Law Commons^™

Elective Corporate Governance: Does Board Choice Matter?, Martin Gelter, Mathias M. Siems

Faculty Scholarship

Recent literature discusses how “menu laws” allow corporations to opt into one of multiple competing statutory regimes. This paper contributes to this literature by presenting original empirical research on the choice between corporate board models. Today, many countries not only allow modifications of a particular board structure, but they provide separate legal templates, giving firms a choice between a one-tier and a two-tier board model (and sometimes a third hybrid model). However, how companies actually use these rules is largely underexplored. Based on data from 14 European countries that permit a choice between two models, this paper examines the use …

Defamation, Presumed Damages, And Reputational Injury: A Legal And Philosophical Inquiry, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

A Tort For The Digital Age: False Light Invasion Of Privacy Reconsidered, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability.

Drawing from case law and …

Blue Carbon Law, Adam D. Orford

Faculty Scholarship

This Article explores the emerging law of blue carbon, defined as rules governing human interventions into Earth’s marine carbon cycles. Blue carbon law is of growing importance today as pressure mounts to incorporate coastal conservation and restoration activities into market-based carbon sequestration schemes, and as the planet’s deep oceans are evaluated for their carbon sequestration potential. The Article conceptualizes two broad trends in blue carbon law: the international law of carbon credit markets creating incentives to commodify and monetize blue carbon resources; and the responsive integration of commodification concepts into existing laws that already manage and influence blue carbon systems, …

Overselling Bil And Ira, Adam D. Orford

Faculty Scholarship

This Article argues that the Bipartisan Infrastructure Law (BIL) and Inflation Reduction Act (IRA) are less likely to reduce U.S. greenhouse gas emissions than typically believed, and that a misconceived narrative of spending effectiveness is now threatening to undercut the perceived urgency of further legislative action on climate change in the United States. With the passage of BIL and IRA, the United States has committed to a climate law strategy predominated by public spending in lieu of regulatory mandates. Recent studies, including studies produced by the U.S. federal government, predict that this spending will push U.S. annual greenhouse gas emissions …

Voice, Prevention, Remedy: Key Elements In A Global Supply Chain Convention, James J. Brudney

Faculty Scholarship

In a global supply chain (GSC) setting, workers’ voice may be understood as the extent to which employees and others toiling in the supply chain are able to participate—individually and/or collectively—in decisions affecting their labor conditions and rights. Policy instruments may strengthen this voice insofar as they provide mechanisms enabling workers to identify and actualize their labor rights within the GSC. This Article initially situates the role of workers’ voice in GSCs by reference to the writings of political economist Albert O. Hirschman. In his classic book, Exit Voice, and Loyalty, and related articles, Hirschman focused on mechanisms for addressing …

The Original Meaning Of The Sixteenth Amendment, John R. Brooks, David Gamage

Faculty Scholarship

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property.

In this Article we argue—based on the …

The Global Tax Deal And The New International Economic Governance, Rebecca Kysar

Faculty Scholarship

The ethos of economic integration and trade liberation no longer reigns supreme. Instead of multilateral trade agreements, nations are turning towards protectionism and unilateralism. Yet in late 2021, nearly 140 countries agreed to a new global tax deal that is aimed at coordinating their tax systems to curtail tax competition and corporation profit shifting to tax havens, as well as constructing a new allocation of taxing rights among nations. Although multilateral trade agreements now seem out of reach, tax multilateralism is ascendant. This is surprising given the deep tradition of national control over tax policy. It also perplexing since international …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

A Reasonable And Well-Reasoned Teaching Tool In Unreasonable Times, Jasmine Gonzales Rose

Faculty Scholarship

Devon Carbado’s most recent book, Unreasonable: Black Lives, Police Power, and the Fourth Amendment, is a must-read for anyone studying or concerned with criminal procedure or policing. Unlike some of Professor Carbado’s other work, the brilliance of this book is not necessarily new conceptualizations or theorizations—for which he is well known—but rather centers on accessible pedagogy. If you have studied race and policing, you are not likely to find a new case, study, or reference to scholarship in the book. But, you are going to understand anti-Black racism, policing, the Fourth Amendment, and their intersections better than you did …

Two Ai Truths And A Lie, Woodrow Hartzog

Faculty Scholarship

Industry will take everything it can in developing Artificial Intelligence (AI) systems. We will get used to it. This will be done for our benefit. Two of these things are true and one of them is a lie. It is critical that lawmakers identify them correctly. In this Essay, I argue that no matter how AI systems develop, if lawmakers do not address the dynamics of dangerous extraction, harmful normalization, and adversarial self-dealing, then AI systems will likely be used to do more harm than good.

Given these inevitabilities, lawmakers will need to change their usual approach to regulating technology. …

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Afrofuturism And The Law: A Manifesto, I. Bennett Capers

Faculty Scholarship

Afrofuturism seems to be everywhere these days. In music, film, dance, literature. And in this special symposium issue of the Georgetown Law Journal, “Afrofuturism and the Law.” This prompts a foundational question. What is “Afrofuturism and the Law”? More specifically, as a practice, as a discipline, and a legal movement, what should Afrofuturism and the Law be. Indeed, given Afrofuturism’s seeming staying power, and its incursion into law, is it time for a manifesto to set parameters? Hence, this proposed manifesto. To be sure, I am troubled by the word manifesto, especially given its connection to the word manifest, which …

The Legacy Of The Troubles: Casting A Long Shadow Over Northern Ireland, Jacqueline M. Nolan-Haley

Faculty Scholarship

The Good Friday/Belfast Agreement (Agreement) brought hope to Northern Ireland after thirty years of violent conflict during a period known as the Troubles (1968 - 1998). The Agreement offered a framework for ending the conflict and for addressing the needs of victims. However, unlike peace agreements from many other post-conflict societies, it did not provide a transitional justice process for dealing with contentious issues of the past. As a result, more than 25 years after the signing of the Agreement, the problematic legacy of the conflict continues. Paramilitaries are still a cause for concern. Peace walls still exist. Competing sectarian …

The Implications Of Section 230 For Black Communities, Spencer Overton, Catherine Powell

Faculty Scholarship

Section 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (for example, posts, comments, and videos) and for moderation of that content. This Article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities in particular. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Section 230 also relieves platforms of most legal liability for content moderation, which boosts …

Is There A Presumption Against Wealth Taxation?, Linda Sugin

Faculty Scholarship

No abstract provided.

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

The Celebration Of Interracial Intimacy Racial Mixture As The Cure For Racism – A Critical View, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Susan Block-Lieb, Edward J. Janger

Faculty Scholarship

Algorithms in consumer finance can entrench, exacerbate, and conceal bias. This article considers the increased importance, in the age of algorithmic lending, of disparate impact analysis as a tool to combat predation and discrimination in consumer finance transactions. It explores the existing legal landscape and finds gaps in the relationship between discrimination and predatory lending doctrines. It then situates both disparate impact analysis and UDAAP doctrines within the broader context of balancing and burden-shifting rules in tort law and considers how this analysis might be tailored for the new algorithmic lending environment. We conclude that predatory discrimination permits consideration of …

Consent And Disagreement, Aditi Bagchi

Faculty Scholarship

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version …

Long Live The Federal Rules Of Evidence!, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a …

A Short History Of The Early History Of American Student-Edited International Law Journals, Harlan G. Cohen

Faculty Scholarship

How did ideas hatched among Harvard, Virginia, and Columbia students remake the world of international publishing? Part of the Study and Analysis of International Law Scholarship (SAILS) project, this piece follows LLMs in Cambridge (like a young Georges Abi-Saab), moot court competitors in Texas, student Vietnam-war critics in Nashville, idealistic young theorists in the New Haven, and an expanding cadre of international law scholars as they discover and develop a new publishing platform.

Statutory Interpretation In The 2020s: A View Of The Cathedral, Ethan J. Leib, Fordham University School Of Law

Faculty Scholarship

This Comment looks at eighty-seven statutory interpretation cases in the Supreme Court’s docket over the 2020–2022 Terms to evaluate trends in how the nation’s highest court reads statutes in the modern era. It concludes that the overarching story is neither a purely “textualist” one, nor one in which the liberal bloc is very often at odds with the conservative bloc. Instead, statutory interpretation is much more consensual than it is often credited to be—and contextual and purposive arguments continue to remain valid modalities of interpretation, even as standard textualist tools also remain relevant.

Proportionalities, Youngjae Lee

Faculty Scholarship

"Proportionality" is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Painting A Clearer Picture: Introducing New Federal Rule Of Evidence 107 Regulating Illustrative Aids, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

They say a picture is worth a thousand words—and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform …

Regulating For Asymmetric Market Power : Beyond The Consumer Sovereignty Model, Olivier Sylvain

Faculty Scholarship

Recent policy developments suggest that consumer sovereignty models of regulation have substantial, if not fatal, limitations. Binding decisions by the European Data Protection Board in 2023, as well as other recent public law enactments in the EU and the US, overtly reject the assumption that individuals are best situated to manage how companies process or use their personal information. Prevalent online practices are too opaque. And the “ take it or leave it ” services that companies provide render individuals’ rights and commercial choices effectively meaningless. In short, the relative power of consumers as compared to the companies that collect, …

No Strings Attached: How Catholic Institutions Prospered At The Expense Of The Administrative State And Patient Autonomy, Lori Freedman, Kimani Paul-Emile

Faculty Scholarship

Catholic hospitals and health systems have proliferated and succeeded in American healthcare; they now operate four of the largest health systems and serve nearly one in six hospital patients. Like other religious entities that Wuest and Last write about in this issue, in their article Church Against State, they have benefited by and supported the long reach of conservative efforts to undermine the administrative state.

Demoralizing Elite Fraud, Zephyr Teachout

Faculty Scholarship

The Supreme Court keeps striking down wire fraud convictions. Why?

As I show in this piece, from the 1970s to this year, the Court has repeatedly attempted to shift the framework of fraud cases from moral language to morally neutral language. As a result, the Court ends up making a hash of statutory interpretation, because it then has to interpret statutes that it has effectively rewritten. For instance, much of the current fraud jurisprudence revolves around defining what property means. The Mail Fraud statute does not have the language of property in it, and the legislative history does not involve …

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

Sharing Pathogen Sequence Data For Global Scientific Research Under The Nagoya Protocol To The Convention On Biological Diversity, Jerome H. Reichman, Carolina Dos S. Ribeiro, George B. Haringhuizen, Paul F. Uhlir

Faculty Scholarship

The Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial …