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Full-Text Articles in Law

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support ...


The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver Jan 2019

The Global Dominance Of European Competition Law Over American Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos, Alex Weaver

Faculty Scholarship

The world’s biggest consumer markets – the European Union and the United States – have adopted different approaches to regulating competition. This has not only put the EU and US at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world’s regulatory landscape and find that the EU’s competition laws have been more widely emulated than the US’s competition laws. We then argue that both “push” and “pull” factors explain the appeal of the EU’s ...


The Core Corporate Governance Puzzle: Contextualizing The Link To Performance, Merritt B. Fox, Ronald J. Gilson, Darius Palia Jan 2019

The Core Corporate Governance Puzzle: Contextualizing The Link To Performance, Merritt B. Fox, Ronald J. Gilson, Darius Palia

Faculty Scholarship

There is a puzzle at the core of corporate governance theory. Prior scholarship reports a strong relationship between firms best at creating shareholder value and those rated highly by the established corporate governance indices. Little work explores why, however. We hypothesize that the link between governance and performance depends centrally on context. We illustrate the importance of context by exploring circumstances when a firm's governance structure can operate as a signal of the quality of its management. The idea is that better managers are on average more likely to choose a highly rated governance structure than are bad managers ...


Long-Term Bias, Eric L. Talley, Michal Barzuza Jan 2019

Long-Term Bias, Eric L. Talley, Michal Barzuza

Faculty Scholarship

An emerging consensus in certain legal, business, and scholarly communities maintains that corporate managers are pressured unduly into chasing short-term gains at the expense of superior long-term prospects. The forces inducing managerial myopia are easy to spot, typically embodied by activist hedge funds and Wall Street gadflies with outsized appetites for next quarter’s earnings. Warnings about the dangers of “short termism” have become so well established, in fact, that they are now driving changes to mainstream practice, as courts, regulators and practitioners fashion legal and transactional constraints designed to insulate firms and managers from the influence of investor short-termism ...


Tech Dominance And The Policeman At The Elbow, Tim Wu Jan 2019

Tech Dominance And The Policeman At The Elbow, Tim Wu

Faculty Scholarship

One school of thought takes much of law and the legal system as essentially irrelevant to the process of technological evolution. This view takes as axiomatic that the rate technological change is always accelerating, that any firm or institution dependent on a given technology is therefore doomed to a rapid obsolescence. Law, at best, risks interfering with a natural progression toward a better technological future, hindering “the march of civilization.”

This paper discusses the historical role of antitrust investigation in changing the course of technological development by focusing on the example of the IBM litigation (1969 - 1984). While widely derided ...


Why Do Auditors Fail? What Might Work? What Won't?, John C. Coffee Jr. Jan 2019

Why Do Auditors Fail? What Might Work? What Won't?, John C. Coffee Jr.

Faculty Scholarship

Auditing failures and scandals have become commonplace. In response, reformers (including the Kingman Review in the U.K and a recent report of the U.K.’s Competition and Market Authority) have proposed a variety of remedies, including prophylactic bans on auditors providing consulting services to their clients in the belief that this will minimize the conflicts of interest that produce auditing failures. Although useful, such reforms are already in place to a considerable degree and may have reached the point of diminishing returns. Moreover, this strategy does not address the deeper problem that clients (or their managements) may not ...


Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson Jan 2019

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, William H. Simon, Kathleen G. Noonan, Jonathan C. Lipson

Faculty Scholarship

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial ...


Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell Jan 2019

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

The influence of race on the administration of capital punishment in the United States had a major role in the United States Supreme Court’s 1972 decision in Furman v. Georgia to invalidate death penalty statutes across the United States. To avoid discriminatory and capricious application of capital punishment, the Supreme Court held that the Eighth Amendment requires legislatures to narrow the scope of capital offenses and ensure that only the most severe crimes are subjected to the ultimate punishment. This Article demonstrates the racial and ethnic dimension of California’s failure to implement this narrowing requirement. Our analysis uses ...


Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard Jan 2019

Heat Waves: Legal Adaptation To The Most Lethal Climate Disaster (So Far), Michael B. Gerrard

Faculty Scholarship

Globally, the ten warmest years on record have all been since 1998, with the four warmest years occurring since 2014. In the contiguous United States, average annual temperatures are about 1.8°F higher than they were over the period from 1895-2016. This is expected to increase by about 2.5°F before mid-century, regardless of what happens to greenhouse gas levels. If, at the end of this century, greenhouse gas emissions are at the Intergovernmental Panel on Climate Change’s high scenario (termed “RCP 8.5”), average U.S. temperatures could go up by as much as 11.9 ...


Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo Jan 2019

Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying ...


The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt Jan 2019

The Illusion Of Influence: On Foucault, Nietzsche, And A Fundamental Misunderstanding, Bernard E. Harcourt

Faculty Scholarship

We often say that Foucault was influenced by Nietzsche or, more simply, that Foucault was Nietzschean. That is a gross misunderstanding that fundamentally distorts our reading of Foucault’s writings and, worse, does violence to the critical method. Foucault was no more Nietzschean than he was “mad” because he studied madness or “neoliberal” because he studied Gary Becker’s economic writings. Instead, Foucault took Nietzsche’s discourse as an object of study – in a similar way that he took the discourse of madness, of the prison, and of sexuality as objects of study throughout his intellectual lifetime. Writings of Nietzsche ...


The Case Against Equity In American Contract Law, Robert E. Scott, Jody S. Kraus Jan 2019

The Case Against Equity In American Contract Law, Robert E. Scott, Jody S. Kraus

Faculty Scholarship

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then prevalent penal ...


The Shrinking Constitution Of Settlement, David E. Pozen Jan 2019

The Shrinking Constitution Of Settlement, David E. Pozen

Faculty Scholarship

Professor Sanford Levinson has famously distinguished between the "Constitution of Settlement" and the "Constitution of Conversation." The former comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation. The latter comprises those aspects that are subject to ongoing litigation and debate. Although Americans tend to fixate on the Constitution of Conversation, Levinson argues that much of what ails our republic is attributable, at least in part, to the grossly undemocratic and "decidedly nonadaptive" Constitution of Settlement.

This short Article, prepared for a symposium on Levinson's coauthored book Democracy and Dysfunction, explains that the ...


A Better Financing System? The Death – And Possible Rebirth – Of The Presidential Nomination Public Financing Program, Richard Briffault Jan 2019

A Better Financing System? The Death – And Possible Rebirth – Of The Presidential Nomination Public Financing Program, Richard Briffault

Faculty Scholarship

In 1974 Congress authorized public funding for presidential nomination campaigns. Public funding was crucial to Jimmy Carter’s nomination in 1976 and to Ronald Reagan’s nearly successful campaign the same year, and continued to be an important factor in presidential nomination contests for more than two decades after that. But no major candidate has used the program since 2004. Due the program’s built-in limitations, changes in the nomination process, and campaign finance developments, the program is completely irrelevant today.

It has been argued that the program isn’t really needed. Although one argument for public funding is that ...


Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu Jan 2019

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making?

Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, if ...


Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati Jan 2019

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Stephen J. Choi, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across ...


Seeing Transparency More Clearly, David E. Pozen Jan 2019

Seeing Transparency More Clearly, David E. Pozen

Faculty Scholarship

In recent years, transparency has been proposed as the solution to, and the cause of, a remarkable range of public problems. The proliferation of seemingly contradictory claims about transparency becomes less puzzling, this essay argues, when one appreciates that transparency is not, in itself, a coherent normative ideal. Nor does it have a straightforward instrumental relationship to any primary goals of governance. To gain greater purchase on how transparency policies operate, scholars must therefore move beyond abstract assumptions and drill down into the specific legal, institutional, historical, political, and cultural contexts in which these policies are crafted and implemented. The ...


Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm Jan 2019

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of ...


A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko Jan 2019

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Faculty Scholarship

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate:

(1) that constitutional discourse has grown increasingly polarized over the past four decades;

(2) that polarization has grown faster in constitutional discourse than in non-constitutional discourse;

(3) that conservative-leaning speakers have driven ...


Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven Jan 2019

Greening The Wto: Ega, Tariff Concessions And Policy Likeness, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and EGA agreements which grant tariff concession through HS classifications beyond the six digit level ("ex outs") in favour of "green" goods and discuss how these initiatives fit into the WTO legal regime. Even if the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access ...


Global Settlements: Promise And Peril, John C. Coffee Jr. Jan 2019

Global Settlements: Promise And Peril, John C. Coffee Jr.

Faculty Scholarship

In 2010, Morrison v. National Australia Bank Ltd. destabilized the world of securities litigation by denying those who purchased their securities outside the U.S. the ability to sue in the U.S. (as they had previously often done). Nature, however abhors a vacuum, and practitioners and other jurisdictions began to seek ways to regain access to U.S. courts. Several techniques have emerged: (1) expanding settlement classes so that they are broader than litigation classes and treating the location of the transaction as strictly a merits issue that defendants could waive; (2) adopting U.S. law as applicable to ...


Judges And Judgment: In Praise Of Instigators, Kathryn Judge Jan 2019

Judges And Judgment: In Praise Of Instigators, Kathryn Judge

Faculty Scholarship

This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner ...


The Data Standardization Challenge, Kathryn Judge, Richard Berner Jan 2019

The Data Standardization Challenge, Kathryn Judge, Richard Berner

Faculty Scholarship

Data standardization offers significant benefits for industry and regulators alike, suggesting that it should be easy. In practice, however, the process has been difficult and slow moving. Moving from an abstract incentive-based analysis to one focused on institutional detail reveals myriad frictions favoring the status quo despite foregone gains. This paper explores the benefits of and challenges confronting standardization, why it should be a top regulatory priority, and how to overcome some of the obstacles to implementation.

The paper also uses data standardization as a lens into the challenges that impede optimal financial regulation. Alongside capture and other common explanations ...


Being True To Trulia: Do Disclosure-Only Settlements In Merger Objection Lawsuits Harm Shareholders?, Eric L. Talley, Giuseppe Dari‐Mattiacci Jan 2019

Being True To Trulia: Do Disclosure-Only Settlements In Merger Objection Lawsuits Harm Shareholders?, Eric L. Talley, Giuseppe Dari‐Mattiacci

Faculty Scholarship

A significant debate within mergers and acquisitions law concerns the explosive popularity of the “merger objection lawsuit” (MOL), a shareholder action seeking to enjoin an announced deal on fiduciary duty grounds. MOLs blossomed during the Financial Crisis, becoming popularly associated with “shareholder shakedowns,” whereby quick-triggered plaintiff attorneys would file against – and then rapidly settle with – acquirers, typically on non-monetary terms containing modest added disclosures in exchange for blanket class releases and attorney fee awards. This practice unleashed a torrent of criticism from lawyers, commentators, academics, and (ultimately) judges, culminating in a doctrinal shift in Delaware law in the January 2016 ...


The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan Jan 2019

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey A. Fagan

Faculty Scholarship

In 2000, the Supreme Court held in Illinois v. Wardlow that a suspect’s presence in a “high-crime area” is relevant in determining whether an officer has reasonable suspicion to conduct an investigative stop. Despite the importance of the decision, the Court provided no guidance about what that standard means, and over fifteen years later, we still have no idea how police officers understand and apply it in practice. This Article conducts the first empirical analysis of Wardlow by examining data on over two million investigative stops conducted by the New York Police Department from 2007 to 2012.

Our results ...


Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team Jan 2019

Geological Storage Of Co2 In Sub-Seafloor Basalt: The Carbonsafe Pre-Feasibility Study Offshore Washington State And British Columbia, David Goldberg, Lara Aston, Alain Bonneville, Inci Demirkanli, Curtis Evans, Andrew Fisher, Helena Garcia, Michael B. Gerrard, Martin Heesemann, Ken Hnottavange-Telleen, Emily Hsu, Cristina Malinverno, Kate Moran, Ah-Hyung Alissa Park, Martin Scherwath, Angela Slagle, Martin Stute, Tess Weathers, Romany M. Webb, Mark White, Signe White, Carbonsafe Cascadia Project Team

Faculty Scholarship

The CarbonSAFE Cascadia project team is conducting a pre-feasibility study to evaluate technical and nontechnical aspects of collecting and storing 50 MMT of CO2 in a safe, ocean basalt reservoir offshore from Washington State and British Columbia. Sub-seafloor basalts are very common on Earth and enable CO2 mineralization as a long-term storage mechanism, permanently sequestering the carbon in solid rock form. Our project goals include the evaluation of this reservoir as an industrial-scale CO2 storage complex, developing potential source/transport scenarios, conducting laboratory and modeling studies to determine the potential capacity of the reservoir, and completing an ...


Normative Powers (Revised), Joseph Raz Jan 2019

Normative Powers (Revised), Joseph Raz

Faculty Scholarship

The paper provides an analysis of normative powers as the ability to change a normative condition, and distinguishes and analyse several kinds of such powers. The revision affects mainly the analysis of such types. The main theses of the paper concern the distinction between basic from chained powers and the account of the relations between the normative powers and the values which explain and justify their existence. It ends by showing the connection between the thesis that values depend on human nature and culture and the dependence of normative powers on justifying reasons.


Driving Toward Autonomy? The Fbi In The Federal System, 1908-1960, Daniel C. Richman, Sarah Seo Jan 2019

Driving Toward Autonomy? The Fbi In The Federal System, 1908-1960, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This paper explains the growth of the FBI (“Bureau”) in the United States at a time when criminal justice was largely a local matter by reframing the criminal justice “(eco)system” in terms of informational economy, rather than jurisdictional authority. It argues that the Bureau came to occupy a key position in the national law enforcement ecosystem by providing an informational infrastructure that enabled it to cultivate relationships with local police agencies. This history offers two insights about the nature of American state and federalism in the twentieth century. First, the Bureau’s particular strategy for enlarging its capacity beyond ...


The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri Jan 2019

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri

Faculty Scholarship

Beginning in the 1950’s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement – which became known as the Chicago School of Antitrust Analysis – profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas ...


Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen Jan 2019

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of ...