Law Commons^™

On The Scales Of Private Law: Nano Contracts, Yonathan A. Arbel

Articles

Contracts are falling in scale. New contracting trends and technologies facilitate the formation of smaller scale contracts that have ephemeral duration, token stakes, and narrow scope. These nano contracts embody ephemeral interactions of minuscule value - interactions that were previously far outside the law and away from explicit markets, governed only by social norms. The rise of nano contracts can unlock new transaction types, create opportunities to build wealth, and reduce dependence on private ownership. Yet nano contracts also carry important risks, and their small scale makes them difficult to effectively regulate. At the limit, nano contracts collapse private law …

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Articles

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

The Housing Bubble And Consumer Banruptcy (Parts Iii And Iv), David G. Carlson

Articles

During the COVID pandemic housing prices have soared. Consumers who have filed for bankruptcy are now looking at enormous realized and unrealized capital gains. This article assesses the chances that these consumer debtors can keep these gains out of the hands of their creditors. Part II of this two-part article addresses chapter 13 issues, which concern plan modification by the chapter 13 trustee to capture realized and unrealized capital gains. It also covers whether a trustee in a converted case can capture these gains. The law of the coverted chapter 7 case is spectacularly contradictory.

Aaron Twerski: Practical Wisdom At Ground Zero, Anthony J. Sebok

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This Article celebrates Professor. Aaron Twerski’s “practical wisdom” in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the so-called 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund (“VCF”) despite there being every reason to suspect that the interaction of workersman’s compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings – —expressed decades earlier – —about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed …

Viability Of The ‘Democratic Liberalism’ Project, Prerna Dhoop

Articles

Book Review: From Free to Fair Markets: Liberalism after COVID -19 by Rosalind Dixon and Richard Holden (Oxford University Press, 2022); pp 240, 24 GBP.

Taming Wildcat Stablecoins, Gary B. Gorton, Jeffery Y. Zhang

Articles

Cryptocurrencies, including stablecoins, are all the rage. Investors are exploring ways to profit off of them. Governments are considering ways to regulate them. While the technology underlying cryptocurrencies is new, the economics is centuries old. Oftentimes, lawmakers are so focused on understanding a new technological innovation that they fail to ask what exactly is being created.

In this case, the new technology has recreated circulating private money in the form of stablecoins, which are similar to the banknotes that circulated in many countries during the nineteenth century. The implication is that stablecoin issuers are unregulated banks. Based on lessons learned …

Safeguarding Taxpayer Data, Michael Hatfield

Articles

The Internal Revenue Service (IRS) collects more information on more individuals than any other government agency. The information is not only financial but personal, potentially including information about health care needs and decisions; the caregivers, disabilities, and foreign birth of children; the educational progress and felony convictions of students; and one’s religious and charitable associations. In acknowledging the vast quantity of information held by the IRS, and the necessity of taxpayers trusting tax administrators with their information, Congress provided greater protection for taxpayer information under the Internal Revenue Code (IRC) than it was provided under the Privacy Act. Congress obligated …

Automated Vehicles, Moral Hazards & The "Av Problem", William H. Widen

Articles

No abstract provided.

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …

Feedback Loops: Appreciators, Coaches, & Evaluators, Patrick Barry

Articles

No individual person is likely to be able to satisfy all of our feedback needs. Which is why I tell my students to assemble a “Feedback Board of Directors.” Focus in particular, I tell them, on recruiting people who can collectively provide what Douglas Stone and Sheila Heen of Harvard Law School identify as the three basic forms of feedback in their book “Thanks for the Feedback”:

The Promise And Peril Of Chatgpt In Informal Rulemaking, Stephen Johnson

Articles

The dawn of e-rulemaking promised broader public participation, increased government efficiency, and higher quality decisionmaking. Moving notice and comment rulemaking online has increased the number of persons participating in the process for some rules, but not necessarily the quality of the comments they are submitting. In addition, in some cases, the transformation of the process has created new challenges for agencies by making it easier to flood agencies with duplicative and potentially fraudulent comments to which the agencies must respond. Every technological innovation holds promise for improvement of the rulemaking process, though, and artificial intelligence, including ChatGPT, is the latest …

Stopping Runs In The Digital Era, Luís C. Calderón Gómez

Articles

Bank runs, and the financial crises they catalyze and amplify, are incredibly costly-to individuals, families, society, and the economy writ large. Banking regulation has, for the most part, protected us from traditional bank runs for the last ninety years. However, as we saw in the devastating 2008 financial crisis, bank runs can still occur in lightly regulated or opaque segments of the financial sector.

The recent crypto market downturn dramatically forewarned regulators of the potential and significant risks that novel assets could pose to our financial system's stability. In particular, a novel, systemically important asset (stablecoins) revealed its vulnerability to …

Tax Reporting As Regulation Of Digital Financial Markets, Young Ran (Christine) Kim

Articles

FTX’s recent collapse highlights the overall instability that blockchain assets and digital financial markets face. While the use of blockchain technology and crypto assets is widely prevalent, the associated market is still largely unregulated, and the future of digital asset regulation is also unclear. The lack of clarity and regulation has led to public distrust and has called for more dedicated regulation of digital assets. Among those regulatory efforts, tax policy plays an important role. This Essay introduces comprehensive regulatory frameworks for blockchain-based assets that have been introduced globally and domestically, and it shows that tax reporting is the key …

Race Ethics: Colorblind Formalism And Color-Coded Pragmatism In Lawyer Regulation, Anthony V. Alfieri

Articles

The recent, high-profile civil and criminal trials held in the aftermath of the George Floyd and Ahmaud Arbery murders, the Kyle Rittenhouse killings, and the Charlottesville "Unite the Right" Rally violence renew debate over race, representation, and ethics in the U.S. civil and criminal justice systems. For civil rights lawyers, prosecutors, and criminal defense attorneys, neither the progress of post-war civil rights movements and criminal justice reform campaigns nor the advance of Critical Race Theory and social movement scholarship have resolved the debate over the use of race in pretrial, trial, and appellate advocacy, and in the lawyering process more …

Preface To Volume 14, Issue 2, Peter A. Carfagna

Articles

No abstract provided.

The Housing Bubble And Consumer Bankruptcy (Parts I And Ii), David G. Carlson

Articles

During the COVID pandemic housing prices have soared. Consumers who have filed for bankruptcy are now looking at enormous realized and unrealized capital gains. This article assesses the chances that these consumer debtors can keep these gains out of the hands of their creditors. Part I of this two-part article addresses chapter 7 issues, which concern lien stripping, abandonment, and monetary exemptions. It also addresses lien stripping in chapter 13 cases. Part II will address whether a chapter 13 debtor must surrender appreciation value to the chapter 13 trustee or to a trustee in a converted chapter 7 case.

Venture Predation, Matthew T. Wansley, Samuel N. Weinstein

Articles

Predatory pricing is a strategy firms use to suppress competition. The predator prices below its own costs to force its rivals out of the market. After they exit, the predator raises its prices to supracompetitive levels and recoups the cost of predation. The Supreme Court has described predatory pricing as “rarely tried” and “rarely successful” and has established a liability standard that is nearly impossible for plaintiffs to satisfy. We argue that one kind of company thinks predatory pricing is worth trying and at least potentially successful—venturebacked startups.

A venture predator is a startup that uses venture finance to price …

The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert

Articles

This article has three aims. First, it surveys the pre-BEPS efforts to create a multilateral tax convention (MTC) from the 19th century onward, and explains why these efforts have failed, leading to an international tax regime dominated by unilateralism and bilateralism. Second, it contrasts the success of multilateralism in investment and trade law. Third, it examines the BEPS era efforts to create an MTC and suggests that, while there has been more convergence of the tax laws of countries, a fundamental divergence of interests persists that will likely doom any such efforts to failure. The article concludes that, at this …

(Some) Land Back...Sort Of: The Transfer Of Federal Public Lands To Indian Tribes Since 1970, Audrey Glendenning, Martin Nie, Monte Mills

Articles

Federal public lands in the United States were carved from the territories of Native Nations and, in nearly every instance, required that the United States extinguish pre-existing aboriginal title. Following acquisition of these lands, the federal government pursued various strategies for them, including disposal to states and private parties, managing lands to allow for multiple uses, and conservation or protection. After over a century of such varied approaches, the modern public landscape is a complex milieu of public and private interests, laws and policies, and patchwork ownership patterns. This complexity depends on—and begins with—the history of Indigenous dispossession but subsequent …

Considering A Right To Repair Software, Robert W. Gomulkiewicz

Articles

The right to repair movement aims to extend the usability of products by allowing a consumer (or a repair professional acting on the consumer’s behalf) to fix broken products. Implicitly, the movement’s focus has been on hardware—on the right to repair cars, tractors, and phones. But as more and more of the functionality of goods comes from software, it is important to consider whether we need a right to repair software. There are practical challenges to software repair. For example, fixing software is more difficult and treacherous than fixing hardware. Complicating matters further, more and more software is embedded in …

The Market-Essential Role Of Corporate Climate Disclosure, George S. Georgiev

Articles

This Article focuses on capital market efficiency as an often-downplayed legal rationale for mandating corporate climate disclosure, and explores it alongside the notion of investor demand, which has assumed a prominent and, increasingly, contested role in debates on climate disclosure. Because market efficiency (encompassing both securities price accuracy and overall capital market allocative efficiency) is generally unobservable, many commentators have instead emphasized the highly visible investor demand for climate-related disclosure as evidenced by shareholder proposals, voting behavior, stewardship policies, and public statements. Unfortunately, investor demand can be disputed, sometimes fairly but most often unfairly, because investor preferences are heterogeneous, dynamic, …

Defamation With Bayesian Audiences, Yonathan Arbel, Murat C. Mungan

Articles

How strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects …

The Credibility Effect: Defamation Law And Audiences, Yonathan A. Arbel

Articles

What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on …

Inventing Deportation Arrests, Lindsay Nash

Articles

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

A Arte Das Metáforas Científicas, Susan Haack

Articles

No abstract provided.

Grounding The Basic Structure In Legal Theory, Sanjay Jain

Articles

This article contributes to the everlasting debate on theorising the Basic Structure doctrine of the Indian Constitution. Having demonstrated that it cannot be justified either in orthodox positivism of Austin or Kelsenite normativity, the author makes the case to ground the debate in the modern avatar of analytical jurisprudence, popularly known as inclusive legal positivism.

Rethinking Party Autonomy In Trust Law, Stewart E. Sterk

Articles

The article critiques the current approach to party autonomy in trust law, particularly the freedom granted by the Second Restatement of Conflict of Laws for settlors to choose the governing law for their trusts. The author argues that this freedom, rooted in historically uniform trust laws, is now outdated due to the diversification of state trust laws, especially regarding issues like perpetual trusts and asset protection. The analysis advocates for a more restrictive approach to party autonomy, prioritizing the settlor's domicile and home state policies to prevent manipulation and ensure fairness, particularly for third parties affected by trust arrangements.

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Articles

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …

Harm Egalitarianism, Michael E. Herz

Articles

In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic and unscientific, is that the typical Administrative Law course may have changed less than many others. It seems fair to say, at least, that there has not developed a standard suite of topics that a professor wanting …

Grabbing The Bull By The Horns: Jurisprudential, Ethical, And Other Lessons For Lawyers And Law Students In The Immigration Labyrinth And Beyond, Mark L. Jones

Articles

No abstract provided.