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Private Offerings in the Age of Surveillance Capitalism and Targeted Advertising
Get PDFSocial media platforms, as well as the internet more broadly, have fundamentally altered many aspects of modern life. In particular, platforms’ targeted advertising mechanisms have revolutionized how companies reach consumers by providing advertisers more effective tools for reaching consumers and by tailoring content to consumers’ individual interests. Advertising, in many respects, has always been targeted—it has always sought to reach and influence a certain set of consumers. Today’s targeted advertising, however, allows advertisers to influence consumer behavior on an increasingly granular and intimate level, further skewing the power imbalance between advertisers and consumers. This new dynamic, together with changes to advertising rules for private securities offerings, creates a regulatory gap: should issuers be allowed to promote private offerings through targeted advertising on social media?
This Note examines that gap and considers how contemporary targeted advertising mechanisms interact with the law of private securities, which has long restricted issuers’ use of advertising in promoting private offerings. These and other restrictions reflect an understanding that private securities are more volatile (and, as a result, often yield higher returns) than public securities. In 2013, though, the Securities and Exchange Commission (the “Commission” or “SEC”) lifted a longstanding ban on the use of general solicitations for private offerings, paving the way for issuers to employ widely disseminated advertisements to solicit investors. But the Commission did not anticipate—and could not have anticipated—the ways in which social media and “surveillance capitalism” would change advertising, and the current regulatory regime does not contemplate how targeted advertising fits into the private offering landscape.
With the ability not only to target but also to influence specific consumers, private securities issuers can wield new power with targeted advertising. Consumers may understandably be enticed by promises of high returns, and advertisements for private offerings can now appear in consumers’ social media newsfeed alongside personal and professional content. More importantly, targeted advertising algorithms curate personalized content with the goal of imperceptibly and gradually changing consumer thinking, perhaps leading a user to finally click on an advertisement she once scrolled past. While such a dynamic may be acceptable, and even desirable, with respect to material goods and services, it raises complicated and pressing concerns in the context of private securities offerings. This Note proposes modifications to the private securities rules that would prohibit the use of targeted advertising in private offerings—a change that would adequately remediate the harms posed and provide clarity to the many stakeholders involved
Becoming Visible
Get PDFThis Article will consider the consequences of a large number of workers making their health conditions known to their employers during the pandemic. Becoming visible will likely have short-term costs for both employers and employees-—in terms of health-status discrimination, privacy, and administrative burdens. Nonetheless, this Article will ultimately argue that becoming visible also has a major benefit: improved information flow between employers and employees. Although the long-run cost-benefit analysis of increased health-status visibility during the pandemic remains to be seen, increased visibility ultimately has the potential to improve the employer-employee relationship
The Future of Supreme Court Reform
Get PDFFor a brief moment in the fall of 2020, structural reform of the Supreme Court seemed like a tangible possibility. After the death of Justice Ruth Bader Ginsburg in September, some prominent Democratic politicians and liberal commentators warmed to the idea of expanding the Court to respond to Republicans’ rush to confirm a nominee before the election, despite their refusal four years prior to confirm Judge Merrick Garland on the ground that it was an election year. Though Democratic candidate Joe Biden won the Presidency in November, Democrats lost seats in the House and have a majority in the Senate only through the tiebreaking vote of the Vice President. These slim margins, which make aggressive legislative action appear unlikely, led observers to conclude that “court reform is effectively dead for the foreseeable future. But is that really so? This Essay seeks to examine the prospects for Supreme Court reform — in both the short and the long term. We argue that it is too soon for proponents of Supreme Court reform to give up. Some modest reforms are still possible today, despite current political realities. And more ambitious reforms may return to the agenda sooner rather than later
A Revised Monitoring Model Confronts Today\u27s Movement Toward Managerialism
Get PDFThere are many lessons to be drawn from the sweep of history. In law, the compelling story repeatedly told is the observable co-movement of law on the one hand, and economic, social, and political changes on the other hand. Aberrations, however, do arise but generally do not persist in the long term. Contemporary corporate law seems to be on the cusp of such an abnormality as legal developments and proposed reforms for corporate law are currently conflicting with the direction in which the host environment is moving. This article identifies a series of contemporary judicial and regulatory corporate governance developments that are at odds with multiple forces unleashed by today\u27s ownership of public companies being highly concentrated in the hands of various types of financial institutions. In particular, we focus on the appropriateness of recent regulatory impediments that have been placed in the path of the continuing evolution of the monitoring board of directors but with an eye to the past, as well as how developments over the last several decades complete the central feature of modern corporate governance, the monitoring model.
To address this question, we begin by travelling back in time to post-World War II America during the dominance of managerialism, when shareholders were analogous to children-seen but not heard. That model was replaced by today\u27s monitoring model, which empowers oversight of management in the hands of outside directors, whose obeisance, at least on paper, is anchored in the firm\u27s residual claimants, the stockholders who elect the directors. But, as we discuss, the monitoring board has something of a checkered history in serving this function. We argue that from its inception the monitoring board was incomplete and board-centric because it was formed in an era where the received model was dispersed, not concentrated, ownership. That, of course, is no longer what characterizes American public companies. Today we believe that the growth of institutional investors\u27 voting power and the engagement of hedge fund activists have repeatedly demonstrated ways to strengthen the monitoring board and in practice remedied many of its weaknesses. We argue that this natural progression has been disrupted by recent regulatory actions aimed at weakening the shareholders\u27 voice.
We next challenge the emerging New Paradigm and its accompanying appeals to stakeholder primacy that are being advanced as the future models for corporate governance. We conclude the article with a short set of recommendations we believe will bolster the heretofore incomplete and board- centric monitoring model for corporate governance
Human Rights Realism
Get PDFIn the aftermath of gross human rights abuses, when, if at all, should we forego legal accountability? Human rights scholars debated this question in the 1980s and 1990s, in what was referred to as the peace versus justice debate. The justice side won the day among human rights advocates, among whom the dominant position is that legal accountability is a necessary response to atrocity and cannot be limited by political considerations (a position this Article terms human rights absolutism\u27). However, this question has resurfaced in the twenty-first century, in intense debates with interlocutors outside the field of human rights. Faced with the development of international criminal justice, Alien Tort Statute litigation, and regional human rights court jurisprudence on the right to a remedy, courts, state officials, and conservative scholars argue that legal accountability should be limited to avoid hampering states\u27 control of their internal affairs and international relations (a position this Article terms sovereigntism ). Some scholars take a middle ground and argue that legal responses to gross human rights abuses should be limited only to avoid harm to peace or democratic decision-making. However, the latter have not yet offered a persuasive justification for their position nor a rationale for distinguishing peace and democratic decision-making from other values advanced by sovereigntists as limits to accountability.
This Article offers a new middle ground between sovereigntism and human rights absolutism, under a position it terms human rights realism. Drawing on American legal realism and grounded in human rights values, this approach mandates limiting legal accountability to avoid those consequences that threaten certain core human rights, and the Article identifies armed conflict and economic inequality as relevant consequences. This approach overcomes both human rights absolutists\u27 denial of the politics of accountability mechanisms and sovereigntists\u27 subordination of accountability to values other than human rights. Moreover, drawing on legal realist writing on the right-remedy relationship, this Article offers a robust justification for accepting limitations to legal accountability across a wide range of mechanisms and a principled framework for considering such limitations in light of evolving empirical evidence.
The argument is developed by revisiting the debate about universal civil jurisdiction and expanding the analysis to international criminal law and regional court jurisprudence. The Article shows that human rights realism offers not only a promising normative framework for integrating political considerations into human rights enforcement but also that it sheds new light on recent developments, such as African state threats of withdrawal from the International Criminal Court
Transit States to Destination Nations: Mexican and Moroccan Asylum Policies
Get PDFMuch of the literature surrounding immigration and asylum analyzes the policies adopted by highly developed nations like the United States and countries in the European Union. However, as these nations\u27 policies become increasingly restrictive, more migrants are turning towards neighboring nations that are easier to access but that have less developed immigration and asylum systems. Mexico and Morocco are two such nations. Historically, each has been a transit state--a nation that migrants traveled through in order to reach other states. However, both Mexico and Morocco are becoming destination nations. Social science scholarship has analyzed and compared changes in Mexico\u27s and Morocco\u27s immigration and emigration trends; however, little analysis exists comparing the legal mechanisms and structures of these nations\u27 asylum systems. This Note seeks to fill that gap in the literature by providing an overview of (1) the United States\u27 impact on Mexican immigration policy, (2) Spain\u27s and the EU\u27s impact on Moroccan emigration and immigration policy, (3) Mexico\u27s and Morocco\u27s current asylum system structures, and (4) the international framework driving asylum policy. This Note then provides a series of recommendations and analyzes their effectiveness for altering the international conventions, statutory law, and agencies so Mexico and Morocco can better protect vulnerable migrants as each becomes a destination nation
Chancery Court Again Rejects Motion by Large Minority Blockholder to Dismiss Fiduciary Breach Claims under Corwin
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