Law Commons^™

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

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Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

Purpose Proposals, Jill E. Fisch

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Repurposing the corporation is the hot issue in corporate governance. Commentators, investors and increasingly issuers, maintain that corporations should shift their focus from maximizing profits for shareholders to generating value for a more expansive group of stakeholders. Corporations are also being called upon to address societal concerns – from climate change and voting rights to racial justice and wealth inequality.

The shareholder proposal rule, Rule 14a–8, offers one potential tool for repurposing the corporation. This Article describes the introduction of innovative proposals seeking to formalize corporate commitments to stakeholder governance. These “purpose proposals” reflect a new dynamic in the debate …

Qualifying Prosecutorial Immunity Through Brady Claims, Paul Heaton, Brian M. Murray, Jon B. Gould

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This Article considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice …

Board Committee Charters And Esg Accountability, Lisa Fairfax

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We are currently witnessing a sharp increase in corporate attention on environmental, sustainability, and governance (“ESG”). The steep rise in corporate focus on ESG has prompted considerable criticism, not only from those concerned about how best to ensure that corporations are held accountable for their ESG commitments, but also from those who strenuously insist that corporate commitment to ESG is merely rhetorical or otherwise merely a passing fad. In an effort to shed light on the concerns around ESG accountability, and gain perspective about the potential illusory or short-term nature of ESG, I conducted my own survey of the committee …

Brief Of Professor Tobias B. Wolff As Amicus Curiae In Support Of Respondents In U.S. Supreme Court Case 303 Creative Llc V. Elenis, Tobias Barrington Wolff

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This amicus brief, filed in support of the Colorado anti-discrimination law in 303 Creative v. Elenis, is the product of about ten years of work on these First Amendment issues as a scholar and advocate. Its arguments rest on a core proposition: When a business sells goods and services in the public marketplace, it is not a street corner speaker engaging in a personal act of expression, it is a vendor engaged in commerce. Customers do not pay for the privilege of promoting a commercial vendor’s own personal message, they pay for goods and services chosen by them and …

Are All Risks Created Equal? Rethinking The Distinction Between Legal And Business Risk In Corporate Law, Adi Libson, Gideon Parchomovsky

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Should corporate legal risk be treated similarly to corporate business risks? Currently, the law draws a clear-cut distinction between the two sources of risk, permitting the latter type of risk and banning the former. As a result, fiduciaries are shielded from personal liability in the case of business risk and are entirely exposed to civil and criminal liability that arises from legal risk-taking. As corporate law theorists have underscored, the differential treatment of business and legal risk is highly problematic from the perspective of firms and shareholders. To begin with, legal risk cannot be completely averted or eliminated. More importantly, …

Selling Antitrust, Herbert J. Hovenkamp

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Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real …

Turning Participation Into Power: A Water Justice Case Study, Jaime A. Lee

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This Article offers a revamped model of participatory governance—the Constituent Empowerment Model (CE Model)—which affirmatively shifts power to the voices of marginalized constituents so that they can influence governmental policy. The CE Model focuses on three concepts necessary to produce this shift in power to those who are traditionally unheard: operationalized (feasibly realized) participation; constituent primacy; and structural accountability. To illustrate how a CE system might be constructed, this Article examines a model recently adopted in the city of Baltimore, Maryland, that is designed to shift the balance of power between the water utility and its customers. Baltimore offers a …

Building Better Compliance, Cary Coglianese

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A response to Dorothy Lund & Natasha Sarin: "Corporate Crime and Punishment: An Empirical Study"

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

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In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

Youth And Families Matter: Reconstructing The System One Youth At A Time From The Expertise Of Youth Advocates, Marcia Hopkims, Kara Finck, British Christopher, Duane Price, Anthony Simpson, Ishale Watson

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A group of youth advocates were tasked with discussing their experiences in the child welfare system as children and their perspectives on reforming the system. Informed by their experiences in foster care and work with the Juvenile Law Center, the youth advocates addressed issues of racism, reform, abolition, and child well-being. They concluded that meaningful reform of the child welfare system mandates a radical realignment of power to provide full participation, collaboration, and shared decision-making authority to families impacted by the child welfare system.

Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele E. Gilman

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Low-income people suffer from digital discrimination on the basis of their socio-economic status. Automated decision-making systems, often powered by machine learning and artificial intelligence, shape the opportunities of those experiencing poverty because they serve as gatekeepers to the necessities of modern life. Yet in the existing legal regime, it is perfectly legal to discriminate against people because they are poor. Poverty is not a protected characteristic, unlike race, gender, disability, religion or certain other identities. This lack of legal protection has accelerated digital discrimination against the poor, fueled by the scope, speed, and scale of big data networks. This Article …

Diversity And Reimagining The Internal-External Dichotomy, Elizabeth Pollman

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In Duty and Diversity, two distinguished voices in business law, Professor Chris Brummer and former Chief Justice of the Delaware Supreme Court Leo E. Strine, Jr., make the case that corporate law provides “critical tools” to support corporations in taking effective action to help reduce racial and gender inequality. Specifically, they argue that “the pursuit of Diversity, Equity, and Inclusion is solidly authorized by the operation of traditional corporate law principles and can even be easily squared with the views of those who embrace what has come to be known as ‘shareholder primacy.’ ”Examining demographics in corporate boards and executive …

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

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The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the pandemic response by …

Confronting Complexity With Regulatory Excellence: Recommendations In The Wake Of The Philadelphia Refinery Explosion, Cary Coglianese

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Following the June 2019 explosion at the Philadelphia Energy Solutions (PES) refinery, the city of Philadelphia now confronts major challenges associated with the future of the refinery site. Whether the site is reopened as a refinery or other chemical-processing operation, or redeveloped for other uses, the city will face challenges endemic to all kinds of public policy issues: complexity, uncertainty, dynamism, tradeoffs, and value choices. This testimony, delivered to the City of Philadelphia Refinery Advisory Group’s Environment Committee, offers three main suggestions to help guide Philadelphia officials in dealing with the future of the PES refinery site. First, city officials …

Municipal Fiber In The United States: A Financial Assessment, Christopher S. Yoo, Jesse Lambert, Timothy P. Pfenninger

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Despite growing interest in broadband provided by municipally owned and operated fiber-to-the-home networks, the academic literature has yet to undertake a systematic assessment of these projects’ financial performance. To fill this gap, we utilize municipalities’ official reports to offer an empirical evaluation of the financial performance of every municipal fiber project in the U.S. operating in 2010 through 2019. An analysis of the actual performance of the resulting fifteen-project panel dataset reveals that none of the projects generated sufficient nominal cash flow in the short run to maintain solvency without infusions of additional cash from outside sources or debt relief. …

Empire And Politics In Eastern And Western Civilizations, Mortimer N.S. Sellers

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To speak of “empire” today is to evoke the history of China and of Rome, two great empires that vastly influenced the culture and development of half the globe. The whole world has been touched by their powerful examples, so that even someone writing, as I do, in a distant corner of North America, feels the history and influence of the Roman and Chinese empires every day. Nor are they unique. Something like “empire” has arisen wherever there was wealth and stability to support it. Rome and China had numerous rivals in the East and West who aspired to empire …

Antitrust Liability For False Advertising: A Response To Carrier & Tushnet, Susannah Gagnon, Herbert J. Hovenkamp

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This reply briefly considers when false advertising can give rise to antitrust liability. The biggest difference between tort and antitrust liability is that the latter requires harm to the market, which is critically dependent on actual consumer response. As a result, the biggest hurdle a private plaintiff faces in turning an act of false advertising into an antitrust offense is proof of causation – to what extent can a decline in purchase volume or other market rejection be specifically attributed to the defendant’s false claims? That requirement dooms the great majority of false advertising claims attacked as violations of the …

A Lesson From Startups: Contracting Out Of Shareholder Appraisal, Jill E. Fisch

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Appraisal is a controversial topic. Policymakers have debated the goals served by the appraisal remedy, and legislatures have repeatedly revised appraisal statutes in an effort to meet those goals while minimizing the cost and potential abuse associated with appraisal litigation. Courts have struggled to determine the most appropriate valuation methodology and the extent to which that methodology should depend on case-specific factors. These difficulties are exacerbated by variation in the procedures by which mergers are negotiated and the potential for conflict-of-interest transactions.

Private ordering offers a market-based alternative to continued legislative or judicial efforts to refine the appraisal remedy. Through …

How A Pandemic Plus Recession Foretell The Post-Job Based Horizon Of Health Insurance, Allison K. Hoffman

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For many years, the health insurance that people received through their jobs was considered the gold standard, so much so that it came to be called “Cadillac coverage.” Just as Cadillac has lost its sheen, so has job-based health insurance coverage in many cases. This decline predated the COVID-19 pandemic, yet it has been, and will continue to be, hastened by it. The changes to job-based coverage have prompted people to ask: what’s next? This Article suggests that the lessons from the pandemic could offer an opportunity fundamentally to rethink the way to pay for healthcare in the United States, …

Brief Of Professors Michael Knoll And Ruth Mason As Amici Curiae Supporting Petitioners In National Pork Producers Council V. Ross, Michael S. Knoll, Ruth Mason

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The district court erred when it concluded that because Proposition 12 applies only to in-state sales, it could not be extraterritorial. On the contrary, because California regulates pork production based on domestic, inbound, and outbound sales, its regulation is internally inconsistent and overbroad. As an obligation of interstate comity, this Court has understood extraterritoriality to require the basis of regulation to be internally consistent. A regulation is internally consistent when, if every state regulated using the same nexus as the challenged state, cross-border commercial activity would not be regulated by more than one state. Proposition 12 cannot meet this basic …

The Pennhurst Doctrines And The Lost Disability History Of The "New Federalism", Karen Tani

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This Article reconstructs the litigation over an infamous institution for people with disabilities—Pennhurst State School & Hospital—and demonstrates that litigation’s powerful and underappreciated significance for American life and law. It is a tale of two legacies. In U.S. disability history, Halderman v. Pennhurst State School & Hospital is a celebrated case. The 1977 trial court decision recognized a constitutional “right to habilitation” and ordered the complete closure of an overcrowded, dehumanizing facility. For people concerned with present-day mass incarceration, the case retains relevance as an example of court-ordered abolition.

For those outside the world of deinstitutionalization and disability rights, however, …

Dworkin Versus Hart Revisited: The Challenge Of Non-Lexical Determination, Mitchell N. Berman

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A fundamental task for legal philosophy is to explain what makes it the case that the law has the content that it does. Anti-positivists say that moral norms play an ineliminable role in the determination of legal content, while positivists say that they play no role, or only a contingent one. Increasingly, scholars report finding the debate stale. This article hopes to freshen it by, ironically, revisiting what might be thought its opening round: Dworkin’s challenge to Hartian positivism leveled in The Model of Rules I. It argues that the underappreciated significance of Dworkin’s distinction between rules and principles is …

How Algorithm-Assisted Decision Making Is Influencing Environmental Law And Climate Adaptation, Sonya Ziaja

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Algorithm-based decision tools in environmental law appear policy neutral
but embody bias and hidden values that affect equity and democracy. In effect,
algorithm-based tools are new fora for law and policymaking, distinct from
legislatures and courts. In turn, these tools influence the development and
implementation of environmental law and regulation. As a practical matter,
there is a pressing need to understand how these automated decision-making
tools interact with and influence law and policy. This Article begins this timely
and critical discussion.

After introducing the challenge of adapting water and energy systems to
climate change, this Article synthesizes prior multidisciplinary work …

Police Frisks, David S. Abrams, Hanming Fang, Priyanka Goonetilleke

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The standard economic model of police stops implies that the contraband hit rate should rise when the number of stops falls, ceteris paribus. We provide empirical corroboration of such optimizing models of police behavior by examining changes in stops and frisks around two extraordinary events of 2020 - the pandemic onset and the nationwide protests following the killing of George Floyd. We find that hit rates from pedestrian and vehicle stops generally rose as stops and frisks fell dramatically. Using detailed data, we are able to rule out a number of alternative explanations, including changes in street population, crime, police …

A Comment On Colla And Gulati, Cheeky Contracting, Tess Wilkinson-Ryan

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Colla and Gulati have identified a moment of disequilibrium in contract law and practice that tests the comfortable assumptions and taxonomies of contracts scholars. The dispute seems to pit the parties’ “real deal” against the paper deal, with attorneys for the creditors bewildered at Argentina’s novel and aggressive reading of its obligations. The focus of this commentary is, basically: How cheeky is cheeky?

Digital Cluster Markets, Herbert J. Hovenkamp

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This paper considers the role of “cluster” markets in antitrust litigation, the minimum requirements for recognizing such markets, and the relevance of network effects in identifying them.

One foundational requirement of markets in antitrust cases is that they consist of products that are very close substitutes for one another. Even though markets are nearly always porous, this principle is very robust in antitrust analysis and there are few deviations.

Nevertheless, clustering noncompeting products into a single market for purposes of antitrust analysis can be valuable, provided that its limitations are understood. Clustering contributes to market power when (1) many customers …

Assessing Automated Administration, Cary Coglianese, Alicia Lai

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To fulfill their responsibilities, governments rely on administrators and employees who, simply because they are human, are prone to individual and group decision-making errors. These errors have at times produced both major tragedies and minor inefficiencies. One potential strategy for overcoming cognitive limitations and group fallibilities is to invest in artificial intelligence (AI) tools that allow for the automation of governmental tasks, thereby reducing reliance on human decision-making. Yet as much as AI tools show promise for improving public administration, automation itself can fail or can generate controversy. Public administrators face the question of when exactly they should use automation. …

The Uncertain Stewardship Potential Of Index Funds, Jill E. Fisch

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Regulators and commentators around the world are increasingly demanding that institutional investors engage in stewardship with respect to their portfolio companies. Further, the demand for stewardship has broadened from an expectation that investors engage to reduce agency costs and promote economic value to a call for investors to demand that companies serve a broader range of societal interests and objectives. This chapter considers calls for stewardship in the context of the U.S. capital markets specifically as applied to index funds. It argues that, irrespective of the merits of institutional stewardship generally, the structure of index funds and the business environment …

What History Can Tell Us About The Future Of Insurance And Litigation After Covid-19, Kenneth S. Abraham, Tom Baker

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This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and …