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Fractional Sovereignty
Full text linkThe axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism without need for explanation or examination. The explanation, it turns out, is not compelling and has more to do with inertia and historical conditions hundreds of years ago than present concerns. Next, the Article critiques undivided sovereignty as outdated, descriptively misleading, and beholden to normative claims that are incompatible with modern conditions and sensibilities. It also explains the harm that adherence to indivisible sovereignty creates within the currently dominant conflict of laws methodologies.
In its place, the Article proposes that we reimagine conflict scholarship based on a fractional conceptualization of sovereignty. Instead of asking which sovereign gets to set all the rules, we should ask how to equitably share governance power and responsibility. The guiding insight of this proposal is that when conduct, assets, and litigants are distributed across multiple sovereigns, picking a single victor to provide governing law necessarily leads to a windfall of sovereignty for some and an undue denial of sovereignty for others. Instead of such a binary model of sovereignty, a fractional model of shared authority distributes the power to regulate conduct according to the fraction of the conduct that touches and concerns the sovereign. Sovereigns share responsibility over cross-border conduct. A deeper relationship to one sovereign leads to that sovereign having a greater fraction of influence, while a more fleeting relationship leads to a sovereign having a smaller fraction of influence. Each conflict of laws case would thus present a spectrum of influence to be divided into fractions among relevant sovereigns. Governing law in any given case is the mix of those fractions of influence. All concerned sovereigns would be able to regulate conduct but in a shared and mediated manner. Sovereignty becomes fractional
Carrie Menkel-Meadow
No full textCarrie Menkel-Meadow at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1003/thumbnail.jp
Carrie Menkel-Meadow
No full textCarrie Menkel-Meadow at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1009/thumbnail.jp
Dan Burk
No full textDan Burk at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1005/thumbnail.jp
Gregory Shaffer
No full textGregory Shaffer at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1011/thumbnail.jp
Catherine Fisk
No full textCatherine Fisk at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1002/thumbnail.jp
Swethaa Ballakrishnen
No full textSwethaa Ballakrishnen at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1007/thumbnail.jp
Disrupting Venture Capital: Carrots, Sticks, and Artificial Intelligence
Full text linkDespite the massive dollars invested each year by Venture Capital (VC) firms, more than two-thirds of the companies they fund will provide zero return. More problematic, less than 3% of VC funds go to female-led startup teams, and less than 1% to racially diverse founders. While many argue that this underrepresentation will work itself out over time, in reality, these numbers have remained stagnant for over 30 years. This is especially perverse given that diverse startups, when funded, appreciably outperform male-only founding teams.
The VC industry operates under an antiquated model of investing in founders with demographics reflecting those of VC partners (white men control 93% of VC funds, and only 0.2% of VC partners are Black or Latina women). While antidiscrimination law intended to create a level playing field for all, the VC field operates outside this regulatory scheme. In addition to its lack of diversity, ironically it also has a technology problem. Despite the incredible advances in artificial intelligence (AI), and the industry’s focus on tech startups, many VC firms fail to incorporate data analytics and machine learning to guide their decision- making, relying instead on “gut instinct.” This is the first article to comprehensively explore the current state of the VC industry through the lens of behavioral law and economic theory, revealing the field\u27s intransigence and the heuristics and biases infecting its decision-making.
Using insights gained from this analysis, this Article suggests that disruption is possible through a combination of policy and legal initiatives as well as leveraging advances in technology. The Article concludes by offering a novel multipronged solution comprised of a combination of carrots (incentives), sticks (penalties), and AI to motivate behavioral change within the VC industry and stimulate a true meritocracy where gender and racially diverse startups are equitably funded, and innovation flourishes