Now showing items 1-20 of 5548

    • Rise of the Zombies: The Significance of Venture Capital Investments That Are Not Profitable

      Riethmueller, Sven (Houston Business and Tax Law Journal, 2021)
      This 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.

      Markovits, Daniel (Connecticut Journal of International Law, 2023)

      Langbein, John (Elder Law Journal, 2023)
      In 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.

      Gluck, Abbe R.; Chamblee Burch, Elizabeth (Review of Litigation;, 2023)
      The 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.
    • Proximate Cause Explained: An Essay in Experimental Jurisprudence

      Shapiro, Scott; Knobe, Joshua (University of Chicago Law Review, 2021)
      One 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.

      Rodríguez, Cristina M (Harvard Law Review, 2021)
      In the article, the author discusses the need to use power to implement regime change in governance, particularly in the U.S. Supreme Court. Topics include the importance of legal innovations to establish a new political order, the need for extended engagement with the relationship between law and politics, and the role of executive governance in achieving the goals of democratic politics.
    • Representing What? Gender, Race, Class, and the Struggle for the Identity and the Legitimacy of Courts

      Resnik, Judith (Law & Ethics of Human Rights, 2021)
      In 1935, when the U.S. Supreme Court's new building opened and displayed the phrase "Equal Justice Under Law," racial segregation was commonplace, as were barriers limiting opportunities for men and women of all colors to participate in economic and political life. The justices on the Court and the lawyers appearing before them reflected those facts; almost all were white men. Today, the Supreme Court's inscription has become its motto, read as if it always referenced an understanding of equality that has become central to the identity and the legitimacy of courts. The judiciary "looks" somewhat different than it did and, in a sense, has become more "representative" of the range of people appearing in courts. Given the role that courts had played in sustaining discrimination, the impression that courts ought to welcome everyone is a major achievement. Yet, to assess the impact of new judicial demographics requires analysis of other major alterations in U.S. courts—the influx of diverse litigants newly entitled to pursue legal claims; the economic barriers facing many claimants; the emergence of judiciaries as agency-like promoters of agendas; and the displacement of public adjudication through the privatization of dispute resolution. Studies of women as judges focus mostly on their rulings, but probing the "difference that difference makes" requires looking beyond judicial opinions. Courts in the United States have developed structural capacities to propose rules and legislation, create education programs, commission research and task forces, and lobby for resources. When women of all colors and men of color became lawyers and judges, they created affinity organizations and pressed courts to research court-based bias and to revise rules of ethics, doctrine, and practice. Those changes are part of the impact of diversification within the legal profession, as is the backlash against affirmative efforts to reform practices. Another difference of the last decades is that new rights have brought into court many claimants with limited means. Participatory participation ("equal justice under law") remains elusive, while the "justice gap" (shorthand for the lack of sufficient governmental help for under-resourced litigants) is pervasive. Worse yet, in some jurisdictions, courts have served as "revenue centers," using court-imposed assessments as income. Failure to pay "legal financial obligations" can result in suspension of driver's licenses, the loss of voting rights, and other sanctions levied disproportionately on people who are poor and of color. Instead of being seen as fonts of fairness, courts are coming to be identified as sites of inequality. In addition, many courts have embraced alternative forms of dispute resolution that make both processes and outcomes less visible to the public. Through doctrine and rules, U.S. courts have shifted their own practices as well as enforced mandates imposed on consumers and employers that push them out of court and out of class or joint actions. In sum, the new faces on the bench ought not to obscure that the project of representation, inclusion, and equality is far from complete. The vivid inequalities in courts are problems for courts because such disparities undermine their ability to be places of justice.
    • NIFLA and the Construction of Compelled Speech Doctrine

      Post, Robert (Indiana Law Journal, 2022)
      First Amendment doctrine disfavoring compelled speech originated in 1943 in West Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court's decision in Barnette, but the Court's recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances "contentbased" regulation requiring heightened judicial scrutiny. Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of "compelled speech" may itself be confused insofar as it imagines that all legal obligations to communicate are equally disfavored under the Constitution. Courts should scrutinize instances of compelled speech as necessary to protect threatened constitutional values, but the presence of these values will vary depending upon social context. Courts must learn to read the constitutional geography implicit in distinct social landscapes. This Article offers some hints for how this might be done. Applying these insights to NIFLA, the Article argues that the outcome of the case actually depended upon preconscious and undefended suppositions about social context. Constitutional decisions like NIFLA can be made persuasive only if such suppositions are made explicit and justified.

      Macey, Jonathan R. (Northwestern University Law Review, 2023)
      This Essay discusses the regulation of fraud in a developed economy and offers some explanations for why fraud appears to be on the increase. Ironically, regulation designed to combat fraud can actually increase fraud by attracting economic activity to fraud-ridden industries. In other words, regulation can create problems of its own by fostering the false perception that fraud is being addressed even when it is not. This analysis is relevant in the context of the current surge in sentiment to regulate cryptocurrencies in the wake of the FTX and Sam Bankman-Fried debacle. Such regulation threatens to attract more resources to cryptocurrency trading, which is a dubious proposition in light of the fact that cryptocurrencies produce little social value and merely transfer wealth rather than create it. The Essay discusses some of the reasons why fraud may be on the increase. First, strong market forces aimed at reducing managerial agency costs have had the unintended consequence of increasing the incentives of top corporate managers to commit fraud. The market forces both richly reward managers for generating strong returns for shareholders and severely punish managers for failing to reach investors' expectations regarding corporate performance. While these rich rewards and strong punishments serve the interests of shareholders and society, they also enhance executives' incentives to commit fraud. Another factor in the increase in fraud in financial markets has been the expansion of the concept of fraud. Historically, the term fraud was used to describe conduct that was truly egregious and involved purposeful deceit designed to provide the perpetrator with unlawful gains. As shown here, however, in the financial context the concept of fraud has been expanded to include behavior that is entirely inadvertent and benign. The expansion of the concept of fraud threatens to increase the incidence of traditional fraud by depriving the term "fraud" of its historic capacity for shaming because the prospect of being shamed is a significant deterrent to committing fraud.
    • The Discriminatory Purpose of the 1994 Crime Bill

      Hinton, Elizabeth; Biale, Noam; Ross, Elizabeth (Harvard Law & Policy Review, 2021)
      Harsh criminal sentencing laws enacted in the 1980s and 1990s have received renewed attention through a confluence of two seemingly contradictory events: an awakening to racial justice concerns through protests against the police killings of George Floyd and Breonna Taylor (among many others), and the election of President Joseph R. Biden, Jr., who, as a senator, was one of the chief architects of policies that fueled mass incarceration and exacerbated racial disparity in the criminal legal system. Historians in particular have begun to study declassified documents and newly available archival evidence that provide critical insight into the behind-the-scenes deal-making and legislative intent that led to the crime control policies that emerged at the federal level since the 1960s. Specifically, historical research indicates that federal lawmakers were well aware of the racially disparate impact of mandatory minimum sentencing schemes and the death penalty, yet chose to double down on those policies and reject alternative proposals that would have made the application of criminal law more equitable. This new frontier of historical research is not merely of academic interest; it has important implications for constitutional scholars and defense attorneys who can draw on these findings to challenge criminal statutes under the Equal Protection Clause. This Article highlights the power of collaboration between historians and legal scholars and practitioners who wish to train this new historical analysis on the modes and means by which our criminal legal system reinforces racial inequality. We focus our approach through the lens of a relatively obscure provision of the Violent Crime Control and Law Enforcement Act of 1994, which imposed a one-year mandatory minimum for distributing narcotics within 1,000 feet of a public housing project. We examine the barriers to challenging such a statute under the Equal Protection Clause based on current Supreme Court precedent and circuit caselaw. We suggest a jurisprudential avenue for renewed equal protection challenges, namely, supplying evidence that Congress adhered to particular policies with full knowledge of their discriminatory impact. We examine the disparate enforcement of the public housing provision and its discriminatory purpose, as informed by newly developed historical evidence about the 1994 Crime Bill. Finally, we consider the lessons criminal defense attorneys and policymakers may learn from our example. We argue that a nuanced understanding of the true history of the war on crime is essential if President Biden and those in his administration who played instrumental roles in creating these discriminatory policies are serious about responding to the demand from the streets to dismantle them.
    • The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis

      Hathaway, Oona; Bradley, Curtis A.; Goldsmith, Jack (University of Chicago Law Review, 2023)
      The treaty process specified in Article II of the Constitution has been dying a slow death for decades, replaced by various forms of "executive agreements." What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain. This Article focuses on the two most significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than three thousand of these agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms.
    • Race and Empire: Legal Theory Within, Through, and Across National Borders

      Bâli, Aslı Ü.; Achiume, E Tendayi (UCLA Law Review, 2021)
      In January 2020, we convened the UCLA Law Review Symposium, entitled Transnational Legal Discourse on Race and Empire. In this Article, which also serves as an introduction to the Issue that resulted from the Symposium, we seek to do two things. Our first objective is to situate this Symposium Issue within its broader intellectual context: renewed momentum among Third World Approaches to International Law (TWAIL) scholars to engage Critical RaceTheory (CRT) scholars in collaboration aimed at deeper understanding of issues of shared concern. Our second objective, is to offer a concrete example of the insights to be gained from TWAIL-CRT analysis through a brief consideration of the Libyan case, where humanitarian intervention, counterterrorism, and migration control regimes in international law cannot be fully assessed absent engagement with empire and race. Mainstream and official analysis casts the international system and its hegemonic actors in the role of humanitarian responders to a Libyan crisis not of their making. Instead, we draw attention to the ways in which the racial framing of Libya--and its subordination to imperial prerogatives--proved critical to international governance regimes for managing the country--and the bodies and territory within it--from 2011 to the present.
    • Better Rules for Worse Economies: Efficient Legal Rules Over the Business Cycle

      Listokin, Yair; Bassine, Peter (Harvard Business Law Review, 2022)
      Laws and regulations designed for robust economies often perform miserably in deep recessions. In a healthy economy, the best legal rule from an economic perspective maximizes productive capacity. In a recession, however, spending, not productive capacity, limits the size of the economy. Recessions also shift incentives, meaning that inputs to an efficient legal rule change with the business cycle for microeconomic as well as macroeconomic reasons. As a result, legal rules that are efficient in a growing economy often waste resources in recessions. Unemployment insurance (" UT") eligibility rules illustrate the business cycle variability of the efficient legal rule. In robust economies, tight unemployment eligibility rules maximize capacity by encouraging greater labor supply and consequently higher output. In recessions, by contrast, labor supply does not, constrain output. Boosting incentives to find work does not increase employment when jobs, rather than workers, are scarce. Instead, spending (" aggregate demand") is the economy's limiting factor. In recessions, lax unemployment eligibility rules reduce inequality and enhance spending and demand for labor, resulting in higher output. Previous writing in law and macroeconomics prescribes a" countercyclical legal policy" response to variability in the efficient legal rule over the business cycle.'If strict legal rules raise output in ordinary times but permissive rules raise output in recessions, then legal rules should be tight in the growth phase of the business cycle but lax in recessions.'And UT policy sometimes strives for this countercyclical variation. In the CARES Act passed in March 2020 to mitigate COVIID-19's devastating impacts on the economy,
    • Monetary Finance

      Listokin, Yair; Galle, Brian (Tax Law Review, 2021)

      Post, Robert (Hofstra Law Review, 2022)
      The author argues that framing the tension in American law schools as a freedom of expression issue is unhelpful and inaccurate.It suggest that the core issue lies in the pedagogical question of how best to achieve the educational mission of law schools. It also mentions that the principles of free speech, which are essential for democratic self-governance. The author emphasizes the importance of empathy, and creative educational interventions in navigating the challenges faced by law schools.

      Tyler, Tom R; Vardsveen, Trace C (Fordham Urban Law Journal, 2022)
      The public's trust in legal authorities has declined precipitously in recent years, along with a slip in the perceived legitimacy of these authorities. Prosecutors are no exception. Amidst growing debate about their contributions to social His like mass incarceration, prosecutors have faced mounting pressure for greater accountability in their decision-making. Studies onthepolice and courts provide insightinto apossible solution. This body Of work has long shown that a critical framework through which the public views legal authorities is the perceived fairness of their decisionmaking processes, including the provision of explanations these authorities provide for their legal decisions. Thus, accountability, legitimacy, and trust in the eyes of the public rests, in part, on evaluating the fairness of decisionmaking processes, which itself requires the ability to distinguish between legal authorities' use of what the law and the public consider appropriate and inappropriate criteria when making legal decisions. Such evaluations can only occur when the factors that shape these decisions are known. Therefore, transparency in legal authorities' decision-making is core to the project of maintaining and building legitimacy and trust. However, as scholars have observed, prosecutorial decision-making largely occurs within a black box, rendering prosecutors' lack of transparency an obstacle to accountability, and in turn, legitimacy, and trust. In this Essay, we argue that an empirical methodology called "processtracing" can peer inside the black box of prosecutorial decision-making to help identify the factors that shape prosecutors' legal decisions, thus increasing transparency in their decision-making overall. As such, this methodology is helpful in several ways. First, it allows prosecutors to compare whatfactors actually drive their charging decisions to a normative legal framework so that they can adjust their behavior to better adhere to such standards. Second, it enables prosecutors to compare those factors with what the public considers to be important regarding prosecution. And third, it supplies prosecutors with a data-driven way to explain the reasoning behind their decisions to the public. Thus, prosecutors can highlight where their decision-making aligns with the public's views of prosecution to reinforce accountability, legitimacy, and trust. Where alignment with the public is weak, prosecutors can identify the legal factors influencing their decisions to promote accountability, legitimacy, and trust. Looking to the future of prosecution, a process-tracing approach provides a basis for a more nuanced, data-driven way to address prosecutorial reform - that is, reform grounded in the idea of building authentic trust between the public and legal authorities like prosecutors.
    • Nepantla/Coatlicue/Conocimiento

      Torres, Gerald (Michigan Law Review, 2023)

      Siegel, Reva B. (Houston Law Review, 2023)
      In this Commentary, I show how the tradition-entrenching methods the Court employed to decide New York State Rifle & Pistol Ass'n, Inc. v. Bruen and Dobbs v. Jackson Women's Health Organization intensify the gender biases of a constitutional order that for the majority of its existence denied women a voice in lawmaking and restricted women's roles. The tradition-entrenching methods the Court employed to decide Bruen and Dobbs elevate the significance of laws adopted at a time when women and people of color were judged unfit to participate and treated accordingly by constitutional law, common law, and positive law. The methods the Court employs are gendered in the simple sense that they tie the Constitution's meaning to lawmaking from which women were excluded and in the deeper sense that the turn to the past provides the Court resources for expressing identity and value drawn from a culture whose laws and mores were more hierarchical than our own. Sampling their recent opinions, Part II of this Commentary shows that the conservative Justices have repudiated past practices when those practices expressed racism or nativism to which the Justices objected. Yet, Part III of this Commentary shows that in Dobbs the conservative Justices embraced past practices as the nation's history and tradition, counting abortion bans enacted with the support of the nineteenth-century antiabortion campaign without scrutinizing evidence that the campaign mixed arguments for protecting unborn life with arguments that banning abortion would prevent ethnic replacement and would enforce wives' marital and maternal roles. In Part IV, I suggest that Justice Alito might have refused to defer to prejudice of the past as he did in Espinoza v. Montana Department of Revenue if he saw religious liberty, rather than abortion rights, at stake. There are several reasons for revisiting the claims about abortion, history, and tradition on which the Dobbs decision rests. Even if the Supreme Court itself never acknowledges Dobbs's selective and inaccurate account of the historical record, as it acknowledged historical errors of Bowers v. Hardwick in Lawrence v. Texas, there is value in recognizing that the Court's claims about the past have a politics. In demonstrating that the Court selectively defers to the past, this Commentary shows how the Court's history-and-traditions method provides new justifications for enforcing old forms of status inequality. This Commentary builds the historical record critical to debates over the criminalization of abortion in state courts and legislatures. And it contributes to Professor Melissa Murray's remarkable and wide-ranging account of how the jurisprudence of Bruen and Dobbs is gendered: Children of Men: The Roberts Court's Jurisprudence of Masculinity.

      SCHLEICHER, David; HILLS JR., RODERICK M (New York University Annual Survey of American Law, 2023)
      The Fourth Edition of Property: Principles and Policies by Thomas Merrill, Henry Smith and Maureen Brady lays out what the field's leading thinkers believe we all should know about property law. Unlike most casebooks, the book is an intellectual achievement, a powerful argument made through educational materials. But it is premised on a set of beliefs, common among property law scholars, about what is important about the field. Although it discusses many legal and policy issues, Property: Principles and Policies focuses on the common law of property and the structure of property rights, both in theory and in historical practice. However, the property law it presents is often quite distant from how we actually regulate the uses and transfers of real property today. For better or for worse, we live in an age of statutes and administration. From mortgage regulation to zoning to property tax policy and administration, the most important means through which we regulate real property fall outside of the common law. The book, and indeed much of the work done by property law scholars, does not wrestle with the methods through which government institutions regulate real property. While systems of real property regulation build on the structure of property rights established over time, most relevant legal and policy disputes about real property do not turn on interpretations or changes in the common law of property. Instead, they are instances where other types of law--administrative, local government, securities, and tax, among others--apply to real property. Focusing on the traditional common law of property, rather than the effects other types of law have on real property, is not a mistake. It is a choice. But it is a choice that comes with costs for students and scholars alike. Most real property regulation is done through state and local governments. First-year students, whether they have requisite traditional property law courses, federal-law focused "Leg-Reg" courses, or both, are often not exposed to how state and local governments work. Similarly, focusing on the common law and the theoretical structure of property rights renders property law scholars less able to be useful to legal and policy disputes. The rich insights of property law theory could contribute more to contemporary law and policy if scholars took seriously the institutions that regulate most property most of the time.