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Hidden Agendas in Shareholder Voting
Get PDFNothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will be voting on. All investors who engage in share lending are affected, but the problem is particularly acute for large investment managers that have fiduciary duties related to voting. At present, they must discharge these duties in the dark.
We propose a straightforward solution: an amendment to the Securities and Exchange Commission’s proxy rules requiring public companies to file proxy statements at least five days before the record date for the meeting. This simple change would give investors the information they need to make an informed decision about whether to retain the right to vote or not. If we believe that shareholder voting is important, and that investment managers and others should decide whether to vote, we should give them the information they need to do so
The Right to Exclude: People, Animals, and Pollution
Get PDFThe Supreme Court has deemed the right to exclude one of the most fundamental property rights. Accordingly, the Court has offered the right to exclude heightened protection under the Takings Clause. However, the Court has left significant uncertainty about the scope of the right to exclude that is protected under takings doctrine. For instance, does the Takings Clause require compensation if the government, pursuant to the Comprehensive Environmental Response and Liability Act (CERCLA), requires a landowner to house another party’s pollutants?
This Comment draws from property theory and analytical jurisprudence to offer a new approach to takings analyses concerning the right to exclude. First, it argues that the right to exclude is strictly a Hohfeldian claim-right, or a legal position created by imposing a duty not to invade on someone else. An important implication of this definition for takings challenges to environmental regulation is that the property right to exclude is strictly a right against persons but not against animals or pollution. Second, this Comment addresses what it means for the right to exclude to be enforceable. It argues that government action that renders the right to exclude unenforceable should count as a taking. However, the right to exclude can be enforceable through a variety of means, so the right could remain enforceable absent a particular means of enforcement. Applying this framework to CERCLA, this Comment concludes that CERCLA does not abrogate landowners’ right to exclude
Foreword (The Economic Structure of Corporate Law at Thirty: A Retrospective on the Work of Easterbrook & Fischel)
Get PDFThe Future of Embedded International Law: Democratic and Authoritarian Trajectories
Get PDFThis short Essay explains why deeply embedding international law (IL) directly into domestic legal orders is seen as a helpful democratic legal strategy to make international law more effective. It also describes the logistics of embedding international law into national legal systems. The goal is to then query whether and how authoritarian regimes dis-embed or work around this embedded IL. The analysis raises a fundamental question about how time is important for any conversation about embedded or entrenched international or authoritarian law. The embedded IL strategy is a long-game strategy, and as such it can ultimately outlive periods of authoritarian rule. Yet the longer authoritarian leaders are in office, the more time they have to displace the deep threads of embedded IL. The Essay also considers how authoritarian governments mimic and repurpose the embedded IL strategy, sometimes using this strategy to lock in policies that reflect their particularistic understandings of IL
A Mimicry of International Law Compliance: How the Abusive Interpretation of International Norms Serves Poland’s Illiberal Regime
Get PDFIn recent years, the instrumental use of international norms to entrench abusive rule has been a strategy increasingly utilized by democratically regressing European states. This pattern is evident in Poland in particular, where captured democratic institutions have attempted to legitimize unconstitutional reforms of the justice system by asserting their consistency with international law. To provide an insight into this illiberal strategy, this Essay uses the concept of mimicry as a framework to study recent judgments by the Polish Constitutional Tribunal. This Essay argues that the Polish Constitutional Tribunal feigns legal compliance by abusively interpreting well-established concepts of international law. The Essay concludes by outlining the role that international law machinery can play in combating mimicry on the national level. Examining recent decisions of the European Court of Justice that have pushed back against the Polish decline, it explores what solutions may be feasible within the European Union framework, maintaining European institutions’ capacity to root out abuses of international law
Democratization’s Discontents: Rediscovering the Virtues of the Non-Intervention Norm
Get PDFPost-Cold War triumphalism prompted efforts to transform international law into a tool of democratization, forsaking the international legal order’s former neutrality with respect to the foundations of political legitimacy within states. Yet after three decades, the sources of political legitimacy remain “incorrigibly plural,” and efforts to ascertain “the will of the people” remain beset by indeterminacy. It is time to rediscover international law’s role as a framework of accommodation among bearers of conflicting interests and values, with consequent limits on pro-democratic intervention in the internal affairs of states
Privacy and Information Avoidance: An Experiment on Data-Sharing Preferences
No full textThere is a widespread intuition that people are inconsistent about protecting their privacy. This paper presents an experiment that demonstrates that people engage in information avoidance when making privacy decisions. People who are willing to pay nearly an hour’s worth of wages for privacy are also willing to give away their data for small monetary bonuses if given a chance to avoid seeing the consequences to privacy. Placebo tests confirm that the same behavior does not occur when people make choices between two monetary bonuses. The paper also presents evidence on how this pattern changed during the Cambridge Analytica scandal
Pretrial Detention by a Preponderance: The Constitutional and Interpretive Shortcomings of the Flight-Risk Standard
Get PDFPretrial detention seriously restricts the physical liberty of presumptively innocent people who have yet to be tried and convicted. The Bail Reform Act (BRA) imposes several procedural requirements that must be satisfied before a judge can order the pretrial detention of a federal defendant. At a detention hearing, the BRA allows a judge to order the pretrial detention of an arrestee who poses either a danger to the community or a flight risk. The BRA states unequivocally that a finding of dangerousness must be supported by clear and convincing evidence, but the statute is silent as to the evidentiary standard for establishing a defendant’s flight risk. In the absence of statutory guidance, the courts of appeals have utilized a “preponderance of the evidence” standard.
This Comment contends that the preponderance standard for flight risk is unconstitutional and interpretively incorrect. In cases involving similar government restrictions on physical liberty, the Supreme Court has generally required at least a “clear and convincing evidence” standard to comport with due process. Using these cases as a baseline, this Comment applies the Mathews v. Eldridge due process framework to reveal the constitutional infirmity of the preponderance standard for pretrial flight risk.
In making the interpretive argument for a clear and convincing evidence standard, this Comment dissects the BRA’s legislative history and statutory evolution to show that Congress intended for flight risk and dangerousness to be considered under equivalent standards. This Comment concludes by making a constitutional avoidance argument: there exists (1) a serious question as to the constitutional validity of the preponderance standard for flight risk and (2) a plausible interpretation of the BRA—that flight risk ought to be proven by clear and convincing evidence—that avoids those constitutional concerns
Stark Choices for Corporate Reform
Get PDFFor decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes and pursuing new external regulations is playing an increasingly important role in the corporate law literature, but it has not been subjected to meaningful analysis.
This Article seeks to fill that gap. After isolating the stark choice hypothesis, the Article unpacks and challenges the assumptions that drive it. There is no clear constraint that forces a choice between internal and external reforms, and there are good reasons to believe that an internal strategy is more likely to generate valuable change. Internal reforms can also lay the groundwork for external reforms, as corporations cease to resist or even actively support new regulations. Analyzing these dynamics can yield new insights into efforts to improve corporate outcomes on issues like racial justice and climate change
Inequality in the Provision of Police Services: Evidence from Residential Burglary Investigations
No full textWhen crime victims call the police for help, what type of response do they receive? While scholars have extensively documented racial inequalities in the police’s punitive functions, this paper considers the police as service providers. It leverages uniquely granular data on over 2,500 residential burglary investigations in Tucson, Arizona, to consider the predictors of investigative thoroughness. Contrary to conventional wisdom about police behavior, the demographics of victims or officers do not consistently predict investigative thoroughness. Instead, the most important predictor of investigative thoroughness is whether the burglary involved a forced entry into the residence, since forced-entry cases feature more evidence and thus provide greater likelihood of case clearance. However, the probability of forced entry differs significantly by neighborhood, which means that the seemingly neutral decision to maximize clearance rates has unequal consequences