Recent Submissions

  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • Democratizing Behavioral Economics

    Liscow, Zachary; Markovits, Daniel (2022)
    Behavioral law and economics (“BLE”)—arising from the insight that people make recognizable, systematic mistakes—has revolutionized policymaking. For example, in governments around the world, including the US, teams of experts seek to harness these insights, promising to do things like increase retirement savings. But there is a problem: economic experts do not look or think like the rest of the population. Their demographics and policy views are deeply unrepresentative. This would be less troubling if the experts were merely helping people pursue the behavior that the people themselves would undertake, as was the case in traditional law and economics. However, the whole point of behavioral economics is that such behavior is often not in people’s interest. Rather, in making judgments about the right policy, BLE has erected a new, shaky structure, based on ad hoc and often unstated normative assumptions. The result risks merely enacting the policy preferences (or biases) of unrepresentative experts and thereby distorting policymaking. We propose a new approach—democratic BLE—in which behavioral economists, rather than dictating what the right policy or action is, instead inform representative samples of ordinary people about the evidence, including specifically about their own behavioral biases, and let them decide for themselves. Those decisions, rather than experts’ opinions alone, then inform policymakers. Our approach harnesses the insights of behavioral economics, but in a way that lets the people themselves, rather than the behavioral expert, be the arbiter of the good life.
  • Hidden Agendas in Shareholder Voting

    Hirst, Scott; Robertson, Adriana Z. (2022)
    Nothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will be voting on. All investors who engage in share lending are affected, but the problem is particularly acute for large investment managers that have fiduciary duties related to voting. At present, they must discharge these duties in the dark. We propose a straightforward solution: an amendment to the Securities and Exchange Commission’s proxy rules requiring public companies to file proxy statements at least five days before the record date for the meeting. This simple change would give investors the information they need to make an informed decision about whether to retain the right to vote or not. If we believe that shareholder voting is important, and that investment managers and others should decide whether to vote, we should give them the information they need to do so.
  • Cost-Based California Effects

    Frankenreiter, Jens (2022)
    The “California Effect” is a recurring trope in discussions about regulatory interdependence. This effect predicts that businesses active in multiple jurisdictions sometimes adopt the strictest regulatory standards that they face in any jurisdiction globally, even if the jurisdiction’s law does not require global compliance. As the argument goes, California Effects often occur because firms find it less expensive to comply with the most stringent standard everywhere than to provide different products to consumers in different jurisdictions based on the relevant local standards. There is a substantial literature that assumes the existence of such Cost-Based California Effects both at the interstate level in the United States and the international level, where they often appear in connection with the EU’s regulatory activities under the moniker “Brussels Effect.” However, empirical evidence documenting these effects’ existence and strength is scarce. This Article makes two contributions. On a theoretical level, it argues that Cost-Based California Effects should be treated separately from other forms of cross-jurisdictional influence, as their normative implications differ. On an empirical level, it reports results from a case study investigating the existence of these effects in data privacy law, a field in which they have been said to be particularly influential. The analysis tracks changes in almost 700 webpages’ privacy policies in order to reveal the extent to which EU law (which is usually described as comparably stringent) influences transactions between U.S. online services and consumers. The analysis covers two years starting in November 2017, a period that saw the enactment of a new, sweeping data privacy law in the EU. Contrary to what many assume, the analysis reveals that most U.S. online services treat U.S. consumers and EU consumers differently, with EU consumers enjoying higher levels of protection. This result indicates that the impact of EU law on the operations of U.S. online services is limited. Moreover, it suggests that Cost-Based California Effects might be less important than is commonly assumed, at least in data privacy law.
  • Presidential Transitions: The New Rules

    Davis Noll, Bethany A.; Revesz, Richard L. (2022)
    The Trump Administration was unusually aggressive in using an obscure set of tools to undo the Obama Administration’s regulatory legacy: Congressional Review Act disapprovals, requests that courts hold in abeyance pending cases challenging Obama-era regulations, and suspensions of final regulations. These actions could be seen as part of the Trump Administration norm-breaking approach to regulatory policy, under which it also provided shoddy justifications for its actions, ignored statutory commands, and failed to comply with procedural requirements. There has been a general assumption that the norm-breaking was a result of the Trump Administration’s lack of respect for the rule of law and that it would subside when a new administration took office. This Article challenges this assumption, showing that the Trump-era toolkit on rollbacks has now also been used aggressively—in some cases more aggressively—by the Biden Administration. Actions that might have been seen as an aberration four years ago should now be regarded as integral components of the administrative state. In a 2019 Article describing the Trump Administration’s aggressive rollback tools, we predicted that the nature of the presidency would change in significant ways as a result. A one-term president will likely not be able to implement much regulatory policy that is durable. And to do so, a president has a much shorter period during which regulations are likely to be protected from quick undoing by a successor of the opposite party, from roughly three-and-a-half years to about two years. The impact of this trend is particularly significant because, during the current era of congressional gridlock, presidents rely on regulations as the primary way in which to implement their domestic policy programs. In this Article, we provide new evidence from the Biden Administration showing that these changes are here to stay.
  • The SPAC Trap: How SPACs Disable Indirect Investor Protection

    Spamann, Holger; Guo, Hao (2021)
    Indirect investor protection makes investing in most public securities safe even without understanding their terms or the underlying business. Special Purpose Acquisition Companies (SPACs) disable this protection by offering two alternative payoffs from the same security, the SPAC share, in the de-SPAC process: the redemption value, or a share in the post-de-SPAC entity. The former is usually higher and chosen by sophisticated repeat players, while unsophisticated investors elect the latter or receive it by default. Before the de-SPAC process, the SPAC share price reflects the higher payoff, such that unsophisticated investors systematically overpay. This overpayment is captured, directly or indirectly, by SPAC sponsors and IPO investors. This allows the latter to make money from SPACs even if SPACs create negative social value.
  • The Oversight Board’s Dormant Power to Review Facebook’s Algorithms

    Pickup, Edward L. (2021)
    This Essay argues that Facebook’s Oversight Board—an independent “Supreme Court” for Facebook, tasked with reviewing the platform’s content-moderation decisions—has the additional power to review Face-book’s algorithms. While much of the literature on the Board assumes that it does not have this power, the text and structure of the Board’s Charter clearly provide for oversight of algorithms. This is an important observation because many of the serious problems plaguing online speech today—misinformation, radicalization, and community safety—are driven by algorithmic amplification. Equipped with the powers this Essay identifies, the Board could play a significant role in curbing the pernicious effects of algorithmic amplification of speech on Facebook.
  • Time Enough for Counting: A Unicorn Retrospective

    Cable, Abraham J.B. (2021)
    Legal scholars worry that existing laws cannot adequately regulate large private companies (“unicorns”). At the same time, unicorns seem to be a key part of flourishing markets. Are unicorns a problem that requires solving or a sign that entrepreneurial finance is working? This essay addresses that question by tracking outcomes for the 32 startups that qualified as unicorns when the moniker first emerged. It introduces a new typology of unicorn outcomes to guide policy makers and offers a preliminary hypothesis that private ordering by founders, employees, and investors is proving an effective alternative to ambitious regulatory reform.
  • Work and Employment for DACA Recipients

    Heeren, Geoffrey (2021)
    Deferred Action for Childhood Arrivals (DACA) has brought job opportunities and a brighter future to somewhere around 700,000 undocumented immigrant youth. Yet some contend that the employment authorization conferred upon DACA recipients renders the program illegal, because it converts it from a mere program of prosecutorial discretion into an ultra vires benefit. This essay sets aside the host of other legal issues raised by DACA and focuses on the narrow question of whether the federal government exceeds its statutory authority when it confers employment authorization on DACA recipients. There is a short answer to this question that is based on the unambiguous text of the Immigration and Nationality Act (INA), which is an emphatic no. The relevant statute defines an “unauthorized alien” for employment purposes to exclude anyone designated as authorized for employment by the agency; the agency has long designated deferred action as a category authorized for employment, and DACA is a species of deferred action. Yet some courts have found this answer unsatisfying, referring to the provision as a “mousehole” that pales beside the vast social and economic questions at stake in making large numbers of undocumented immigrants eligible for employment. Federal courts in Texas have enjoined DACA and a related program called Deferred Action for Parental Accountability (DAPA) based on their inference that a purpose of the INA is to parsimoniously guard employment authorization as part of a broader scheme to enforce immigration law and protect jobs for native workers.
  • Embedded Rules

    Stephenson, Matthew C. (2021)
    Rules are rules and orders are orders, and never the twain shall meet. Generations of scholars and practitioners were taught back in law school that the Administrative Procedure Act (APA) divides the universe of agency action into two exclusive and exhaustive categories: “rulemaking,” which is used for promulgating “rules,” and “adjudication,” which is used for issuing “orders.” Each of those modes of agency action has its formal and informal versions, and some statutes mandate “hybrid” procedures with an intermediate level of formality. But the starting point for analyzing a given agency action is to decide whether that action falls into the “rule” box or the “order” box, which are separate and distinct. That is what then-Professor, now-Justice Elena Kagan taught me back when I took her Administrative Law class as a 2L, and it’s what I’ve taught my students for the last fifteen years. But it’s not quite right. “Rules” and “orders” are not, in fact, completely separate and non-overlapping categories. Sometimes an administrative action that is properly classified as an order contains within it—usually in the portion explaining the order’s legal basis—a statement that qualifies as a rule and ought to be treated as such. The fact that such a rule is embedded within an order does not make it any less of a rule. And that means that the process for formulating an embedded rule counts (or ought to count) as a “rulemaking” under the APA.
  • Fair Pay and Safe Workplaces in Government Contracting: Reassessing Labor Law Benefits in Light of Infrastructure Investments and Buy American

    Klingler, Désirée U. (2021)
    When purchasing infrastructure, goods or services, the U.S. government has “to promote economy, efficiency and effectiveness.” Executive Order No. 13,673, issued by President Obama, expanded the requirement to encompass social sustainability: to promote economy and efficiency in procurement, the government was required to “contract with responsible sources who comply with labor laws.” The Fair Pay and Safe Workplaces rule (the Rule), proposed in 2014, required contractors of federal agencies to provide fair wages and safe workplaces to their workers. Because industries feared that the Rule would lead to contractors being unfairly excluded from public contracts, opponents of the Rule called it the “blacklisting rule.” After having reviewed the final rule and its regulatory impact analysis, the Office of Management and Budget (OMB) approved the Rule in 2016. Shortly after his inauguration, President Trump revoked the Rule. Now, with Congress’ passage of the “once-in-a-generation” Infrastructure Investment and Jobs Act, and the proposed Buy American rule, the U.S. government will employ thousands of American workers to build highways, bridges, and public transit.10 Hence, improving the quality of workplaces in government purchasing is more relevant than ever and may very well necessitate the promulgation of a new version of the Rule. Therefore, taking a closer look at the Rule’s regulatory impact assessment and evaluation of labor law benefits is warranted and can provide a helpful model for understanding and improving cost-benefit analysis of government purchasing.
  • “Professional” Employers and the Transformation of Workplace Benefits

    Shnitser, Natalya
    Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet not all employers are equally willing or capable of serving as such financial intermediaries. Larger employers commonly offer more and better benefits than smaller employers. In recent years, so-called Professional Employer Organizations (PEOs) have pitched themselves as a private-sector solution to the challenges traditionally faced by smaller employers. PEOs have pioneered and marketed a “co-employment” model pursuant to which a business and the PEO agree to share certain employer rights and responsibilities, with the PEO taking on all of the human resources matters and the client-employer otherwise retaining control over the business. While PEOs respond to long-standing challenges faced by smaller employers and have the potential to increase access to workplace benefits, this Article argues that they also introduce new and significant governance concerns that are not adequately addressed by the existing regulatory framework. Empirical evidence suggests that as currently structured, PEOs may not, in fact, provide “Fortune 500” benefits to employees at smaller companies and may instead lock participating employers into costly benefit bundles and expose them to the risk of unpaid employment taxes and health insurance claims. To protect participants in arrangements where PEOs provide key workplace benefits, this Article recommends strengthening and uniformly applying registration, disclosure and oversight requirements for all non-employer intermediaries, including PEOs. In the longer term, comprehensive retirement reform is needed to account for the transformation of workplace benefits in the United States.
  • Climate Change Attribution Science and the Endangered Species Act

    Wentz, Jessica (2022)
    Climate change poses an enormous risk to plant and animal species across the planet. Mean global temperatures have already increased by approximately 1ºC, causing environmental changes that affect species abundance, distribution, behavior, physiology, genetics, and survival prospects. These changes, combined with other human stressors, have already resulted in the extinction of some species and imperiled many others. In the United States, the Endangered Species Act (ESA) is the primary legal vehicle for the protection and management of species at risk of extinction. The statute and accompanying regulations outline a science-based framework for identifying endangered and threatened species, establishing critical habitat boundaries, and mitigating the harmful impacts of public and private-sector activities on listed species. Although climate change is not explicitly mentioned in the statute, there is no question that agencies must consider climate-related threats when implementing the ESA. This Article examines the uniquely important role of climate change detection and attribution research in federal decision-making and judicial review under the ESA. This research provides insights on how climate change is already affecting species and habitats and is therefore integral to decisions about: (i) whether to list a species as threatened or endangered on the basis of climate-related threats, and (ii) how to support species recovery through critical habitat designations and other management actions. Courts have held that attribution research qualifies as the “best available science” that must be considered in ESA decision-making and that agencies cannot ignore attribution research on the basis of uncertainty or imprecision where the data suggests that there is a probable threat to a species. They have also consistently upheld the federal government’s use of attribution data to support ESA protections for climate-imperiled species.
  • Climate Change Cosmopolitanism

    Sunstein, Cass R. (2022)
    Do foreign lives matter? When? How much? If one nation damages another, what are its obligations, as a matter of law and policy? These questions can be approached and understood in diverse ways, but they are concretized in debates over the “social cost of carbon,” which is sometimes described as the linchpin of national climate policy. The social cost of carbon, meant to capture the damage done by a ton of carbon emissions, helps to determine the stringency of regulations in many domains, including emissions limits on motor vehicles and on stationary sources. In determining the social cost of carbon, agencies must decide whether to use the global number (as chosen by Presidents Barack Obama and Joe Biden) or instead the domestic number (as chosen by President Donald Trump). Use of the global number should be seen as a form of climate change cosmopolitanism, whether the grounding is moral, strategic, or otherwise. Within the constraints of governing statutes, there are four central arguments in favor of using the global figure. (1) The epistemic argument: experts do not know a great deal about the purely domestic harms from climate change, which makes it impossible to generate a purely domestic number. (2) The interconnectedness argument: harms done to U.S. citizens by domestic emissions are not limited to those directly brought about by the incremental increase in temperatures within the territorial boundaries of the United States; they include an assortment of harms to U.S. citizens living abroad and harms to U.S. citizens and interests that come as a result of the cascading effects of harm done to foreigners (including governments, companies, and individuals), which are ultimately felt by U.S. citizens or within the United States. (3) The moral cosmopolitan argument: in deciding on the scope of its regulations, the United States has a moral obligation to take account of the harms it does to non-Americans. (4) The reciprocity argument: if all nations used a domestic figure, all nations would lose; a successful approach to the climate problem requires nations to treat greenhouse gas emissions as a global, and not merely domestic, externality. Neither the epistemic argument nor the incompleteness argument justifies the choice of the global number.
  • Naïve Administrative Law: Complexity, Delegation and Climate Policy

    Spence, David B. (2022)
    The Supreme Court’s ongoing efforts to narrow the contours of administrative agencies’ policymaking discretion comes at a particularly inopportune time. The nation faces a set of increasingly complex and pressing national problems, including climate change, that require the simultaneous application of careful deliberation and expertise, something Congress is ill-suited to do in the best of times—but particularly so in this hyper-polarized era. Were the Court to fully embrace the Major Questions Doctrine, it would likely render environmental and energy regulators powerless to reduce greenhouse gas (GHG) emissions from the energy sector under their enabling statutes, despite the centrality of that task to their missions and plausible arguments that Congress has already delegated them that power. It would also call into question the legitimacy of many other existing regulatory regimes, throwing regulatory policy into chaos. The Doctrine draws a flawed distinction between policymaking and policy implementation based upon the economic and political significance of the decisions involved; if there is a useful distinction to be made between those two activities, it rests on the distinction between ends and means, the what questions and the how questions. The Framers’ design requires that Congress be able to delegate these difficult, complex, contentious “how” questions to the executive branch. Now more than ever, regulatory agencies—not Congress—can best produce decisions that reflect the “permanent and aggregate interests of the community.”
  • All the Tools in the Toolbox: A Plea for Flexibility and Open Minds in Assessing the Costs and Benefits of Climate Rules

    Sinden, Amy (2022)
    As the Biden Administration works on updating the social cost of carbon (SCC), some economists are urging a different approach, known as the “Marginal Abatement Cost” (MAC) method or the “target-consistent” approach. Rather than attempting to calculate all the damage caused worldwide by each ton of carbon dioxide released into the atmosphere, the MAC approach instead asks: what is the highest amount of money per ton that society will need to be willing to pay if we are going to successfully meet greenhouse gas reduction targets? This approach has the virtue of avoiding the most intractable complexities and uncertainties involved in estimating the SCC, including embedded ethical judgments about the degree to which the interests of future generations should be discounted in comparison to our own and the scope of the relevant “society” across which climate damages should be measured. Nonetheless, the MAC approach has come under fire from cost-benefit purists who argue, first, that it is inappropriate as a matter of good policymaking and, second, that it is prohibited by law. Both claims are at a minimum overstated and arguably outright wrong. As a matter of both legal mandate and good policy, the Biden Administration would do well to avoid the CBA orthodoxy that some commentators advocate. Instead, the Administration should as a matter of good policy—and can as a matter of law—make use of the rich variety of tools in the regulatory decision-making toolbox, including the MAC approach, in developing climate policy.

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