Digital Commons Network^™

Beyond The Counterinsurgency Paradigm Of Governing: Letting Go Of Prediction And The Illusion Of An Internal Enemy, Bernard E. Harcourt

Faculty Scholarship

Bernard E. Harcourt expands the thesis about the illusion of insurgency in the United States to the current day. What, he asks, could alter fraudulent and overblown perceptions about the sanctity and importance of the national security state? He suggests that the way forward might begin with relinquishing the institutionalized practice of predicting danger. How to do this and what the consequences might be for his three-pronged analysis of state counterinsurgency strategy provides fresh thinking for future analysis and policymaking.

Kisor, Gundy, Mead, Chevron, Skidmore, Hearst, Peter L. Strauss

Faculty Scholarship

Kisor v. Wilkie, in which the Court narrowly declined to overrule Auer deference while distinctly constraining its reach, shares with United States v. Mead Corp. and Skidmore v. Swift & Co. — so prominently mentioned in its opinions—the characteristic of being about an administrative action that, at root, is soft law, guidance. Quite appropriately, it did not address Chevron deference, although readers of the opinions, with Justices’ prior opinions in mind, will have no problem foreseeing a similar confrontation in the coming Term of Court, or perhaps the one to follow.

Soft Law Often Should Be Permitted To Bind Agency Staff, Peter L. Strauss

Faculty Scholarship

For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the APA, should not veer into the hard law of legislative rules, which generally do require that procedure. Unfortunate confusion, though, arises from lower court concerns that purported guidance documents may be “binding in practice” — thus, they reason, functionally, an invalid legislative rule that …

Delegating Portfolio Management To Index Creators: The Consequences For Corporate Governance, Dorothy S. Lund

Faculty Scholarship

The recent popularity of index investing and corresponding influx of assets into passively managed mutual funds has generated a large literature in law and in finance about the implications for securities markets, antitrust, corporate governance, and beyond. But few have explored the index landscape itself. Professor Robertson’s article is an important exception, and her findings — in particular, that indices are more diverse and dynamic than many would have expected — have implications for all of these debates.

The Reality Of Indian Regulation, Devesh Kapur, Madhav Khosla

Faculty Scholarship

In this introductory chapter, we have chosen to resist exploring some of the general themes associated with regulation, from its capacity to respond to market failures and market limitations, to the ways to make it accountable. Instead, we have chosen to turn to certain features of Indian regulation that are distinctive. Our basic premise is that, for all the legal ambiguities and institutional weaknesses, studying the Indian regulatory state is unavoidable, and may even be the inevitable starting point for numerous other issues, from economic growth to inequality to democratic accountability. This premise is only strengthened by the fact that, …

The Design Patent Bar: An Occupational Licensing Failure, Christopher Buccafusco, Jeanne C. Curtis

Faculty Scholarship

Although any attorney can represent clients with complex property, tax, or administrative issues, only a certain class of attorneys can assist with obtaining and challenging patents before the United States Patent & Trademark Office (PTO). Only those who are members of the PTO 's patent bar can prosecute patents, and eligibility for the patent bar is only available to people with substantial scientific or engineering credentials. However much sense the eligibility rules make for utility patents-those based on novel scientific or technical inventions-they are completely irrational when applied to design patents-those based on ornamental or aesthetic industrial design. Nevertheless, the …

The Compliance Process, Veronica Root

Faculty Scholarship

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Combating Silence In The Profession, Veronica Root Martinez

Faculty Scholarship

Members of the legal profession have recently taken a public stance against a wave of oppressive policies and practices. From helping immigrants stranded in airports to protesting in the face of white nationalists, lawyers are advocating for equality within and throughout American society each and every day. Yet as these lawyers go out into the world on behalf of others, they do so while their very profession continues to struggle with its own discriminatory past.

For decades, the legal profession purposefully excluded women, religious minorities, and people of color from its ranks, while instilling a select group of individuals with …

The Outsized Influence Of The Fcpa?, Veronica Root Martinez

Faculty Scholarship

The current power and influence of the Foreign Corrupt Practices Act (“FCPA”) is really quite remarkable when one considers the statute was largely ignored for its first twenty-five years of existence. This statute, meant to reign in corruption by United States companies doing business abroad; has generated billions of dollars in revenue for the United States government; prompted the development of law firm practice groups and law school courses; become the subject of numerous scholarly articles; and has, arguably, made anti-bribery efforts the highest of priorities for multinational corporations engaged in robust compliance efforts. Corporations, scholars, and the public would …

The Law And Politics Of Socially Inclusive Trade, Timothy Meyer

Faculty Scholarship

No abstract provided.

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

Constituencies And Control In Statutory Drafting: Interviews With Government Tax Counsels, Shu-Yi Oei, Leigh Z. Osofsky

Faculty Scholarship

Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examination of how tax law drafting and formulation decisions are made. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our interviews revealed that tax legislation drafting decisions are both targeted to and controlled by experts. Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held …

Detention As Deterrence, Emily Ryo

Faculty Scholarship

Does immigration detention deter unauthorized migration? This is a pressing question with critical policy implications given that the U.S. government has detained tens of thousands of migrants in reliance on this deterrence rationale. Briefly described, the federal government has argued that “one particular individual may be civilly detained for the sake of sending a message” to others “who may be considering immigration. In recent times, the potential migrants to whom the federal government has sought to send such a message are, by and large, from Mexico and Central America. Emerging empirical research, however, provides little to no evidence that detention …

Successor Ceos, Yaron Nili

Faculty Scholarship

Recent years have seen a push towards separating the roles of CEO and chairperson of the board. While many companies still maintain a combined CEO-chair role, investors consistently express their concern that the dual CEO-chair position jeopardizes the independence and effectiveness of the board. Yet, while investors and academic research have focused on one channel for achieving such separation—through the appointment of an independent director as chair—a second has been left relatively unexplored. In fact, in many cases, as this Article documents, the separation of CEO-chair has occurred through the second channel: the current CEO-chair steps down as CEO while …

Judging Risk: The Use Of Risk Assessment In Sentencing, Brandon L. Garrett, John Monahan

Faculty Scholarship

No abstract provided.

Do Heads Roll?: An Empirical Analysis Of Ceo Turnover And Pay When The Corporation Is Federally Prosecuted, Brandon L. Garrett, Nan Li, Shivaram Rajgopal

Faculty Scholarship

Does the criminal prosecution of a corporation affect the CEO? Or do criminal actions directed at the organization itself pose few consequences for the individuals at the top, and the CEO in particular? While CEO’s are rarely themselves prosecuted, organizations could discipline CEO’s through paycuts or outright replacing the CEO in response to a criminal prosecution. We sought to examine whether and how that occurs. We focus our analysis on a dataset of public companies that settled criminal cases brought by federal prosecutors from 2001 to 2014. We compared those companies to a matched control group, focusing on CEO compensation …

Private International Law As An Ethic Of Responsivity, Ralf Michaels

Faculty Scholarship

The world is a mess. Populism, xenophobia, and islamophobia; misogyny and racism; the closing of borders against the neediest—the existential crisis of modernity calls for a firm response from ethics. Why, instead of engaging with these problems through traditional ethics, worry about private international law, that most technical of technical fields of law? My claim in this chapter: not despite, because of its technical character. Private international law provides such an ethic, an ethic of responsivity. It provides us with a technique of ethics, a technique that helps us conceptualise and address some of the most pressing issues of our …

The End Of Intuition-Based High-Crime Areas, Ben Grunwald, Jeffrey 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 suggest …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Theorizing The Judicialization Of International Relations, Karen J. Alter, Emilie M. Hafner-Burton, Laurence R. Helfer

Faculty Scholarship

This article introduces a Thematic Section and theorizes the multiple ways that judicializing international relations shifts power away from national executives and legislatures toward litigants, judges, arbitrators, and other nonstate decision-makers. We identify two preconditions for judicialization to occur—(1) delegation to an adjudicatory body charged with applying designated legal rules, and (2) legal rights-claiming by actors who bring—or threaten to bring—a complaint to one or more of these bodies. We classify the adjudicatory bodies that do and do not contribute to judicializing international relations, including but not limited to international courts. We then explain how rights-claiming initiates a process for …

Private Equity's Governance Advantage: A Requiem, Elisabeth De Fontenay

Faculty Scholarship

Private equity’s original purpose was to optimize companies’ governance and operations. Reuniting ownership and control in corporate America, the leveraged buyout (or the mere threat thereof) undoubtedly helped reform management practices in a broad swath of U.S. companies. Due to mounting competitive pressures, however, private equity is finding relatively fewer underperforming companies to fix. This is particularly true of U.S. public companies, which are continuously dogged by activist hedge funds and other empowered shareholders looking for any sign of slack.

In response, private equity is shifting its center of gravity away from governance reform, towards a dizzying array of new …

“Unknown Symbols”: Online Legal Research In The Age Of Emoji, Jennifer L. Behrens

Faculty Scholarship

Over the last decade, emoji and emoticons have made the leap from text messaging and social media to legal filings, court opinions, and law review articles. However, emoji and emoticons’ growth in popularity has tested the capability of online legal research systems to properly display and retrieve them in search results, posing challenges for future researchers of primary and secondary sources. This article examines current display practices on several of the most popular online legal research services (including Westlaw Edge, Lexis Advance, Bloomberg Law, Fastcase, HeinOnline, and Gale OneFile LegalTrac), and suggests effective workarounds for researchers.

Analyzing The Trump Administration's International Trade Strategy, Rachel Brewster

Faculty Scholarship

No abstract provided.

The Ilo At 100: Institutional Innovation In An Era Of Populism, Laurence R. Helfer

Faculty Scholarship

The centenary of the International Labor Organization (ILO) provides an opportunity to take stock of the organization’s many achievements. But the centenary also calls for a clear-eyed assessment of the profound challenges that the ILO currently faces – including the growth of the informal and gig economies, digitization and automation, and rising material inequality – and the populist ferment that those trends have helped to engender. This essay, part of a forthcoming AJIL Unbound symposium on "The Transnational Futures of International Labor Law," sketches the ILO’s rich history of legal and policy innovation in response to changes in labor conditions …

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Supreme Court As Superweapon: A Response To Epps & Sitaraman, Stephen E. Sachs

Faculty Scholarship

Is the Supreme Court's legitimacy in crisis? Daniel Epps and Ganesh Sitaraman argue that it is. In their Feature, How to Save the Supreme Court, they suggest legally radical reforms to restore a politically moderate Court. Unfortunately, their proposals might destroy the Court's legitimacy in order to save it. And their case that there is any crisis may fail to persuade a reader with different legal or political priors. If the Supreme Court needs saving, it will be saving from itself, and from too broad a conception of its own legal omnipotence. A Court that seems unbound by legal principle …

Revolving Elites: The Unexplored Risk Of Capturing The Sec, James D. Cox, Randall S. Thomas

Faculty Scholarship

Fears have abounded for years that the sweet spot for capture of regulatory agencies is the "revolving door" whereby civil servants migrate from their roles as regulators to private industry. Recent scholarship on this topic has examined whether America's watchdog for securities markets, the Securities and Exchange Commission (SEC), is hobbled by the long-standing practices of its enforcement staff exiting their jobs at the Commission and migrating to lucrative private sector employment where they represent those they once regulated. The research to date has been inconclusive on whether staff revolving door practices have weakened the SEC' s verve. In this …

Owning Heller, Darrell A. H. Miller

Faculty Scholarship

Recent historical research using big-data techniques casts doubt on whether District of Columbia v. Heller was rightly decided according to originalist methods. These new discoveries put originalists in a bind. Do they embrace “faint hearted” originalism: the idea that as between the need for stability in prior decision making, settled expectations, and the coherence of the law, some adulterated decisions must remain enforced for the greater good? Or do they follow Justice Thomas’s reasoning in Gamble v. United States, remain stout-hearted, and reject any prior decision that cannot be supported by the common linguistic usage of the founding era – …

The Enduring Distinction Between Business Entities And Security Interests, Ofer Eldar, Andrew Verstein

Faculty Scholarship

What are business entities for? What are security interests for? The prevailing answer in legal scholarship is that both bodies of law exist to partition assets for the benefit of designated creditors. But if both bodies of law partition assets, then what distinguishes them? In fact, these bodies of law appear to be converging as increasing flexibility irons out any differences. Indeed, many legal products, such as securitization vehicles, insurance products known as captive insurance, and mutual funds, employ entities to create distinct asset pools. Moreover, recent legal innovations, such as “protected cells,” which were created to facilitate such products, …

The Well-Intentioned Purpose But Weak Epistemological Foundation Of Originalism, George C. Christie

Faculty Scholarship

The attraction of an originalist approach to constitutional interpretation is understandable. It is maintained that only that method can provide the judicial objectivity and certainty that constitutional adjudication requires. They claim that the traditional common-law evolutionary approach leads Supreme Court Justices to succumb to the temptation to fill in gaps in constitutional law and thereby ignore that major expansions in constitutional meaning and should be made in the way the Founders envisioned, namely by amendment of the Constitution. However difficult or impractical that process may be, it is the only way to avoid the politicization of the Court. Whether that …