Recent Submissions

  • From Law Book to Legal Book: The Origin of a Species

    Widener, Michael (Bibliopathos Libreria Antiquaria (Verona), Lillian Goldman Law Library, Yale Law School,, 2021)
    This article responds to the question posed in the title of the 18 June 2020 workshop of the Max Planck Institute for European Legal History: »What is a Legal Book? Crossing Perspectives between Legal History and Book History«. Bridging the gap between legal history and book history requires a broader conception of legal literature, one that the term »legal book« captures more accurately than the narrower »law book«. The field of legal history has begun to take greater interest in legal books as social and cultural phenomena, as objects of commerce and as artifacts. The article develops a definition of »legal book« using illustrations of law books that are taken from the books themselves, including allegorical images, author portraits, and depictions of lawyers at work. These images highlight the book’s function in law as symbol, text, and artifact. The article concludes by pointing to opportunities for collecting, research, and teaching that the broader definition of »legal book« presents for curators and the historians they serve.
  • Risky Mail: Concerns in Confidential Attorney-Client Email

    Bolin, Rebecca (2012-02-01)
    Early in the days of attorney-client email, David Hricik wrote a soothing law review article, Lawyers Worry Too Much About Transmitting Client Confidences By Internet E-mail, arguing that email had risks but could be assumed private for the purpose of professional ethics. The ABA agreed in 1999, issuing a formal opinion that encrypting email was not required by ethical standards, and most jurisdictions followed suit. The 1999 ABA opinion persists today, despite being dangerously technology-specific, focused on almost obsolete technology, and over ten years later its legal foundation remains unsettled. I present three reasons why attorneys should be concerned about the risks to confidentiality in attorney-client email: legal uncertainty about general privacy expectations for email, broad waivers of email privacy through provider policies, and unrelated disclosure by third parties. Case-specific issues ¬¬have become more important to determine ethical duties in confidential emails: manifold local privacy laws, local ethical standards, and provider policies. At least one type of email, employer-provided email, is no longer considered confidential in this context, a known ethical hazard for attorneys. In the context of Fourth Amendment law, email privacy remains unsettled, even after the landmark Sixth Circuit decision in Warshak. Legal, authorized third-party access now poses a serious risk to confidentiality in attorney-client email. Attorneys and clients need to understand these risks before informed consent is possible. Technology-based solutions may be part of broader best practices to protect confidentiality. Attorneys and clients must understand the technology at issue, rather than blindly risking clients’ confidences and their ethical duties on technologies they do not understand.
  • Revolution In Manipulation Law: The New CFTC Rules And The Urgent Need For Economic And Empirical Analyses

    Verstein, Andrew (2013-01-01)
    Three major banks have now admitted that their employees manipulated worldwide interest rates through the London Interbank Offered Rate (Libor), the most widely used interest rate index. Libor is the interest rate term for trillions of dollars of swaps and loans, and its manipulation may have been used to extract billions of dollars. These allegations come just as commodities manipulation law has been dramatically reformed and the Commodity Futures Trading Commission (CFTC) given vast new regulatory powers. This article provides the first extended, scholarly analysis of the CFTC’s new anti-manipulation rules. We consider the difficulty the rules address: Commodities manipulation claims have traditionally faced nearly insuperable obstacles to success in prosecuting manipulations like that of Libor. We then analyze the new rules, including their extension of the CFTC's powers to cover the swap market. The new rules appropriately lower the standards of pleading and proof, and yet the breadth of the new rules invites abuse. Both to implement the new rules and to prevent overuse, we argue for more elaborate, sophisticated, and creative economic analysis than ever before. We provide a wide-ranging overview of empirical tools for assessing manipulation claims, while re-engaging a decades-old debate on the place of empiricism in the laws of evidence and intent. We provide detailed examples of how manipulation screens are necessary to complete the Dodd-Frank Wall Street Reform and Consumer Protection Act's (Dodd ­ Frank)'s revolution in manipulation law.
  • Bad Policy For Good Policies: Article 9's Insurance Exclusion

    Verstein, Andrew (2011-01-01)
    Article 9 of the Uniform Commercial Code excludes from its scope any transfer of an interest in a life insurance policy. Thus, any lender whose security is a life insurance policy may not look to the UCC to determine her rights. This Article argues that the exclusion should be eliminated because it leaves insurance governed by antiquated and problematic law. Three specific problems are considered:non-UCC law does not have a satisfactory alternative to UCC perfection; non-UCC law is insufficient to prevent lenders from abusively taking more than their share of value from defaulted policies; and non-UCC law allows insurance companies to hinder securitization through the reservation problem.‖ The result is that Americans borrow $121 billion worth of policy loans, almost all of which comes without serious competition. Eliminating the life insurance exclusion will rationalize the law of lending in this area, and improve prospects for a secondary market.
  • Misregulation Of Person To Person Lending

    Verstein, Andrew (2012-01-01)
    Amid a financial crisis and credit crunch, retail investors are lending a billion dollars over the Internet, on an unsecured basis, to total strangers. Technological and financial innovation allows person-to-person (“P2P”) lending to connect lenders and borrowers in inspiring ways never before imagined. However, all is not well with P2P lending. The SEC threatens the entire industry by asserting jurisdiction with a fundamental misunderstanding of P2P lending. This Article illustrates how the SEC has transformed this industry, making P2P lending less safe and more costly, threatening its very existence. The SEC’s misregulation of P2P lending provides an opportunity to theorize about regulation in a rapidly disintermediating world. The Article then proposes a preferable regulatory scheme designed to preserve and discipline P2P lending's innovative mix of social finance, micro lending, and disintermediation. This proposal consists of regulation by the new Consumer Financial Protection Bureau.
  • Index Theory: The Law, Promise, And Failure Of Financial Indices

    Verstein, Andrew (2013-01-01)
    Financial indices, like the S&P 500 or the Consumer Price Index, have become a ubiquitous feature of our financial markets. One index, the London InterBank Offered Rate ("Libor"), may be the world’s most important number, an interest rate benchmark upon which hundreds of trillions of dollars depend. Yet, almost every day new revelations emerge that Libor was tampered with during the height of the financial crisis by one or many of the world's most prominent banks, with billions of dollars potentially misappropriated. This index disruption has attracted tremendous interest from regulators, private litigants, and market observers. Despite their importance, however, financial indices are poorly understood, and almost completely unstudied. In this Article, we explain why and how people use financial indices as well as how they are created. We show human discretion and value judgment to be essential ingredients in even the most "objective" indices. We then develop a taxonomy of financial indices, illustrating how the risks indices can pose, and the solutions applicable to those risks, are intimately related to the motivation that drives the index's creation. We show that the manipulation of indices is unsurprising given the precarious state of intellectual property rights in indices. While many call for prosecuting or regulating the Libor banks, our novel solution is to strengthen property rights for those who create financial indices.
  • Pharmaceutical Public-Private Partnerships in the United States and Europe: Moving from the Bench to the Bedside

    Bagley, Constance; Tvarno, Christina (2013-07-01)
    Both to address unmet medical needs and to improve industry competitiveness, regulators in both the United States and the European Union have taken bold steps to translate academic research from the university lab to the patient. A pharmaceutical public-private partnership (PPPP), which is a legally binding contract between a private pharmaceutical enterprise and a public research university (or a private university doing research funded with public funds), can be a significant tool to ensure a more efficient payoff in the highly regulated world of pharmaceuticals. In particular, a properly framed binding contract, coupled with respect for positive social norms, can move the parties away from an inefficient prisoners’ dilemma Nash Equilibrium to the Pareto Optimal Frontier. When coupled with appropriate attention to the difficult task of coordinating the actions of interdependent actors, a PPPP arrangement can enhance the likelihood of successful commercialization by flipping the parties’ incentives as compared with more traditional contracts. Because PPPPs are less common in Europe than in the United States, a key purpose of this article is to provide an annotated roadmap that universities, private firms, and EU policy makers can use to create efficient PPPPs to enhance for-profit innovation in the pharmaceutical industry in Europe. A secondary purpose is to suggest amendments to the U.S. laws governing the patenting of government-funded technology to prevent undue burdens on the sharing of certain upstream medical discoveries and research tools. Our analysis is not only comparative; it also combines, we believe for the first time, a game theory and law and management approach to for-profit PPPPs.
  • Preparing for the Apocalypse: A Multi-Prong Proposal to Develop Countermeasures for Chemical, Biological, Radiological, and Nuclear Threats

    Bagley, Constance; Alon-Beck, Anat (2018-07-01)
    The false alarm of an Hawaiian nuclear attack in January 2018 is an example of the lack of U.S. preparedness for attacks using nuclear and other weapons of mass destruction. To address such threats, this Article proposes the establishment of a nation-wide integrated defense of health countermeasures initiative ("DHCI"), is a multi-prong program to create a defensive triad comprising government, private industry, and academia to develop countermeasures for health threats posed by chemical, biological, radiological, and nuclear ("CBRN") attacks. Key elements of our multi-faceted proposal include the use of the government’s Other Transaction Authority to simplify procurement arrangements, the establishment of public-private partnerships with an information commons for the sharing and the use of certain information and trusted intermediaries to protect proprietary information pursuant to cooperative research and development agreements ("CRADAs"), and the creation of a network of incubators sited in ecosystems of excellence. Although our proposal focuses on health countermeasures, it may be applied to other urgent national needs, such as rebuilding U.S. infrastructure.
  • Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers

    Petkova, Bilyana; Hacker, Philipp (2016-01-01)
    The growing differentiation of services based on Big Data harbors the potential for both greater societal inequality and for greater equality. Anti-discrimination law and transparency alone, however, cannot do the job of curbing Big Data’s negative externalities while fostering its positive effects. To rein in Big Data’s potential, we adapt regulatory strategies from behavioral economics, contracts and criminal law theory. Four instruments stand out: First, active choice may be mandated between data collecting-services (paid by data) and data-free services (paid by money). Our suggestion provides concrete estimates for the price range of a data-free option, sheds new light on the monetization of data-collecting services, and proposes an “inverse predatory pricing” instrument to limit excessive pricing of the data-free option. Second, we propose using the doctrine of unconscionability to prevent contracts that unreasonably favor data-collecting companies. Third, we suggest democratizing data collection by regular user surveys and data compliance officers partially elected by users. Finally, we trace back new Big Data personalization techniques to the old Hartian precept of treating like cases alike and different cases – differently. If it is true that a speeding ticket over $50 is less of a disutility for a millionaire than for a welfare recipient, the income and wealth-responsive fines powered by Big Data that we suggest offer a glimpse into the future of the mitigation of economic and legal inequality by personalized law. Throughout these different strategies, we show how salience of data collection can be coupled with attempts to prevent discrimination and exploitation of users. Finally, we discuss all four proposals in the context of different test cases: social media, student education software and credit and cell phone markets. Many more examples could and should be discussed. In the face of increasing unease about the asymmetry of power between Big Data collectors and dispersed users, about differential legal treatment, and about the unprecedented dimensions of economic inequality, this paper proposes a new regulatory framework and research agenda to put the powerful engine of Big Data to the benefit of both the individual and societies adhering to basic notions of equality and non-discrimination.
  • Democratizing the Economic Sphere: A Case for the Political Boycott

    Lee, Theresa (2012-03-01)
    The political boycott, though recently under attack through litigation aimed at compelled disclosure regimes, is a critical tool in constructing American democracy. Defining political boycotts as those refusals by consumers to buy goods or patronize business in order to effect political or social change, this Article is the first paper to place the political boycott at home in all three classic theories underlying the First Amendment: the marketplace of ideas, democracy and self-governance, and self-expression and autonomy. It also places the boycott alongside current campaign finance doctrine via Citizens United v. FEC. Just as money amassed by corporations in the economic marketplace can be used to influence the political, the boycott allows those whose main economic resource is their participation in the market as consumers to aggregate that resource, with other like-minded consumers, to influence the political marketplace. The paper also explores the doctrinal implications of these arguments for ongoing lawsuits challenging compelled disclosure regimes. As-applied challenges to such laws can be granted upon a sufficient evidentiary showing of “threats, harassment, or reprisals.” This Article argues that the boycott cannot be categorized in this way. Especially in the case of initiatives and referenda, the political boycott is a critical tool of petition and should not be considered in this as-applied harassment analysis.
  • When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search

    Smith, Priscilla; Syed, Nabiha; Wong, Albert; Thaw, David (2011-02-06)
    The use of GPS surveillance technology for prolonged automated surveillance of American citizens is proliferating, and a direct split between the Ninth and D.C. Circuits on whether warrants are required under the Fourth Amendment for such use of GPS technology is bringing the issue to a head in the Supreme Court. A Petition for Certiorari is pending in the Ninth Circuit case which held that warrants are not required, and a second Petition is likely from the Government in the D.C. Circuit case holding that warrants are required. In this paper, we argue first, that where a technology enables invasion of interests at the heart of the Fourth Amendment’s concern -- protection of citizens from arbitrary government intrusions into their private lives -- the Court’s precedents require warrants to prevent abuse, and second, that the type and scope of information collected by prolonged automated GPS surveillance enables governments to monitor a person’s political associations, their medical conditions and their amorous interests, in a way that invades their privacy and chills expression of other fundamental rights. Our argument differs significantly from previous scholarship by tracing a continuous emphasis in Fourth Amendment jurisprudence on review of the potential for abuse of surveillance methods. Moreover, we are the first to argue that in protecting against abuse the Court has drawn a firm line between technology that simply enhances the natural senses of law enforcement officials, and technology that creates novel, non-biological “senses.” In Part I of this paper, we trace the origins of the Fourth Amendment’s protections against law enforcement abuse, present evidence that GPS surveillance technology is in fact being abused, and discuss the impact unfettered abuse of the technology will have on the individual rights of citizens. In Part II, we explain the Court’s historic approach to new surveillance technologies, noting that the Court has carefully examined new technologies to prevent any end-runs around legal doctrine from eroding personal privacy, and showing that the Court has always required warrants where technology goes beyond enhancement of senses to the creation of new non-biological “senses.” In Part III, we explain why the Supreme Court’s ruling on the use of beeper technology to enhance visual surveillance in United States v. Knotts, 460 U.S. 276 (1983), does not apply to the use of GPS technology as a replacement for visual surveillance. Finally, in Part IV, we explain how prolonged automated GPS surveillance invades a reasonable expectation of privacy and chills the exercise of core constitutional rights.
  • Ambivalence and Activism: Employment Discrimination in China

    Webster, Timothy (2010-08-01)
    Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to bring legal challenges against employers who have discriminated against them in hiring. Plaintiffs’ relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists and scholars who actively support plaintiffs, suggesting a limited role for civil society in the world of Chinese law. While many problems remain with employment discrimination, China has made concrete steps toward repealing a legal edifice of discrimination stretching back decades, and reshaping both policies and attitudes to eradicate discrimination in the workplace.
  • Strict Criminal Liability Limiting the State's Power to Condemn

    Verstein, Andrew (2003-01-01)
    H. L. A. Hart argues that strict criminal liability often undermines the moral condemnation associated with punishment and therefore its capacity for deterrence. Hart explains that insofar as legal punishment expresses the "odium, if not the hostility" of a community towards those who break its laws strict liability forces us to either condemn those who are not deserving of condemnation or to negate the moral condemnation of the law in general. One choice is immoral and the other reduces the effectiveness of a significant deterrent and is therefore counterproductive. Either way, the consequences of strict liability are undesirable. In this paper, I will defend Hart's thesis against its objectors. I will also propose and defend an original reason to believe Hart's thesis. I will build my case around the crime of statutory rape, although discussion of principles and objections will involve other crimes.

    Koh Peters, Jean (2018-01-01)
  • The Law and Economics of Antidiscrimination Law

    Donohue, John (2005-07-01)
    This essay provides an overview of the central theoretical law and economics insights concerning antidiscrimination law across a variety of contexts including discrimination in labor markets, housing markets, consumer purchases, and policing. The different models of discrimination based on animus, statistical discrimination, and cartel exploitation are analyzed for both race and sex discrimination. I explore the theoretical arguments for prohibiting private discriminatory conduct and illustrate the tensions that exist between concerns for liberty and equality. I also discuss the critical point that one cannot automatically attribute observed disparities in various economic or social outcomes to discrimination, and illustrate the complexities in establishing the existence of discrimination. The major empirical findings showing the effectiveness of federal law in the first decade after passage of the 1964 Civil Rights Act are contrasted with the generally less optimistic findings from subsequent antidiscrimination interventions.
  • Mark(et)ing Nondiscrimination

    Ayres, Ian; Brown, Jennifer (2005-09-01)
  • A Third Model of Legal Compliance: Testing for Expressive Effects in a Hawk/Dove Game

    McAdams, Richard; Nadler, Janice (2003-07-01)
    Economic theories of legal compliance emphasize legal sanctions, while psychological and sociological theories stress the perceived legitimacy of law. Without disputing the importance of either mechanism, we test a third way that law affects behavior, an expressive theory that claims law influences behavior by creating a focal point around which individuals coordinate. The focal point theory makes three claims: (1) that the need for coordination is pervasive because "mixed motive" games involving coordination model common disputes; (2) that, in such games, any third-party cheap talk that calls the players' attention to a particular equilibrium tends to produce that equilibrium; and (3) that law, by publicly endorsing a particular equilibrium, tends to call the players' attention to that outcome. After explaining the first and third claim, we offer an experimental test of the second. Specifically, we investigated how various forms of third party cheap talk influence the behavior of subjects in a Hawk/Dove or Chicken game. Despite the players' conflicting interests, we found that messages highlighting one equilibrium tend to produce that outcome. This result emerged when the message was selected by an overtly random, mechanical process, and also when it was delivered by a third-party subject; the latter effect was significantly stronger than the former only when the subject speaker was selected by a merit-based process. These results suggest that, in certain circumstances, law generates compliance not only by sanctions and legitimacy, but also by facilitating coordination around a focal outcome.
  • Reexamining the Market for Judicial Clerks and other Assortative Markets

    Priest, George (2003-09-08)
    For many decades, scholars have puzzled over why the market for judicial clerks has been characterized by increasingly early bidding, with interviews and offers extended at progressively early points in a student's law school career. An important article published recently by Jolls, Avery, Judge Posner and Alvin Roth reported the results of a study the authors conducted of judges and clerks documenting the many ways in which the market operated inefficiently. In their view, the clerk market corresponds to other markets studied chiefly by Roth that show timing disturbances claimed to be market failures. The authors recommended adoption of a modified matching program, similar to the program that matches medical residents with hospitals. This paper reanalyzes the clerkship market and the other markets studied by Professor Roth from the standpoint of the costs and benefits of information acquisition. It shows that, far from market failure, the use of time as a currency in the market, represents the working out of market forces where other, more traditional terms of trade - in particular, price - are unavailable. The paper also shows that virtually all of the other markets studied by Roth that show timing peculiarities are characterized by restraints on the use of price to clear the market.

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