Law Commons^™

Anticompetitive Merger Review, Samuel N. Weinstein

Articles

U.S. antitrust law empowers enforcers to review pending mergers that might undermine competition. But there is growing evidence that the merger-review regime is failing to perform its core procompetitive function. Industry concentration and the power of dominant firms are increasing across key sectors of the economy. In response, progressive advocates of more aggressive antitrust interventions have critiqued the substantive merger-review standard, arguing that it is too friendly to merging firms. This Article traces the problem to a different source: the merger-review process itself. The growing length of reviews, the competitive restrictions merger agreements place on acquisition targets during review, and …

Justice Versus Judiciary: Justice Enthroned Or Entangled In India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi, Arun Thiruvengadam

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Justice Versus Judiciary: Justice Enthroned or Entangled in India? (2019) By Sudhanshu Ranjan, Oxford University Press, New Delhi

Is Corporate Law Nonpartisan?, Ofer Eldar, Gabriel V. Rauterberg

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Only rarely does the United States Supreme Court hear a case with fundamental implications for corporate law. In Carney v. Adams, however, the Supreme Court had the opportunity to address whether the State of Delaware’s requirement of partisan balance for its judiciary violates the First Amendment. Although the Court disposed of the case on other grounds, Justice Sotomayor acknowledged that the issue “will likely be raised again.” The stakes are high because most large businesses are incorporated in Delaware and thus are governed by its corporate law. Former Delaware governors and chief justices lined up to defend the state’s “nonpartisan” …

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

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Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District, …

Cultural Identities And Territoriality In A Global Marketplace, J. Janewa Osei-Tutu

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No abstract provided.

The Case For Banning (And Mandating) Ransomware Insurance, Kyle D. Logue, Adam B. Shniderman

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Ransomware attacks are becoming increasingly pervasive and disruptive, resulting in ransom demands becoming more exorbitant. Payments for ransom costs are increasingly being covered by insurance, which may offer coverage for a variety of cyber-related losses. Some commentators have expressed concern over this market phenomenon. Specifically, the concern is that the presence of insurance is making the ransomware problem worse based on the following theory: because there is ransomware insurance that covers ransom payments, and because paying the ransom is often far cheaper than paying the restoration and business interruption costs covered under the policy, there is an increased tendency to …

A New Framework For Taxing Cryptocurrencies, Reuven S. Avi-Yonah, Mohanad Salaimi

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This article describes a proposal to tax cryptocurrencies based on their unique features.It argues that while various ways of earning or receiving crypto tokens (for example, mining in proof-of-work (PoW) protocols like bitcoin and staking in proof-of-stake (PoS) protocols like ether) generate taxable income, the tax results should take into account positive and negative externalities. It also claims that because of its volatility, crypto should not be taxed until tokens are exchanged for real-world items like fiat currency or goods and services. Finally, this article argues that when crypto tokens are exchanged for fiat currencies or goods and services, they …

Covid-19 And (Mis)Understanding Public Attitudes To Social Security: Re-Setting Debate, Sudipa Sarkar, Michael Orton

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The Covid-19 pandemic has seen emerging debate about a possible shift in ‘anti-welfare commonsense’ i.e. the orthodoxy previously described in this journal as solidifying negative public attitudes towards ‘welfare’. While a shift in attitudes might be ascribed to the circumstances of the crisis it would still be remarkable for such a strongly established orthodoxy to have changed quite so rapidly. It is appropriate, therefore, to reflect on whether the ‘anti-welfare’ orthodoxy was in fact as unequivocal as claimed? To address this question, challenges to the established orthodoxy that were emerging pre-pandemic are examined along with the most recently available survey …

Square Pegs And Round Holes: Differentiated Instruction And The Law Classroom, Karen J. Sneddon

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As the academic semester begins, law students enter the classroom with sharpened pencils and charged laptops. Law professors enter the classroom with prepared notes and tabbed casebooks. But how will law professors ensure that the learning of each individual student is supported? Students do not take one path to law school. From English majors to engineering majors, students enter law school immediately upon graduating from college or years after graduation with various professional experiences. Despite criticism that legal education is resistant to change and over-relies on the Socratic Method, law school educators know that learning is not a one-size-fits-all experience. …

National Medical Commission Act, 2019: The Need For Parity, Ov Nandimath, S. Suhas, Y. Malik, B.C. Malathesh

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The National Medical Commission (NMC) has replaced the erstwhile Medical Council of India with the intention of bringing about positive reforms in medical education and enforcing ethical standards in the practice of medicine in India. The NMC Act of 2019, under clauses 3 and 4 of Section 30, details the procedure of grievance redressal. However, these clauses in their current form empower doctors and patients unequally. While the Act empowers an aggrieved medical professional to approach the relevant appellate fora under the NMC, it is silent on a similar opportunity for an aggrieved patient or caregiver to appeal against the …

The Power Of A Good Story: How Narrative Techniques Can Make Transactional Documents More Persuasive, Karen J. Sneddon

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Transactional documents are complex, multi-faceted documents reviewed by various audiences at multiple points in time. They are more than descriptive legal devices that dictate the exchange of widgets for cash. While the core of many transactional documents will be the acquisition, creation, or exchange of property or services, transactional documents do more than memorialize that understanding. At first glance, transactional documents may seem simply like expository texts that aim to create the private law between the transacting parties and educate the audience by delivering a sequence of instructions, but transactional documents do much more. They tell the stories of the …

Ai Insurance: How Liability Insurance Can Drive The Responsible Adoption Of Artificial Intelligence In Health Care, Ariel Dora Stern, Avi Goldfarb, Timo Minssen, W. Nicholson Price Ii

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Despite enthusiasm about the potential to apply artificial intelligence (AI) to medicine and health care delivery, adoption remains tepid, even for the most compelling technologies. In this article, the authors focus on one set of challenges to AI adoption: those related to liability. Well-designed AI liability insurance can mitigate predictable liability risks and uncertainties in a way that is aligned with the interests of health care’s main stakeholders, including patients, physicians, and health care organization leadership. A market for AI insurance will encourage the use of high-quality AI, because insurers will be most keen to underwrite those products that are …

Autonomous Vehicle Regulation & Trust: The Impact Of Failures To Comply With Standards, William H. Widen, Phillip Koopman

Articles

The autonomous vehicle (AV) industry works very hard to create public trust in both AV technology and its developers. Building trust is part of a strategy to permit the industry itself to manage the testing and deployment of AV technology without regulatory interference. This article explains how industry actions to promote trust (both individually and collectively) have created concerns rather than comfort with this emerging technology. The article suggests how the industry might change its current approach to law and regulation from an adversarial posture to a more cooperative one in which a space is created for government regulation consistent …

The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin

Articles

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states -Texas and Florida- students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents' substantive due process right to control the upbringing of their children.

The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and …

The False Allure Of The Anti-Accumulation Principle, Michael E. Herz, Kevin M. Stack

Articles

Today the executive branch is generally seen as the most dangerous branch. Many worry that the executive branch now defies or subsumes the separation of powers. In response, several Supreme Court Justices and prominent scholars assert that the very separation-of-powers principles that determine the structure of the federal government as a whole apply with full force within the executive branch. In particular, they argue that constitutional law prohibits the accumulation of more than one type of power—legislative, executive, and judicial—in the same executive official or government entity. We refer to this as the anti-accumulation principle. The consequences of this principle, …

Lawyering The Presidency, Deborah Pearlstein

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Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these …

Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum

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International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors.

This Article disaggregates slavery from the slave trade and slavery …

Inoculating The Next Generation Of Lawyers: Mandating Substances Use And Mental Health Education For Law Students, Janet Stearns

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No abstract provided.

Is Bitcoin Prudent? Is Art Diversified? Offering Alternative Investments To 401(K) Participants, Edward A. Zelinsky

Articles

Whether 401(k) plans’ investment menus should feature “alternative” investments is a fact-driven inquiry applying ERISA’s fiduciary standards of prudence, loyalty, and diversification. Central to this fact-driven inquiry is whether the alternative investment class in question is broadly accepted by investors in general and by professional defined benefit trustees in particular. A similarly salient concern when making this inquiry is the financial unsophistication of many, perhaps most, 401(k) participants. Accounting for these considerations, this Article concludes that REITs, private equity funds, and hedge funds can, with limits, today be offered as investment choices to 401(k) participants, but that cryptocurrencies (including Bitcoin), …

A New Framework For Digital Taxation, Reuven Avi-Yonah, Young Ran (Christine) Kim, Karen Sam

Articles

The international tax regime has wide implications for business, trade, and the international political economy. Under current law, multinational enterprises do not pay their fair share of taxes to market countries where profits are generated because market countries are only allowed to tax companies with a physical presence there. Digital companies, like Google and Amazon, can operate entirely online, thereby avoiding market country taxes. Multinationals can also exploit existing tax rules by shifting their profits to low-tax jurisdictions, thereby avoiding taxes in the residence country where their headquarters are located.

Recently, a global tax deal was reached to tackle these …

"A Mystifying And Distorting Factor": The Electoral College And American Democracy, Katherine A. Shaw

Articles

A Review of Let the People Pick the President: The Case for Abolishing the Electoral College. By Jesse Wegman.

The Deep Architecture Of American Covid-19 Tort Reform 2020-21, Anthony J. Sebok

Articles

The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for “reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.”

This article, prepared for …

The Progressive Love Affair With The Carceral State, Kate Levine

Articles

A Review of The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration. By Aya Gruber.

Portraits Of Bankruptcy Filers, Pamela Foohey, Robert M. Lawless, Deborah Thorne

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One in ten adult Americans has turned to the consumer bankruptcy system for help. For almost forty years, the only systematic data collection about the people who file bankruptcy has come from the Consumer Bankruptcy Project (CBP), for which we serve as co-principal investigators. In this Article, we use CBP data from 2013 to 2019 to describe who is using the bankruptcy system, providing the first comprehensive overview of bankruptcy filers in thirty years. We use principal component analysis to leverage these data to identify distinct groups of people who file bankruptcy. This technique allows us to situate the distinctions …

Judicial Impartiality In The Judicial Council Act 2019: Challenges And Opportunities, Brian M. Barry Dr

Articles

The Judicial Council is tasked with promoting and maintaining high standards of judicial conduct. The Judicial Council Act 2019 identifies judicial impartiality as a principle of judicial conduct that Irish judges are required to uphold and exemplify. Despite its ubiquity, judicial impartiality is perhaps under-explained and under-examined.

This article considers the nature and scope of judicial impartiality in contemporary Irish judging. It argues that the Judicial Council ought to take a proactive, multi-faceted approach to promote and maintain judicial impartiality, to address contemporary challenges that the Irish judiciary face including increasingly sophisticated empirical research into judicial performance, the proliferation of …

The Road Ahead For Environmental Impact Assessment In India: Insights From Expansion In Coal Mining, Sneha Thapliyal, Meenakshi Kapoor, Krithika Dinesh

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One of the most contentious changes proposed in the draft environmental impact assessment notification, 2020 in India is the circumvention of public consultations for the expansion of projects for up to 50% of their original capacity. Similar exemption from public hearing, albeit for 40% capacity expansion, has been permitted as a special case for the coal mining sector since 2017. The minutes of the meetings of the coal mining expert appraisal committee between August 2017 and January 2021, which reviewed the requests for coal mine expansion, are analysed herein. It was found that the expert appraisal committees had effectively sidelined …

A Continuing Constitutional Conversation: Locating Nitisha, Gauri Pillai

Articles

In April 2021, the Supreme Court of India decided Nitisha v Union of India, holding that the gender neutral hiring procedure adopted by the Indian Army indirectly discriminated against women officers by disproportionately excluding them from promotion. This effect was experienced due to systemic discrimination against women built into the appointment criteria. To redress systemic discrimination, the State was required not only to abstain from direct or indirect discrimination but also to positively act to bring in structural change. Nitisha makes significant contributions to developing the constitutional understanding of non-discrimination. It identifies the essential nature of discrimination as systemic rather …

Campaign Finance Reform, Union Dues, And The First Amendment: The Collision Of Politics And Rights, Mark Adams

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No abstract provided.

New Innovation Models In Medical Ai, W Nicholson Price Ii, Rachel E. Sachs, Rebecca S. Eisenberg

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In recent years, scientists and researchers have devoted considerable resources to developing medical artificial intelligence (AI) technologies. Many of these technologies—particularly those that resemble traditional medical devices in their functions—have received substantial attention in the legal and policy literature. But other types of novel AI technologies, such as those related to quality improvement and optimizing use of scarce facilities, have been largely absent from the discussion thus far. These AI innovations have the potential to shed light on important aspects of health innovation policy. First, these AI innovations interact less with the legal regimes that scholars traditionally conceive of as …

Adapting To 4 Degrees C World, Karrigan Bork, Karen Bradshaw, Cinnamon P. Carlarne, Robin Kundis Craig, Sarah Fox, Josh Galperin, Keith Hirokawa, Shi-Ling Hsu, Katrina Kuh, Kevin Lynch, Michele Okoh, Jessica Owley, Melissa Powers, Shannon Roesler, J.B. Ruhl, James Salzman, David Takacs, Clifford J. Villa

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The Paris Agreement's goal to hold warming to 1.50-2 0 C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 40 C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 40 C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.