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Anticontract
No full textShould a court ever second-guess a contract, ignoring what the parties said and imposing something different? Contractual purists insist that the answer is no. But the messy nature of reality counsels otherwise. We have long appreciated that creating a “complete” contract, one that efficiently treats every potentially relevant contingency, is impossible. In particular, systematic risks that affect the entire economy fall beyond contract’s realistic reach. When such events occur, they upset contractual frame works, leaving parties shackled with obligations suited to a world that never came to be. At least in that context, second-guessing is vital. And that second-guessing can be understood according to a concept called anticontract. When systematic risks fundamentally up end contractual frameworks, this inversion of contract’s basic principles paradoxically fulfills contract’s goals. Anticontract does the opposite of all that contract law does: it adjusts rather than enforces; it looks ex post rather than ex ante; it prioritizes the public rather than the parties; and it provides no general rules, only particular results. It operates, in short, irregularly rather than regularly. In the face of realized systematic risks, anticontract thus paradoxically fulfills contract’s goals by doing contract’s opposite. In so doing, it redistributes losses to those most able to bear them at the microlevel, curing macro-economic ills at their source. In essence, it creates social insurance for systematic risks that private contract cannot manage. In all this, anticontract can be understood as an instance of a broader phenomenon, the completion of law through equity. Anticontract thus represents an important way to understand the limits of contract and when to violate the principles of contract law
A Law Degree Provides Skills That Can Make You Rich (, It Helps to Be Lucky Too)
No full text2024 Mehlman Lecture
Using his entrepreneurial endeavors as a background and example, Hallberg will discuss what he believes are some of the instrumental skills you can (and hopefully do) acquire with a law degree that can translate into a dozen or so keys to managing, advising and understanding a rapidly growing a company. He will discuss the WHOs, WHATs, WHEREs, WHENs and WHYs to building a billion dollar business, that rely upon many of the core principles central to great lawyering
Remarks by the Chancellor
No full textIn a time when university administrators seem to endure very short terms, it is remarkable that Kinvin Wroth served as Dean for 12 years. At the University of Southern Maine alone, he served with four presidents, four chancellors, four provosts, and a score of colleague deans. His permanent and productive legacy rests in no small part on the length of his commitment as well as its character
Barbosa de Souza et al. v. Brazil
No full textThis case is about the murder of a young Black woman by a member of
the legislature of the State of Paraíba, in Brazil. Investigation and
prosecution of the murder were hindered by parliamentary immunity.
Eventually, the Court found Brazil in violation of several articles of the
American Convention and of the Convention of Convention of Belém do
Pará
West Bengal’s Puja Carnival Politics and the Need to Slay All Evil
No full textExcerpt:
\u27Kolkata witnessed two contrasting ‘carnival’ scenes on October 15, barely three kilometres apart. A human chain of the protesters on one side, barricades erected by the ruling Trinamool Congress (TMC) government on the other. A display of exasperation versus power-blind arrogance — a figuratively and literally poignant moment as a rebellious carnival of protesters juxtaposed a stark reality against the grand star-studded puja procession by the West Bengal government.\u2
West v. Multibanco Comermex, S.A.: Application of the Securities Laws to Foreign Certificates of Deposit
No full textThe persistent debate concerning which investment instruments constitute securities for purposes of the Securities Act of 1933 and the Securities Exchange Act of 1934 is as old as the Securities Acts themselves. The Supreme Court has addressed the issue eight times without putting the debate to rest. In Marine Bank v.Weaver, the Court held that a certificate of deposit (CD) issued by a bank regulated under the federal banking laws is not a security within the meaning of the Securities Exchange Act of 1934. The Court of Appeals for the Ninth Circuit has twice, since Weaver, addressed the issue of whether CDs are securities within the purview of the Securities Act of 1933 in the different context of foreign banks issuing CDs in the United States to United States citizens. Relying on the Weaver analysis, the Ninth Circuit held in Wolf v. Banco Nacional de Mexico, S.A., that CDs issued by foreign banks are not securities. In West v. Multibanco Comermex, S.A., the Ninth Circuit again held that the foreign CDs issued to the plaintiff purchasers were not securities. This Note argues that while application of the Weaver rationale in Wolf was appropriate, the Ninth Circuit erred in relying on the Weaver rationale in West. The Weaver rationale is based upon an examination of the factual surroundings in order to determine the necessity for subjecting issuers of the CDs in question to securities laws when the CDs are abundantly protected under other laws. In West, the court determined that a factual inquiry into the actual enforcement of the foreign regulations was barred by the act of state doctrine. This Note argues that the West court erred by relying on the Weaver rationale when it was prevented from making the necessary factual inquiry. Application of Weaver in West was unwarranted and jeopardized important protections available under the Securities Act of 1933
Government Misinformation Platforms
No full textThere is a harmful mismatch between how information published by the government is perceived-as highly trustworthy-and the reality that it is often not. This Article shows that the government frequently collects information from third party private entities and publishes it with no review or vetting. Although this information is riddled with errors and inaccuracies, scholars, policymakers, and the public treat the information with unwarranted confidence because it derives from the government. Further, institutional imprimatur (and consequent trust) attaches to information even tangentially associated with the government and to information where the government explicitly disclaims review.
This Article highlights the ubiquity of government platforms for private, unvetted information that is easily misinterpreted as authoritative. For example, the EPA encourages the public to rely on emissions data supplied by companies and unreviewed by the agency, the FDA disseminates official-looking information about drugs that is generated by drug manufacturers and posted without agency evaluation, and the CDC publicizes a database of potential vaccine side-effects to which anyone can submit unverified reports.
Many policies push open access to government information under the belief that the public can use this information for valuable ends. Greater access to government information is also touted as promoting transparency and democratizing governance. This Article argues that, contrary to scholarly consensus, policies to promote openness may instead spread misinformation, which often works against the goal of the institution disseminating the information and has broader social harms. These harms are aggravated by a growth in public access to government information via private intermediaries. Existing policy tools-disclaimers and sanctions-offer only an incomplete solution to the problem of government misinformation. This Article proposes new solutions including mechanisms to correct inaccurate information and methods to package information in ways that render it less misleading. Without reform, the push towards open access to government information may erode, not build, trust in government
