Global Health Research Center of Central Asia
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The New Public Nuisance: Illegitimate and Dysfunctional
Get PDFLeslie Kendrick’s defense of the new public nuisance fails to come to terms with legitimacy objections to such actions based on the rule of law and norms of democratic accountability. Nor is the new public nuisance a “second best” solution to widespread social problems. These actions rest on joint ventures between prosecutors and personal-injury lawyers that are likely to generate over- and under-deterrence and risk runaway liability
CRT2 S1E1
No full textPhoto of DeAnna Hoskins, CEO of JustLeadershipUSA and former Department of Justice Senior Policy Advisor.https://scholarship.law.columbia.edu/crt2_podcast/1002/thumbnail.jp
CRT2 S1E5
No full textPhoto of Anna Rupani, lawyer and Executive Director at Fund Texas Choice.https://scholarship.law.columbia.edu/crt2_podcast/1014/thumbnail.jp
Event-Driven Suits and the Rethinking of Securities Litigation
Get PDFEvent-driven securities suits-ones that arise after an issuer has experienced some kind of disaster-have become increasingly prevalent in recent years. These suits are based on the fraud-on-the-market doctrine, a doctrine that ultimately gives rise to the bulk of the damages paid out in settlements and judgments pursuant to private litigation under the U.S. securities laws. The theory behind fraud-on-the-market cases is that when an issuer\u27s share price has been inflated by a Rule-10b-5-violating misstatement, investors who purchased shares at the inflated price have suffered a compensable injury if they still hold the shares after the inflation is gone. Although these event-driven suits differ in important ways from their more traditional cousins based on the same doctrine, they constitute a kind of stress test for the overall doctrine. The growth of event-driven cases thus provides a unique opportunity to reconceptualize the overall system of adjudicating fraud-on-the-market suits more generally. In this Article, we identify the basic logic behind this cause of action and consider what that logic implies as to when liability should and should not be imposed from a social welfare perspective. The result suggests ways we can both solve the challenges posed by event-driven litigation and improve fraud-on-the-market jurisprudence more generally. In an event-driven case, the plaintiffpoints to a pre-disaster statement that allegedly underplayed the likelihood that the disaster would occur and argues that the disaster announcement was the corrective disclosure. But in these cases, the price drop on the day of the disaster announcement is almost never a reasonable measure of the misstatement\u27s share price inflation. By focusing on the price drop at the time of a corrective disclosure, as courts generally do in fraud-on-the-market suits, they have lost track of the real issue: whether the misstatement inflated the share price by a meaningful amount in the first place. More often, the answer to that question is better indicated by the price change back at the time of the misstatement. For all fraud-on-the-market suits where the plaintiffcan establish a misstatement made with scienter, we argue that liability should be imposed where the misstatement\u27s price impact appears to be at least as great as an inflation threshold chosen to trade off the costs and benefits of adjudicating securities class actions. Liability should not be imposed where both the misstatement\u27s price impact appears to be smaller than this inflation threshold, and the market would not have drawn negative inferences had the issuer stayed silent instead of making the misstatement. Where the misstatement\u27s price impact is less than the inflation threshold, but the market would have drawn negative inferences from issuer silence, liability should be imposed if and only if both the corrective disclosure\u27s price impact is a reliable proxy for how much the misstatement inflated the share price and this impact appears to be at least as great as the inflation threshold
CRT2 S1E8
No full textPhoto of Sylvie Laurent, Professor at Sciences Po Paris.https://scholarship.law.columbia.edu/crt2_podcast/1018/thumbnail.jp
ERA Project FAQ on the Court of Appeals Decision in \u3cem\u3eIllinois v. Ferreiro\u3c/em\u3e
Get PDFIllinois v. Ferriero is a lawsuit filed by the Attorneys General of the last three states that ratified the Equal Rights Amendment (ERA) — Nevada, Illinois, and Virginia — asking the court to require that the ERA be officially published by the U.S. Archivist as the 28th Amendment to the Constitution. On March 5, 2021, the District Court dismissed the lawsuit on standing grounds, meaning that the three states had not shown that they suffered a legally recognized injury. The court reasoned that the Archivist’s actions have no legal effect and, as such, the states were not harmed by the Archivist’s refusal to publish the ERA
New York Adopts Nation’s Strongest Environmental Justice Law
Get PDFOn March 3, New York Gov. Kathy Hochul signed the strongest environmental justice (EJ) law in the United States. While federal guidelines and the laws of some other states — notably California, Massachusetts, and Washington — require analysis, disclosure and consideration of EJ issues, only a New Jersey law adopted in 2020 imposed substantive limitations, as we discussed in our May 12, 2021, column. New York’s new law—building on enactments in 2019 and 2020 — is even more restrictive.
The new law — which we’ll call the EJL — provides that the Department of Environmental Conservation(DEC) “shall not issue an applicable permit for a new project if it determines that the project will cause or contribute more than a de minimis amount of pollution to a disproportionate pollution burden on the disadvantaged community.” Environmental Conservation Law (ECL) Sec. 70-0118
Killing Precedent: The \u3cem\u3eSlaughter-House\u3c/em\u3e Constitution
Get PDFThis Essay offers a revisionist account of the Slaughter-House Cases. It argues that the opinion’s primary significance lies not in its gutting of the Privileges or Immunities Clause but in its omission of a people’s archive of slavery.
Decades before the decision, Black abolitionists began compiling the testimonies of refugees who had fled slavery. By 1872, this archival practice had produced a published record of Black struggle and become a platform for the celebration of Black resistance and a new era of Black leadership. Although the lead compiler of this record sent a copy to the Chief Justice, the Court ignored it. Instead, the Court began the clock of constitutional time with the death of slavery, portraying Black people as helpless victims of a temporary wave of postwar rogue violence. In doing so, the Court eschewed an interpretation of the Reconstruction Constitution as one born from a Black struggle against collective wrongs in favor of one of individual rights vindication by a guiltless federal judiciary.
By placing this archive alongside the opinion, this Essay illuminates the profound gap between America’s constitutional discourse of political universality and its practice of exclusion. To narrow this gap, this Essay recovers an emancipatory reading of Slaughter-House. Developed by one of America’s first Black lawmakers in 1874, this interpretation pairs the opinion’s omitted histories with its plain text to reread Slaughter-House not as courts know it today but as an affirmation of Congress’s powers to remedy past wrongs and ensure the equal protection of America’s citizens
Q&A with Lina Khan, Chair of the U.S. Federal Trade Commission and Mark Glick, Professor of Economics at the University of Utah
Get PDFLet me tell you a little about Lina. Lina attended Yale Law school and while a third-year law student she wrote her famous and influential article Amazon’s Anti-Trust Paradox. Then, after graduating from law school, she worked as the legal director at the Open Markets Institute and during that period she continued to write a large number of influential antitrust papers. She then joined the faculty of my alma mater, Columbia Law School. In 2019, she was appointed as counsel to the U.S. House Judiciary Subcomittee on Antitrust, Commercial, and Administrative Law and, in 2021, President Biden appointed her as Chair of the Federal Trade Commission (FTC). Quite a trajectory for a young scholar. With that, I’d like to welcome our keynote speaker, Lina Khan, the Chair of the Federal Trade Commission.
We have some questions for you Lina, but before I start, I just want to say that you were here in Utah in 2019 and that was before your appointment to the FTC. At that time, you made a lot of fans here, and we’re still fans. Welcome back Madam Chair
The UNCITRAL Model Law at the US State Level
Get PDFThe arbitration law of the United States remains, regrettably, the Federal Arbitration Act (FAA), enacted in 1925 and essentially unchanged. Despite its age, it has been significantly amended only once, in order to transpose into law the New York and Panama Conventions. Otherwise, it reads just as it did when enacted almost a century ago. Given its age and the remarkable developments in the law of arbitration over past decades, the FAA unsurprisingly fails to address a very large number of issues that have arisen in arbitral proceedings and judicial decisions on arbitration in the many intervening years. Even the solutions to the issues the FAA does address are to a great extent outdated or otherwise inadequate.
Rusty Park is among those most alert to the deficiencies of the FAA and has shown himself over decades especially well equipped to suggest how they might best be addressed. I do not mean by focusing in this article on the UNCITRAL Model Law to suggest that Rusty particularly favours its adoption at either the federal or state level in the United States. But since at least some US states have viewed adoption of the Model Law as a useful way to enhance the governance of international arbitration in the United States, examining their attempts at improvement seems an exercise especially suitable for a work in Rusty’s honour