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Does the Quality of the Plaintiffs\u27 Law Firm Matter in Deal Litigation?
Get PDFThis Article examines how the stock market reacts to the filing of lawsuits against mergers and acquisitions targets as the quality of the plaintiffs’ law firm varies. Our primary dataset includes all cases of this type filed in the Delaware Chancery Court from November 2003–September 2008. We group the law firms that file these suits into higher and lower quality categories using several quantitative and qualitative measures. We hypothesize that target firm share value should reflect the likelihood that litigation will result in an increase in merger consideration. This effect is likely to depend, at least in part, on law firm quality. Our evidence is broadly consistent with this hypothesis, and we find similar results when we restrict the analysis to those cases filed several days after the announcement of the deal. Likewise, we find that the effect of law firm quality on firm value endures when we include cases filed after the beginning of the financial crisis. We discuss the implications of these results for debates about the value of corporate litigation
Is This the Law Library or an Episode of the Jetsons?
Get PDFIn this brief essay penned for the inaugural online edition of the Journal of the Legal Writing Institute, Professor Wheeler discusses his vision for the future of law libraries and the future of legal research, legal research instruction, law teaching, and law related technologies
A Comprehensive Analysis of the History of Interrogation Law, with Some Shots Directed at Miranda v. Arizona
Get PDFPolice interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been said that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment, and that the Miranda warnings “have become part of our national culture,” persons steadfastly against police interrogation are difficult to identify. Surely many Americans agree with Professor George Thomas when he asks: “Who claims [a right to silence] unless he has something to hide?” Moreover, Justices and legal scholars often argue that interrogation is indispensable to solving crimes. Even scholars who have provided the most compelling critiques of police interrogation would not abolish the practice.
The various facets of police interrogation and its legal history are comprehensively and skillfully studied in George C. Thomas III and Richard A. Leo’s book, Confessions of Guilt: From Torture to Miranda and Beyond. The authors explain that their book “will explore a realist explanation of the evolution of the law of interrogation and will not involve itself with high constitutional theory or international law.” The book highlights “the link between the fear of threats and the law of interrogation” and has a straightforward thesis: “A culture’s perception of threats to its existence is an important determinant of the level of interrogation pressure that its legal system will tolerate.” Implicit in this theory “is that law is, at least in part, a captive of cultural forces.” According to the authors, “the law of confessions reflects the institutions that identify, or create, deviance.”
Part I of this essay identifies a few of the many historical aspects of the law of interrogation discussed by Thomas and Leo. Part II summarizes what I find to be the most thought-provoking part of Confessions of Guilt: its discussion and critique of Miranda and its progeny. Briefly put, Thomas and Leo are not admirers of Miranda and believe that suspects might be better off without Miranda governing the law of interrogation. Finally, Part III offers two rebuttals to positions taken by the authors. Unlike Thomas and Leo, I fully support Miranda’s reliance on the Fifth Amendment’s bar against compelled self-incrimination as a constitutional basis for regulating police interrogation. Also, I have a different response to the Court’s pre-Miranda Due Process Clause cases, which provided the legal principles for regulating police interrogation by state and local police officers prior to Miranda. More specifically, I find that the pre-Miranda Court committed serious constitutional error in 1958 when it ruled that suspects did not have a “right to counsel” while undergoing police interrogation
International Commercial Arbitration: Cases, Materials and Notes on the Resolution of International Business Disputes, 2nd ed.
No full textInternational Commercial Arbitration tracks every phase of the international commercial arbitral process, including designing arbitration agreements, jurisdictional issues, policies with respect to arbitrability, choosing arbitrators, arbitral proceedings, professional ethics of arbitrators and counsel, conflicts of interest, control mechanisms, and enforcement of awards.https://scholarship.law.bu.edu/books/1037/thumbnail.jp
End the Popularity Contest: A Proposal for Second Amendment \u27Type of Weapon\u27 Analysis
Get PDFThe Supreme Court’s recognition of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope and content of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. The Supreme Court’s decision in District of Columbia v. Heller purports to lay out a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This article critiques that test, arguing that it creates poor incentives, is very difficult to apply, and, most importantly, is disconnected from the central component of the Second Amendment right — self-defense. The article proposes an alternative test that asks whether the weapon at issue is a reasonable choice for armed self-defense
Blinding Prosecutors to Defendants’ Race: A Policy Proposal to Reduce Unconscious Bias in the Criminal Justice System
Get PDFRacial minorities are disproportionately imprisoned in the United States. This disparity is unlikely to be due solely to differences in criminal behavior. Behavioral science research has documented that prosecutors harbor unconscious racial biases. These unconscious biases play a role whenever prosecutors exercise their broad discretion, such as in choosing what crimes to charge and when negotiating plea bargains. To reduce this risk of unconscious racial bias, we propose a policy change: Prosecutors should be blinded to the race of criminal defendants wherever feasible. This could be accomplished by removing information identifying or suggesting the defendant’s race from police dossiers shared with prosecutors and by avoiding mentions of race in conversations between prosecutors and defense attorneys. Race is almost always irrelevant to the merits of a criminal prosecution; it should be omitted from the proceedings whenever possible for the sake of justice
Panel on Sex Trafficking (Transcript)
Get PDFAHMED: I am going to speak today about how anti-trafficking efforts are undermining HIV best practices. I hope to explore a series of questions: Why has the anti-trafficking movement become so counterproductive for sex workers? Finally, how do debates on trafficking travel and impact women in countries heavily impacted by HIV?
I thought I would begin by giving a little bit of history and context on the issue of feminism, sex work, and HIV. When HIV was first discovered in the 1980s, the initial response was almost universally coercive and stigmatizing towards the communities that were at high risk for contracting HIV. In the United States HIV conservative politics and perspectives silenced an effective HIV response
Reading Intellectual Property Law Reform through the Lens of Constitutional Equality
Get PDFIn reviewing three books, Robert Spoo\u27s Without Copyright, Bill Herman\u27s The Fight for Digital Rights, and Aram Sinnreich\u27s The Piracy Crusade, for Tulsa Law Review\u27s annual book review volume, this paper explores new themes and structures in Supreme Court cases about intellectual property. Studying the new histories and processes described in the books under review helps reveal constitutional equality frameworks in Supreme Court cases about intellectual property usually understood as cases about congressional deference and property rights. This article explains how many of these Supreme Court cases about IP reflect a range of equality modalities - e.g., Aristotelian, anti-subordination and distributive justice (basic capability equality) - to make sense of IP regulation as consistent or inconsistent with the constitutional prerogative of “progress.” Concerns over dignity interests, anti-hierarchy values, and a preference for a legal regime that leans more explicitly towards distributive justice than an unregulated market populate the Supreme Court cases. This paper looks closely at a handful of Supreme Court cases - such as Eldred, Grokster, and Golan - to show how each reveals arguments with one (if not more) of these constitutional modalities of equality as their central structuring mechanism
Unfair and Deceptive Robots
Get PDFRobots, like household helpers, personal digital assistants, automated cars, and personal drones are or will soon be available to consumers. These robots raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety and finances. Robots also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.
The thesis of the Article is that the FTC’s grant of authority and existing jurisprudence make it the preferable regulatory agency for protecting consumers who buy and interact with robots. The FTC has proven to be a capable regulator of communications, organizational procedures, and design, which are the three crucial concepts for safe consumer robots. Additionally, the structure and history of the FTC shows that the agency is capable of fostering new technologies as it did with the Internet. The agency generally defers to industry standards, avoids dramatic regulatory lurches, and cooperates with other agencies. Consumer robotics is an expansive field with great potential. A light but steady response by the FTC will allow the consumer robotics industry to thrive while preserving consumer trust and keeping consumers safe from harm
The Scope and Potential of FTC Data Protection
Get PDFFor more than fifteen years, the FTC has regulated privacy and data security through its authority to police deceptive and unfair trade practices as well as through powers conferred by specific statutes and international agreements. Recently, the FTC’s powers for data protection have been challenged by Wyndham Worldwide Corp. and LabMD. These recent cases raise a fundamental issue, and one that has surprisingly not been well explored: How broad are the FTC’s privacy and data security regulatory powers? How broad should they be?
In this Article, we address the issue of the scope of FTC authority in the areas of privacy and data security, which together we will refer to as “data protection.” We argue that the FTC not only has the authority to regulate data protection to the extent it has been doing, but that its granted jurisdiction can expand its reach much more. Normatively, we argue that the FTC’s current scope of data protection authority is essential to the United States data protection regime and should be fully embraced to respond to the privacy harms unaddressed by existing remedies available in tort or contract, or by various statutes. In contrast to the legal theories underlying these other claims of action, the FTC can regulate with a much different and more flexible understanding of harm than one focused on monetary or physical injury.
Thus far, the FTC has been quite modest in its enforcement, focusing on the most egregious offenders and enforcing the most widespread industry norms. Yet the FTC can and should push the development of norms a little more (though not in an extreme or aggressive way). We discuss steps the FTC should take to change the way it exercises its power, such as with greater transparency and more nuanced sanctioning and auditing