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Deregulation and Private Enforcement
Get PDFMany conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only is private enforcement the right answer as a matter of theory, but I believe that conservatives need private enforcement as a practical matter if they wish to make progress on their agenda to roll back the administrative state
(What We Talk About When We Talk About) Judicial Temperament
Get PDFJudicial temperament is simultaneously the thing we think all judges must have and the thing that no one can quite put a finger on. Extant accounts are scattered and thin, and either present a laundry list of desirable judicial qualities without articulating what (if anything) unifies the list or treat temperament as a fundamentally mysterious quality that a judge either does or does not have. Resting so much—selection, evaluation, discipline, even removal—on such an indeterminate concept is intellectually and practically intolerable. Polarized debates over Justice Kavanaugh’s fitness to sit on the Supreme Court made clear just how badly we need a common vocabulary to guide our discourse on judicial temperament. This Article—the first extended scholarly treatment of the topic—posits that, because judicial temperament is a psychological construct, we ought to draw upon psychology to understand it. It therefore taps a deep well of scientific research to construct a new psycho-legal theory of judicial temperament. It conceives judicial temperament as a deep-seated, relatively stable set of specific personal traits—separable from intellect, training, and ideology—that, in dialectic with specific judicial environments and the predictable demands of judging, drive behaviors that affect how justice is delivered and perceived. The critical trait dimensions of a judge’s temperament are positive emotionality, negative emotionality, kindness, and self-regulation. The combination of these traits determines how well or poorly her temperament will fit with any given judicial assignment. Although judicial temperament is somewhat malleable, potential for change is constrained. This scientifically grounded theory shows why some seldom-mentioned attributes—like courage—are temperamental, and other commonly-cited ones—such as commitments to equality and diversity—are not. This Article provides a principled alternative to the folk-wisdom manner in which judicial temperament traditionally has been defined and assessed. Setting the theoretical terms for empirical testing of its claims—and with the potential to transform processes for judicial selection, evaluation, and support—the psycho-legal theory posited here shows what we should be talking about when we talk about judicial temperament
The Law and Practice of Shareholder Inspection Rights: A Comparative Analysis of China and the United States
Get PDFShareholder inspection rights allow a shareholder to access the relevant documents of the company in which they hold an interest, so as to address the problem of information asymmetry and reduce the agency costs inherent in the corporate structure. While Chinese corporate governance and American corporate governance face different sets of agency cost problems, this Article shows that shareholder inspection rights play an important role in both China and the United States. On the books, while shareholder inspection rights in both countries are broadly similar, there are some important differences on issues such as the proper purpose requirement. The empirical analysis of this Article further sheds light on how inspection rights operate on the ground. A good number of inspection cases are filed in both China and in Delaware. These cases are resolved by the courts relatively quickly. While inspection rights in both countries are frequently used as a presuit discovery device, the types of subsequent litigation that can be filed in each country are quite different. Efforts are made to explain, and draw implications from, the similarities and differences on shareholder inspection rights between the two countries
The Gap-Filling Role of Private Environmental Governance
Get PDFPrivate environmental governance provides new tools that can fill gaps in government regulatory regimes. The Tennessee Valley Authority (TVA) is a valuable case study for testing the efficacy of private environmental governance because it is one of the largest utility carbon emitters and is largely insulated from near-term federal and state government pressure to reduce emissions. TVA is not on a trajectory to achieve the decarbonization targets necessary to meet the goals of the Paris Agreement, but private governance initiatives can motivate TVA to accelerate its decarbonization process. TVA\u27s securities filings acknowledge that it faces material threats on the energy supply side from distributed generation and customer preferences for renewable energy, and on the energy demand side from efficiency and conservation. Private governance initiatives could address the supply side by inducing large corporate and institutional customers, bondholders, and households to press for decarbonization of TVA\u27s generation assets. On the demand side, private initiatives could motivate action by offering TVA accelerated electrification of motor vehicle fleets and buildings in return for accelerated decarbonization of TVA\u27s generation assets. The Article concludes that these private governance options are not a panacea, but they have the potential to fill an important gap in public climate governance and pose little risk of displacing more effective government action. The TVA example also demonstrates the wide range of private governance options that are available to motivate emissions reductions by other difficult-to-regulate emissions sources
Fintech and International Financial Regulation
Get PDFThis Article shows that fintech exacerbates the difficulties of standard setting in international financial regulation. Earlier work introduced the Innovation Trilemma (the Trilemma). When seeking to balance the goals of achieving market integrity and innovation through clear and simple rulemaking, regulators can-at best-achieve only two out of these three objectives. Fintech\u27s unique characteristics- a reliance on automation and artificial intelligence, novel types of big data, as well as the use of disintermediating financial supply chains comprising a mix of traditional firms as well as technology specialists and newcomers-complicates the application of the Trilemma. Rulemaking struggles to achieve needed clarity where innovative algorithms introduce informational uncertainties and complex risks for market integrity. Further, regulation\u27s ability to impose compliance costs on firms in response to these risks is limited when a preference for innovation favors smaller upstarts and nontraditional players. International financial regulation presents even steeper challenges when viewed through the lens of the Trilemma. First, rules clarity is harder to achieve owing to divergences in national legal systems, administrative processes, and market structures. Secondly, fintech increases negotiation costs in international standard setting owing to the emergence of a much more expansive cast of economies-like China and India-that dominate as fintech hubs alongside the traditional power players such as the United States or European Union (EU). With distinctive policy preferences, emerging economies constitute powerful voices that mean that negotiation must account for a wider range of distributive preferences. Finally, standard setting must bridge the particularities of domestic market structures that are experiencing varying degrees of disintermediation and transformations in financial supply chains. Rules that impose high compliance costs may be acceptable to economies dominated by traditional intermediaries but may lack buy-in from those where nonbank firms hold sway. In concluding, this Article briefly surveys strategies for fostering greater global cooperation in standard setting for fintech
The Health and Legal Implications of Early Screening for Developmental Disabilities
Get PDFChild development is a multifaceted process and there are certain milestones to reach that are imperative for healthy, timely growth and development.\u27 Developmental monitoring, screening, and testing can aid in the identification, examination, and follow-up of a child\u27s progress. However, there are a plethora of barriers which inhibit a child\u27s ability to access and receive adequate, quality care. These broader factors, or social determinants of health, can lead to an underutilization of preventive health services, causing a delay in early identification and intervention for children. This can have serious, adverse repercussions, because targeting interventions among children from birth to five years old is the most impactful time to make effective changes in a child\u27s development.
A family may experience a range of barriers to care, including limited health literacy, insufficient financial access, or fear of stigma. These issues impact access to insurance, willingness to seek care, and treatment or service options. Even when an individual can access care, other challenges, such as a lack in continuity of care or limited access to long-term services, can impede a child from accessing the support and interventions critical for their development. Without satisfactory development, a child is more likely to encounter educational challenges and legal issues. From an early age, these setbacks continue to persist and build upon one another. This lack of early detection further limits a child\u27s ability to overcome said challenges and, in turn, results in poorer health outcomes, educational challenges, and increased legal troubles.
It is imperative to not only address and improve the lack of early developmental monitoring, but to also improve the systems aiding and contributing to these negative outcomes. Health outcomes can be improved through provider education that prioritizes awareness of child development and cultural competency. Additionally, policy changes to expand access to insurance and care, as well as professional regulation and enforcement efforts could help improve health outcomes. Similarly, educational challenges can be addressed through systemic policy reform efforts, especially those that target existing disparities, ensuring access to quality classroom opportunities and limiting bias in disciplinary practices. These reforms are essential to prevent the spillover of these effects into the criminal sphere, where individuals with a disability are overrepresented in interactions with law enforcement, convictions, and carceral populations. There are additional prospective reforms--ranging from sentencing reform to expungement efforts--that could serve to restore justice to the criminal legal system.
This paper traces the trajectory of a person through various stages of life and possible interactions with a variety of institutions. Part II assesses the importance of childhood developmental monitoring and early intervention services, particularly as they pertain to setting a child up for success. Part III delves deeper into the social determinants that impact a child\u27s access to services, which in turn influence a child\u27s health and developmental outcomes, as addressed in Part IV and educational opportunities, as explored in Part V. Finally, Part VI highlights how a lack of opportunity at the earliest stages of life can lead to higher rates of incarceration and justice- involvement, followed by a discussion of ideas for reform
Detecting Mens Rea in the Brain
Get PDFWhat if the widely used Model Penal Code (MPC) assumes a distinction between mental states that doesn’t actually exist? The MPC assumes, for instance, that there is a real distinction in real people between the mental states it defines as “knowing” and “reckless.” But is there?
If there are such psychological differences, there must also be brain differences. Consequently, the moral legitimacy of the Model Penal Code’s taxonomy of culpable mental states – which punishes those in defined mental states differently – depends on whether those mental states actually correspond to different brain states in the way the MPC categorization assumes
The Very Brief History of Decentralized Blockchain Governance
Get PDFA new form of blockchain governance involving the use of formal games that incentivize participants to identify focal resolutions to normative questions is emerging. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms of decentralized decision-making, and it evaluates early laboratory and real-world experiments with this approach