Law Commons^™

Cleaning Corporate Governance, Jens Frankenreiter, Cathy Hwang, Yaron Nili, Eric Talley

Scholarship@WashULaw

Although empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the accuracy and integrity of a small, specialized collection of corporate governance data. In this paper, we unveil a novel collection of three decades’ worth of corporate charters for thousands of public companies, which shows that this faith is misplaced.

We make three principal contributions to the literature. First, we label our corpus for a variety of firm- and state-level governance features. Doing so reveals significant infirmities within the most well-known corporate governance datasets, including an error rate exceeding …

M&A Advisor Misconduct: A Wrong Without A Remedy?, Andrew F. Tuch

Scholarship@WashULaw

Merger and acquisition ("M&A") transactions are among the most high profile of corporate transactions. They are also among the most contentious, with around eighty percent of all completed deals litigated in recent years. And yet investment banks—essential advisors on these deals—have generally succeeded spectacularly in avoiding liability, an anomaly considering the routine nature of deal litigation and the frequency with which they face lawsuits in their other activities. This article examines this anomaly, explaining the doctrinal and practical reasons why it arises. In doing so, it puts in context aiding and abetting liability, a recently-successful shareholder strategy to bring M&A …

A General Defense Of Information Fiduciaries, Andrew F. Tuch

Scholarship@WashULaw

Countless high-profile abuses of user data by leading technology companies have raised a basic question: should firms that traffic in user data be held legally responsible to their users as “information fiduciaries”? Privacy legislation to impose fiduciary-like duties of care, confidentiality, and loyalty on data collectors enjoys bipartisan support but faces strong opposition from scholars. First, critics argue that the information fiduciary concept flies in the face of fundamental corporate law principles that require firms to prioritize shareholder interests over those of users. Second, it is said that the overwhelming self-interest of digital companies makes fiduciary loyalty impossible as a …

Managing Management Buyouts: A Us-Uk Comparative Analysis, Andrew F. Tuch

Scholarship@WashULaw

This chapter comparatively assesses U.S. and U.K. law governing management buyouts (MBOs), focusing on the duties of directors and officers in these systems. The analysis casts doubt on persistent but mistaken perceptions about U.S. and U.K. corporate fiduciary duties for self-dealing. The U.K. no-conflict rule is seen as strict, the U.S. fairness rule as flexible and pragmatic. As the analysis for MBOs demonstrates, these fiduciary rules operate similarly, tasking neutral or disinterested directors with policing self-dealing, enabling commercially sensitive responses to conflicts of interest. The analysis also reveals stronger formal private enforcement of corporate law and more robust disclosure rules …

How Cheap Speech Underserves And Overheats Democracy, Gregory P. Magarian

Scholarship@WashULaw

A quarter century ago, Eugene Volokh’s article Cheap Speech and What It Will Do foretold a new regime of technologically driven “cheap speech” that would fundamentally change how people communicated with one another and navigated the information ecosystem. Professor Volokh’s vision was mainly descriptive, and his normative assessment of cheap speech sounded some circumspect notes of warning. Fundamentally, though, he painted an optimistic picture. In particular, he made the important claim that emerging technologies would democratize and diversify our society by giving many more speakers access to the tools of mass communication and audiences access to many more ideas.

Kent State And The Failure Of First Amendment Law, Gregory P. Magarian

Scholarship@WashULaw

Since the U.S. Supreme Court decided its first free speech case 100 years ago, two very different eras have defined First Amendment law. For a half century, before 1970, the Supreme Court focused on protecting the expressive freedom of political dissidents and social reformers. In 1970, amid protests against the Vietnam War, the Ohio National Guard senselessly gunned down four students at Kent State University. The Kent State massacre exposed the fragility in our country of political protest, free speech, and democracy itself. That atrocity should have inspired First Amendment law to affirm and enhance its protection of dissenters and …

Ethical Duty To Investigate Your Client?, Peter A. Joy

Scholarship@WashULaw

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

Encouraging Interagency Collaboration: Learning From Covid-19, Rachel Sachs

Scholarship@WashULaw

In the health innovation context, federal regulatory authority is sharply fragmented among different agencies. The National Institutes of Health, Food and Drug Administration, Centers for Medicare and Medicaid Services, and other agencies all share responsibilities in the development and dissemination of new healthcare technologies. Scholars have previously written about the importance of interagency collaboration both in the healthcare area and more generally, and about strategies for encouraging collaborative efforts to promote various policy goals. Under these accounts, a failure to collaborate between federal agencies may be unfortunate, but it does not typically result in or exacerbate a crisis. In the …

Recent Trends In Medicaid Spending And Use Of Drugs With Us Food And Drug Administration Accelerated Approval, Rachel Sachs, Kyle A. Gavulic, Julie M. Donohue, Stacie B. Dusestzina

Scholarship@WashULaw

State Medicaid programs have reported concerns about rising drug prices and spending, particularly regarding drugs entering the market through the accelerated approval program under the US Food and Drug Administration (FDA). The accelerated approval program enables the FDA to approve drugs on the basis of unverified surrogate end points, meaning that clinical benefits for these products are uncertain at the time of approval. However, state Medicaid programs are legally required to cover these drugs. Little is known about the set of products with accelerated approval over time, their use among Medicaid beneficiaries, or the magnitude of their financial influence on …

The Rhetorical Transformations And Policy Failures Of Prescription Drug Pricing Reform Under The Trump Administration, Rachel Sachs

Scholarship@WashULaw

Throughout his four years in office, President Trump made prescription drug pricing a focus of his policy agenda. President Trump not only used strong language to criticize the pharmaceutical industry and its practices but also introduced ambitious reform policies that had previously lacked acceptance among Republican policy makers. President Trump appears to have been successful in developing a new populist form of rhetoric that Republicans can use in support of novel drug pricing reforms such as the ones his administration considered. From a policy perspective, however, the Trump administration failed to implement any of their more ambitious reform ideas. This …

The Important Contributions Of The Special Court For Sierra Leone On Amnesties And Immunities: Reinforcing Foundational Principles Of International Criminal Law, Leila Nadya Sadat

Scholarship@WashULaw

The book that is the centerpiece of this Micro-Symposium, The Legal Legacy of the Special Court for Sierra Leone, is an important contribution to international law and practice. Authored by Charles Jalloh, a distinguished practitioner of international criminal law, the book is essential reading for anyone who wishes to understand the legal ramifications of the Special Court and its work. It is comprehensive, without being overwhelming, and analyzes many of the most important elements of the Court’s legal work. It is a perfect companion to his equally excellent edited book on the subject, The Sierra Leone Special Court and Its …

Pandemic Nationalism, Covid-19, And International Law, Leila Nadya Sadat

Scholarship@WashULaw

This Essay explores possible reforms to the World Health Organization (WHO) considering its response to the COVID-19 pandemic. It also suggests using existing mechanisms to enforce the WHO Constitution and the International Health Regulations (IHR). The Essay focuses on three aspects of global health governance: (1) how nationalism of powerful States renders pandemic control difficult given the “weakest-link public goods” character of global health emergencies; (2) how legal and practice reforms might nonetheless strengthen and fortify the WHO’s response; and (3) how existing provisions of the WHO Constitution and the IHR might be enforced through the dispute resolution clauses in …

Justice Without Fear Or Favour? The Uncertain Future Of The International Criminal Court, Leila Nadya Sadat

Scholarship@WashULaw

This essay traces the history of the International Criminal Court from its establishment in 1998 until the current day. It briefly surveys the history of the Court’s founding and evokes many of its current challenges and innovative aspects of its jurisprudence, particularly regarding jurisdiction, immunities, and admissibility, including decisions relating to the Situations in Afghanistan, Bangladesh/Myanmar, Libya, Palestine, and Sudan. As the essay notes, although many challenges have emerged from internal difficulties the Court has faced or design elements of the Statute, external challenges arising from the geopolitical environment within which it operates exist as well. Despite these problems, which …

Payment For Order Flow And The Great Missed Opportunity, Joel Seligman

Scholarship@WashULaw

In late January and early February 2021, an astounding story of stock market price volatility captivated the nation. GameStop, a corporation that in recent years had prodigiously lost money – $492 million two years earlier, $296 million the last year for which it reported data – rose from a low of $2.57 to a high of $483. In January 2021 alone, GameStop had risen from a closing price of $17.25 on January 4 to a close of $347.61 on January 27 before falling 44 percent to a close of $193.60 on January 28, rising 68 percent to a close of …

Functions Of The Rule Of Law, Brian Z. Tamanaha

Scholarship@WashULaw

This concise essay examines multiple manifest and latent functions of the rule of law. The rule of law is characterized as a society in which government officials and the populace are generally bound by and abide law. The functions covered include: personal and collective security and trust; integration of society; legal restrictions on officials; liberty and guiding conduct; economic development; a pivotal place for legal professionals; entrenching power structures; normative commitment and critical standard; and rhetoric. The discussion raises core issues about each function.

Disruptive Implications Of Legal Positivism’S Social Efficacy Thesis, Brian Z. Tamanaha

Scholarship@WashULaw

The social efficacy thesis holds that for law to exist it must be generally obeyed by the populace. Accepted by virtually all legal positivists, this is the most neglected thesis of legal positivism. Despite its nigh universal acceptance by theorists, however, the efficacy thesis is surrounded with unanswered questions with significant implications. Several questions immediately come to mind: How widespread must conformity to law be? What must people conform to (all areas of law)? Who must conform (legal officials, government officials, the entire populace, significant groups)? What does conformity entail (normatively, knowingly, behaviorally)? This essay explores these issues and a …

A Reconstruction Of Transnational Legal Pluralism And Law’S Foundations, Brian Z. Tamanaha

Scholarship@WashULaw

This essay addresses core theoretical issues surrounding global/transnational legal pluralism, taking up the work of leading theorists. First, I demonstrate that global legal pluralism is very different from earlier versions of legal pluralism (postcolonial and sociological). Next, I expose the flaw of over-inclusive conceptions of legal pluralism, which appears in the global legal pluralism of Paul Berman, and I explain why theoretical concepts of law cannot solve this flaw. I then address the profusion of private and hybrid regulatory forms on the domestic and transnational levels, and I mark the line between theory and practice. Thereafter, I expose problems with …

Pragmatic Reconstruction In Jurisprudence: Features Of A Realistic Theory, Brian Z. Tamanaha

Scholarship@WashULaw

A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. The realistic theory outlined in this essay focuses on what law does, what …

Asian Land Conflicts And The Great Transformation, Brian Z. Tamanaha

Scholarship@WashULaw

In The Great Transformation (1944), Karl Polanyi described the modern era in terms of the transformation of labor, land, and money into commodities, and the expansion of the market as the basic organizing principle of society—a transformation championed by liberal economic theory. This transformation brought enormous social dislocation and mass poverty, while the wealthy benefited the most. Polanyi opposed the nigh total destruction of traditional communities that had previously given meaning to peoples’ lives, and the dismal living conditions and economic insecurity of laboring masses that resulted. Central elements of Polanyi’s account are playing out today across the terrain of …

Legal Pluralism Across The Global South: Colonial Origins And Contemporary Consequences, Brian Z. Tamanaha

Scholarship@WashULaw

This essay conveys past and present legally plural situations across the Global South, highlighting critical issues. It provides readers with a deep sense of legal pluralism and an appreciation of its complexity and the consequences that follow. A brief overview of colonization sets the stage, followed by an extended discussion of colonial indirect rule, which formed the basis for political and legal pluralism. Thereafter, showing the continuity from past to present, I discuss the transformation-invention of customary law, socially embedded village tribunals, enhancement of the power of traditional elites, uncertainty and conflict over land, clashes between customary and religious law …

On Bankruptcy’S Promethean Gap: Building Enslaving Capacity Into The Antebellum Administrative State, Rafael I. Pardo

Scholarship@WashULaw

As the United States contends with the economic crisis triggered by the COVID-19 pandemic, federal bankruptcy law is one tool that can be used to resolve the financial distress suffered by individuals and businesses. When implementing this remedy, the question arises whether the law’s application should be viewed as limited to addressing private debt matters, without regard for the public interest. This Article answers the question by looking to modern U.S. bankruptcy law’s first forebear, the 1841 Bankruptcy Act, which Congress enacted in response to the depressed economic conditions following the Panic of 1837. That legislation created a judicially administered …

Wage Theft Criminalization, Benjamin Levin

Scholarship@WashULaw

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Imagining The Progressive Prosecutor, Benjamin Levin

Scholarship@WashULaw

As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …

Dear 1l: Five Guideposts For Your Future Professional Practice, Lela P. Love, Thomas J. Stipanowich

Cardozo Journal of Conflict Resolution

No abstract provided.

Table Of Contents

FIU Law Review

No abstract provided.

What Happens In State Court Stays In State Court Comity And The Relitigation Exception To The Anti-Injunction Act, Juan Antonio Solis, Rory Ryan

FIU Law Review

No abstract provided.

Who, What, Where, And When? Why Courts Should At Least Consider The Third Circuit’S Heightened Ascertainability Requirement As A Prerequisite To Class Certification, Christian Osorno Cortes

FIU Law Review

No abstract provided.

Put More Women In Charge And Other Leadership Lessons From Covid-19, Peter H. Huang

FIU Law Review

No abstract provided.

The Key To Solving Agency Lock-In: Prepublication Regulatory Discussions (Pre Reg), Gwendolyn Savitz

Articles, Chapters in Books and Other Contributions to Scholarly Works

Most legally binding administrative rules emerge from the notice-and-comment process, which explicitly requires the agency to consider input from the general public. However, by the time the opportunity for public input occurs, the agency is already substantially locked into its chosen approach and cannot act on new information in the comments. This is true even though its chosen approach was decided upon with input from only those the agency routinely deals with. This process entrenches already established interests and prevents those without existing agency connections from meaningfully contributing earlier in the process.

This problem could be solved by holding public …

Weed, Dogs & Traffic Stops, Alex C. Carroll

Wyoming Law Review

No abstract provided.