Law Commons^™

Are The Stock Markets “Rigged”? An Empirical Analysis Of Regulatory Change, Stephen F. Diamond, Jennifer W. Kuan

Faculty Publications

Volatile events in the stock market such as the 2010 Flash Crash have sparked concern that financial markets are “rigged” in favor of trading firms that use high frequency trading (“HFT”) systems. We analyze a regulatory change implemented by the SEC in 2007 by examining its effect on a key market metric, the bid-ask spread, an investor cost, and find that the regulatory shift, indeed, disadvantages investors. We link the implementation of this change to a shift in the volume of trades from a low-cost venue to a high-cost venue. We argue that this outcome is predicted by the incentives …

Were The 1982 Merger Guidelines Old News?, Alan J. Meese, Sarah L. Stafford

Faculty Publications

This paper examines the impact of the 1982 Department of Justice Merger Guidelines on the stock market prices of publicly traded firms in the United States. We argue that those Guidelines were perceived by the market as a real change in enforcement policy that would result in substantial deregulation of mergers throughout the economy. We conduct an event study of S&P 500 firms to test this hypothesis and find evidence of a significant positive effect on the stock prices of firms in moderately concentrated industries subject to antitrust regulation, the firms for which the 1982 Guidelines articulate a substantially less …

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one …

Justice Scalia's Other Standing Legacy, Tara Leigh Grove

Faculty Publications

No abstract provided.

Orwell's 1984 And A Fourth Amendment Cybersurveillance Nonintrusion Test, Margaret Hu

Faculty Publications

This Article describes a cybersurveillance nonintrusion test under the Fourth Amendment that is grounded in evolving customary law to replace the reasonable expectation of privacy test formulated in Katz v. United States. To illustrate how customary law norms are shaping modern Fourth Amendment jurisprudence, this Article examines the recurrence of judicial references to George Orwell’s novel, 1984, within the Fourth Amendment context when federal courts have assessed the constitutionality of modern surveillance methods. The Supreme Court has indicated that the Fourth Amendment privacy doctrine must now evolve to impose meaningful limitations on the intrusiveness of new surveillance technologies. …

Protests In Peril, Timothy Zick

Faculty Publications

No abstract provided.

Evaluating Market Reactions To Non-Practicing Entity Litigation, Emiliano Giudici, Justin Blount

Faculty Publications

An ongoing debate in patent law involves the role “non-practicing entities,” sometimes called “patent trolls,” serve in the patent system. Some argue they serve as valuable market intermediaries, while others contend they are a drain on innovation and an impediment to a well-functioning patent system. This Article adds to the data available in this debate by conducting an event study that analyzes the market reaction to patent litigation filed by large “mass aggregator” non-practicing entities against large publicly traded companies. This study advances the literature by attempting to reproduce the results of previous event studies done in this area with …

Crimmigration-Counterterrorism, Margaret Hu

Faculty Publications

The discriminatory effects that may stem from biometric ID cybersurveillance and other algorithmically-driven screening technologies can be better understood through the analytical prism of “crimmigrationcounterterrorism”: the conflation of crime, immigration, and counterterrorism policy. The historical genesis for this phenomenon can be traced back to multiple migration law developments, including the Chinese Exclusion Act of 1882. To implement stricter immigration controls at the border and interior, both the federal and state governments developed immigration enforcement schemes that depended upon both biometric identification documents and immigration screening protocols. This Article uses contemporary attempts to implement an expanded regime of “extreme vetting” to …

Taxing Systemic Risk, Eric D. Chason

Faculty Publications

A tax on the harmful elements of finance—a tax on systemic risk—would raise revenue and also lower the likelihood of future crisis. Financial institutions, which pay the tax, would try to minimize its cost by lowering their systemic risk. In theory, a tax on systemic risk is perfect policy. In practice, however, this perfect policy is unattainable. Tax laws need clear definitions to be administrable. Our current understanding of systemic risk is too abstract and too metaphorical to serve as a target for taxation.

Despite the absence of a clear definition of systemic risk, academics and policy makers continue to …

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Allstar Benchmarking: How Collaborating On Collecting And Sharing Data Is A Win-Win, Christine I. Dulac

Faculty Publications

We all know it’s hard to tell a library’s story to its stakeholders. Academic law libraries are expensive enterprises, and it’s challenging to capture the complete picture of the value that their resources, activities, and services provide. Consider as well the ever-increasing demands to augment services, while at the same time having to justify the need for new services and prove their cost-effectiveness In this environment, decision-makers need a clear understanding of what the library wants to accomplish, how it intends to meet its goals, and how it will measure success. What are the most important operations and services? Why …

Sanctions For Evading Maximum Page Limits On Court Filings, Douglas E. Abrams

Faculty Publications

Judge Marrero joins a growing lineup of judges who have imposed or threatened sanctions on counsel for attempting to evade court rules that set maximum page limits on briefs, memoranda, and other filings. Orders and reported opinions catalogue various strategies, including these: presenting the main text in a font smaller than the court's required font; presenting the main text with spacing less than required double spacing; using excessive footnotes, often single-spaced or in small fonts; or narrowing required margins on the sides, the top, or the bottom of pages.

The Miranda Custody Requirement And Juveniles, Paul Marcus

Faculty Publications

Concerns about the interrogation process and the ability of minors to navigate the criminal justice system often intersect. The impact of the age of juveniles can be seen in a variety of judicial decisions, most markedly those dealing with punishment. But judicial concern for juveniles goes well beyond sentencing. The interrogation process raises especially grave fears.

Since the Supreme Court issued its landmark ruling in Miranda v. Arizona disallowing compelled inculpatory statements by criminal suspects and defendants, there has been concern as to whether juveniles fully understand and appreciate their rights as articulated in Miranda and based in the Fifth …

Turner In The Trenches: A Study Of How Turner V. Rogers Affected Child Support Contempt Proceedings, Elizabeth Patterson

Faculty Publications

In its 2011 ruling in Turner v. Rogers, the Supreme Court held that a nonpaying child support obligor may not be incarcerated in a civil contempt proceeding if he did not have the ability to pay the ordered support or the purge necessary to regain his freedom. The Turner case arose in South Carolina, a state in which civil contempt proceedings are a routine part of the child support enforcement process. The author observed child support contempt proceedings in South Carolina both before and after the Turner decision to assess the extent to which indigent obligors were being held in …

Terry V. Ohio And The (Un)Forgettable Frisk, Seth W. Stoughton

Faculty Publications

No abstract provided.

Congressional Control Of Tax Rulemaking, Clint Wallace

Faculty Publications

The notice and comment process is often touted as a mechanism for establishing political accountability, and providing a check on agency decision-making. Based on a survey of three years of recently proposed tax regulations, this Article shows that many notice-and-comment processes for tax regulations have been ineffective for these purposes. Fully one-third of the time, no one participated. The few participants there are have been heavily weighted towards private interests, which commented on approximately two-thirds of all proposed regulations from 2013 through 2015. In contrast, public interest groups commented on less than 24% of proposed regulations. If the notice and …

Endrew F.'S Unintended Consequences, Claire Raj, Emily Suski

Faculty Publications

More than thirty years ago, the Supreme Court held that students with disabilities have a substantive right to a “free appropriate public education,” or “FAPE,” under the Individuals with Disabilities Education Act (IDEA). At that time, however, it declined to set a standard for evaluating that right. This year, the Court re-visited the issue in Endrew F. ex rel. Joseph F. v. Douglas County School District and finally and unanimously set that standard. The Court determined that a child’s individualized education program (IEP), the document that sets out a child’s special education services, must be “reasonably calculated to enable a …

Abandoning The Federal Role In Education, Derek Black

Faculty Publications

In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government lacks the ability to prompt improvements in student achievement and to demand equal resources for …

California's Climate Diplomacy And Dormant Preemption, David L. Sloss

Faculty Publications

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate …

Reconsidering Contractual Consent: Why We Shouldn't Worry Too Much About Boilerplate And Other Puzzles, Nathan B. Oman

Faculty Publications

Our theoretical approaches to contract law have dramatically over-estimated the importance of voluntary consent. The central thesis of this article is that voluntary consent plays at best a secondary role in the normative justification of contract law. Rather, contract law should be seen as part of an evolutionary process of finding solutions to problems of social organization in markets. Like natural evolution, this process depends on variation and feedback. Unlike natural evolution, both the variation and the feedback mechanisms are products of human invention. On this theory, consent serves two roles in contract law. First, consent makes freedom of contract …

Empowering Consumers Through Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

We transact online every day, hoping that no problems will occur. However, our purchases are not always perfect: goods may not arrive; products may be faulty; expectations may go unmet. When this occurs, we are often left frustrated, with no means for seeking redress. Phone calls to customer service are generally unappealing and ineffective, and traditional face-to-face or judicial processes for asserting claims are impractical after weighing costs against likely recovery. This is especially true when seeking redress requires travel, or for crossborder claims involving jurisdictional complexities. This situation has created a need for online dispute resolution (“ODR”), which brings …

How University Title Ix Enforcement And Other Discipline Processes (Probably) Discriminate Against Minority Students, Ben L. Trachtenberg

Faculty Publications

This Article argues that university discipline procedures likely discriminate against minority students and that increasingly muscular Title IX enforcement - launched with the best of intentions in response to real problems - almost certainly exacerbates yet another systemic barrier to racial justice and equal access to educational opportunities. Unlike elementary and secondary schools, universities do not keep publicly available data on the demographics of students subjected to institutional discipline, which prevents evaluation of possible disparate racial impact in higher education. Further, several aspects of the university disciplinary apparatus-including broad and vague definitions of offenses, limited access to legal counsel, and …

A Less Corrupt Term: 2016–2017 Supreme Court Roundup, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left …

The Cuban Missile Crisis, Historian Barbara W. Tuchman, And The Art Of Writing, Douglas E. Abrams

Faculty Publications

From behind-the-scenes accounts, we know that an articulate best-selling book published just a few months earlier by historian Barbara W. Tuchman, a private citizen who held no government position, contributed directly to the delicate negotiated resolution of the Cuban Missile Crisis.

After chronicling Tuchman's contribution to world peace. this article discusses her later Public Douglas commentary about what she called the "art of writing," commentary that remains instructive for lawyers who write as representatives of clients or causes in the private or public sector.

Estimating An Acquisition Program’S Likelihood Of Staying Within Cost And Schedule Bounds, Ryan Trudelle, Edward D. White, Clay M. Koschnick, Jonathan D. Ritschel, Brandon M. Lucas

Faculty Publications

Program managers use prior experience to spot potential programmatic areas of concern. Augmenting this experience, the authors present an empirical procedure to estimate the likelihood of a program not exceeding two schedule and cost thresholds: (a) 15 percent of the initial total acquisition cost estimate from Milestone (MS) B to Initial Operating Capability (IOC); and (b) 15 percent of the estimated length (in months) between MS B and IOC—the second bound being 25 percent of the cost and schedule estimate. Using logistic regression and odds ratios, the authors analyze 49 Department of Defense programs and generally find that electronic system …

We Need To Talk About Police Disciplinary Records, Kate Levine

Faculty Publications

In March 2017, an employee of New York’s Civilian Complaint Review Board leaked the disciplinary record of Daniel Pantaleo to the media. Pantaleo, the police officer who choked Eric Garner to death in the video that went public and horrified many citizens, is under federal investigation after a Staten Island grand jury refused to indict him for Garner’s death. Legal Aid Society attorneys had unsuccessfully sought the release of his records in the courts for years. The leak of his records is the public face of an important but rarely discussed issue facing police, legislators, judges, lawyers, and scholars who …

The Faithless Elector And 2016: Constitutional Uncertainty After The Election Of Donald Trump, Alexander Gouzoules

Faculty Publications

Presidential electors are generally expected to vote for the candidate who won their state's election, and those who do not are referred to as "faithless electors." A majority of states have laws of varying types that bind their electors to vote for the winning presidential candidate. The 2016 election, for the first time in modern history, produced a serious movement urging electors to cast faithless votes against Donald Trump. Although this movement was not successful, 2016 saw the most faithless electors in recent history by a large margin. Three separate, ultimately unsuccessful, lawsuits were filed by would-be faithless electors in …

Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick

Faculty Publications

Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …

Mass Communication Law And Policy Research And The Values Of Free Expression, Edward L. Carter

Faculty Publications

Mass communication law and policy research, including on values and theory of freedom of expression, has played an important role in Journalism & Mass Communication Quarterly for decades. Mass communication law research in Quarterly reached a high point with a special issue on the First Amendment in 1992 and numerous articles in the decade that followed. A relationship is explored between First Amendment theory and structural archetypes of constitutional argument. Future research could focus on international law and contemporary challenges involving technology, surveillance and changes in democratic citizenship.

Modeling Median Will-Cost Estimates For Defense Acquisition Programs, Ryan Trudelle, Edward D. White, Clay Koschnick, Brandon Lucas

Faculty Publications

Purpose: The introduction of “should cost” in 2011 required all Major Defense Acquisition Programs (MDAP) to create efficiencies and improvements to reduce a program’s “will-cost” estimate. Realistic “will-cost” estimates are a necessary condition for the “should cost” analysis to be effectively implemented. Owing to the inherent difficulties in establishing a program’s will-cost estimate, this paper aims to propose a new model to infuse realism into this estimate.

Design/methodology/approach: Using historical data from 73 Departments of Defense programs as recorded in the selected acquisition reports (SARs), the analysis uses mixed stepwise regression to predict a program’s cost from Milestone B (MS …