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Stakeholder Governance As Governance By Stakeholders, Brett H. Mcdonnell Jan 2024

Stakeholder Governance As Governance By Stakeholders, Brett H. Mcdonnell

Articles

Much debate within corporate governance today centers on the proper role of corporate stakeholders, such as employees, customers, creditors, suppliers, and local communities. Scholars and reformers advocate for greater attention to stakeholder interests under a variety of banners, including ESG, sustainability, corporate social responsibility, and stakeholder governance. So far, that advocacy focuses almost entirely on arguing for an expanded understanding of corporate purpose. It argues that corporate governance should be for various stakeholders, not shareholders alone.

This Article examines and approves of that broadened understanding of corporate purpose. However, it argues that we should understand stakeholder governance as extending well …


Populist Politics And International Business Policy: Problems, Practices, And Prescriptions For Mnes, Paul Vaaler, Christopher Hartwell, Barclay James, Thomas Lindner, Jakob Müllner Jan 2024

Populist Politics And International Business Policy: Problems, Practices, And Prescriptions For Mnes, Paul Vaaler, Christopher Hartwell, Barclay James, Thomas Lindner, Jakob Müllner

Articles

In this editorial introduction to the Special Issue on populism, we discuss different approaches to defining populism in ways relevant to multinational enterprise (MNE) strategy and organization. In addition, we demonstrate how populist host-country government policies often target MNEs in ways that give rise to distinctly new forms of discriminatory treatment. This theoretical background sets the stage for the papers of this Special Issue, explaining the origins of these populist host-country government policies and the impact of such policies on FDI and international trade. We conclude with various suggestions for advancing IB policy research on populism, including building a better …


Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat Jan 2024

Opportunistic Breach Of Contract, Francesco Parisi, Brian H. Bix, Ariel Porat

Articles

Law and economics scholarship has traditionally analyzed efficient breach cases monolithically. By grouping efficient breach cases together, this literature treats the subjective motives and the distributive effects of the breach as immaterial. The Restatement (Third) of Restitution and Unjust Enrichment introduced a distinction based on the intent and the effects of the breach, allowing courts to use disgorgement remedies in cases of ‘opportunistic’ breach of contract (i.e., ‘deliberate and profitable’ breaches). In this article, we evaluate this approach, focusing on the effects of disgorgement remedies on allocative and productive efficiency, information-forcing and competitive effects, and restraint of breach-searching incentives. We …


Centralizing Pharmaceutical Innovation, Sapna Kumar Jan 2024

Centralizing Pharmaceutical Innovation, Sapna Kumar

Articles

The United States has a mostly decentralized system for promoting new medicine development. By offering patents and regulatory exclusivities, the government incentivizes pharmaceutical companies to invent and bring to market new medicines. Although this development model offers benefits for promoting innovation, it comes at a cost: Market-based incentives lead companies to prioritize research and development (“R&D”) for medicines that offer a safe path to profitability, as opposed to those that offer the greatest social benefit. In particular, pharmaceutical companies are reluctant to invest in R&D for critically-needed antibiotics and infectious disease vaccines—both of which are difficult to develop and provide …


Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass Jan 2024

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Articles

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …


Just Don’T Do It: Why Cannabis Regulations Are The Reason Cannabis Businesses Are Failing, Edward Adams Jan 2024

Just Don’T Do It: Why Cannabis Regulations Are The Reason Cannabis Businesses Are Failing, Edward Adams

Articles

Part I will provide a historical overview of the cannabis plant and our country’s experience with it prior to the election of President Richard Nixon. It is at that point, the early 1970s, that the current federal cannabis scheme began to take shape. Sections I.A though I.C will discuss the inception of the War on Drugs during the Nixon Administration and examine the subsequent social movement that led President Reagan to revamp and expand the War on Drugs throughout the 1980s.

The legal framework for federal cannabis regulation has largely remained stagnant since the Reagan Administration. Nevertheless, the federal stance …


Making Law Practice Technology More Simulation-Based, Jacob Sayward Jan 2024

Making Law Practice Technology More Simulation-Based, Jacob Sayward

Articles

Law and Technology Legal Technology Law Practice Technology Technology Competency Law Legal Education Legal Profession Technology Technology Education Technology Planning or Policy


Mitigating Citation Errors In The Interlibrary Loan System, Scott Dewey, David Zopfi-Jordan Jan 2023

Mitigating Citation Errors In The Interlibrary Loan System, Scott Dewey, David Zopfi-Jordan

Articles

Journal articles from most academic disciplines have long shown high rates of citation errors. American law reviews, with their careful cite-checking, are a rare exception to the overall rule. Incorrect citations are especially costly and problematic for interlibrary loan librarians. This article offers practical suggestions to address the problem.


Antidiscrimination Efforts And The Repressive Weight Of Culture, Matthew Bodie Jan 2023

Antidiscrimination Efforts And The Repressive Weight Of Culture, Matthew Bodie

Articles

No abstract provided.


Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz Jan 2023

Ai Tools For Lawyers: A Practical Guide, Daniel Schwarcz

Articles

This Article provides practical and specific guidance on how to effectively use AI large language models (LLMs), like GPT-4, Bing Chat, and Bard, in legal research and writing. Focusing on GPT-4—the most advanced LLM that is widely available at the time of this writing—it emphasizes that lawyers can use traditional legal skills to refine and verify LLM legal analysis. In the process, lawyers and law students can effectively turn freely available LLMs into highly productive personal legal assistants.


Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan Jan 2023

Crimmigrating Narratives: Examining Third-Party Observations Of Us Detained Immigration Court, Linus Chan

Articles

Examining what we call “crimmigrating narratives,” we show that US immigration court criminalizes non-citizens, cements forms of social control, and dispenses punishment in a non-punitive legal setting. Building on theories of crimmigration and a sociology of narrative, we code, categorize, and describe third-party observations of detained immigration court hearings conducted in Fort Snelling, Minnesota, from July 2018 to June 2019. We identify and investigate structural factors of three key crimmigrating narratives in the courtroom: one based on threats (stories of the non-citizen’s criminal history and perceived danger to society), a second involving deservingness (stories of the non-citizen’s social ties, hardship, …


The Multifaceted Method Of Comparative Law And Economics, Francesco Parisi Jan 2023

The Multifaceted Method Of Comparative Law And Economics, Francesco Parisi

Articles

As initially conceived of in the Eighties, Comparative Law and Economics provided legal scholars a neutral language for the exploration of similarities and differences across legal systems. Its value added is the theoretical rigour of its models and the possibility to engage in a scientific dialogue not hampered by jurisdiction-specific features. At a later stage, comparative approaches became fully embedded in economic research and its empirical methods. Possible synergies with comparative legal research abound, but the organization of academic structures has so far prevented to fully exploit them.


Standing, Nominal Damages, And Nominal Damages "Workarounds" In Intellectual Property Law After Transunion, Thomas F. Cotter Jan 2023

Standing, Nominal Damages, And Nominal Damages "Workarounds" In Intellectual Property Law After Transunion, Thomas F. Cotter

Articles

In June 2021, the United States Supreme Court held, in TransUnion LLC v. Ramirez, that plaintiffs lack standing to assert claims for statutory damages under the Fair Credit Reporting Act unless they can demonstrate “concrete harm” arising from those violations. Although TransUnion was not a case involving intellectual property (“IP”) rights, if the rationale of the decision is that Congress cannot authorize federal courts to entertain claims for statutory damages unless the plaintiff shows that it has suffered actual harm, some common monetary awards for the infringement of IP rights — specifically, statutory damages, reasonable royalties, and (in design patent …


Personal Jurisdiction’S Moment Of Opportunity: A Reform Blueprint For Originalists And Nonoriginalists, Allan Erbsen Jan 2023

Personal Jurisdiction’S Moment Of Opportunity: A Reform Blueprint For Originalists And Nonoriginalists, Allan Erbsen

Articles

Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the proper foundation for limits on state power or are other clauses more relevant? What harms should limits on state power prevent and what harms should limits avoid creating? Decisions addressing these questions rely on jargon rather than a coherent account of how to allocate jurisdictional power …


Doing Injustice: Exchanging One “Arbitrary, Cruel, And Reckless” Sentencing System For Another, Michael Tonry Jan 2023

Doing Injustice: Exchanging One “Arbitrary, Cruel, And Reckless” Sentencing System For Another, Michael Tonry

Articles

Marvin Frankel’s characterization of American sentencing in Criminal Sentences: Law Without Order remarkably successfully distilled ideas that were in the air and emerging. His main proposals—a sentencing commission, sentencing rules, requirements that judges explain their decisions, and meaningful appellate sentence review—would in a better America go a long way toward establishing the kind of rational, humane, and just process he imagined. Despite some early, partial successes, however, Frankel’s proposals remain largely untested. In retrospect, he underestimated, misunderstood, or chose to ignore formidable political impediments to serious sentencing reform in late twentieth century America. He also largely ignored two intractable problems, …


Supporting Families In A Post-Dobbs World: Politics And The Winner-Take-All Economy, June Carbone Jan 2023

Supporting Families In A Post-Dobbs World: Politics And The Winner-Take-All Economy, June Carbone

Articles

The pathway to stable and secure middle-class status involves two elements: the ability to postpone family formation to facilitate human capital investment and the ability to marshal the emotional and material resources needed to address children needs. Yet, the ability to meet the middle-class threshold for family investment is under assault as the class-based COVID-19 pandemic vulnerabilities and the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization illustrate. While the American Rescue Plan demonstrates the federal government's considerable ability to address children's needs, Dobbs represents the judicial assault on federal power and the ongoing devolution in responsibility for …


Moderating The Fediverse: Content Moderation On Distributed Social Media, Alan Rozenshtein Jan 2023

Moderating The Fediverse: Content Moderation On Distributed Social Media, Alan Rozenshtein

Articles

No abstract provided.


The Blue Family Constitution, June Carbone Jan 2023

The Blue Family Constitution, June Carbone

Articles

No abstract provided.


Process As Suffering: How U.S. Immigration Court Process And Culture Prevent Substantive Justice, Linus Chan Jan 2023

Process As Suffering: How U.S. Immigration Court Process And Culture Prevent Substantive Justice, Linus Chan

Articles

In this article, we argue that there is a form of double punishment unique to the immigration court system that attorneys and their noncitizen clients must navigate throughout changing political contexts. The first form of punishment is the court process during removal proceedings, and the second form of punishment is removal from the United States. Our interviews with removal defense attorneys in the U.S. Upper Midwest illustrate how these punishments intersect with one another and push attorneys to adopt strategies that may not lead to winning a case, but intend to protect their clients by losing as slowly as possible. …


The Partial Success Of Judge Frankel’S Sentencing Commission, Fifty Years On, Richard Frase Jan 2023

The Partial Success Of Judge Frankel’S Sentencing Commission, Fifty Years On, Richard Frase

Articles

Judge Marvin Frankel’s writings in the early 1970s inspired the creation of sentencing guidelines commissions and guidelines rules in twenty-two state and federal jurisdictions. By the late 1970s Frankel’s tentative proposals had been substantially filled out by other writers and reformers; the two most common guidelines models were adopted by Minnesota (1980) and Pennsylvania (1982). The federal guidelines (1987) have been justly criticized, but most state guidelines have been accepted by judges and other practitioners and observers. This sentencing reform model has also been endorsed by the American Bar Association and the American Law Institute. This essay tells the story …


Enforcement-Proofing Work Law, Charlotte Garden Jan 2023

Enforcement-Proofing Work Law, Charlotte Garden

Articles

No abstract provided.


Appointed Or Elected: How Justices On Elected State Supreme Courts Are Actually Selected, Herbert M. Kritzer Jan 2023

Appointed Or Elected: How Justices On Elected State Supreme Courts Are Actually Selected, Herbert M. Kritzer

Articles

During at least part of the post–World War II period, the constitutions of thirty-six states called for the popular election of the judges of the states’ highest courts. In practice, only slightly more than half of those judges (excluding strictly interim appointees) initially obtained their positions by election. This article examines the likelihood of initial election in actual practice, how it has varied over time, and various factors that might be related to election versus appointment (e.g., type of election, mandatory retirement). It concludes that state norms play a substantial role in determining patterns of actual selection.


The Belfast/Good Friday Agreement And Transformative Change: Promise, Power And Solidarity, Fionnuala Ní Aoláin Jan 2023

The Belfast/Good Friday Agreement And Transformative Change: Promise, Power And Solidarity, Fionnuala Ní Aoláin

Articles

In 2023 the 1998 Belfast/Good Friday Agreement marks its twenty-fifth anniversary. For many the Agreement projects a global image of a successfully concluded end to conflict. However, key aspects of the agreement remain under-enforced or simply undelivered: in particular, provisions related to significant and wide-ranging guarantees addressing human rights and equality of opportunity. As a result, socio-economic and cultural deficits persist, undermining the capacity to achieve a ‘positive peace’. In this article we address the question of how transformative the Agreement and associated reforms have been in addressing the root causes of the conflict and the structures that underpinned it. …


State Responsibility For Human Rights Violations Perpetrated In The Name Of International Counter-Terrorism Financing Obligations, Fionnuala Ní Aoláin Jan 2023

State Responsibility For Human Rights Violations Perpetrated In The Name Of International Counter-Terrorism Financing Obligations, Fionnuala Ní Aoláin

Articles

This Essay responds to the increasing adoption by States across continents of repressive, over-reaching laws, regulations, and policies aimed at countering the financing of terrorism. It documents the immense international pressure to adopt counter-terrorism financing measures, coupled with the seeming marginalization of concurrent international human rights law obligations. The Essay first sets out the applicable legal framework and rapid normative developments in international counter-terrorism financing law. Second, the Essay provides a snapshot of existing allegations of human rights violations committed in the name of international counter-terrorism financing obligations, including judicial harassment and undue surveillance of human rights defenders and civil …


Textualism And The Administrative Procedure Act, Kristin Hickman Jan 2023

Textualism And The Administrative Procedure Act, Kristin Hickman

Articles

In recent years, the Supreme Court occasionally has applied a more limited approach to textualist reasoning that, if applied to the APA, could expand the perceived gulf between textualism and existing administrative law doctrine. Our purpose with this Essay is to explore the implications of this trend for APA interpretation, particularly as it might apply to agency rulemaking. We do not purport to address critics of textualism as an interpretive methodology; we speak primarily to those who are persuaded of textualism’s merits. We also will not try to resolve all the many disagreements about textualism’s variations or the APA’s meaning. …


How Privilege Undermines Cybersecurity, Daniel Schwarcz Jan 2023

How Privilege Undermines Cybersecurity, Daniel Schwarcz

Articles

In recent years, cyberattacks have cost firms countless billions of dollars, undermined consumer privacy, distorted world geopolitics, and even resulted in death and bodily harm. Rapidly accelerating cyberattacks have not, however, been bad news for many lawyers. On the contrary, lawyers that specialize in coordinating all elements of victims’ incident-response efforts are increasingly in demand. Lawyers’ dominant role in cyber-incident response is driven in part by their purported capacity to ensure that information produced during the breach response process remains confidential, particularly in any subsequent lawsuit. By interposing themselves between their clients and any third party consultants involved in incident …


The Public Administration Of Justice, Nicholas Bednar Jan 2023

The Public Administration Of Justice, Nicholas Bednar

Articles

Adjudicatory agencies decide who receives social-welfare benefits, which inventions deserve patents, and which noncitizens get to remain in the United States. Scholars have argued that agency adjudication lacks sufficient structural and procedural protections to ensure unbiased decision-making. Yet these critiques miss a key problem with agency adjudication: the lack of adjudicatory capacity. This Article argues that low-capacity agencies cannot satisfy the Due Process Clause's demand for accurate decision-making. To produce accurate decisions, adjudicatory agencies need sufficient levels of capacity: (1) material resources, (2) expert adjudicators, and (3) support staff When agencies lack these resources, their adjudicators rely on various coping …


Bureaucratic Autonomy And The Policymaking Capacity Of United States Agencies, 1998–2021, Nicholas Bednar Jan 2023

Bureaucratic Autonomy And The Policymaking Capacity Of United States Agencies, 1998–2021, Nicholas Bednar

Articles

Despite a renewed interest in the health of the US administrative state, the absence of meaningful time-series measures of bureaucratic capacity hinders the testing of core theories of bureaucratic and executive politics. Using over 190 million personnel records, I estimate 5590 yearly policymaking-capacity scores for 261 unique agencies from 1998 to 2021. These measures provide an invaluable tool as either an independent or dependent variable in studies of administrative policymaking. To illustrate the value of these measures, I test longstanding theories about the relationship between bureaucratic autonomy and capacity. In contrast with emerging survey research, this study demonstrates that agencies …


Labor Relations At The Woke Corporation, Matthew Bodie Jan 2023

Labor Relations At The Woke Corporation, Matthew Bodie

Articles

This symposium contribution will consider the role of labor relations within the so-called “woke” corporation. Part I will explore the turn in corporate behavior and corporate law theory towards an attention to stakeholders and a larger corporate purpose. Part II examines how this shift in corporate sentiment has not changed the traditional hostility towards the choice of a company’s own workers to unionize. Part III considers how to address this disjunction, both through pressure from the workers themselves and through changes in corporate law, corporate theory, and labor and employment law.


Burdens Of Proof In Establishing Negligence: A Comparative Law And Economics Analysis, Francesco Parisi, Giampaolo Frezza Jan 2023

Burdens Of Proof In Establishing Negligence: A Comparative Law And Economics Analysis, Francesco Parisi, Giampaolo Frezza

Articles

Inherent in any judicial system is the need to allocate the burden of proof on one party. Within the realm of negligence torts, that burden is traditionally placed on the plaintiff, meaning that the plaintiff must bring forth sufficient evidence to establish negligence by the defendant. In effect, this is a legal presumption of non-negligence in favor of the defendant. In some jurisdictions for specific torts, defendants are, instead, presumed negligent, therefore requiring defendants to come forth with sufficient evidence to prove their due diligence. In this paper, we discuss the legal origins and effects of these differences in a …