Law Commons^™

The Law And Economics Of Proportionality In Discovery, Jonah B. Gelbach, Bruce H. Kobayashi

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This paper analyzes the proportionality standard in discovery. Many believe the Advisory Committee's renewed emphasis on this standard has the potential to infuse litigation practice with considerably more attention to questions related to the costs and benefits of discovery. We discuss the history and rationale of proportionality's inclusion in Rule 26, adopting an analytical framework that focuses on how costs and benefits can diverge in litigation generally, and discovery in particular. Finally, we use this framework to understand the mechanics and challenges involved in deploying the six factors included in the proportionality standard. Throughout, we emphasize that the proportionality standard …

How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain, Jill E. Fisch, Sean J. Griffith, Steven Davidoff Solomon

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This Article presents a case study of a corporate governance innovation—the incentive compensation arrangement for activist-nominated director candidates colloquially known as the “golden leash.” Golden leash compensation arrangements are a potentially valuable tool for activist shareholders in election contests. In response to their use, several issuers adopted bylaw provisions banning incentive compensation arrangements. Investors, in turn, viewed director adoption of golden leash bylaws as problematic and successfully pressured issuers to repeal them.

The study demonstrates how corporate governance provisions are developed and deployed, the sequential response of issuers and investors, and the central role played by governance intermediaries—activist investors, institutional …

Governance Reform And The Judicial Role In Municipal Bankruptcy, Clayton P. Gillette, David A. Skeel Jr.

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Recent proceedings involving large municipalities such as Detroit, Stockton, and Vallejo illustrate both the utility and the limitations of using the Bankruptcy Code to adjust municipal debt. In this article, we contend that, to truly resolve the distress of a substantial city, municipal bankruptcy needs to do more than simply provide immediate debt relief. Debt adjustment alone does nothing to remedy the fragmented decision-making and incentives for expanding municipal budgets that underlie municipal distress. Unless bankruptcy also addresses governance dysfunction, the city may slide right back into financial crisis. Governance restructuring has long been an essential element of corporate bankruptcy. …

Does Majority Voting Improve Board Accountability?, Stephen Choi, Jill E. Fisch, Marcel Kahan, Edward B. Rock

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Directors have traditionally been elected by a plurality of the votes cast. This means that in uncontested elections, a candidate who receives even a single vote is elected. Proponents of “shareholder democracy” have advocated a shift to a majority voting rule in which a candidate must receive a majority of the votes cast to be elected. Over the past decade, they have been successful, and the shift to majority voting has been one of the most popular and successful governance reforms.

Yet critics are sceptical as to whether majority voting improves board accountability. Tellingly, directors of companies with majority voting …

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

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Central to modern copyright law is its test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components, actual copying — the question whether the defendant did in fact copy, and improper appropriation — the question whether such copying, if it did exist, was unlawful. Somewhat counter-intuitively though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach continues to influence …

A No-Tribunal Sdrm And The Means Of Binding Creditors To The Terms Of A Restructuring Plan, Charles W. Mooney Jr.

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The paper addresses two discrete but related and essential attributes of a sovereign debt restructuring mechanism (SDRM). It first considers the merits and feasibility of an SDRM that would provide a procedure for proposing and adopting a restructuring plan for a sovereign debtor’s debt which would not involve any tribunal or administrator (a No-Tribunal SDRM). The No-Tribunal SDRM would undertake the restructuring as if the sovereign debtor and its creditors were subject to the Model CAC regime. In addition to embodying a novel and interesting structure for an SDRM—and one that eliminates the difficult hurdle of identifying a satisfactory tribunal—adoption …

What Gideon Did, Sara Mayeux

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Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from …

Consent, Culpability, And The Law Of Rape, Kimberly Kessler Ferzan

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This Article explores the relationship between consent and culpability. The goal is to present a thorough exposition of the tradeoffs at play when the law adopts different conceptions of consent. After describing the relationship between culpability, wrongdoing, permissibility, and consent, I argue that the best conception of consent—one that reflects what consent really is—is the conception of willed acquiescence. I then contend that to the extent that affirmative consent standards are aimed at protecting defendants, this can be better achieved through mens rea provisions. I then turn to the current victim-protecting impetus for affirmative expression standards, specifically, requirements that the …

Lobbying And The Petition Clause, Maggie Blackhawk

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Contrary to popular opinion, the Supreme Court has not yet resolved whether lobbying is constitutionally protected. Belying this fact, courts, Congress, and scholars mistakenly assume that lobbying is protected under the Petition Clause. Because scholars have shared the mistaken assumption that the Petition Clause protects the practice of “lobbying”, no research to date has looked closely at the Petition Clause doctrine and the history of petitioning in relation to lobbying. In a recent opinion addressing petitioning in another context, the Supreme Court unearthed the long history behind the right to petition and argued for the importance of this history for …

A Solution In Search Of A Problem: Kelo Reform Over Ten Years, Wendell Pritchett

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Kelo is NOT Dred Scott. Kelo is not only NOT Dred Scott, it was, as this Essay will argue, the right decision given the facts of the cases and the current state of legal jurisprudence. As an academic who has detailed the historic exploitation of eminent domain to uproot persons of color in this country, I find it interesting, and somewhat troubling, that the case has received so much criticism, much more criticism, I would argue, than other Supreme Court decisions that deserve condemnation. Certainly, eminent domain, like any other government power, must be regulated carefully. But upending …

International Law In The Obama Administration's Pivot To Asia: The China Seas Disputes, The Trans- Pacific Partnership, Rivalry With The Prc, And Status Quo Legal Norms In U.S. Foreign Policy, Jacques Delisle

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The Obama administration’s “pivot” or “rebalance” to Asia has shaped the Obama administration’s impact on international law. The pivot or rebalance has been primarily about regional security in East Asia (principally, the challenges of coping with a rising and more assertive China—particularly in the context of disputes over the South China Sea—and resulting concerns among regional states), and secondarily about U.S. economic relations with the region (including, as a centerpiece, the Trans-Pacific Partnership). In both areas, the Obama administration has made international law more significant as an element of U.S. foreign policy and has sought to present the U.S. as …

Line Drawing In Corporate Rights Determinations, Elizabeth Pollman

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This essay was written for the 21st Annual Clifford Symposium: The Supreme Court, Business, and Civil Justice. The essay argues that existing lines drawn between corporations may be a useful starting place for analyzing the rights of corporations, but caution must be used because the lines drawn in other areas were done for various policy reasons in different contexts that may not map onto the corporate rights determination. Attention should be paid to the specific characteristics of corporations that are relevant to the right at stake and the basis for extending protection. The key contribution of this essay is to …

Constitutionalizing Corporate Law, Elizabeth Pollman

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The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity …

Marriage Equality And Marital Supremacy, Serena Mayeri

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No abstract provided.

Reimagining The Risk Of Long-Term Care, Allison K. Hoffman

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U.S. law and policy on long-term care fail to address the insecurity American families face due to prolonged illness and disability — a problem that grows more serious as the population ages and rates of disability rise. This Article argues that, even worse, we have focused on only part of the problem. It illuminates two ways that prolonged disability or illness can create insecurity. The first arises from the risk of becoming disabled or sick and needing long-term care, which could be called “care-recipient” risk. The second arises out of the risk of becoming responsible for someone else’s care, which …

Preemption In The Rehnquist And Roberts Courts: An Empirical Analysis, Michael Greve, Jonathan Klick, Michael A. Petrino, J. P. Sevilla

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This article presents an empirical analysis of the Rehnquist Court’s and the Roberts Court’s decisions on the federal (statutory) preemption of state law. In addition to raw outcomes for or against preemption, we examine cases by subject-matter, level of judicial consensus, tort versus regulatory preemption, party constellation, and origin in state or federal court. We present additional data and analysis on the role of state amici and of the U.S. Solicitor General in preemption cases, and we examine individual justices’ voting records. Among our findings, one stands out: over time and especially under the Roberts Court, lawyerly preemption questions have …

The Knowledge Gap In Workplace Retirement Investing And The Role Of Professional Advisors, Jill E. Fisch, Tess Wilkinson-Ryan, Kristin Firth

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The dramatic shift from traditional pension plans to participant-directed 401(k) plans has increased the decision-making responsibility of individual investors for their own retirement planning. With this shift comes increasing evidence that investors are making poor decisions in choosing how much to save for retirement and in selecting among their investment options. Studies question the value of efforts to improve these decisions through regulatory reforms or investor education.

This article posits that deficiencies in workplace retirement savings cannot be adequately addressed until the reasons for poor investment decisions are better understood. We report the results of a study designed to simulate …

The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky

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Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.

This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.

In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …

Presidential War Powers As An Interactive Dynamic: International Law, Domestic Law, And Practice-Based Legal Change, Curtis A. Bradley, Jean Galbraith

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There is a rich literature on the circumstances under which the United Nations Charter or specific Security Council resolutions authorize nations to use force abroad, and there is a rich literature on the circumstances under which the U.S. Constitution and statutory law allows the President to use force abroad. These are largely separate areas of scholarship, addressing what are generally perceived to be two distinct levels of legal doctrine. This Article, by contrast, considers these two levels of doctrine together as they relate to the United States. In doing so, it makes three main contributions. First, it demonstrates striking parallels …

The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch

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Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past forty years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”

Delaware law has largely taken …

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

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This Article examines the role military automated surveillance and intelligence systems and techniques have supported a self-reinforcing racial bias when used by civilian police departments to enhance predictive policing programs. I will focus on two facets of this problem. First, my research will take an inside-out perspective, studying the role played by advanced military technologies and methods within civilian police departments, and how they have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools, and which automates de facto penalization and …

Designing Plea Bargaining From The Ground Up: Accuracy And Fairness Without Trials As Backstops, Stephanos Bibas

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American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation …

Laird V. Tatum And Article Iii Standing In Surveillance Cases, Jeffrey L. Vagle

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Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

Everything’S Bigger In Texas: Except The Medmal Settlements, Tom Baker, Eric Helland, Jonathan Klick

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Recent work using Texas closed claim data finds that physicians are rarely required to use personal assets in medical malpractice settlements even when plaintiffs secure judgments above the physician's insurance limits. In equilibrium, this should lead physicians to purchase less insurance. Qualitative research on the behavior of plaintiffs suggests that there is a norm under which plaintiffs agree not to pursue personal assets as long as defendants are not grossly underinsured. This norm operates as a soft constraint on physicians. All other things equal, while physicians want to lower their coverage, they do not want to violate the norm and …

From Promise To Form: How Contracting Online Changes Consumers, David A. Hoffman

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I hypothesize that different experiences with online contracting have led some consumers to see contracts—both online and offline—in distinctive ways. Experimenting on a large, nationally representative sample, this paper provides evidence of age-based and experience-based differences in views of consumer contract formation and breach. I show that younger subjects who have entered into more online contracts are likelier than older ones to think that contracts can be formed online, that digital contracts are legitimate while oral contracts are not, and that contract law is unforgiving of breach.

I argue that such individual differences in views of contract formation and enforceability …

The Emergence Of Classical American Patent Law, Herbert J. Hovenkamp

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One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce development politics inevitably distorts the decision making. …