Now showing items 1-20 of 18371

    • A NEW STRATEGY FOR REGULATING ARBITRATION

      Sanga, Sarath (Northwestern University Law Review, 2019)
      The article argues that U.S. states should adopt a new strategy for regulating employment arbitration that deter formation of objectionable contracts. Topics discussed include a review of the last fifty years of Supreme Court arbitration jurisprudence, evidence on the pervasiveness of employment arbitration and examples of how states can deploy this strategy.
    • A Theory of Corporate Joint Ventures

      Sanga, Sarath (California Law Review, 2018)
      In a corporate joint venture, two corporations--often competitors--collaborate on a project. But how can corporations be partners and competitors at the same time? Though it sounds like a contradiction, such collaborations are commonplace. Many of the most familiar products come from corporate joint ventures, from hightechnology like solid-state drives for laptops or rocket boosters for NASA's Discovery program, to everyday items like Star Wars action figures and even Shredded Wheat cereal. Indeed, Meinhard v. Salmon, arguably the most celebrated case in all of business law, arose out of a dispute within a joint venture. Yet unlike more familiar business forms such as corporations or LLCs, neither case law nor statute provides a clear statement of what a joint venture is or even which laws apply. Given this confusion, it is not surprising that the literature has not produced a unified theory of the corporate joint venture: a coherent statement of both what it is as a matter of law and how it functions.
    • MAKING CONSUMER FINANCE WORK

      Sarin, Natasha (Columbia Law Review, 2019)
      The financial crisis exposed major fault lines in banking and financial markets more broadly. Policymakers responded with far-reaching regulation that created a new agency--the Consumer Financial Protection Bureau--and changed the structure and function of these markets. Consumer advocates cheered reforms as welfare enhancing, while the financial sector declared that consumers would be harmed by interventions. With a decade of data now available, this Article examines the successes and failures of the consumer finance reform agenda. Specifically, it marshals data from every zip code and bank in the United States to test the efficacy of three of the most significant postcrisis reforms: in the debit, credit, and overdraft markets. The results are surprising. Despite cosmetic similarities, these reforms had very different outcomes. Two (changes in the credit and overdraft markets) increase consumer welfare, while the other (in the debit market) decreases it. These findings run counter to prior work by prominent legal scholars and encourage reevaluation of our (mis)conceptions about the efficacy of regulation. The evidence leads to several insights for regulatory design. First, banks regularly levy hidden fees on consumers, obscuring the true cost of financial products. Regulators should restrict such practices. Second, consumer finance markets are regressive: Low-income customers often pay higher prices than their higher-income counterparts. Regulators should address this inequity. Finally, banks tend to discourage regulation by promising their costs will be passed through to consumers. Regulators should not be overly swayed by their dire warnings.
    • What's in Your Wallet (and What Should the Law Do About It?)

      Sarin, Natasha (University of Chicago Law Review, 2020)
      In traditional markets, firmscan charge prices that are significantly elevated relative to their costs only if there is a market failure. However, this is not true in a two-sided market (like Amazon, Uber, and Mastercard), in which firms often subsidize one side of the market and generate revenue from the other. This means consideration of one side of the market in isolation is problematic. The Court embraced this view in Ohiov American Express, requiring that anti competitive harm on one side of a two-sided market be weighed against benefits on the other side. Legal scholars denounce this decision, which, practically, will make it much more difficult to wield antitrust as a tool to rein in two-sided markets. This inability is concern in gas two-sidedmarkets are growing in importance. Furthermore, the pricing structures used by platform scan be regressive, with those least well-off subsidizing their affluent and financially sophisticated counter parts. In this Essay, I argue that consumer protection, rather than antitrust, is best suited to tame two-sided markets. Consumer protection authority allows for intervention on the grounds that platform users create unavoidable externalities for all consumers. The Consumer Financial Protection Bureau(CFPB) hasbroad power to curtail "unfair, abusive, and deceptive practices." This authority can be used to restrict practices that decrease consumer welfare, like the antisteering rules at issue in Ohio v American Express.
    • DYNAMIC REGULATION

      Sarin, Natasha (Southern California Law Review, 2021)
      There is widespread consensus that the Great Recession did not have to be as "Great" as it was; had regulators acted earlier, its consequences would have been less severe. Two explanations are typically offered for early inaction. The first is that crises occur unexpectedly, so there is little time to respond aggressively. The second is that even regulators who suspected a downturn was imminent lacked the legal authority to intervene. This Article disputes these myths. First, empirical evidence demonstrates that more than a year elapsed between the first tremors in financial markets and the crash. Second, legal analysis illustrates that regulators had at their disposal significant authority to bolster banks. In fact, they used this authority with respect to small banks but not with large, systemically important firms. There is an alternative explanation for the tepid initial response to the crisis. Regulators' default rule is inaction until regulatory measures of bank health signal distress. These measures are slow to update--in many cases, the day before banks failed, their regulatory capital measures suggested no cause for concern. In the absence of significant change, regulators will inevitably be firefighting future financial crises ex post rather than successfully policing financial markets ex ante. The reticence to forestall capital disbursements as the COVID-19 crisis has raged is a testament to difficulties faced by regulators today, in which the default rule as a crisis begins is inaction rather than action. The next crisis can be prevented, but to do so will require changing the default rule. This Article proposes a way forward, advocating for automating aggressive action when financial markets indicate distress is likely. Such reform will finally make costly bank failures a relic of the past.
    • Corporate Crime and Punishment: An Empirical Study

      Sarin, Natasha; Lund, Dorothy S. (Texas Law Review, 2021)
      For many years, law and economics scholars, as well as politicians and regulators, have debated whether corporate punishment chills beneficial corporate activity or, in the alternative, lets corporate criminals off too easily. A crucial and yet understudied aspect of this debate is empirical evidence. Unlike most other types of crime, the government does not measure corporate crime rates; therefore, the government and researchers alike cannot easily determine whether disputed policies are effectively deterring future incidents of corporate misconduct. In this Article, we take important first steps in addressing these questions. Specifically, we use three novel sources as proxies for corporate crime: the Financial Crimes Enforcement Network (FinCEN) Suspicious Activity Reports (SARs), consumer complaints made to the Consumer Financial Protection Bureau (CFPB), and whistleblower complaints made to the Securities and Exchange Commission (SEC). Each source reveals an increase in complaints or reports indicative of corporate misconduct over the past decade. We also examine levels of public company recidivism and find that they are likewise on the rise. And we document a potential explanation: recidivist companies are much larger than nonrecidivist companies, but they receive smaller fines than non-recidivist companies (measured as a percentage of market capitalization and revenue). We conclude by offering recommendations for enforcement agencies and policymakers. In particular, our results suggest that enforcers are unlikely to achieve optimal deterrence using fines alone. Enforcement agencies should therefore consider other ways of securing deterrence, such as by seeking penalties against guilty individuals and the top executives who facilitate their crimes.
    • Italian Statuti: Views from a North American Curator

      Widener, Michael
      This paper was presented at the conference organized by the De Statutis Society, "La libertà di decidere: da Cento a Cento, 1993-2024; Trent'anni di studi sugli statuti," June 1, 2024, in Cento, Italy. It describes the origins and development of the Yale Law Library's Italian Statute Collection, the largest collection outside of Italy. It discusses the need for an English-language guide to the genre, and offers suggestions on the value of Italian city statutes for the history of legal literature and for the growing field of book history.
    • Examining Backlash and Attacks on Landmark Decisions form Brown to Roe to Goodridge

      Siegel, Reva (Advance: The Journal of the ACS Issue Groups, 2007)
      Panel Discussion at 2007 ACS National Convention Featuring Edward Lazarus, Scott Lemieux, Robert Post, Jeffrey Rosen, Reva Siegel and Roger Wilkins"
    • Abortion and the "Woman Question": Forty Years of Debate

      Siegel, Reva (Indiana Law Journal, 2014)
      Information about the topics discussed at a lecture delivered by Addison C. Harris at the Indiana University Maurer School of Law on September 27, 2012 is presented. Topics include a debate on women's suffrage, abortion and contraception laws, and the U.S. Supreme Court case Roe v. Wade. Also mentioned are feminist arguments for abortion rights, the emergence of woman-protective anti-abortion argument, and constitutional law and politics related to the issue.
    • The Politics of Constitutional Memory

      Siegel, Reva (THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY, 2022)
      Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw-but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women's quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law. This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law. But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.
    • Race and Guns, Courts and Democracy

      Siegel, Reva (Harvard Law Review, 2022)
      The article discusses the Racism in gun regulation raises concerns about the U.S. Supreme Court's expansion of Second Amendment rights, and it highlights the lack of equal protection oversight in the criminal justice system. It suggests that Democratic agents can ensure equal protection by coordinating racial justice goals, pursuing gun violence-free law enforcement, and reforming public safety practices.
    • Abortion-Eugenics Discourse in Dobbs: A Social Movement History

      Siegel, Reva (Journal of American Constitutional History, 2024)
      References to eugenics in recent abortion opinions—including Dobbs v. Jackson Women’s Health Organization—have only begun to attract scholarly attention as a distinctive form of constitutional discourse. In the early twentieth century, the term “eugenic” appeared frequently in legal, scientific, and other books, as a policy objective or subject of scientific study concerned with “improving” the quality of the nation’s “racial stock.” After peaking in the 1910s, use of the term steadily declined in the World War II era as Western democracies came to repudiate the politics of Jim Crow and the Holocaust. Usage spiked again at the turn of the century, a period when historians began critically to examine the eugenics movement in Europe and the United States. As condemnation of eugenics has grown, the term “eugenic” has become a term of opprobrium—a way to shame or discredit.
    • Fostering the Intellectual Virtue of Civility in Online Contexts

      Mower, Deborah S. (Yale Journal of Law & the Humanities, 2023)
      Civility provides norms for engaging in discourse on topics that yield harm or benefit to others, affect the conditions of our lives, and drive public policy—in short, on topics that matter, morally and politically. While discourse on moral and political matters is already difficult in face-to-face and interpersonal conversations, online interactions through social media pose unique challenges for interactions and exchanges. Using research from philosophy, psychology, behavioral economics, and computer science, I explain how the intellectual virtue of civility can be fostered within individuals as a developed trait of internalized norms to guide how one engages with others when evaluating beliefs and contentious issues. Like the development of any virtue, the development of civility takes time, practice, and effort, but it can be fostered even in online contexts through the careful contextualization of experience and practiced behaviors. Altering tech design through the use of goal setting, nudges, gamification, and in-group priming allows for repeatable behaviors to be practiced and modified. Shifting from a focus on policies for content moderation to a focus on users’ choices within online interactions—and deeper consideration for how designs affect users’ options, choices, and agency—allows us to capitalize on insights from moral psychology and education to see new ways forward in combatting incivility in online contexts.
    • In the American Tempest: Democracy, Conspiracy, and Machine

      Biagetti, Samuel (Yale Journal of Law & the Humanities, 2023)
      No one can be certain precisely what “democracy” is, but everyone seems to agree that it is in danger. Since the beginning of the pandemic, warnings of “toxicity,” “vitriol,” and other ill humors infecting the body politic have invaded mass media and political discourse, while the foundations of our civic order—“truth,” “facts,” and “civility”—have been seen to erode to the point of collapse. Although the exact cause of the present rupture in the social and epistemic fabric is hard to pinpoint, many observers seem to agree that the internet is to blame. Online algorithms are found to spread “misinformation” and “disinformation,” while anointed experts attribute unexpected outcomes of public events, from election results to the verdicts in defamation suits, to online campaigns by malicious “bots.” A New York Times opinion piece from June 2021 warned readers against examining or analyzing claims found online, since the impulse towards curiosity “allows grifters, conspiracy theorists, trolls and savvy attention hijackers to take advantage of us.” The atmosphere of confusion and distrust not only pervades public discourse in the English-speaking world, but increasingly spills beyond it; the phrase “fake news” has entered, untranslated, into political discourse in France, where a law criminalizing false statements online fuels an acrimonious debate.
    • The Case for Designing Tech for Social Cohesion: The Limits of Content Moderation and Tech Regulation

      Schirch, Lisa (Yale Journal of Law & the Humanities, 2023)
      Based on nearly 60 interviews with staff at tech companies, critics of big tech, civil society groups impacted by tech-amplified social media, and new tech startups, research revealed three distinct but complementary narratives or approaches to thinking about polarization and social cohesion in digital spaces. The “User-Centered” Narrative describes harmful content online as generated by users, with social media products and search engines acting as a mirror of society. Several interviewees described the defeating feeling of playing “whack a mole” against the growing tide of individual and state-sponsored industrialized harmful digital content. This narrative points to the need for content moderation on user-generated content and digital media literacy to help the public navigate information and communication on the internet. The “Tech Design Regulation” Narrative describes harmful content as amplified by tech product designs including the affordances and algorithms that are optimized for user engagement, advertising, and shareholder profit. Many social media companies optimize their product designs for user engagement to maximize their ad-based profits. Machine learning algorithms promote emotionally alarming and divisive content which tends to garner more attention, just as cars slow down driving past a car accident and as news outlets use the “if it bleeds, it leads” principle to prioritize alarming news. From this point of view, some tech products incentivize harmful content that drives toxic polarization. This narrative presses for government regulation to extend beyond privacy to regulating tech profit models, algorithms, affordances, and designs that amplify toxic content. The “Social Cohesion by Design” Narrative describes tech products that amplify and scale social cohesion by designing affordances and algorithms optimized for these purposes. These digital products can support human agency to participate in civic action, bridge divided communities, and build trust between the public and institutions. The first half of this article provides explores the complex relationship between toxic polarization and digital spaces and analyzes these three frames or paradigms for understanding the role of digital spaces in toxic polarization. The second half of the paper focuses on examples and case studies of “social cohesion by design” also known as "peacetech."
    • Parents in Fact

      Nejaime, Douglas (University of Chicago Law Review, 2024)
      The Restatement of Children and the Law, protects a child's relationship with a "de facto parent"--a person who has "established a bonded and dependent relationship with the child that is parental in nature." De facto parent doctrines are part of a broader category of functional parent doctrines that extend parental rights to an individual who has developed a parent-child relationship and acted as a parent to the child. Application of the de facto parent doctrine depends on a conclusion that the person formed a parental relationship, and yet debate remains over whether the person is a parent or merely a third-party nonparent. This Essay examines the Restatement's full-throated embrace of a de facto parent doctrine--an immensely important development--in the context of family law's evolving treatment of functional parents. In the past, family law generally cast functional parents as nonparents. For example, a 1995 state court decision, on which the Restatement relies, treated a de facto parent as a third party entitled merely to visitation with the child she had raised. More recently, family law has grown to see functional parents as parents. Common law doctrines have regarded de facto parents as entitled to the rights and responsibilities of parenthood, and a growing number of states have adopted statutory provisions that treat functional parents as legal parents. The Restatement's approach to de facto parents reflects these developments. Even as the Restatement begins by locating de facto parents in a framework designed around conflicts between legal parents and third parties, it distinguishes de facto parents in ways that render them, both conceptually and legally, like parents. Indeed, the Restatement pushes well beyond the American Law Institute's earlier endorsement of a de facto parent doctrine--the 2002 Principles of the Law of Family Dissolution, which recognized de facto parents but consigned them to an inferior legal status. After situating the Restatement's approach to de facto parents within broader family law developments, this Essay explores how the evolving status of functional parents--from nonparent to parent--matters to constitutional understandings of the parent-child relationship. To account for the fundamental right of parents to direct their children's upbringing, including by excluding third parties, the Restatement requires a de facto parent to show that "a parent consented to and fostered the formation of the parent-child relationship between the individual and the child." This consent-based approach to de facto parenthood proceeds from an assumption that a functional parent is a third party who, based not only on their conduct but also on the conduct of an existing legal parent, can transcend that third-party status. Yet, seeing de facto parents as parents prompts skepticism of this constitutionally grounded consent requirement. Such skepticism is reflected in law, as courts have resisted a restrictive application of the requirement, and newly enacted statutory doctrines have explicitly softened the requirement. Further, the fact that other functional parent doctrines, including those that yield legal parentage, do not expressly require parental consent suggests that consent is not a constitutional requirement. More broadly, the focus on consent obscures the constitutional interests of the functional parent, who, like other parents, may have a constitutional claim to parental recognition.
    • Local Legislatures and Delegation

      Schleicher, David (Texas Law Review, 2024)
      The law governing local legislatures' delegations to local executives is a mess. Nondelegation doctrine, as applied to the state legislatures' delegations, has at least a coherent (if empirically dubious) formal logic in classic ideas about separation of powers. When applied to local governments, however, the logic underlying this doctrine disintegrates. In the context of state legislatures' delegations, the doctrine rests on the notion that the state constitution intended the state legislature, as the most democratically accountable representative of the state people, to take direct and inalienable responsibility for major policy decisions, leaving only the "details" of "implementation" to be decided by executive officials. This reasoning is incoherent in the local government context. Many of local governments' most important legislative powers are derived from statutory delegations enacted by the state legislature, refuting any prohibition on that body's delegating "legislative powers. " Further, that delegated power is carried out by unicameral local legislatures exercising a mix of both legislative and executive powers in defiance of state constitutional rules requiring bicameral legislatures to turn over implementation to executive officials. Ignoring these realities, state courts routinely enforce some version of the nondelegation doctrine against local governments without differentiating between local and state delegations, sometimes even senselessly relying on separation-of-powers logic that makes little sense at the local level. This Article attempts to bring some coherence to the law governing local delegations by recognizing that limits on local delegation have nothing to do with state constitutional separation of powers. Instead, those limits rest on statutory presumptions that ought to be crafted in light of the peculiarities of local legislatures. Unlike some state legislatures or Congress, local governments regularly lack the partisan competition necessary to support jurisdiction-wide policy platforms. Local legislators, therefore, tend to adopt parochial policies that ignore jurisdiction-wide costs and benefits, including mutual deference to each legislator's exclusion of locally costly infrastructure or land uses from their district and excessive deference to incumbent entitlement holders like vendors, contractors, public employees, and neighborhood associations. This Article argues that state courts should recognize that, in contrast to local legislators, mayors, county executives, and city managers have broader name recognition and greater capacity to mobilize the voting public on behalf of jurisdiction-wide considerations. Nondelegation canons that impede local legislative bodies from delegating broad policy-making power to such unitary executives, therefore, undermine rather than strengthen democratic accountability. Rather than try to clone state-level nondelegation doctrine at the local level, judge-made local government doctrines ought to strengthen the hand of these jurisdiction-wide executives, not undermine them with gratuitous impediments like local nondelegation doctrines.