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Necessary but Not Sufficient : Chancery Court Clarifies Role of Enhanced Scrutiny in Assessing Damages Claims against Corporate Actors in Revlon Transactions
Get PDFA Response to Calls for SEC Mandated ESG Disclosure
Get PDFThis Article responds to recent proposals calling for the SEC to adopt a mandatory ESG-disclosure framework. It illustrates how the breadth and vagueness of these proposals obscures the important--and controversial-- policy questions that would need to be addressed before the SEC could move forward on the proposals in a principled way. The questions raised include some of the most contested in the field of corporate and securities law, such as the value of interjurisdictional competition for corporate charters, the right way to conceptualize the purpose of the corporation, the proper allocation of managerial power as between the board and shareholders, and the social desirability of fraud-on-the-market class actions
Connecting Ecosystem Services Science and Policy in the Field
Get PDFConservation and provision of ecosystem services (ES) have been adopted as high-level policy in many countries, yet there has been surprisingly little application of these broad policies in the field; for example, ES are rarely considered in permit issuance or other discrete agency actions. This large implementation gap arises in part because the science that drove general policy interest in ES differs from the science needed for practical application. A better understanding of the environmental policy toolkit can guide more effective research to support agency decisions. Here, we outline the framework used to teach environmental policy instruments through the “Five P’s”: prescription, property, penalty, payment, and persuasion. We then discuss the discrete ES research required to effectively implement each tool. To support greater conservation of ES in the field, scientists and policy makers must clearly recognize what each needs from the other
Team Production Revisited
Get PDFThis Article reconsiders Margaret Blair and Lynn Stout’s team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by a description of principal-agent relationships among shareholders and managers. This Article shows that the model retains descriptive robustness, despite the substantial accretion of shareholder power during the two decades since its appearance. The Article also shows that the model taught three groundbreaking lessons to corporate legal theory. First, nothing binds microeconomic analysis together with a theory of the firm rooted in shareholder primacy. Second, microeconomics, with its emphases on efficiency and maximization, can be deployed in the service of an allocatively sensitive description of corporate governance, providing a more capacious methodological tent than anyone in corporate law understood prior to Blair and Stout’s intervention. Third, it is not only possible but arguably necessary to take corporate law seriously when articulating a microeconomic theory of corporate production. To the extent an economic model’s description of the appropriate legal framework differs materially from the inherited legal framework, there is a possible, even a probable, infirmity in the model
China\u27s Comparative Constitution
Get PDFThe academic field of comparative constitutional law has recently had greater engagements with China\u27s constitution. This Article explains the modes, conditions, and factors of these engagements. The country-studies of China\u27s constitution echo and complicate recent comparative debates on transnational constitution making and the varieties of constitutionalism. Comparative constitutional scholarship formulates new concepts, such as constitutional entrepreneurship and constitutional dissonance, to understand China\u27s constitution. Additionally, it explains China\u27s constitutional divergence from the most similar case, namely Vietnam, and its unexpected constitutional similarities with the most different cases, such as the United States and the United Kingdom. Finally, this scholarship discusses China\u27s constitution as a difficult case of constitutional authoritarianism, a prototypical case of authoritarian are principally animated by scholars\u27 intellectual curiosity to explore the unknown regarding China\u27s constitutional dynamics and partially by the need of its constitutional development and particular outlooks on constitutional justice
Competing Claims: The Developing Role of International Law and Unilateral Challenges to Maritime Claims in the South China Sea
Get PDFChinese military and economic expansion have led to a commensurate decrease in the ability of neighboring countries to object to excessive maritime claims in the South China Sea. The existing framework of international law under the United Nations Convention on the Law of the Sea provides an anchoring point for coastal states\u27 legal claims to the region, but it does not adequately address the complicated diplomacy challenges created by unilateral military action and unique geographical issues, such as artificial islands. Gradual acquiescence to maritime claims that do not comply with international law results from these conditions. Once these boundaries are lost, they cannot easily be regained. This Note analyzes coastal states\u27 legal arguments in the South China Sea dispute and concludes that international law in its current form cannot effectively regulate excessive maritime claims. It argues that unilateral objection to excessive maritime claims in the form of freedom of navigation operations can maintain the status quo and provide a temporary solution until the dispute resolution process under international law is improved. Finally, this Note offers predictions as to how permanent solutions to the problem of international law\u27s failure may look in the region
Democracy on a Shoestring
Get PDFDemocracy requires money. Voters must be registered, voting rolls updated, election dates advertised, voting technology purchased and tested, poll workers trained, ballots designed, votes counted and verified, and on and on. Despite the importance of election expenditures, we have a shamefully inadequate amount of information about how much our elections cost. This Article, based on a novel and painstakingly hand-coded dataset, provides much needed information on election expenditures across multiple years from four states: California, Arizona, Texas, and Florida. These states, given their unique characteristics, provide a compelling sample set.
In what we believe to be a completely novel approach to the collection of election expenditure data, we supplement our hand-coded data with predictive machine learning. This allows us to estimate average annual election spending across multiple government units. Our findings, unsurprisingly, reveal great variation both across and within states. But our findings also reveal that much of the variation is seemingly unconnected to poverty, race, and other traditional explanations of electoral disadvantage. This brings into question many basic assumptions legislators, courts, and scholars harbor about election expenditures. Our findings implicate not only policy discussions about election funding but also the limitations of doctrinal interventions and judicial remedies that are divorced from issues of resource allocation.
The Article proceeds in five parts: Part I provides background on election funding, including a discussion of election costs and what the most common funding sources are. This Part also discusses election law doctrines and how they do not directly consider election expenditures. Part II outlines our data and methods. Part III presents our main findings. Part IV responds to the findings and explores potential doctrines under which election expenditures might be considered. Part V weighs the pros and cons of several nondoctrinal proposals for election administration reform
Fair Play: Notes on the Algorithmic Soccer Referee
Get PDFThe soccer referee stands in for a judge. Soccer’s Video Assistant Referee (VAR) system stands in for algorithms that augment human deciders. Fair play stands in for justice. They are combined and set in a polycentric system of governance, with implications for designing, administering, and assessing human-machine combinations
The New Web-Stream of Commerce: Amazon and the Necessity of Strict Products Liability for Online Marketplaces
Get PDFTechnology company Amazon has actively transformed into an e-commerce giant over the last two decades. Once a simple online bookstore, Amazon now boasts an ever-expanding identity as global cloud computing provider, major player in artificial intelligence, brick-and-mortar grocery store, and producer of original video content. At its roots, the company remains focused on e-commerce—its multibillion-dollar online marketplace hosts a massive digital space for commerce worldwide where customers can order “anything, with a capital A.”
Amazon derives many of its sales from third-party vendors who list products on the company’s website, Amazon.com. In this broadening chain of distribution for online retail, complicated tort issues arise in determining what entity should be held responsible when defective third-party products are sold to, and severely injure, consumers. Modern products liability law under the Restatement (Second) of Torts imposes strict liability on any seller of a defective product. Amazon has sought to avoid this liability by claiming it is not the seller but is instead a neutral platform that merely facilitates third-party sales. And until recently, courts have agreed.
Inspired by a handful of recent cases signaling a possible shift in U.S. products liability law, this Note proposes a statutory solution to hold online marketplaces such as Amazon to the same strict liability standards as brick-and-mortar retailers. This Note offers a statutory definition of “seller” that would extend liability to any party responsible for placing a defective product into the stream of commerce, providing a method of recourse for injured consumers that is not reliant on the courts
Direct-to-Consumer Genetic Testing
Get PDFDirect-to-consumer genetic testing is marketed as a tool to uncover ancestry and kin. Recent studies of actual and potential users have demonstrated that individuals’ responses to the use of these tests for these purposes are complex, with privacy, disruptive consequences, potential for misuse, and secondary use by law enforcement cited as potential concerns. We conducted six focus groups with a diverse sample of participants (n = 62) who were aware of but had not used direct-to-consumer genetic tests, in an effort to understand more about what people considering these tests think about the potential value, risks, and benefits of such testing, taking into account use by third parties, such as potential kin and law enforcement. Participants differed widely in the perceived value of direct-to-consumer genetic tests for ancestry and kinship information for their own lives, including the desirability of contact with previously unknown relatives. Some perceived ancestry testing as mere curiosity or entertainment, while others, particularly those who had gaps in their family history, few living relatives, or who were adopted, saw greater value. Concerns about intrusion into one’s life by purported kin and control of data were widespread, with many participants expressing concern about secondary uses of data that could harm users or their families. The use of direct-to-consumer genetic tests data for forensic genealogy elicited a particularly wide array of reactions, both spontaneously and in response to specific discussion prompts, mirroring the current public debate about law enforcement access to such data. The themes uncovered through our investigation warrant specific attention in the continued development of the science, policy, and practice of commercial direct-to-consumer genetic testing