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  First Amendment Metaphors: The Death of the “Marketplace of Ideas” and the Rise of the Post-Truth “Free Flow of Information”

  Weiland, Morgan N. (2022)

  As cognitive linguists George Lakoff and Mark Johnson have shown, metaphors are words “we live by.” In law, they are words we govern by. The “marketplace of ideas,” introduced into the jurisprudential imagination just over a century ago by Justice Holmes dissenting in Abrams v. United States, persists as the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression. It envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out. But the marketplace metaphor is a relic. Today’s expressive ecosystem dramatically departs from the metaphor’s core assumptions, marked by information overload and replete with misinformation and lies proliferated by speech platforms unable or unwilling to act as “arbiters of truth.” These dynamics are better described by another First Amendment metaphor, “the free flow of information,” which has operated as a stealth metaphor: obscured by the ubiquitous marketplace metaphor, it has done enormous work within the doctrine without much critical notice. The metaphor’s logic privileges information over ideas, prioritizes content quantity over quality, and removes accountability from the system of free expression. In the end, truth is the casualty.
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  Bordering Legal Parenthood

  Naaman, Noy

  Why should borders matter to the legal field of parenthood? The sustained reification of the institution of Family requires borders—spatial, legal, and symbolic—that demand the exclusion of those who fail to adhere to its norms. Yet, as the present article exposes, this institution’s borders can also become a terrain in which new forms of agency and beneficial processes emerge, inviting a reconsideration of the traditional paradigms that sustain that institution. This article examines this dual understanding of the role of borders and assesses the transformative costs and trade-offs of crossing them. To pursue this inquiry, it focuses on the longstanding struggle of gay Israeli men to become parents via surrogacy, and contextualizes the trajectory of this struggle across different geopolitical scales, through the lens of “border-as-process”. This “bordering” lens reveals how borders—in their opening, closing, and transgressing—create new relations and offer new possibilities for legal and institutional change.
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  Why Robinhood Is Not a Fiduciary

  Lin, Ya Sheng (2022)

  This Note examines the theoretical and practical limitations of regulating broker-dealers under a fiduciary-duty paradigm. Drawing on a recent example of fiduciary regulation of broker-dealers in Massachusetts, as well as recent literature on the theoretical underpinnings of fiduciary relationships, this Note argues that fintech broker-dealers like Robinhood lack the elements of “discretion” and “best interest” necessary to establish a fiduciary relationship. Beyond theoretical coherence, there are also practical reasons to seek an alternative to a fiduciary standard. These include the need to preserve the distinct market-making functions of broker-dealers and to address infrastructural problems beyond the scope of a recommendation. This Note proposes an alternative to fiduciary regulation: expanding Regulation Systems Compliance and Integrity to include brokers like Robinhood.
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  Propertizing Environmental Attributes

  Wyman, Katrina M.; Minelli, Adalene (2022)

  Tangible environmental resources such as land and water have been the object of property rights and traded in markets for millennia. In a development largely unnoticed by legal scholars, technology now allows a new class of environmental resources that are much harder to see and touch to be measured and potentially sold—environmental attributes. Some of these resources have already been partially packaged into property rights for sale by some governments and private actors, such as actual and avoided carbon emissions, and the environmental benefits of renewable power and electric cars. However, other resources, such as avoided water use, remain unpropertized. Trading environmental attributes can help to achieve important societal objectives, such as decarbonizing the energy system, although there are also criticisms of using markets for these goals. This Article emphasizes that property rights need to be created in environmental attributes if policymakers and private actors wish to enlist markets to achieve societal goals. The Article explains the steps involved in creating property rights in environmental attributes. Drawing on the approaches already used to create property rights in some of these attributes, the Article identifies a menu of options for establishing property rights in attributes that currently can be measured and those that technology will allow to be isolated in the future. In addition, it applies this menu to recommend a first-in-time rule for establishing property rights in avoided electricity use from energy-efficient appliances and other energy saving measures, a prominent example of the recently recognized class of environmental attributes. Recognizing society’s growing interest in harnessing newer environmental attributes, this Article concludes that markets in such attributes could expand if the rules for initially allocating these resources were clarified.
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  The Dual-Class Spectrum

  Shobe, Gladriel; Shobe, Jarrod (2022)

  The debate over dual-class companies is longstanding and ongoing. However, scholars and regulators generally treat the question of whether a company is dual class as a binary one. If a company grants certain shareholders a separate class of stock with disproportionate voting rights, then the company is treated as a dual-class company. A company with only a single class of stock is never treated as dual class because it is assumed that the shareholders in a single-class company are treated equally. This Article uses an original dataset to provide a new perspective on the dual-class debate by showing that treating the distinction between dual-class and single-class as binary has caused scholars and regulators to miss the myriad ways in which insiders receive rights that are not available to public shareholders. The dataset shows the wide spectrum of control rights that purportedly single-class corporations grant to insider shareholders by contract rather than through high-vote stock. In fact, companies grant special rights to insiders through contractual mechanisms much more commonly than they do through traditional dual-class structures. Based on these findings, this Article argues that single-class companies that grant disproportionate control rights to insider shareholders by contract are single class in form, but dual class in substance, which, problematically, allows them to avoid the scrutiny and restrictions that protect public shareholders in traditional dual-class companies.

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