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Articles 1 - 18 of 18
Full-Text Articles in Entire DC Network
Democracy's Bureaucracy: The Complicated Case Of Voter Registration Lists, Michael Morse
Democracy's Bureaucracy: The Complicated Case Of Voter Registration Lists, Michael Morse
Articles
This Article calls attention to the development and derailment of a novel cross-governmental bureaucracy for voter registration. It focuses specifically on voter registration lists as the vulnerable backbone of election administration. In short, the constitutional allocation of election authority has left a mobile electorate scattered across fifty different state registration lists. The result is more than a tenth of the electorate likely registered in their former jurisdiction and more than a third not registered at all. The solution, in the vocabulary of election officials, has become “list maintenance”—or, identifying when voters, previously registered at one address, subsequently move or die, …
Derivative Foreign Relations Law, Jean Galbraith
Derivative Foreign Relations Law, Jean Galbraith
Articles
We treat U.S. foreign relations law as a discrete body of law—and it is. But it is not independent. To the contrary, it relies on the same institutional actors that govern more generally: the President, Congress, the federal judiciary, administrative agencies, and sub-national governments. And far from being static, these institutions change radically over time in how they are constituted, in what internal rules they apply, and in what legal outputs they produce. The Trump Administration is a recent and painful example whose legacy continues to loom large, including on the Supreme Court. This symposium contribution considers what these broader …
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Articles
Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics—electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants—measured by the fixed terms of state and federal executive officials—may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts—measured by the fixed terms of state judges—creates openings for strategic behavior among litigants (both public …
Corporate Democracy And The Intermediary Voting Dilemma, Jill E. Fisch, Jeff Schwartz
Corporate Democracy And The Intermediary Voting Dilemma, Jill E. Fisch, Jeff Schwartz
Articles
Corporate governance is changing. For the past two decades, the focus of shareholder voting and engagement was deconstructing impediments to shareholder power and increasing managerial accountability. The goal of these interventions was to increase firm value by reducing agency costs. Increasingly, however, environmental and social issues have risen to the fore. This new focus is arguably more about values than value. This Article is the first to argue that, because of this shift, institutional intermediaries—namely, pension and mutual fund managers—can no longer vote and engage on the affairs of their portfolio companies without seeking the input of the pension-plan participants …
Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell
Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell
Articles
Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the …
Defeating The Empire Of Forms, David Hoffman
Defeating The Empire Of Forms, David Hoffman
Articles
For generations, contract scholars have waged a faint-hearted campaign against form contracts. It’s widely believed that adhesive forms are unread and chock full of terms that courts will not, or should not, enforce. Most think that the market for contract terms is broken, for both employees and consumer adherents. And yet forms are so embedded in our economy that it’s hard to imagine modern commercial life without them. Scholars thus push calibrated, careful solutions that walk a deeply rutted path. Notwithstanding hundreds of proposals calling for their retrenchment, the empire of forms has continued to advance into new areas of …
Startup Failure, Elizabeth Pollman
Startup Failure, Elizabeth Pollman
Articles
Venture-backed startups famously aim for a successful “exit” by going public or selling to another company through an acquisition deal and achieving financial return for all equity holders. A different path, however, is vastly more likely to occur—failure. Although high-risk innovative ventures fail at exceedingly high rates, no scholarly account systematically explains what happens to these startups at the end of their life cycle. This Article provides an original theory of startup failure: how law and culture have shaped a system for dealing with the large number of startups that cannot reach an exit that will produce a financial return …
Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch
Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch
Articles
Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries, and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …
Algorithms And Competition In The Digital Economy, Cary Coglianese, Alicia Lai
Algorithms And Competition In The Digital Economy, Cary Coglianese, Alicia Lai
Articles
No abstract provided.
Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne
Standing Back And Standing Down: Citizen Non-Cooperation And Police Non-Intervention As Causes Of Justice Failure And Crime, Paul H. Robinson, Jeffrey Seaman, Muhammad Sarahne
Articles
The article discusses the failures of the American justice system to find and punish offenders for the majority of serious crimes. It highlight the low clearance and conviction rates for crimes such as murder, rape, and assault. It further argues that these failures of justice have practical consequences on crime rates and also disproportionately affect racial minorities and low-income communities.
Choice Of Law And The Federal-State System, Tobias Wolff
Choice Of Law And The Federal-State System, Tobias Wolff
Articles
In the great tradition of the festschrift, Professor Wolff uses his contribu- tion to this volume to continue a debate with Professor Zachary Clopton over choice of law in the federal courts and the proper way to analyze and apply the Supreme Court’s opinion in Klaxon v. Stentor Electric Manufacturing Company. Professor Wolff reiterates his call for a careful account of federal jurisdictional policy in choice of law disputes, particularly in cases that enter federal court through jurisdictional pathways other than the general diversity statute, and he responds to several criticisms Professor Clopton has levied at the analytical framework he …
Chevron And Administrative Antitrust, Redux, Gus Hurwitz
Chevron And Administrative Antitrust, Redux, Gus Hurwitz
Articles
No abstract provided.
Winners And Losers In The Debate Over The Expansion Of Medicare, Allison Hoffman
Winners And Losers In The Debate Over The Expansion Of Medicare, Allison Hoffman
Articles
Over its nearly sixty years, Medicare’s reach in terms of beneficiary groups and benefits has remained surprisingly stable, not for lack of attempts at expansion. This essay considers several of the most ambitious attempts at Medicare expansion, including adding benefits for prescription drugs, long-term care, and vision, dental, and hearing care. Some failures and some successful, these efforts considered in conjunction illuminate Medicare’s changing identity, drifting gradually yet fundamentally from its social insurance roots. Understanding the winners and losers in the debates over Medicare expansion reveals the changing political economy and collective understanding of Medicare as a cornerstone of the …
How Crime Shapes Insurance And Insurance Shapes Crime, Tom Baker, Anja Shortland
How Crime Shapes Insurance And Insurance Shapes Crime, Tom Baker, Anja Shortland
Articles
Crime creates demand for insurance but supplying insurance may promote crime. We examine five case studies of insured crimes (auto theft, art theft, kidnap and hijack for ransom, ransomware, and payment card fraud) and find a co-evolutionary process through which insurers engage with insureds, governments, and legal and extralegal third parties to mitigate losses, particularly when criminal innovations destabilize the insurance market. “Insurance as crime governance” stimulates demand for security, shapes criminal incentives, engages with the state to combat crime, and tolerates some crime in the interest of profitability.
"You’Re Fired": Criminal Use Of Presidential Removal Power, Claire Finkelstein, Richard Painter
"You’Re Fired": Criminal Use Of Presidential Removal Power, Claire Finkelstein, Richard Painter
Articles
This Article addresses a specific, but critically important aspect of presidential power: the intersection between the president’s power to remove executive branch officers and criminal laws that are generally applicable to both office-holders and non-office-holders alike. The question we ask is whether the president can obstruct justice by removing a presidential appointee who is investigating or prosecuting crimes of the president himself or of his associates. Can a president remove an appointee who refuses to work on behalf of the president’s re-election campaign even though it is a crime for anyone, including a president, to order or coerce a federal …
Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan
Gender And Deception: Moral Perceptions And Legal Responses, Gregory Klass, Tess Wilkinson-Ryan
Articles
Decades of social science research has shown that the identity of the parties in a legal action can affect case outcomes. Parties’ race, gender, class, and age all affect decisions of prosecutors, judges, juries, and other actors in a criminal prosecution or civil litigation. Less studied has been how identity might affect other forms of legal regulation. This Essay begins to explore perceptions of deceptive behavior—i.e., how wrongful it is, and the extent to which it should be regulated or punished—and the relationship of those perceptions to the gender of the actors. We hypothesize that ordinary people tend to perceive …
Where's The Insurance In Mass Tort Litigation?, Tom Baker
Where's The Insurance In Mass Tort Litigation?, Tom Baker
Articles
This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their …
Donating To The District Attorney, Michael Morse, Carissa Byrne Hessick, Nathan Pinnell
Donating To The District Attorney, Michael Morse, Carissa Byrne Hessick, Nathan Pinnell
Articles
The United States is the only country that elects its local prosecutors. In theory, these local elections could facilitate local control of criminal justice policy. But the academic literature assumes that, in practice, prosecutor elections fail to live up to that promise. This Article complicates that conventional wisdom with a new, national study of campaign contributions in prosecutor accountability by analyzing contributions to local candidates as well as their election results. It details the amount of money in local prosecutor elections, including from interest groups, and the relationship between candidate fundraising and success. The stark differences across the country underscore …