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Rise of the Zombies: The Significance of Venture Capital Investments That Are Not ProfitableThis article proposes an explanation for the pervasiveness of convertible preferred stock as the security of choice for venture capital funds when investing in entrepreneurial ventures.
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ERISA'S ROLE IN THE DEMISE OF DEFINED BENEFIT PENSION PLANS IN THE UNITED STATESIn the decade or so following World War II, employer-provided pension plans became common in private-sector employment in the United States. The prevalent type was the defined benefit (DB) plan, which typically provides the employee and his or her spouse with a lifetime retirement income, paid monthly, based upon a formula that commonly takes account of the employee's compensation and length of service with the employer. Another type, the defined contribution (DC) plan, was also in use, mostly as a second and supplementary plan for highly compensated employees. A DC plan is a savings program, often tax-favored, which provides an account for each participating employee, funded mainly by salary reduction contributions that the employee authorizes together with contributions from the employer and the investment experience on the account. Subject to age and other criteria required under the Internal Revenue Code and the plan's terms, the employee and spouse decide when and in what amounts to draw down on the account in retirement. If at the death of the survivor of them the DC account contains undistributed funds, that balance will pass to heirs or other beneficiaries. Into the early 1980s, DB plans covered about 85 percent of private-sector employees who had any pension coverage. In the years since, employers have retreated from offering DB plans, by terminating existing plans or closing ("freezing") them to new participants, while also ceasing to establish new DB plans. By 2003, only 33 percent of large employers provided DB plans. By 2015, only 3 percent of Fortune 500 employers offered traditional DB plans to newly hired employees. The "de-risking" wave, discussed below in Part III, is further diminishing the extent of the DB system. This article explores the question of what has caused this spectacular abandonment. The conventional understanding, summarized in Part II, attributes the demise of the DB system to large changes in economic conditions and employment patterns, together with the emergence of a viable DC alternative, the 401(k) plan. This article contends that the conventional account is incomplete, because it neglects the role of ERISA, the 1974 federal pension regulatory statute, in making DB plans too burdensome for employers to sustain. Part III discusses features of ERISA that have deterred employers from establishing or maintaining DB plans. Together with the changes reviewed in Part II, ERISA--although meant to promote DB plans--has had the effect of destroying the DB system in the United States.
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PLAINTIFFS' PROCESS: CIVIL PROCEDURE, MDL, AND A DAY IN COURTThe article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.
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Proximate Cause Explained: An Essay in Experimental JurisprudenceOne of the oldest debates in American jurisprudence concerns the concept of "proximate cause." According to so-called formalists, the legal concept of proximate cause is the same as the ordinary concept of "cause." The legal question of whether a cause is proximate for the purposes of establishing tort liability, therefore, is an objective matter about the external world determinable by familiar descriptive inquiry. By contrast, legal realists think that issues of proximate causation are disguised normative questions about responsibility. As the realists William Prosser and W. Page Keeton put it, proximate cause is better called "responsible cause." Recent work in cognitive science has afforded us new insights into the way people make causal judgments that were unavailable at the time of the original debate between formalists and realists. We now have access to the results of systematic experimental studies that examine the way people ordinarily think about causation and morality. This work opens up the possibility of a very different approach to understanding the role of causation in the law--one which combines the attractive features of both formalism and realism without accepting their implausible consequences. In addition to providing a model for interpreting the case law of proximate cause, this Article also introduces a new way of doing legal theory--a method we call "experimental jurisprudence." Experimental jurisprudence is the study of jurisprudential questions using empirical methods. Jurisprudential disputes about proximate cause are especially ripe for empirical analysis because the debate revolves around whether the legal concept of proximate cause is the same as the ordinary concept of causation. Interrogating the ordinary concept of causation, therefore, should shed light on this question.
