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Tort Liability and Unawareness
Full text linkWe explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm
Whom Do Prosecutors Protect?
Full text linkProsecutors regard themselves as public servants who fight crime and increase community safety on behalf of their constituents. But prosecutors do not only seek to protect those they are supposed to serve. Instead, prosecutors often trade community safety, privacy, and even the constitutional rights of the general public to enlarge police power. Prosecutors routinely advocate for weaker public rights, shield police from public accountability, and fail to prosecute police when they break the law.
This Article will show how prosecutors often protect police at the expense of the public. This Article suggests a novel theory of evaluating the conduct of traditional prosecutors, not just as actors seeking to protect the community, but also as advocates for heightened police and governmental power
Safeguarding the Pandemic Agreement from Disinformation
Full text linkComplicating the negotiation of a global pandemic treaty has been a sustained disinformation campaign worldwide to undermine the agreement by making and amplifying spurious assertions about what it intends to accomplish and how it will do so. Central to the disinformation campaign are erroneous claims about national sovereignty and forcible takings of pandemic countermeasures. Further, legitimate and unfounded unease concern weakened intellectual property (IP) and speech rights. Having followed the negotiations and provided technical assistance to the World Health Organization\u27s (WHO\u27s) leadership, we set the record straight in several key areas
Press Benefits and the Public Imagination
Full text linkIn an era when the press faces unprecedented challenges, those who believe in the importance of a free press find themselves playing defense. Press advocates have been forced to articulate, with renewed clarity and urgency, why the press is not merely important but vital to an effective democracy and why it needs to be saved from a “death spiral” and an “extinction-level event.” These arguments often focus on the crucial role the press plays—the “press function,” as lawyers call it—in informing the public, holding power to account, and facilitating democratic discourse.
Scholars and commentators generally discuss the press function through one of two lenses. Legal scholars tend to describe the press function through existing Supreme Court doctrine in which the Court has told us that the press serves as a watchdog, an educator, and a proxy for the public. Political theorists, meanwhile, situate the press within our overall democratic structure, explaining that a free press is integral to democracy.
These explanations are fundamental. But they are also insufficient, especially in an age when delegitimizing the press is a political tactic. To deliver the press from extinction, the public needs not only to know what the press does, it needs to care. This means that beyond conceptualizing the press function as a matter of doctrine and theory, press advocates must conceptualize it as a matter of rhetoric. This essay explains how this work might be done
Congress\u27s Power to Investigate Crime: Did Trump Kill \u3ci\u3eKilbourn\u3c/i\u3e?
Full text linkCan Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as “severely discredited.” In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity—including illegal conduct—not to prosecute the offenders, but to inform legislation and fulfill its various other legislative branch responsibilities.
This Article sheds light on this recurrent debate by tracing its evolution across three historical periods. Since Kilbourn is central to the claims of targets of congressional investigations, the Article begins with a reexamination of that case. It unearths surprising new details about Congress’s original investigation and shows how the Court devalued Congress’s investigative function, mischaracterized Congress’s contempt power as judicial in nature, and adopted an approach that would require Congress to yield to other branches’ parallel investigations. Second, a review of more than 100 subsequent court decisions tracks the dismantling of Kilbourn’s premises over time. It shows how the Court corrected its errors, recognized Congress’s investigative power as derived from its legislative branch authority rather than having judicial origins, and approved numerous congressional investigations while parallel criminal inquiries were ongoing. Third, this Article examines Trump’s extensive but ultimately unsuccessful campaign before courts of all levels—including the Supreme Court—to resuscitate Kilbourn to block Congress from investigating his alleged crimes. In response to the question of whether Congress may investigate crime, this Article concludes that the answer is undoubtedly yes. Rather than bringing Kilbourn back to life, Trump’s efforts had the opposite effect, creating a surfeit of new precedents that solidified Congress’s authority
Leveraging Information Forcing in Good Faith
Full text linkLeveraging Information Forcing in Good Faith, a chapter in Research Handbook on Law and Time, argues that the information-forcing-substance theory has a significant role to play both in how courts decide duty of good faith and oversight matters and in how active and engaged directors can add value in the boardroom. As explored in the chapter, by deploying the theory in corporate-law matters, the courts can reveal the information gaps between officers and directors and create pressure for better processes and discourse within the corporation. In turn, this can impact both the way in which fiduciaries interact with each other and on behalf of shareholders, as well as the substantive choices they make. This chapter uses case studies involving Boeing and McDonald’s to reveal how judges can use information forcing to develop more robust disclosure discourse in the good faith and oversight context and increase the creative friction vital to effective corporate governance.
The chapter focuses first on how the evolution of the corporate form and the laws supporting it have impacted the growth of the law in the corporate fiduciary duty space, and the impact of the procedural posture and timing of litigation on the understanding of the duty. The chapter utilizes case studies based on the McDonald’s and Boeing litigation in Delaware, and examines them through the lens of the information-forcing-substance theory from federal securities regulation. The case studies illuminate how the courts have already used information-forcing-substance theory in practice (although not calling it by that name) to drive additional discourse within the board room and between directors and officers. The chapter, however, also highlights how the moment in time nature of the opinions and the procedural posture of litigation can stunt the growth of positive law for the duty of good faith and oversight. The chapter then explores how courts can further apply the theory to ensure that oversight actually occurs through more information forcing, disclosure, and discourse for directors and officers
Open Source Perfume
Full text linkABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment to democratizing perfumery, this Article draws on personal experience to pioneer the use of open source hardware certification—which extends the open source ethos into tangible products, broadly called “hardware”—which provides additional infrastructure for forfeiting rights in branding, works, components, and know-how to share scents that are made to be sampled. Together, these interventions can fuel fragrances that are free: free to make, free to sample, and free from gatekeeping. Open perfume ought to be the next free culture frontier, and this Article helps chart a course toward its expansion
Financing Reforms to Meet a Pivotal Moment in Global Health
Full text link2024 will be the most important moment for global health since the World Health Organization’s founding in 1948, but only if states give major reforms their full political and financial backing. Bold new commitments in disease surveillance, capacity building, and more equitable access to health products cannot be achieved without ample and sustainable funding. In this essay, we discuss major reforms found in the emerging pandemic agreement and reformed International Health Regulations and then explore the significant challenges and opportunities for financing them
Asking the Right Questions: How Jill Fisch Debunks Narratives and Arrives at Solutions
Full text linkWithout a doubt, Professor Jill E. Fisch is one of the most influential scholars in the corporate and securities law space. Whether we measure her contributions by awards, areas of influence, or volume, Professor Fisch’s work is at the top of the list. It is, indeed, no surprise that the Institute for Law and Economic Policy (ILEP) chose to honor Professor Fisch at this year’s corporate and securities symposium, hosted with the University of Pennsylvania Journal of Business Law. I am honored to write this introduction about Professor Fisch and explore her work and influence over time, with an emphasis on the connection between her work and corporate governance writ large
The Common Law’s Resistance to Gender Violence
Full text linkOver twenty years ago, Congress developed a “mountain of evidence” that state criminal and civil remedies against sexual assault and battering were inadequate. The Supreme Court rejected that evidence in United States v. Morrison, striking down a federal civil rights remedy for sexual assault and battering. Since then, there have been many civil cases of sexual assault and battering against high-profile individuals, including the recent E. Jean Carroll lawsuit against a former President. This five-year study, surveying fifty states’ civil law, asks the question prompted by Morrison: Does the civil law today provide adequate remedies to survivors of sexual assault and battery? It argues that reform efforts in the past have failed to focus on the common law, something on keen display in the Supreme Court’s recent Dobbs v. Jackson Women’s Health decision, limiting women’s right to an abortion. A common law shadow lives on in the civil law of gender assault embraced sometimes by statute and elsewhere by judicial case law. Among the surprising findings of this study: (1) when state actors (e.g., police) rape they commit a constitutional violation, but damage remedies are limited in most states by immunity doctrines; (2) civil plaintiffs’ recovery may be limited by their “fault” for provoking battering and sexual assault, blaming the victim via common law comparative fault doctrines; and (3) in most states, civil plaintiffs’ irrelevant sexual history may be admitted even though relevant evidence of perpetrators’ prior assaults are excluded. The Article recommends that states “audit” their laws through high-level legal commissions to review states’ judicial decisions on civil sexual assault and battering to examine the persistence of the common law limits on civil sexual assault claims