Law Commons^™

Open Science Precision Medicine In Canada: Points To Consider, Palmira Granados Moreno, Sarah E. Ali-Khan, Benjamin Capps, Timothy Caulfield, Damien Chalaud, Aled Edwards, E. Richard Gold, Vasiliki Rahimzadeh, Adrian Thorogood, Daniel Auld, Gabrielle Bertier, Felix Breden, Roxanne Caron, Priscilla M.D.G. César, Robert Cook-Deegan, Megan Doerr, Ros Duncan, Amalia M. Issa, Jerome Reichman, Jacques Simard, Derek So, Sandeep Vanamala, Yann Joly

Faculty Scholarship

Open science can significantly influence the development and translational process of precision medicine in Canada. Precision medicine presents a unique opportunity to improve disease prevention and healthcare, as well as to reduce health-related expenditures. However, the development of precision medicine also brings about economic challenges, such as costly development, high failure rates, and reduced market size in comparison with the traditional blockbuster drug development model. Open science, characterized by principles of open data sharing, fast dissemination of knowledge, cumulative research, and cooperation, presents a unique opportunity to address these economic challenges while also promoting the public good.

The Centre of …

Systematic Regulation Of Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

A decade after the financial crisis, regulators worry that the regulation enacted to help stabilize the financial system may be insufficient to prevent another crisis. Examining that regulation with the benefit of hindsight, this Article finds that much has been accomplished but much remains to be done. Most of the existing regulation is ad hoc, providing “tools” rather than a coherent framework. It also is unduly entity-based, largely ignoring markets and other critical elements of the financial system. Furthermore, some of that entity-based regulation is punitive and misguided, responding to the human intuition to assign blame for harm. Financial stability …

Activist Directors And Agency Costs: What Happens When An Activist Director Goes On The Board?, John C. Coffee Jr., Robert J. Jackson Jr., Joshua R. Mitts, Robert E. Bishop

Faculty Scholarship

We develop and apply a new and more rigorous methodology by which to measure and understand both informed trading and the agency costs of hedge fund activism. We use quantitative data to show a systematic relationship between the appointment of a hedge fund-nominated director to a corporate board and an increase in informed trading in that corporation’s stock (with the relationship being most pronounced when the fund’s slate of directors includes a hedge fund employee). This finding is important from two different perspectives. First, from a governance perspective, activist hedge funds represent a new and potent force in corporate governance. …

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 …

Presidential Responses To Protest: Lessons Jefferson Davis Never Learned, Ashlee Paxton-Turner

Faculty Scholarship

No abstract provided.

Beyond The Numbers: Substantive Gender Diversity In Boardrooms, Yaron Nili

Faculty Scholarship

No abstract provided.

Introduction: Professor Randall Thomas’S Depolarizing And Neutral Approach To Shareholder Rights, James D. Cox, Frank Partnoy

Faculty Scholarship

No abstract provided.

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 …

Federal Criminal Risk Assessment, Brandon L. Garrett

Faculty Scholarship

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies. However, in federal criminal law, risk assessments have been only haltingly adopted. Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion. Risk assessment instruments are currently used in federal courts pretrial and postconviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date. The adoption of the First Step Act, which has the ambition to transform the federal prison system through the use of risk instruments, has the potential to introduce a more …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

Faculty Scholarship

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

Introduction To The Symposium On Transnational Futures Of International Labor Law, Adelle Blackett, Laurence R. Helfer

Faculty Scholarship

The centenary of the international organization whose constitution proclaims that social justice is indispensable for universal and lasting peace is too pivotal to go unnoticed. Established during the Paris Peace Conference of 1919, the International Labour Organization (ILO) was once a paradigmatic subject of study by international legal scholars and international relations theorists. A uniquely tripartite institution whose governance structure comprises workers, employers, and governments, the ILO survived the beleaguered League of Nations to become the first United Nations specialized agency in 1946. Its staff narrowly escaped the rise of fascism in Europe and settled into a wartime home at …

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …

Irrational Ignorance At The Patent Office, Michael D. Frakes, Melissa F. Wasserman

Faculty Scholarship

There is widespread belief that the Patent Office issues too many bad patents that impose significant harms on society. At first glance, the solution to the patent quality crisis seems straightforward: give patent examiners more time to review applications so they grant patents only to those inventions that deserve them. Yet the answer to the harms of invalid patents may not be that easy. It is possible that the Patent Office is, as Mark Lemley famously wrote, “rationally ignorant.” In Rational Ignorance at the Patent Office, Lemley argued that because so few patents are economically significant, it makes sense to …

Visiting Judges, Marin K. Levy

Faculty Scholarship

Despite the fact that Article III judges hold particular seats on particular courts, the federal system rests on judicial interchangeability. Hundreds of judges “visit” other courts each year and collectively help decide thousands of appeals. Anyone from a retired Supreme Court Justice to a judge from the U.S. Court of International Trade to a district judge from out of circuit may come and hear cases on a given court of appeals. Although much has been written about the structure of the federal courts and the nature of Article III judgeships, little attention has been paid to the phenomenon of “sitting …

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 …

Grounding Originalism, William Baude, Stephen E. Sachs

Faculty Scholarship

How should we interpret the Constitution? The “positive turn” in legal scholarship treats constitutional interpretation, like the interpretation of statutes or contracts, as governed by legal rules grounded in actual practice. In our legal system, that practice requires a certain form of originalism: our system’s official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we’ve argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official …

Has Shoe Run Its Course?, David W. Ichel

Faculty Scholarship

No abstract provided.

Exemplary Legal Writing 2018: Five Recommendations, Femi Cadmus, Casandra Laskowski

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2018.

Immigration Detainers, Local Discretion, And State Law's Historical Constraints, Kate Evans

Faculty Scholarship

No abstract provided.

The Shadows Of Life: Medicaid's Failure Of Health Care's Moral Test, Barak D. Richman, Kushal T. Kadakia, Shivani A. Shah

Faculty Scholarship

North Carolina Medicaid covers one-fifth of the state’s population and makes up approximately one-third of the budget. Yet the state has experienced increasing costs and worsening health outcomes over the past decade, while socioeconomic disparities persist among communities. In this article, the authors explore the factors that influence these trends and provide a series of policy lessons to inform the state’s current reform efforts following the recent approval of North Carolina’s Section 1115 waiver by the Centers for Medicare and Medicaid Services. The authors used health, social, and financial data from the state Department of Health and Human Services, the …

Response: Rights As Trumps Of What?, Joseph Blocher

Faculty Scholarship

No abstract provided.

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.

Is There A First-Drafter Advantage In M&A?, Adam B. Badawi, Elisabeth De Fontenay

Faculty Scholarship

No abstract provided.

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 …

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

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 …