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Credibility in Empirical Legal Analysis
Get PDFEmpirical analysis is central in both legal scholarship and litigation, but it is not credible. Researchers can manipulate data to arrive at any conclusion they wish to obtain. A practice known as data fishing—searching for and selectively reporting methods and results that are favorable to the researcher—entirely invalidates a study’s results by giving rise to false positives and false impressions. Nevertheless, it is prevalent in law, leading to false claims, incorrect verdicts, and destructive policy. In this article, I examine the harm that data fishing in empirical legal research causes. I then build on methods in the sciences to develop a framework for eliminating data fishing and restoring confidence in empirical analysis in legal scholarship and litigation. This framework—which I call DASS (an acronym for Design, Analyze, Scrutinize, and Substantiate)—is designed to be simple, flexible, and practical for application in legal settings. It provides a concrete method for researchers to use to safeguard against data fishing and for consumers of empirical analysis to use to evaluate a researcher’s empirical claims. Finally, after describing the DASS framework and its application in various legal settings, I consider its implications for the “hired-gun” problem and other difficulties related to the reliability of expert evidence
The Promised Land: Blockchain and the Fashion Industry
Get PDFDespite being a highly creative industry, the fashion industry lacks effective intellectual property (IP) protection in the United States. This article posits that, in the midst of the digital era, blockchain technology, particularly smart contracts, can remedy the failure of IP laws to protect fashion designs and create efficiencies that may dramatically improve the industry. Therefore, if the fashion industry were to adopt a blockchain-based platform, enabled by smart contracts, it could address many of the current challenges stemming from a lack of sufficient IP protection. This article explores the features of blockchain technology, including NFTS, and the application to the fashion industry. It explains how blockchain technology can be used to create a crypto-legal structure of endogenous quasi-legal protections administered through a decentralized system of self-executing smart contracts, which together can fill the gaps in the existing IP regime. This article further addresses how adopting such technology would improve creators’ control over their designs, the distribution chains, fee collection, and the fight against infringement, while effectively creating a more efficient and transparent industry. These conclusions are based on and justified by the theory of law and economics. Finally, the article urges the first ones to adopt this technology, or those in desire of a competitive advantage, to adopt blockchain technology, and discusses the hurdles that will arise in implementing such a system. It concludes with an assessment of how blockchain-based smart contracts will affect various players in the industry
The Internet is for Porn…Or Is It? Fair Access to Financial Services and The Need for OnlyPorn Legislation
Get PDFHistorically, the pornography industry has been the target of countless attempts to delegitimize sex work, but it still endures as a legal industry. Nevertheless, financial service providers such as banks and third-party payment processors have circumvented providing the industry fair access to their services, under vague pretexts such as reputational risk. While porn is not the only marginalized industry affected by unfair treatment from financial service providers, it is among the most targeted. This note gives context to this issue and provides that access to the global marketplace should not be limited by financial institutions functioning as de facto legislators, responsible for determining who is and is not worthy of participation. Rather, Congress should act to legislate fair access to financial services for the pornography and sex work industry
Without a Voice, Without a Forum: Finding IIRIRA Section 1252(g) Unconstitutional
Get PDFThe Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues that the current circuit split exists because of a misapplication of Supreme Court precedent and demonstrates that both principles of federalism and due process concerns strain the validity of section 1252(g). In doing so, this note provides historical context of the statute’s enactment as well as its initial interpretation by the Supreme Court, and this note then turns to the circuit split itself. Further, this note ultimately focuses on why section 1252(g) in its current state must fail constitutional challenges based on due process and separation of powers concerns and describes the best methods for current plaintiffs seeking to recover damages from the United States after having been unlawfully uprooted and deported from the country
THE COMMODIFICATION OF PERSONAL DATA AND THE ROAD TO CONSUMER AUTONOMY THROUGH THE CCPA
Get PDFThe internet has transformed into a museum of personal information collected through the digital footprint we leave behind after each act performed on the web. Businesses have monetized this collection of personal data in various ways. For instance, many companies analyze this information through predicting analytics and data profiling to identify consumer interests that they can exploit as a means to generate revenue. Though user data promotes many benefits for businesses and consumers alike, the recent data breaches of massive companies, coupled with hazy privacy disclosures that beget consent disputes, have left both users and businesses perturbed and exposed to various risks. The California Consumer Privacy Act (CCPA) attempts to regulate businesses’ use of Californian consumer data and purports to be a promising solution to concerns regarding data privacy. However, its poor drafting and unintelligible requirements pose serious challenges such that the Act ultimately fails to provide consumers with primary control over their personal information that’s collected online. This Note examines the “anti-discrimination” provision enumerated in section 1798.125 of the CCPA and addresses the ineffectual restraints placed on businesses that transact in personal data. To encourage transparency and enable informed consumer decision-making, this Note recommends that California should: 1) void the reasonable-relationship exception in section 1798.125(a)(2) since it undermines the provision, and the valuation of personal data across different industries is inconsistent and unmanageable; and 2) supplement the “financial incentives exception” in section 1798.125(b)(1) with additional restrictions on permissible practices that prioritize disclosure and foster consumer autonomy
The Anti-Free Speech Movement
Get PDFWhat does it mean for the Supreme Court, under Chief Justice John Roberts, to be “good” when it comes to the First Amendment? First Amendment lawyer Robert Corn-Revere tackles this question, by looking at the history of censorship in the United States. Through a historical lens, Mr. Corn-Revere examines the arguments for regulating “bad” speech in order to promote “good” speech, and analogizes this approach to the work of early American censors like Anthony Comstock. This article examines how the history of censorship has shaped First Amendment law, and ultimately through his analysis, Mr. Corn-Revere identifies several examples of what constitutes censorship through an intriguing line of hypotheticals entitled “You Might Be a Censor If . . . .
Mutual Fund Stewardship and the Empty Voting Problem
Get PDFWhen Roberta Karmel wrote the articles that are the subject of this symposium, she was skeptical of the potential value of shareholder voting and the emerging involvement of institutional investors in corporate governance. In the ensuring years, both the increased role and engagement of institutional investors and the heightened importance of shareholder voting offer new reasons to take Professor Karmel’s concerns seriously. Institutional investors have taken on a broader range of issues from diversity and political spending to climate change and human capital management, and their ability to influence corporate policy on these issues has become more significant. The broadened scope of institutional influence raises new questions about the legitimacy of institutional investor engagement. Specifically, mutual funds and other institutional investors are not principals but agents. The exercise of institutional voting power is by fund managers or governance teams, people who have “little or no economic interest in the shares that they vote.” This “empty voting” has the potential to undermine the legitimacy of the shareholder franchise. It is of particular concern when the assets committed to a broad-based index fund are voted to support initiatives that have the potential to sacrifice economic value in favor of social or societal objectives that the shareholders invested in that fund may not support. Because of the risk that empty voting will not reflect the preferences of the true economic owners, this Article argues for change. The Article identifies potential market-based solutions to increase the alignment between institutional engagement and the preferences of fund investors including greater and more transparent fund segmentation, pass-through voting, or an explicit mechanism for fund investors to communicate their preferences to asset managers. At the same time, because asset managers have private incentives to retain their current power, the Article also considers potential regulatory reforms
Looking Forward: Professor Roberta Karmel’s Prescient Views on the Transformation of Self-Regulatory Organizations and of the Securities Market Structure at the Turn of the Last Century
Get PDFThis essay examines Professor Roberta Karmel’s scholarship on the transformation of self-regulatory organizations (SROs) and the securities market structure, a transformation that occurred at the turn of the last century. It explains how she examined the events from the perspective of a lawyer who had a rich knowledge of the history of the SROs, the securities markets, and their regulation and how she provided a practical understanding of the way these markets worked. It points out that, rather than offering an overarching theory that would explain all of these developments and that would guide regulators and legislators in SRO and securities market structure reforms, she pointed out problems and contradictions in the developments that, in her view, would have to be faced and addressed by both Congress and the SEC. The essay first sets out briefly the background to and a timeline for the SRO and securities market transformation and describes how that transformation closely intersects with Roberta’s career as a legal practitioner, a regulator, and a legal academic. It then looks at her scholarly discussion on how the self-regulatory functions of the stock exchanges became the Financial Industry Regulatory Authority (FINRA), where she raised the important question whether self-regulation by broker-dealers continued to exist post-FINRA. The essay explores a possible answer to this question, which Roberta has acknowledged, in a new form of self-regulation—the collaboration between FINRA and those officers in broker-dealers who are responsible for ensuring that they and their employees follow law and regulation, the compliance officers. It next looks at Roberta’s insights on the related subject of the transformation of the stock exchanges and its overall effects upon securities market structure, explaining how she identified for the legal academic audience the forces, including the regulatory ones, that were pushing the exchanges to become public companies and the market fragmentation that resulted from the proliferation of trading venues. It then explains that Roberta took a “wait and see” approach to problems in securities market structure, recommending that securities markets be allowed to develop with their new forms and technology before Congress and the SEC apply to them a major new regulatory framework and that the SEC regulate with a light hand, correcting market problems where necessary, while the outline of a new market structure emerged. The essay concludes by briefly looking at the current securities market from Roberta’s perspective
Full of Questions and Wonder: Roberta Karmel\u27s Legacy
Get PDFRoberta Karmel has been perhaps the keenest observer and commentator on the securities industry and its regulation for the past five decades. Her observations about securities regulation—during the SEC’s precocious adolescence and into its young adulthood—have framed the academic inquiry of all of us who have written on the subject during this period. But more valuable to us than her observations have been her questions, full of wonder and penetrating insight. We securities academics, the enterprise of securities regulation, and especially market capitalism, all owe an enormous debt of gratitude to Professor Karmel