Digital Commons Network^™

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

Faculty Scholarship

Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Camey v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware's requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue "will likely be raised again." The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state's "nonpartisan" …

Cryptic Patent Reform Through The Inflation Reduction Act, Arti K. Rai, Rachel E. Sachs, W. Nicholson Price Ii

Faculty Scholarship

If a statute substantially changes the way patents work in an industry where patents are central, but says almost nothing about patents, is it patent reform? We argue the answer is yes — and it’s not a hypothetical question. The Inflation Reduction Act (“IRA”) does not address patents, but its drug pricing provisions are likely to prompt major changes in how patents work in the pharmaceutical industry. For many years scholars have decried industry’s ever-evolving strategies that use combinations of patents to block competition for as long as possible, widely known as “evergreening,” but legislators have not been receptive to …

Social Cognitive Processes Explain Bias In Juror Decisions, Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A.G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, J. H. Pate Skene, R. Mckell Carter

Faculty Scholarship

Jury decisions are among the most consequential social decisions in which bias plays a notable role. While courts take measures to reduce the influence of non-evidentiary factors, jurors may still incorporate biases into their decisions. One common bias, crime-type bias, is the extent to which the perceived strength of a prosecutor’s case depends on the severity of the crime. Moral judgment, affect and social cognition have been proposed as core processes underlying this and other biases. Behavioral evidence alone has been insufficient to distinguish these explanations. To identify the mechanism underlying crime-type bias, we collected functional magnetic resonance imaging patterns …

Corporate Governance And Risk-Taking: A Statistical Approach, Steven L. Schwarcz

Faculty Scholarship

Because prudent corporate governance often requires managers to take risks based on statistically expected outcomes, corporate failures that have a small but finite chance of occurring cannot always be prevented. This Article makes three related claims about risk-taking in corporate governance.

This Article’s first claim is that managers should not automatically be presumed to be at fault for corporate failures that result from risk-taking decisions based on statistical methodologies that reasonably justify the decisions ex ante. Conceptually, the business judgment rule should protect corporate managers for engaging in a reasonable decision-making process, including one that is statistically based. Jurisdictionally, however, …

Next-Generation Securitization: Nfts, Tokenization, And The Monetization Of ‘Things’, Steven L. Schwarcz

Faculty Scholarship

For decades, businesses have used securitization to monetize assets by selling to investors interests in the assets’ future value. Traditionally, securitization has monetized so-called financial assets, which generate cash flow to pay the investors. That payment source, coupled with the ability of investors to resell their interests, can create a highly liquid and attractive investment. Even so, securities laws generally restrict these investments to sophisticated and institutional investors.

In recent years, securitization has spawned a new generation of transactions that monetize nonfinancial assets and other rights that do not ordinarily generate cash flow, such as art, collectible cars, access to …

No Peace Without Punishment? Reintegrating Islamic State “Collaborators” In Iraq, Mara R. Revkin, Kristen Kao

Faculty Scholarship

How does variation in the severity of punishment affect public opinion toward the reintegration of former enemy “collaborators” after war? We study this question in the context of Iraq where the Islamic State, an armed rebel group, captured and governed a population of more than five million Iraqi citizens between 2014 and 2017. Building upon extensive fieldwork and interviews in Iraq, we designed a survey experiment that randomly varied the severity of sentences in hypothetical scenarios of civilians who supported the Islamic State in non-violent roles (e.g., cleaners, cooks, and wives of fighters). The experiment allows us to estimate the …

Toxic Masculinity And Gender-Based Gun Violence In America: A Way Forward, Hayley N. Lawrence

Faculty Scholarship

No abstract provided.

Plea Tracking In The Durham County District Attorney’S Office: One-Year Report, Kevin Dahaghi, Catherine Grodensky, Elizabeth Gifford, Brandon L. Garrett, William Crozier, Adele Quigley-Mcbride, Jennifer Teitcher, Lauren Clatch

Faculty Scholarship

No abstract provided.

The Price Of Fairness, Christopher Buccafusco, Daniel Hemel, Eric Talley

Faculty Scholarship

The COVID-19 pandemic led to acute supply shortages across the country as well as concerns over price increases amid surging demand. In the process, it reawakened a debate about whether and how to regulate “price gouging”—a controversy that continues as inflation has accelerated even as the pandemic abates. Animating this debate is a longstanding conflict between laissez-faire economics, which champions price fluctuations as a means to allocate scarce goods, and perceived norms of consumer fairness, which are thought to cut strongly against sharp price hikes amid shortages.

This Article provides a new, empirically grounded perspective on the price gouging debate …

Beyond Legal Deserts: Access To Counsel For Immigrants Facing Removal, Emily Ryo, Reed Humphrey

Faculty Scholarship

Removal proceedings are high-stakes adversarial proceedings in which immigration judges must decide whether to allow immigrants who allegedly have violated U.S. immigration laws to stay in the United States or to order them deported to their countries of origin. In these proceedings, the government trial attorneys prosecute noncitizens who often lack English fluency, economic resources, and familiarity with our legal system. Yet, most immigrants in removal proceedings do not have legal representation, as removal is considered to be a civil matter and courts have not recognized a right to government­appointed counsel for immigrants facing removal. Advocates, policymakers, and scholars have …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Increasing Compliance With International Pandemic Law: International Relations And New Global Health Agreements, Matthew M. Kavanagh, Clare Wenham, Elize Massard Da Fonseca, Laurence R. Helfer, Elvin Nyukuri, Allan Maleche, Sam F. Halabi, Adi Radhakrishnan, Attiya Waris

Faculty Scholarship

No abstract provided.

Is Disclosure And Certification Of The Use Of Generative Ai Really Necessary?, Maura R. Grossman, Paul W. Grimm, Daniel G. Brown

Faculty Scholarship

No abstract provided.

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Scholarship

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

The Possible Futures Of American Democracy, Jedediah Purdy

Faculty Scholarship

No abstract provided.

Twenty-First Century Split: Partisan, Racial, And Gender Differences In Circuit Judges Following Earlier Opinions, Stuart Minor Benjamin, Kevin M. Quinn, Byungkoo Kim

Faculty Scholarship

Judges shape the law with their votes and the reasoning in their opinions. An important element of the latter is which opinions they follow, and thus elevate, and which they cast doubt on, and thus diminish. Using a unique and comprehensive dataset containing the substantive Shepard’s treatments of all circuit court published and unpublished majority opinions issued between 1974 and 2017, we examine the relationship between judges’ substantive treatments of earlier appellate cases and their party, race, and gender. Are judges more likely to follow opinions written by colleagues of the same party, race, or gender? What we find is …

The National Security Consequences Of The Major Questions Doctrine, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare …

Guided By History: Protecting The Public Sphere From Weapons Threats Under Bruen, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide …

“A Map Is Not The Territory”: The Theory And Future Of Sensitive Places Doctrine, Joseph Blocher, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

In the wake of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, courts are now confronted with new questions about where guns can be restricted and what justifications support those regulations. This Essay urges that the development of the doctrine governing location-based prohibitions should focus as much on the why as the where. Instead of simply isolating each location and considering the historical pedigree of gun restrictions in that place, judges should evaluate the reasons behind the sensitive places doctrine itself. We aim to recenter these first order questions to avoid haphazard doctrinal development …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Judicial Management Inside The Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.

#Metoo & The Courts: The Impact Of Social Movements On Federal Judicial Decisionmaking, Carol T. Li, Matthew E.K. Hall, Veronica Root Martinez

Faculty Scholarship

In late 2017, the #MeToo movement swept through the United States as individuals from all backgrounds and walks of life revealed their experiences with sexual abuse and sexual harassment. After the #MeToo movement, many scholars, advocates, and policymakers posited that the watershed moment would prompt changes in the ways in which sexual harassment cases were handled. This Article examines the impact the #MeToo movement has had on judicial decisionmaking. Our hypothesis is that the #MeToo movement’s increase in public awareness and political attention to experiences of sexual misconduct should lead to more pro-claimant voting in federal courts at the district …

The Income Tax, The Constitution, And The Unrealized Importance Of Helvering V. Griffiths, Lawrence Zelenak

Faculty Scholarship

The Supreme Court recently granted certiorari in Moore v. United States, for the purpose of deciding whether the realization doctrine remains a constitutional limitation on Congress's ability to impose an unapportioned income tax, as the Court held in its famous 1920 decision in Eisner v. Macomber. Although it is natural to look to 1920 and Macomber as the cause of today's uncertain scope of the congressional power to tax income, what did not happen in the Court's 1943 decision in Helvering v. Griffiths is as significant as what did happen in 1920. the presence of Moore on the Court's docket …

Independence Reconceived, Claire Hill, Yaron Nili

Faculty Scholarship

What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing …

The Lost Promise Of Private Ordering, Cathy Hwang, Yaron Nili, Jeremy Mcclane

Faculty Scholarship

The agency problem is corporate law’s most enduring challenge: when corporate managers spend investors’ money, how does the law protect investors from reckless management? Scholars of law, finance, and accounting have suggested that in one corner of corporate law—corporate debt—a powerful tool exists to mitigate the agency problem. Specifically, through loan covenants, lenders can force borrowers to comply with lenders’ preferences, thereby mitigating the agency problem in lending.

But loan covenants are disappearing. Over the last decade, loan covenants have become fewer and skinnier, and so called “covenant-lite” or “cov-lite” loans have become dominant. If loan covenants do such a …

Side Letter Governance, Elisabeth De Fontenay, Yaron Nili

Faculty Scholarship

A standard feature of the private equity industry, “side letters” are confidential agreements between the sponsor and individual investors that give the latter special rights, beyond those that apply to other investors in the private equity fund. Yet side letters have become a flashpoint for prominent critics of the industry, who argue that they allow private equity sponsors to benefit their favored investors at the expense of smaller, less sophisticated ones. Others have argued that, to the contrary, side letters are merely an efficient means of price discrimination—charging different prices to different investors, according to their willingness to pay—a practice …

Common Good Gun Rights, Darrell A. H. Miller

Faculty Scholarship

No abstract provided.

Flexible Institution Building In The International Anti-Corruption Regime: Proposing A Transnational Asset Recovery Mechanism, Laurence R. Helfer, Cecily Rose, Rachel Brewster

Faculty Scholarship

Asset recovery is a fundamental principle of anti-corruption law, without which the financial damage from corruption cannot be repaired. Yet recovering assets is notoriously difficult and time-consuming, and the United Nations Convention Against Corruption provides little technical or institutional support to facilitate such returns. To remedy this, we propose the creation of a transnational asset recovery mechanism that could provide myriad services to states upon request, including gathering and publishing information, providing technical assistance and capacity building, helping to conclude agreements on asset return, and monitoring returned funds. Theoretically, we introduce the concepts of customizability and selectability to explain why …

Judging Firearms Evidence And The Rule 702 Amendments, Brandon Garrett, Nicholas Scurich, Eric Tucker, Hannah Bloom

Faculty Scholarship

No abstract provided.