, bail, child protection, strategy, performance reviews and and personnel selection. And although noise can be found wherever people make judgments and decisions, individuals and organizations alike commonly ignore to its role in their judgments and in their actions. They show “noise neglect.” With a few simple remedies, people can reduce both noise and bias, and so make far better decisions. Packed with new ideas, and drawing on the same kind of diligent, insightful research that made Thinking, Fast and Slow and Nudge groundbreaking New York Times bestsellers, Noise explains how and why humans are so susceptible to noise in judgment — and what we can do about it.
Jeannie Suk Gersen, The Complicated Case of the Pennsylvania Cheerleader, NewYorker.com (May 6, 2021).
Categories:
Constitutional Law
,
Government & Politics
,
Family Law
Sub-Categories:
First Amendment
,
Education Law
,
Supreme Court of the United States
Type: Other
Annette Gordon-Reed, On Juneteenth (2021).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Discrimination
,
Race & Ethnicity
,
Legal History
Type: Book
Abstract
Interweaving American history, dramatic family chronicle, and searing episodes of memoir, Annette Gordon-Reed, the descendant of enslaved people brought to Texas in the 1850s, recounts the origins of Juneteenth and explores the legacies of the holiday that remain with us. From the earliest presence of black people in Texas—in the 1500s, well before enslaved Africans arrived in Jamestown—to the day in Galveston on June 19, 1865, when General Gordon Granger announced the end of slavery, Gordon-Reed’s insightful and inspiring essays present the saga of a “frontier” peopled by Native Americans, Anglos, Tejanos, and Blacks that became a slaveholder’s republic. Reworking the “Alamo” framework, Gordon-Reed shows that the slave-and race-based economy not only defined this fractious era of Texas independence, but precipitated the Mexican-American War and the resulting Civil War. A commemoration of Juneteenth and the fraught legacies of slavery that still persist, On Juneteenth is stark reminder that the fight for equality is ongoing.
Christopher Lewis, The Paradox of Recidivism, Emory L.J. (forthcoming May 2021).
Categories:
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
Type: Article
Abstract
The idea that we should respond more severely to repeated wrongdoing than we do to first-time misconduct is one of our most deeply held moral principles, and one of the most deeply entrenched principles in the criminal law and sentencing policy. Prior convictions trigger, on average, a six-fold increase in the length of punishment in states that use sentencing guidelines. And most of the people we lock up in the U.S. have at least one previous conviction.This article shows that given the current law and policy of collateral consequences, and the social conditions they engender, judges and sentencing commissions should do exactly the opposite of what they currently do: impose a recidivist sentencing discount, rather than a premium. This thesis is counterintuitive and politically unpalatable. It goes against the grain of criminal law and policy dating back as far as we know it, virtually the entire scholarly literature, and millennia of social tradition. But this article shows that it follows logically from fairly ordinary moral premises.
Tyler Giannini & Emily Ray, Beyond the Coup in Myanmar: Echoes of the Past, Crises of the Moment, Visions of the Future, Just Security (Apr. 26, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
East Asian Legal Studies
Type: Other
Anna Lvovsky, Vice Patrol: Cops, Courts, and the Struggle over Urban Gay Life before Stonewall (2021).
Categories:
Discrimination & Civil Rights
,
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Criminal Justice & Law Enforcement
,
LGBTQ Rights Law
,
Legal History
Type: Book
Abstract
In the mid-twentieth century, gay life flourished in American cities even as the state repression of queer communities reached its peak. Liquor investigators infiltrated and shut down gay-friendly bars. Plainclothes decoys enticed men in parks and clubs. Vice officers surveilled public bathrooms through peepholes and two-way mirrors. In Vice Patrol, Anna Lvovsky chronicles this painful story, tracing the tactics used to criminalize, profile, and suppress gay life from the 1930s through the 1960s, and the surprising controversies those tactics often inspired in court. Lvovsky shows that the vice squads’ campaigns stood at the center of live debates about not only the law’s treatment of queer people, but also the limits of ethical policing, the authority of experts, and the nature of sexual difference itself—debates that had often unexpected effects on the gay community’s rights and freedoms. Examining those battles, Vice Patrol enriches understandings of the regulation of queer life in the twentieth century and disputes about police power that continue today.
Jeannie Suk Gersen, The Vital Role of Bystanders in Convicting Derek Chauvin, NewYorker.com (Apr. 21, 2021).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Jury Trials
,
Criminal Evidence
,
Criminal Justice & Law Enforcement
,
Discrimination
,
Race & Ethnicity
,
Law & Social Change
Type: Other
Cass R. Sunstein, Averting Catastrophe: Decision Theory for COVID-19, Climate Change, and Potential Disasters of All Kinds (2021).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Climate Change
,
Disaster Law
,
Administrative Law & Agencies
Type: Book
Abstract
The world is increasingly confronted with new challenges related to climate change, globalization, disease, and technology. Governments are faced with having to decide how much risk is worth taking, how much destruction and death can be tolerated, and how much money should be invested in the hopes of avoiding catastrophe. Lacking full information, should decision-makers focus on avoiding the most catastrophic outcomes? When should extreme measures be taken to prevent as much destruction as possible? Averting Catastrophe explores how governments ought to make decisions in times of imminent disaster. Cass R. Sunstein argues that using the “maximin rule,” which calls for choosing the approach that eliminates the worst of the worst-case scenarios, may be necessary when public officials lack important information, and when the worst-case scenario is too disastrous to contemplate. He underscores this argument by emphasizing the reality of “Knightian uncertainty,” found in circumstances in which it is not possible to assign probabilities to various outcomes. Sunstein brings foundational issues in decision theory in close contact with real problems in regulation, law, and daily life, and considers other potential future risks. At once an approachable introduction to decision-theory and a provocative argument for how governments ought to handle risk, Averting Catastrophe offers a definitive path forward in a world rife with uncertainty.
Jérôme Hergueux, Yann Algan, Yochai Benkler & Mayo Fuster-Morell, Do I Trust this Stranger? Generalized Trust and the Governance of Online Communities, in WWW '21: Companion Proceedings of the Web Conference 2021 539–543 (Jure Leskovec, Marko Grobelnik, Marc Najork, Jie Tang & Leila Zia eds., 2021).
Categories:
Technology & Law
Sub-Categories:
Information Commons
,
Cooperation, Peer-Production & Sharing
Type: Book
Abstract
Online peer production communities such as Wikipedia typically rely on a distinct class of users, called administrators, to enforce cooperation when good faith collaboration fails. Assessing one’s intentions is a complex task, however, especially when operating under time-pressure with a limited number of (costly to collect) cues. In such situations, individuals typically rely on simplifying heuristics to make decisions, at the cost of precision. In this paper, we hypothesize that administrators’ community governance policy might be influenced by general trust attitudes acquired mostly out of the Wikipedia context. We use a decontextualized online experiment to elicit levels of trust in strangers in a sample of 58 English Wikipedia administrators. We show that low-trusting admins exercise their policing rights significantly more (e.g., block about 81% more users than high trusting types on average). We conclude that efficiency gains might be reaped from the further development of tools aimed at inferring users’ intentions from digital trace data.
Cass R. Sunstein, Interest-Group Theories of Regulation: A Skeptical Note (Apr. 18, 2021).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Other
Abstract
As a rule, regulation is not acquired by “the industry,” and it is not designed and operated primarily for its benefit. The mechanisms behind the promulgation of regulations are multiple, and almost all of the time, it greatly matters whether regulators believe that regulations will, all things considered, have good consequences. In terms of understanding the sources of regulations, it would therefore be valuable to obtain more clarity about the sources of the beliefs of regulators — about what information they receive and find credible, and why.
Cass R. Sunstein, Some Benefits and Costs of Cost-Benefit Analysis, Daedalus (forthcoming 2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Administrative Law & Agencies
Type: Article
Abstract
The American administrative state has become a cost-benefit state, at least in the sense that prevailing executive orders require agencies to proceed only if the benefits justify the costs. Some people celebrate this development; others abhor it. For defenders of the cost-benefit state, the antonym of their ideal is, alternately, regulation based on dogmas, intuitions, pure expressivism, political preferences, or interest-group power. Seen most sympathetically, the focus on costs and benefits is a neo-Benthamite effort to attend to the real-world consequences of regulations, and it casts a pragmatic, skeptical light on modern objections to the administrative state, invoking public-choice theory and the supposed self-serving decisions of unelected bureaucrats. The focus on costs and benefits is also a valuable effort to go beyond coarse arguments, from both the right and the left, that tend to ask this unhelpful question: “Which side are you on?” In the future, however, there will be much better ways, which we might consider neo-Millian, to identify those consequences: (1) by relying less on unreliable ex ante projections and more on actual evaluations; (2) by focusing directly on welfare and not relying on imperfect proxies; and (3) by attending closely to distributional considerations – on who is helped and who is hurt.
John Bowers, Elaine Sedenberg & Jonathan Zittrain, Platform Accountability Through Digital “Poison Cabinets”, Data and Democracy (Apr. 13, 2021).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Other
Abstract
Preserving records of what user content is taken down—and why—could make platforms more accountable and transparent.
Eli Y. Adashi & I. Glenn Cohen, Industry-Sponsored Speaker Programs—End of the Line?, JAMA (Apr. 12, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Jeannie Suk Gersen, The Simple Facts of Derek Chauvin's Trial, NewYorker.com (Apr. 10, 2021).
Categories:
Criminal Law & Procedure
Sub-Categories:
Criminal Justice & Law Enforcement
,
Criminal Prosecution
,
Jury Trials
Type: Other
Lawrence O. Gostin, I. Glenn Cohen & Jana Shaw, Digital Health Passes in the Age of COVID-19: Are “Vaccine Passports” Lawful and Ethical?, JAMA (April 7, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Jonathan Zittrain & Will Marks, What Critics Don't Understand about NFT's: The Complexity and Arbitrariness of Non-fungible Tokens are a Big Part of their Appeal, Atlantic (Apr. 7, 2021).
Categories:
Technology & Law
Sub-Categories:
Digital Currency
,
Digital Property
,
Networked Society
Type: Other
George Maliha, Sara Gerke, I. Glenn Cohen & Ravi B. Parikh, Artificial Intelligence and Liability in Medicine: Balancing Safety and Innovation, The Milbank Q. (Apr. 6, 2021).
Categories:
Health Care
,
Technology & Law
Sub-Categories:
Bioethics
,
Medical Technology
Type: Article
D. James Greiner, Ellen Lee Degnan, Thomas Ferriss & Roseanna Sommers, Using Random Assignment to Measure Court Accessibility for Low-Income Divorce Seekers, 118 Proc. of the Nat'l Acad. of Sci. (Apr. 6, 2021).
Categories:
Family Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Public Interest Law
,
Empirical Legal Studies
,
Domestic Relations
Type: Article
Abstract
We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file for and obtain a divorce than those not assigned lawyers. Because divorce implicates fundamental constitutional interests and can be effectuated only by resort to the courts, the US Constitution requires that dissolution of marriage be made achievable regardless of ability to pay. Yet, we observed few low-income individuals who were able to initiate divorce suits on their own. Through interviews and archival research, we identified barriers that low-income litigants faced in navigating the divorce system, including mandatory wait times, limited hours at important facilities, and burdensome paperwork sometimes requiring access to photocopiers and typewriters. This study therefore documents a salient instance in which a civil legal process was inaccessible to those without lawyers, even though their legal issues were straightforward, involving few if any matters for courts to adjudicate.
Lawrence Lessig, They Don’t Represent Us: And Here’s How They Could―A Blueprint for Reclaiming Our Democracy (2021).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Book
Abstract
WITH A NEW AFTERWORD ABOUT THE 2020 ELECTION This urgent book offers not only a clear-eyed explanation of the forces that broke our politics, but a thoughtful and, yes, patriotic vision of how we create a government that’s truly by and for the people.”—DAVID DALEY, bestselling author of Ratf**ked and UnriggedIn the vein of On Tyranny and How Democracies Die, the bestselling author of Republic, Lost argues with insight and urgency that our democracy no longer represents us and shows that reform is both necessary and possible. America’s democracy is in crisis. Along many dimensions, a single flaw—unrepresentativeness—has detached our government from the people. And as a people, our fractured partisanship and ignorance on critical issues drive our leaders to stake out ever more extreme positions. In They Don’t Represent Us, Harvard law professor Lawrence Lessig charts the way in which the fundamental institutions of our democracy, including our media, respond to narrow interests rather than to the needs and wishes of the nation’s citizenry. But the blame does not only lie with “them”—Washington’s politicians and power brokers, Lessig argues. The problem is also “us.” “We the people” are increasingly uninformed about the issues, while ubiquitous political polling exacerbates the problem, reflecting and normalizing our ignorance and feeding it back into the system as representative of our will. What we need, Lessig contends, is a series of reforms, from governmental institutions to the public itself, including: A move immediately to public campaign funding, leading to more representative candidates; A reformed Electoral College, that gives the President a reason to represent America as a whole; A federal standard to end partisan gerrymandering in the states; A radically reformed Senate; A federal penalty on states that don’t secure to their people an equal freedom to vote; Institutions that empower the people to speak in an informed and deliberative way; A soul-searching and incisive examination of our failing political culture, this nonpartisan call to arms speaks to every citizen, offering a far-reaching platform for reform that could save our democracy and make it work for all of us.
Mark Roe, Corporate Purpose and Corporate Competition (Mar. 31, 2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Corporate Governance
,
Shareholders
,
Corporate Law
Type: Other
Abstract
The large American corporation faces ever-rising pressure to pursue a purpose that’s more than just for shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that has not been comprehensively analyzed and is generally ignored. Firms’ capacity to accommodate pressure for a wider purpose is rising as well. Three changes are most relevant: the possibility of declining competition, the counter-possibility that what seems to be a competitive decline is really increasing winner-take-all competition, and the possibility that the ownership of the big firms has concentrated (even if the firms themselves have not) and thereby diluted competitive zeal. Consider competitive decline: In robustly competitive economies, firms cannot deviate much from profit maximization for expensive corporate purpose programs unless expanded purpose bolsters profitability (by branding the firm positively for consumers or by better motivating employees, for example). In economies with slack competition, in contrast, monopolistic and oligopolistic firms can accommodate purpose pressure, sometimes even expensive purpose pressure, from the profits they garner above what a competitive firm requires. In simplistic form, purpose can pressure such firms to redirect their excess profit from shareholders to stakeholders—to customers, employees, or the public good—in ways that firms in strongly competitive industries cannot. By most accounts, competition has been declining in the United States. By some accounts, it has declined precipitously. That decline suggests three possibilities: One—the central thesis of this Article— purpose pressure has greater potential to succeed if competition has declined or rents have otherwise grown; in competitive markets, the profit-oriented purpose-pressured firm has no choice but to refuse the purpose pressure (or to give it only lip service), while in monopolistically-organized industries, the purpose-pressured firm has more room to maneuver. Two, the normative bases undergirding shareholder primacy, although still strong, are less powerful in monopolistic markets. Three, declining corporate competition and rising corporate profits create a lush field for social conflict inside the firm and the polity for shareholders and stakeholders to seek a share of those profits. The result can infuse basic corporate governance with social conflict. This new, or expanded, field for conflict can contribute to and exacerbate our rising political and social instability. Expanding purpose pressure is one manifestation of this conflict.
Jeannie Suk Gersen, The Politics of Bad Sex, NewYorker.com (Mar. 31, 2021) (reviewing Katherine Angel, Tomorrow Sex Will Be Good Again: Women and Desire in the Age of Consent (2021)).
Categories:
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Gender & Sexuality
,
Law & Mind Sciences
Type: Other
Eli Y. Adashi, I. Glenn Cohen & Winston L. McCormick, The Interstate Medical Licensure Compact Attending to the Underserved, JAMA (Mar. 26, 2021).
Categories:
Health Care
Sub-Categories:
Bioethics
Type: Article
Paul G. Cassell, Nancy Gertner & Andrew Silverman, United States of America v. Michael Andrew Gary: Brief of Former United States District Court Judges as Amici Curiae in Support of Respondent (Univ. Utah Coll. Law Rsch. Paper No.434, 2021).
Categories:
Government & Politics
,
Criminal Law & Procedure
Sub-Categories:
Criminal Defense
,
Courts
,
Judges & Jurisprudence
Type: Other
Abstract
In this amicus brief to the U.S. Supreme Court in U.S. v. Michael Andrew Gary, former federal district court judges Paul Cassell and Nancy Gertner argue that criminal defendants should not be penalized with plain-error review when they fail to raise in the district court objections that circuit courts have uniformly foreclosed. When an intervening change in law renders those once-futile claims viable, appellate courts should treat them as preserved and subject to the corresponding standard of appellate review, not the four-factor test elaborated in United States v. Olano, 507 U.S. 725 (1993). No doubt, claim preservation is important. When defendants raise their objections first in the district court, district judges—who are closest to the case—can avoid or fix errors, thereby sparing (or at least facilitating) appellate review and potentially averting remand or retrial. The contemporaneous-objection requirement and its appellate counterpart, the plain-error rule, also deter sandbagging by defense counsel. But the interests in judicial economy and fairness those rules ordinarily advance are not served when the would-be objection is entirely foreclosed by a circuit consensus this Court later sweeps away. In such a scenario, there is nothing to fix and no tactical advantage to be gained from failing to object. Rigid insistence on claim preservation in those circumstances instead actively undermines efficient judicial administration, as it forces defendants to object at every turn, clogging up cases with kitchen-sink briefs and wasting the resources of already overburdened counsel and courts. It also unfairly rewards defendants whose counsel was either preternaturally prescient or ignorant, undiscerning, or even downright obstructionist, while punishing those whose counsel appropriately focused on arguments that were more likely to succeed.
Jonathan Gould, Kenneth Shepsle & Matthew Stephenson, Democratizing the Senate from Within (Harvard Pub. L. Working Paper No. 21-11, Mar. 25, 2021).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Congress & Legislation
,
Politics & Political Theory
Type: Other
Abstract
The U.S. Senate is an undemocratic institution in two respects. First, the filibuster rule allows a minority of Senators to block a final vote on most measures. Second, the Senate’s malapportionment means that a Senate majority often represents a minority of the population. Eliminating the filibuster would address the first problem but would exacerbate the second. Most proposals for addressing the Senate’s malapportionment either do so only indirectly and contingently, or would require unlikely changes to the Constitution or constitutional doctrine. We therefore propose that the Senate replace its current filibuster rule with what we refer to as a “popular-majoritarian cloture rule.” Under this rule, a motion to close debate and proceed to a final vote would carry if but only if supported by a majority coalition of Senators who collectively represent a larger share of the population than those Senators in opposition. This rule, which would be a constitutional exercise of the Senate’s power to set the rules of its proceedings, would make the body more democratic, legitimate, and functional, and would be prefer-able both to the current filibuster rule and to simple majority rule. The democratic illegitimacy and dysfunction of the U.S. Senate as it currently operates justifies the consideration of institutional reforms that might seem, at the moment, both extreme and unlikely. Repairing American governance requires fixing the Senate, and our proposal illustrates one way to democratize the Senate from within.
Andrew Metrick & Daniel K. Tarullo, Congruent Financial Regulation (Brookings Papers on Econ. Activity, Mar. 24, 2021).
Categories:
Banking & Finance
Sub-Categories:
Risk Regulation
,
Financial Markets & Institutions
,
Banking
Type: Other
Abstract
We propose a congruence principle for financial regulation. Application of this principle would enable regulators to use economically similar instruments across multiple domains to manage systemic risk. We present case studies of market malfunctions that occurred when congruence was ignored: nonprime mortgage finance (in 2008 and 2020) and United States Treasury securities (in 2020). In these cases, risk built up in non-bank financial institutions due in part to regulatory arbitrage. Under a congruence principle, regulators could mitigate this risk using a coordinated combination of capital requirements, minimum haircuts on repo transactions, and margining rules on futures exchanges and central clearing parties.
Cass R. Sunstein, This Is Not Normal: The Politics of Everyday Expectations (2021).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
,
Politics & Political Theory
Type: Book
Abstract
This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.
Roberto Mangabeira Unger, The System Cannot Hold: Having Left the EU, the United Kingdom Must Embark on a National Programme of Self-Renewal, New Statesman, Mar. 19, 2021, at 23.
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Social Change
,
Law & Economics
,
Law & Political Theory
Type: Article
Abstract
The fundamental reason for the productivity slowdown in the richest part of the world is that science and technology-intensive production devoted to permanent innovation - which we call the knowledge or innovation economy - remains confined in every sector; from product design and advanced manufacturing to precision agriculture, to fringes that exclude the overwhelming maj ority of workers and businesses. The timehonoured shortcut to economic growth - conventional industry: the mass production of standardised goods and services, on the basis of rigid machines, semi-skilled labour, and extreme job specialisation, as in an oldfashioned automobile plant or steel mill - has stopped working, as one country after another has deindustrialised. Some European countries, especially Germany and Switzerland, retain a large and vital manufacturing base, which they are now struggling to convert into its more advanced knowledge-intensive equivalent. The vast majority of activity in the UK’s service economy, meanwhile, remains confined to personal care, bricks-and-mortar retail, or iqth-century-style professions and trades, such as the plumbing, electrical, and building trades, disconnected from the front line of production.
Tyler Giannini & Sondra Anton, When War Criminals Run the Government: Not Too Late for the International Community to Vet Sri Lankan Officials, Just Security (Mar. 16, 2021).
Categories:
International, Foreign & Comparative Law
Sub-Categories:
Human Rights Law
,
East Asian Legal Studies
,
International Humanitarian Law
,
International Law
Type: Other
Jeannie Suk Gersen, The Story of the Comfort Women, in Korean and Japanese, NewYorker.com (Mar. 13, 2021).
Categories:
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Gender & Sexuality
,
East Asian Legal Studies
,
Foreign Relations
,
Human Rights Law
Type: Other
Laurence H. Tribe, President or Not, Trump Can Be Made to Pay for the Jan. 6 Insurrection, The Hill, Mar. 12, 2021.
Categories:
Constitutional Law
,
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Constitutional History
,
Criminal Prosecution
,
Government Accountability
,
Executive Office
Type: Other
Eric A. Posner & Jack Landman Goldsmith, The Limits of International Law Fifteen Years Later (Mar. 12, 2021).
Categories:
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Legal Theory & Philosophy
,
International Law
Type: Other
Abstract
The Limits of International Law received a great deal of criticism when it was published in 2005 but it has aged well. The skeptical, social-scientific methodology that it recommended has become a normal mode of international law scholarship. And the dominant idealistic view of international law that the book criticized is today in shambles, unable to explain the turmoil in international politics. This essay reflects on the book’s reception and corrects common misperceptions of its arguments.
Cass R. Sunstein, Green Defaults Can Combat Climate Change,Nature Hum. Behav. (Mar. 11, 2021).
Categories:
Disciplinary Perspectives & Law
,
Environmental Law
Sub-Categories:
Law & Behavioral Sciences
,
Climate Change
,
Energy & Utilities Law
,
Renewable Resources Law
Type: Other
Abstract
Increasing the uptake of green energy use by households and businesses is a key step toward reducing environmental harm and combating climate change. In a new paper, Liebe et al.show that a non-monetary intervention can have massive effects on green energy consumption, leading to substantial reductions in carbon emissions.
Richard D. Parker, You Won’t Like This: A Populist Addresses Donald Trump, POP – Political Observatory on Populism (March 11, 2021).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Other
Vicki C. Jackson & Martha Minow, Facebook Suspended Trump. The Oversight Board Shouldn’t Let Him Back., Lawfare (Mar. 8, 2021).
Categories:
Technology & Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Executive Office
,
Networked Society
Type: Other
Abstract
The Facebook Oversight Board should be mindful that Facebook is not a government—and that the platform’s decisions denying active accounts or taking down posts pose no threat of loss of liberty to any person.
Isaac S. Kohane & Jonathan Zittrain, Using a Collective 'Virtuous Cycle' to Break the Pandemic, STAT (Mar. 2, 2021).
Categories:
Health Care
Sub-Categories:
Health Law & Policy
Type: Other
Mark Tushnet, “Rock ‘n’ Roll” and “Roll Over Beethoven”: Tom Stoppard and Critical Legal Studies (Harvard Pub. L. Working Paper No. 21-15, Mar. 2, 2021).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Critical Legal Studies
,
Law & Humanities
,
Law & Social Change
Type: Other
Abstract
In 1969-70 or thereabouts several Yale Law School students set up a “commune” in the courtyard between what were then residential halls. At roughly the same time David Trubek and Rick Abel were holding a reading group on law and development with a heavy dose of social theory, a harbinger of what became critical legal studies. The two events can be taken as representative of alternative paths to social transformation – roughly, the cultural path and the path to change through self-consciously directed political action. In this short paper, originally prepared for a conference on the intellectual history of critical legal studies at Princeton University in February 2020, I read two works as dialogues about those paths, Tom Stoppard’s play “Rock ‘n’ Roll,” which looks at Czechoslovakia from 1968 through 1989 – from the Prague Spring through the Soviet occupation to the collapse of the Soviet empire – and “Roll Over Beethoven,” a discussion between “Peter Gabel” and “Duncan Kennedy” about some controversies in the early years of critical legal studies.
Einer Elhauge, Sumit K. Majumdar & Martin C. Schmalz, Confronting Horizontal Ownership Concentration, 66 Antitrust Bull. 3 (2021).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
,
Corporate Law
Type: Article
Abstract
Developments in capital markets have fueled a concentration of horizontal ownership across competing firms, and this has been linked to anticompetitive effects and economic underperformance. The debate about such ownership concentration has proven contentious and controversial. This symposium titled “Common Ownership: Illuminating a Great 21st Century Antitrust Debate” brings together key new works on the topic that confirm, extend, and illuminate the prior empirical findings and policy implications. Among other things, these contributions survey the recent empirical literature, provide new important empirical results about the extent and effect of horizontal ownership, offer a methodological critique, highlight concepts that address core capital market and labor market linkages, and articulate ideas for policy development to tackle emerging contingencies.
Cass R. Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception (2021).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
First Amendment
,
Law & Behavioral Sciences
,
Law & Economics
,
Law & Political Theory
,
Administrative Law & Agencies
,
Communications Law
,
Networked Society
Type: Book
Abstract
Lying has been with us from time immemorial. Yet today is different-and in many respects worse. All over the world, people are circulating damaging lies, and these falsehoods are amplified as never before through powerful social media platforms that reach billions. Liars are saying that COVID-19 is a hoax. They are claiming that vaccines cause autism. They are lying about public officials and about people who aspire to high office. They are lying about their friends and neighbors. They are trying to sell products on the basis of untruths. Unfriendly governments, including Russia, are circulating lies in order to destabilize other nations, including the United Kingdom and the United States. In the face of those problems, the renowned legal scholar Cass Sunstein probes the fundamental question of how we can deter lies while also protecting freedom of speech. To be sure, we cannot eliminate lying, nor should we try to do so. Sunstein shows why free societies must generally allow falsehoods and lies, which cannot and should not be excised from democratic debate. A main reason is that we cannot trust governments to make unbiased judgments about what counts as "fake news." However, governments should have the power to regulate specific kinds of falsehoods: those that genuinely endanger health, safety, and the capacity of the public to govern itself. Sunstein also suggests that private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of falsehoods, and they should be exercising their authority far more than they are now doing. As Sunstein contends, we are allowing far too many lies, including those that both threaten public health and undermine the foundations of democracy itself.
Cass R. Sunstein, Most People Like Nudges-And Why That Matters, in Theories of Choice: The Social Science and the Law of Decision Making 73 (Stefan Grundmann & Philipp Hackey, eds., Oxford University Press 2021).
Categories:
Disciplinary Perspectives & Law
,
Banking & Finance
Sub-Categories:
Law & Behavioral Sciences
Type: Book