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“A Vigorous Campaign Against Abortion”: Views of American Leaders of Eugenics v. Supreme Court Distortions
No full textThe Supreme Court decided Box v. Planned Parenthood of Indiana and Kentucky in 2019. Justice Clarence Thomas\u27s opinion in the case claimed there was a direct connection between the legalization of abortion, in the late 20th Century, and the beginnings of the birth control movement a full three quarters of a century earlier. “Many eugenicists,” Thomas argued, “supported legalizing abortion.”
Justice Samuel Alito highlighted similar claims in Dobbs v. Jackson Women\u27s Health, citing a brief entitled “The Eugenic Era Lives on through the Abortion Movement.” That brief was an echo of Justice Thomas\u27 misguided attempt at history in the Box opinion. Similar claims reoccur in Judge Matthew Kacsmaryk\u27s opinion in the Texas mifepristone case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration.
These false claims are the focus of this article. There is no evidence that early leaders of the eugenics movement supported abortion as part of the movement for birth control. It is accurate to describe those leaders as anti-abortion, and their followers as people who condemned abortion for moral, legal, and medical reasons
Promise & Peril of Plain English: Mutual Fund Disclosure Readability
No full textThe SEC requires mutual funds to write disclosures for the average investor using plain English. These requirements make funds\u27 investment strategies and associated risks transparent and accessible to investors. Improved investor understanding furthers the SEC\u27s regulation-through-disclosure regime. But our examination of funds\u27 summary prospectuses--an abbreviated discussion of a fund\u27s strategies and risks--suggests that funds often fail to meet the plain English standard. Our analysis of all summary prospectuses filed between 2010 and 2020 reveals that mutual funds write long, hard-to-read, and complex disclosures. Importantly, we find that failure to draft disclosures in plain English is more than a technical error. Using a regression model, we find that positive past returns predict easier-to-read disclosures, but an increase in fund risk predicts harder-to-read disclosures. Further, we find that compliance with other metrics of plain English, like short sentences and active voice, predicts easier-to-read disclosures. In other words, compliance in one dimension of plain English writing suggests compliance in other aspects as well.
Our results suggest several recommendations. The SEC should update their plain English guidance and adopt text mining measures to better monitor and enforce disclosure standards. Finally, given the incentives to draft overinclusive and exhaustive disclosures, the SEC should issue guidance on liability for summary prospectus risk omissions if full disclosure is made elsewhere
Evidence: Teaching Materials for an Age of Science and Statutes
No full textThis coursebook employs a state-of-the-art approach to the problem method of teaching Evidence. The beginning of the text sets out two case files, one civil and one criminal. All of the problems in the text are based on those files. The student does not waste time learning a new fact situation to analyze every problem, and the use of the case files throughout the course simulates the real world experience of gaining increasingly sophisticated insights into a fact pattern as the student works with the files for months.
One emphasis of the text is statutory construction, since this is the Age of Statutes. Chapter Two includes an excerpt from an article by two leading legisprudence scholars, Professors Eskridge and Frickey, and introduces the ongoing debate over the proper approach to the construction of the Federal Rules of Evidence. In the following chapters, the coursebook repeatedly calls on the student to carefully parse text, consider context, and assess the weight of extrinsic legislative materials. As a takeaway from the course, the student should have an enhanced understanding of the importance of statutory construction and increased interpretive skill.
A second emphasis is the use of empirical data to assess expert methodologies and the underlying psychological assumptions of evidentiary doctrines. One estimate is that today, in an average trial in a court of general jurisdiction, four experts take the witness stand. Chapter One includes an excerpt from the classic text, Inside the Jury, discussing the analysis of empirical data. Chapter Twelve includes a list of considerations that courts should weigh in evaluating a data set. As another takeaway from the course, the student should have a greater comfort level working with empirical data under Daubert and, more broadly, in using data to critique evidentiary doctrines
The Securities Law Disclosure Conundrum for Publicly Traded Litigation Finance Companies
No full textThe Article examines a peculiar legal dilemma—implicating securities law, legal ethics, and evidence law—that arises when litigation finance companies (LFCs) become public companies. LFCs provide funding to litigants and law firms for prosecuting lawsuits in exchange for a share of the lawsuit recoveries. In recent years, LFCs have significantly altered the landscape of the civil justice system in common law jurisdictions. But their assets, which are just rights to proceeds from lawsuits, are notoriously opaque— who really can predict what a jury will do when it comes to liability and damages? When LFCs go public, this opacity frustrates public investors’ legitimate expectations to be able to understand the company’s accounts and operations. The problem is exacerbated by the applicable accounting rules, which outsource the task of valuing the assets to the LFCs themselves, vesting them with significant discretion to build their own financial statements. The resulting lack of clarity about basic valuation matters undermines the two main objectives of securities law: investor protection and market integrity.
From a securities law perspective, the normal solution to an opacity problem is more and better disclosure. However, concerns over the possible waiver of evidentiary protections flowing from the attorney-client privilege and the work-product doctrine complicate matters for LFCs. To avoid the possibility of waiver of privileged, confidential information (which would, in most cases, undermine the cases underlying their assets), LFCs are circumspect when it comes to disclosing any details of the valuation models for their assets, much less relevant details about specific cases. The shadow of privilege waiver thus chills the entirety of LFC disclosure practice, foreclosing it as an effective corrective to the intrinsic opacity of LFC accounts.
After detailing the sources and extent of this opacity problem, the Article explores two case studies. The first, involving the 2015 failure of Juridica Investments, illustrates how opaque LFC accounts can undermine the investor protection objective of securities law. The second, involving the 2019 “short attack” by hedge fund Muddy Waters on litigation funder Burford Capital, shows how the opacity problem can also undermine the market integrity objective. The Article concludes by laying out a framework for reform
The Contours of Gun Industry Immunity: Separation of Powers, Federalism, and the Second Amendment
No full textIn 2005, Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA), granting the firearms industry sweeping immunity from civil lawsuits. However, PLCAA immunity is not absolute. This Article demonstrates that both state and federal courts have fundamentally misread PLCAA when adjudicating cases involving the scope of gun industry immunity. Properly understood, PLCAA permits lawsuits against the gun industry so long as they are based on statutory causes of action rather than common law. While broadly preempting state common law claims, PLCAA affords state legislatures autonomy in deciding how to regulate the gun industry within their borders.
Additionally, this Article addresses unresolved questions concerning constitutional limits on gun industry regulation. PLCAA explicitly strikes a balance between three constitutional principles. It safeguards the individual right to keep and bear arms by protecting the gun industry from civil litigation that would unduly curtail civilian access to firearms. It insists that the separation of powers requires that gun industry regulation should derive from legislation--not common law adjudication. It affords state governments autonomy in deciding how to regulate the gun industry, recognizing that there are regional differences in attitudes about how to best reduce firearms-related violence. We counsel against interpretations of the Second Amendment\u27s application to gun industry regulation that would expand the right to keep and bear arms at the expense of other important constitutional principles such as the separation of powers and federalism
HB 374 - The LEAF Act and Municipal Deannexation
Get PDFThe Act prohibits counties or municipalities from banning or regulating the use of gasoline powered lawn care equipment; prevents the regulation of installing household appliances based on their source of fuel; provides for the deannexation of property; and amends provisions regarding the authority and procedures for municipal deannexation
SB 93 - Government Devices, Social Media Platforms, and Foreign Adversaries
Get PDFThe Act prevents state employees from using state devices or equipment to install, use, or visit social media platforms owned, operated, or influenced by foreign adversaries