Law Commons^™

The Undemocratic Class Action, Nicholas Almendares

Articles by Maurer Faculty

Class actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works on their behalf. I label this the democratic critique of class actions, and it has been the dominant framework for understanding class actions, shaping both case law and reform proposals.

The democratic critique is based on a false premise, though, because it does not take into account …

Constrained Income Redistribution And Inequality: Legal Rules Compared To Taxes And Transfers, David A. Weisbach

Coase-Sandor Institute for Law & Economics Research Paper Series

A widely accepted result, associated with Louis Kaplow and Steve Shavell, is that it is more costly to use legal rules to redistribute income than to use the tax and transfer system (the income-tax only result). An assumption behind this result is that if a legal rule is changed to eliminate its income-redistributive effects, the tax and transfer system can be adjusted to counteract the effects of those changes on the distribution of income. A number of commentators have questioned this assumption, suggesting that political constraints may limit the ability of the tax and transfer system to adjust to changes …

Real-World Prior Art, Jonathan S. Masur, Lisa Larrimore Ouellette

Coase-Sandor Institute for Law & Economics Research Paper Series

The most fundamental requirement of patent law is that a patented invention must be new. Given the longstanding, foundational nature of this novelty requirement, one might expect its contours to be well settled. And yet some of its most basic aspects remain unresolved. At the center of these unresolved issues lie what we term “real-world prior art.” In patent law, prior art is something that predates an invention and may render it not new. “Real-world” prior art activities involve using or selling real-world embodiments of the invention. Consider a few examples. Suppose Aleida demonstrates her invention to members of the …

The Flawed Arguments Against Bankruptcy Releases, Anthony Casey

Coase-Sandor Institute for Law & Economics Research Paper Series

As the bankruptcy of Purdue Pharma heads to the United States Supreme Court, the bankruptcy world is once again in a frenzied debate about “third-party” or “nondebtor” releases. This debate often devolves, unfortunately, into one of rhetoric producing, as they say, more heat than light.

It can be difficult to address all the nuances in short form. I have laid out a long-form academic argument in favor of nondebtor releases elsewhere. And I have addressed some of the policy considerations here and here. But it may be useful to use this space to counter two of the weaker arguments against …

The Geography Of Unfreedom, Ann M. Eisenberg

Michigan Law Review

A Review of Coal, Cages, Crisis: The Rise of the Prison Economy in Central Appalachia. By Judah Schept.

The Indian Child Welfare Act In The Multiverse, M. Alexander Pearl

Michigan Law Review

A Review of Adoptive Couple v. Baby Girl By Matthew L.M. Fletcher and Kathryn E. Fort, in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law 452, 471. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Waivers, Keith N. Hylton

Faculty Scholarship

Waiver contracts are agreements in which one party promises not to sue the other for injuries that occur during their contractual relationship. Waivers are controversial in the consumer context, especially when presented in standard form, take-it-or-leave-it contracts. The law on waivers appears muddled, with no consistent doctrine or policy among the courts on enforceability. The aim of this paper is to offer a consistent set of policies that can form the foundation of a consistent set of doctrines, leading ultimately to a more apparently consistent treatment of waivers in the courts. The most basic piece of this paper’s framework is …

Surrey's Silence: Subpart F And The Swiss Subsidiary Tax That Never Was, Steven Dean

Faculty Scholarship

Was Stanley Surrey racist? Was he a coward for not speaking as plainly about the Swiss tax haven problem in public as the Surrey Papers reveal his team did in private? In the broad sweep of history Surrey’s silence may have mattered a great deal or it may have mattered very little. The quiet aspect of the Liberia problem that it highlights undoubtedly does. Exploiting the public’s misunderstanding of the term tax haven as Surrey quickly learned to do has become second nature to scholars and policymakers alike. No less powerful than the loud aspect of the Liberia problem, the …

Large Corporations And Investor-State Arbitration, Weijia Rao

Faculty Scholarship

Policymakers and scholars have expressed concerns about growing corporate influence over government regulations, including in the context of investor-state dispute settlement (“ISDS”). Encouraged by high profile victories and examples of “regulatory chill,” critics of ISDS have argued that it excessively serves large multinational corporate interests at the expense of government regulatory agendas. In part due to such criticisms, various proposals have been made, including the replacement of ISDS with multilateral investment courts or state-to-state arbitration.

This Article introduces a novel dataset on ISDS claimant characteristics, which reveals that most ISDS claimants are actually small- or medium-sized firms. Using this dataset, …

The Diffuse Executive, Anya Bernstein, Cristina Rodriguez

Faculty Scholarship

A unitary executive is an exacting ideal. It asks that all power in an administration be gathered in the person of the President, who should have full authority to determine the actions of officials and employees. Even if the President does not directly control every executive action (how could he?), when officials fail to implement presidential preferences, the unitary theory dictates that the President must have the power to remove them. The model posits a tightly organized hierarchy—every rung implementing the substantive decisions of the rung above, with orders flowing from the top: a command-and-control structure for government action. And, …

To Whom Are Directors’ Duties Owed? Evidence From Canadian M&A Transactions, Camden Hutchison

All Faculty Publications

One of the most contentious issues in corporate law is the proper scope of fiduciary duties. Many scholars have argued that fiduciary duties are owed exclusively to shareholders, while others have advocated a broader conception of directors’ fiduciary obligations, potentially encompassing a wide variety of stakeholder and community interests. This debate has both normative and positive dimensions: Not only are there theoretical disagreements as to whom directors’ duties should be owed, there are also more basic disagreements as to what the law actually requires, including the extent to which business norms supplement (or undermine) legal rules. In Canada, at least, …

Recoding Family Law: Toward A Theory Of Relationships Of Economic And Emotional Interdependency In The Civil Code Of Québec, Régine Tremblay

All Faculty Publications

This article proposes a new conceptual framework for parent-child and adult relationships in the Civil Code of Québec based on the theory of relationships of economic and emotional interdependency. It puts forward a new théorie générale for relationships in Quebec civil law. It argues that the Code should concentrate on relationships of economic and emotional interdependency, irrespective of their form or of their fulfillment of formalities. Their content and qualities should be the law’s object, hence allowing for a functional account of families and personal lives. Doing so would require a recodification of economic and emotional relationships in the Code, …

Felony Financial Disenfranchisement, Neel U. Sukhatme, Alexander Billy, Gaurav Bagwe

Vanderbilt Law Review

Individuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (“LFOs”)-—fines, fees, and/or restitution stemming from convictions-—in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.

Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions imply such disenfranchisement is …

After Action: The U.S. Drone Program's Expansion Of International Law Justification For Use Of Force Against Imminent Threats, Elodie O. Currier

Vanderbilt Law Review

Until the 2000s, the United States' attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. …

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Coase-Sandor Institute for Law & Economics Research Paper Series

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …

The Protection Of Student Data Privacy In Wisconsin School Board Policies, Curtis Clyde Rees

Theses and Dissertations--Education Sciences

American schools have increasingly adopted technology resources to fulfill their educational obligations. These tools are for instruction, communication, and storing and analyzing student information. Student data can be directory information, enrollment records, achievement data, and student-created products. This increased utilization began with the passage of No Child Left Behind in 2001, and the COVID-19 pandemic led to more educational technology use of student data. Districts turned to third-party vendors for assistance with data systems and virtual learning resources. Before, during, and after the pandemic, stakeholders were concerned about information security and the students' privacy. School leaders looked to federal regulations …

Flexible Work Within Employment Relationships: A Conceptual Scheme For Fiscal Policies, Wei Cui

All Faculty Publications

No abstract provided.

“Chalking Up A Victory For Deal Certainty”: Chancery Court Reinforces High Bar To Establishing “Mae” In Connection With Impact Of Covid-19, Robert S. Reder

Vanderbilt Law Review

No abstract provided.

Committing To Agency Independence, Nicholas Almendares

Vanderbilt Law Review

No abstract provided.

Application Of Mfw Framework Defeats Challenge To Corporate Charter Amendment Favoring Control Stockholder, Robert Reder

Vanderbilt Law Review

No abstract provided.

Type I Vs. Type Ii: Delaware Courts Discuss Enforceability Of Preliminary Agreements, Robert Reder

Vanderbilt Law Review

No abstract provided.

The Canadian Digital Services Tax, Wei Cui

All Faculty Publications

The Digital Services Tax (DST) may never be enacted in Canada. At least that seems to be what most Canadian tax professionals hope for: the draft Digital Services Tax Act (DSTA), released by the federal government in December 2021, has received little meaningful commentary; likely few Canadian taxpayers potentially affected by the DSTA (and their tax advisors) have attempted to learn from experiences of DST compliance in other countries; and the world also has little to learn from Canadian taxpayers’ preparation for a potential DST. This essay highlights three ways in which this collective dismissal of Canada’s proposed DST is …

Freedom Of Expression: Values And Harms, Camden Hutchison

All Faculty Publications

When considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual selffulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the …

Criminality And Inequity Under Canada's Legalization Of Cannabis: A Study Of Vancouver's Downtown Eastside, Stephanie Lake, Margot Young

All Faculty Publications

The origin of this essay reminds us of the importance of interdisciplinary collaboration to the development and assessment of public policy. It also demonstrates the serendipitous beginnings of many interesting inquiries. This collaboration was thus fortuitous: authors Lake and Young met during Lake’s doctoral dissertation defence. Young was on the examining committee. Lake presented a series of epidemiological studies (three of which are summarized below) involving the use of cannabis for therapeutic and harm reduction purposes among marginalized people who use drugs (PWUD) in Vancouver. Young’s lines of questioning involving the legal implications of Lake’s findings spurred the idea to …

Principles Of Interpretation As Applied To Corporate Articles: A Comment On Rogers V. Rogers Communications Inc., Camden Hutchison

All Faculty Publications

Last fall, public attention was captured by a contentious boardroom battle among members of the Rogers family for control of Rogers Communications Inc. (“RCI”). In a corporate showdown that drew comparisons to HBO’s Succession, Edward Rogers attempted to replace RCI’s chief executive officer and several independent directors against the wishes of his mother and two sisters. When the board of directors refused Edward’s demands, he petitioned the British Columbia Supreme Court to validate his changes to RCI’s board. The resulting judgement,1 which validated Edward’s actions, serves as a forceful affirmation that articles of a British Columbia company should be interpreted …

Introduction To Volume I [Of The Canadian Law Of Obligations Iii Conference]: The Power And Limits Of Private Law, Marcus Moore, Samuel Beswick

All Faculty Publications

Private law issues touch the everyday experiences of individuals and businesses. Contracts, torts, trusts and other areas of private law and the law of obligations evolve with jurisprudential and statutory changes. The Power and Limits of Private Law is a timely compilation of papers developed from a conference on the subject at the University of British Columbia’s Green College in June of 2022. The contributors are eminent scholars in their respective fields and their commentaries and observations on developments in private law provide a useful reference for lawyers, judges, academics and students who confront private law issues in their work. …

Rich Dad, Gay Dad: The Wealth Traps Of Gay Fatherhood, Aloni Erez

All Faculty Publications

While legal and societal progress has enabled gay fathers to form families, there remains a critical blind spot in our understanding of their financial wellbeing. Specifically, there are indications that a wealth gap may exist among gay father households. This article introduces a novel taxonomy of the mechanisms that likely contribute to a wealth gap for these households, including surrogacy and adoption costs, legal recognition expenses, parental leave policies, discrimination in housing and borrowing, and limited support from families of origin. These obstacles reflect the structural features and prejudices that disproportionately affect households led by non-heterosexual fathers. The article highlights …

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

All Faculty Publications

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …

The "Right To City" In The Era Of Crowdsourcing, Alexandra Flynn

All Faculty Publications

This article explores the meaning and context of crowdsourcing at the municipal scale. In order to legitimately govern, local governments seek feedback and engagement from actors and bodies beyond the state. At the same time, crowdsourcing efforts are increasingly being adopted by entities – public and private – to digitally transform local services and processes. But how do we know what the “the right to the city” (RTTC) means when it comes to meaningful and participatory decision-making? And how do we know if participatory efforts called crowdsourcing—a practice articulated in a 2006 Wired article in the context of the …

The Transnational Exchange Of Law Through Climate Change Litigation, Natasha Affolder, Godwin Dzah

All Faculty Publications

Climate change litigation continues to bash holes in the view of domestic legal systems as hermetically sealed units. Domestic cases are inspired by litigation elsewhere, actively fostered by transnational advocacy communities, and the decisions themselves are indicative of transjudicial influences and sometimes even dialogue on climate change. This chapter, written in 2021 to reflect the transnationalism of early climate change litigation, takes a close look at practices of transjudicialism in climate change litigation. In so doing, it seeks to disrupt some default patterns of studying the spread of law. By problematizing the practices of ‘finding’ influential climate law cases, measuring …