Social and Behavioral Sciences Commons^™

Planning For Excellence: Insights From An International Review Of Regulators' Strategic Plans, Adam M. Finkel, Daniel Walters, Angus Corbett

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What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

Our Principled Constitution, Mitchell N. Berman

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Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …

The Rule Of Reason, Herbert J. Hovenkamp

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Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.

This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up …

Crimes That Changed Our World: Tragedy, Outrage, And Reform: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes, Paul H. Robinson, Sarah M. Robinson

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This first chapter of the recently published book Crimes That Changed Our World: Tragedy, Outrage, and Reform, examines the process by which the tragic 1911 Triangle Factory Fire provoked enormous outrage that in turn created a local then national movement for workplace and building safety that ultimately became the foundation for today’s building safety codes. What is particularly interesting, however, is that the Triangle Fire was not the worst such tragedy in its day. Why should it be the one that ultimately triggers social progress?

The book has 21 chapters, each of which traces the tragedy-outrage-reform dynamic in a …

Mental Disorder And Criminal Justice, Stephen J. Morse

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This paper is a chapter that will appear in REFORMING CRIMINAL JUSTICE: A REPORT OF THE ACADEMY FOR JUSTICE BRIDGING THE GAP BETWEEN SCHOLARSHIP AND REFORM (Erik Luna ed., Academy for Justice 2018). The criminal law treats some people with severe mental disorders doctrinally and practically differently at virtually every stage of the criminal justice process, beginning with potential incompetence to stand trial and ending with the question of competence to be executed, and such people have special needs when they are in the system. This chapter begins by exploring the fundamental mental health information necessary to make informed judgements …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

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In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

The Future Encyclopedia Of Luddism, Miriam A. Cherry

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In common parlance, the term “Luddite” means someone who is anti-technology, or maybe, just not adept at using technology. Historically, however, the Luddite movement was a reaction born of industrial accidents and dangerous machines, poor working conditions, and the fact that there were no unions to represent worker interests during England’s initial period of industrialization. The Luddites did not hate technology; they only channeled their anger toward machine-breaking because it had nowhere else to go. The attached book chapter is an alternate history (written circa 2500) that depends on the critical assumption that the Luddites succeeded in their industrial campaign …

Bias In, Bias Out, Sandra G. Mayson

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Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impacts. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race; (2) adjustments to algorithmic design to equalize predictions across racial lines; and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive because the source of racial inequality in risk assessment lies …

Polar Opposites: Assessing The State Of Environmental Law In The World’S Polar Regions, Mark Nevitt, Robert V. Percival

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Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet they differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System (ATS), a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets in …

Horizontal Mergers, Market Structure, And Burdens Of Proof, Herbert J. Hovenkamp, Carl Shapiro

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Since the Supreme Court’s landmark 1963 decision in Philadelphia National Bank, antitrust challengers have mounted prima facie cases against horizontal mergers that rested on the level and increase in market concentration caused by the merger, with proponents of the merger then permitted to rebut by providing evidence that the merger will not have the feared anticompetitive effects. Although the way that concentration is measured and the triggering levels have changed over the last half century, the basic approach has remained intact. This longstanding structural presumption, which is well supported by economic theory and evidence, has been critical to effective …

Horizontal Shareholding And Antitrust Policy, Fiona M. Scott Morton, Herbert J. Hovenkamp

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“Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.

Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual …

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

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Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” …

Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips

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For artists, nonprofits, community organizations and small-business clients of limited means, securing intellectual property rights and getting counseling involving patent, copyright and trademark law are critical to their success and growth. These clients need expert IP and technology legal assistance, but very often cannot afford services in the legal marketplace. In addition, legal services and state bar pro bono programs have generally been ill-equipped to assist in these more specialized areas. An expanding community of IP and Technology clinics has emerged across the country to meet these needs. But while law review articles have described and examined other sectors of …

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

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This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …

Insolvency Law As Credit Enhancement And Enforcement Mechanism: A Closer Look At Global Modernization Of Secured Transactions Law, Charles W. Mooney Jr.

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This essay revisits earlier work on the relationship between insolvency law and secured credit, the role of secured transactions law reforms, and the benefits of secured credit. These complex relationships require a holistic approach toward reforms of secured transactions law and insolvency law. Merely enacting sensible secured transactions laws and insolvency laws may be insufficient to produce the intended benefits from either set of laws.

The essay is informed by an ongoing qualitative empirical study of business credit in Japan—the Japanese Business Credit Project. The JBCP involves interviews of representatives of Japanese financial institutions and governmental bodies and legal practitioners …

Sexual Consent And Disability, Jasmine E. Harris

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Our nation is engaged in deep debate over sexual consent. But to date the discussion has overlooked sexual consent’s implications for a key demographic: people with mental disabilities, for whom the reported incidence of sexual violence is three times that of the nondisabled population. Even as popular debate overlooks the question of sexual consent for those with disabilities, contemporary legal scholars critique governmental overregulation of this area, arguing that it diminishes the agency and dignity of people with disabilities. Yet in defending their position, these scholars rely on empirical data from over twenty years ago, when disability and sexual assault …

The Behavioral Economics Of Multilevel Marketing, Heidi H. Liu

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Multilevel marketing companies (MLMs) - sales organizations that compensate independent consultants based on the sales and recruitment of other consultants - form a significant part of the American economy. Yet, MLMs provide little information to regulators and potential participants regarding potentially material information. Although MLMs are often compared to pyramid schemes, consultants argue that participation in a MLM allows them to make money outside of the traditional full-time labor force. This paper examines the law, economics, and psychology of MLMs, suggesting that MLMs may draw on prospective consultants' cognitive biases in persuading consultants to join and continue a MLM. Consultants …

Findlay Stark, Culpable Carelessness: Recklessness And Negligence In The Criminal Law, Cambridge: Cambridge University Press, 2016, Kimberly Kessler Ferzan

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Culpable Carelessness by Findlay Stark is a careful and considered contribution to the 'punishment for negligence' debate. As well as providing a comprehensive overview of the doctrinal and theoretical aspects of recklessness and negligence in the criminal law, it also offers novel insights for scholars already steeped in these debates. An additional methodological strength is that Stark takes seriously the connection between theory and law, offering useful potential jury instructions on recklessness and negligence.

The Quiet Undoing: How Regional Electricity Market Reforms Threaten State Clean Energygoals, Danny Cullenward, Shelley Welton

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In a series of largely unnoticed but extremely consequential moves, two regional electricity market operators are pursuing reforms to make it more difficult for states to achieve their clean energy goals. The federal energy regulator, FERC, has already approved one such reform and ordered a second market operator to go farther in punishing state-supported clean energy resources than it had initially proposed. This disturbing trend highlights a shift in energy governance that threatens to destabilize the field’s delicate cooperative federalist model. Over the past several decades, states have increasingly ceded control over energy dispatch and grid planning to private market …

A Dose Of Color, A Dose Of Reality: Contextualizing Intentional Tort Actions With Black Documentaries, Regina Austin

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This article describes the way documentary films can provide important cultural context in the assessment of tort claims. This kind of contextual analysis exposes the social conditions that drive legal disputes. For example, in the case of Klayman v. Obama, Larry Klayman claimed that Black Lives Matter, among other defendants, was liable for various intentional torts (including intentional infliction of emotional distress) by fomenting hostility toward the police in black communities. The court dismissed the case but declined to hold Klayman liable for sanctions. One documentary film, I Am Not Your Negro, locates Klayman’s claims in a historical …

On The Disparate Treatment Of Business And Personal Salt Payments, Michael S. Knoll

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The Tax Cuts and Jobs Act, H.R. 1, would eliminate the federal income tax deduction for nonbusiness state and local taxes while maintaining the deduction for business state and local taxes. That disparate treatment has generated a storm of negative commentary. In this short essay, I consider whether the federal tax law should allow a deduction for business state and local taxes assuming that there is no deduction for nonbusiness state and local taxes. I argue that investors and businesses, including pass-through businesses, should be allowed to deduct state and local property and sales taxes, but not general income taxes.

A Brief Summary And Critique Of Criminal Liability Rules For Intoxicated Conduct, Paul H. Robinson

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This essay provides an overview of the legal issues relating to intoxication, including the effect of voluntary intoxication in imputing to an offender a required offense culpable state of mind that he may not actually have had at the time of the offense; the effect of involuntary intoxication in providing a defense by negating a required offense culpability element or by satisfying the conditions of a general excuse; the legal effect of alcoholism or addiction in rendering intoxication involuntary; and the limitation on using alcoholism or addiction in this way if the offender can be judged to be reasonably responsible …

Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis

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Sital Kalantry’s Women’s Human Rights and Migration: Sex Selective Abortion Laws in the United States and India addresses a long-existing gap in feminist theory at the intersection of a migrant woman’s experience and culturally motivated reproductive decisions. By recognising the possibility that ‘practices that are oppressive to women in one country context may not have a negative impact on women in another country context’ Kalantry takes an important step in creating a framework for evaluating competing human rights interests within the complex cultural contexts that arise in migrant-receiving countries. Her proposed framework rejects the decontextualisation and politicisation of the migrant …

The Economics Of Immigration Reform, Howard F. Chang

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In this article, I draw upon economic theory and recent empirical work on the economic and fiscal effects of immigration to evaluate some recent proposals for immigration reform in terms of their effects on the economic welfare of natives in the United States. In particular, I consider the Reforming American Immigration for a Strong Economy (RAISE) Act, a bill that would cut immigration to half of its current level. President Donald Trump has endorsed the RAISE Act and has insisted that many of its provisions be part of any legislation legalizing the status of unauthorized immigrants granted relief under the …

Common Carriage’S Domain, Christopher S. Yoo

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The judicial decision invalidating the Federal Communications Commission's first Open Internet Order has led advocates to embrace common carriage as the legal basis for network neutrality. In so doing, network neutrality proponents have overlooked the academic literature on common carriage as well as lessons from its implementation history. This Essay distills these learnings into five factors that play a key role in promoting common carriage's success: (1) commodity products, (2) simple interfaces, (3) stability and uniformity in the transmission technology, (4) full deployment of the transmission network, and (5) stable demand and market shares. Applying this framework to the Internet …

The Global Diffusion Of Law: Transnational Crime And The Case Of Human Trafficking, Beth A. Simmons, Paulette Lloyd, Brandon M. Steward

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The past few decades have seen the proliferation of new laws criminalizing certain transnational activities, from money laundering to corruption; from insider trading to trafficking in weapons and drugs. Human trafficking is one example. We argue criminalization of trafficking in persons has diffused in large part because of the way the issue has been framed: primarily as a problem of organized crime rather than predominantly an egregious human rights abuse. Framing human trafficking as an organized crime practice empowers states to confront cross border human movements viewed as potentially threatening. We show that the diffusion of criminalization is explained by …

The Logic And Limits Of Event Studies In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

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Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array of …

Felony Murder, Paul H. Robinson, Tyler Scot Williams

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It is common for criminal law scholars from outside the United States to discuss the “American rule” and compare it to the rule of other countries. As this volume makes clear, however, there is no such thing as an “American rule.” Because each of the states, plus the District of Columbia and the federal system, have their own criminal law, there are fifty-two American criminal codes.

American criminal law scholars know this, of course, but they too commonly speak of the “general rule” as if it reflects some consensus or near consensus position among the states. But the truth is …

The Empty Idea Of “Equality Of Creditors”, David A. Skeel Jr.

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For two hundred years, the equality of creditors norm—the idea that similarly situated creditors should be treated similarly—has been widely viewed as the most important principle in American bankruptcy law, rivaled only by our commitment to a fresh start for honest but unfortunate debtors. I argue in this Article that the accolades are misplaced. Although the equality norm once was a rough proxy for legitimate concerns, such as curbing self-dealing, it no longer plays this role. Nor does it serve any other beneficial purpose.

Part I of this Article traces the historical emergence and evolution of the equality norm, first …

Governance By Contract: The Implications For Corporate Bylaws, Jill E. Fisch

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Boards and shareholders are increasing using charter and bylaw provisions to customize their corporate governance. Recent examples include forum selection bylaws, majority voting bylaws and advance notice bylaws. Relying on the contractual conception of the corporation, Delaware courts have accorded substantial deference to board-adopted bylaw provisions, even those that limit shareholder rights.

This Article challenges the rationale for deference under the contractual approach. With respect to corporate bylaws, the Article demonstrates that shareholder power to adopt and amend the bylaws is, under Delaware law, more limited than the board’s power to do so. As a result, shareholders cannot effectively constrain …