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Is Federal Question Jurisdiction Arising Or Setting
No full textIn this essay, I respond to Professor Arthur D. Hellman. Hellman argues that there is reason to be concerned that the [federal] judicial system falls short of the Framers\u27 expectations--primarily by denying many litigants in cases presenting federal questions \u27their real day in an Article III court,\u27 but also by fostering \u27balkanization\u27 rather than uniformity in the interpretation of federal law. It is a privilege to comment upon Hellman\u27s thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints a broader original-intent meaning for Article III arising-under jurisdiction than the one defended by Hellman. I end with a discussion of 28 U.S.C. s 1331 jurisdiction, providing a deeper look into early practice and a take on Justice Holmes\u27 impact on statutory federal question jurisdiction and original congressional intent
Final Report on the Work of the Task Force on Securities Holding Infrastructure: Part One
No full textThis Report is written by and reflects the views of the authors. It benefited from meetings of the Task Force over four years and substantial input from its participants. It examines the infrastructure for post-settlement holding of securities in the United States. Most publicly traded equity securities and corporate and municipal bonds are held by beneficial owners (BOs) through securities accounts maintained with securities intermediaries. The registered owner of most of these securities is the nominee of The Depository Trust Company (DTC), a central securities depository and a registered clearing agency. DTC holds securities for the benefit of its participants, broker-dealers and banks that own its common stock. The participants, in turn, hold for their account holders (some of which are BOs and some are securities intermediaries). This Part One of the Report addresses several problems associated with this intermediated or “indirect” holding infrastructure. Part Two, forthcoming in the next issue of The Business Lawyer, considers plausible means of addressing these problems and the Report’s recommendation calling for an independent study of the infrastructure. Inspired in part by emerging technologies (such as distributed ledger technology, including blockchain), several commentators have called for consideration of infrastructure modifications that would provide more efficient approaches to direct holding of securities on the books of issuers or increased transparency in indirect holding. This infrastructure has served well its primary function of facilitating trading, clearance, and settlement for securities transactions and it provides flexibility and convenience for investors (BOs). That said, the Report identifies several problems that derive from the intermediated holding infrastructure. Most of the problems arise from intermediation itself—the absence of privity between BOs and issuers of securities and the various workarounds designed to overcome that absence. Principal examples are shareholder voting and the exercise of other security-holder rights, such as enforcement of bondholder rights. Some problems have been the subject of considerable study; others are seriously understudied. Part One provides another major contribution—an overview of the intermediated holding infrastructure and its relationship to securities market transactions, participants, functions, and relationships. It makes the complicated infrastructure more visible and describes in detail the intermediated infrastructure, clearing and settlement, margin lending, rehypothecation (securities lending and borrowing, repurchase agreements, and “repledge”), the SEC’s “customer protection rule,” prime brokerage, secured financing, shareholder voting and exercise of other rights, and imbalances between holdings of intermediaries and their account holder
I Am Become Death, the Destroyer of Worlds : Applying Strict Liability to Artificial Intelligence as an Abnormally Dangerous Activity
No full textArtificial intelligence (AI)-enabled tools have produced a myriad of injuries, up to and including death. This burgeoning technology has caused scholars to ask questions, such as, How do we create a legal framework for AI? Because AI creators have acknowledged that even they do not know the capacities of their technology for good or bad outcomes, this Article argues that an existing framework, strict liability, is an appropriate fit for harms arising from this new technology because a party need not prove negligence to prevail. Strict liability was uniquely developed to handle those activities that are “abnormally dangerous.” An abnormally dangerous activity is one that imposes an abnormal risk on anyone who is in the vicinity of its use. The quintessential historical example of this is strict liability applied to the production of atomic energy. Congress acknowledged that nuclear energy would be extremely beneficial to society but could not be supported by the safety net of insurance, due to the potentially catastrophic results from its production. Congress enacted the Price-Anderson Act to both establish insurance for nuclear plant operators and to set a liability cap. The Act served as a carrot to encourage nuclear operator entrepreneurs and as a protection for the public. The development of nuclear energy is comparable to the development of AI. Nuclear energy and AI share the essential feature that their creators acknowledge the potentially enormous, but not fully understood, capacities of their creations to do harm. This Article begins by discussing the development of strict liability for emerging technologies with the attribute of being “abnormally dangerous.” It then explores the issues associated with applying a strict liability framework to AI and posits that an umbrella insurance protection similar to the Price-Anderson Act would be a viable solution to one of the most salient questions in modern history: How do we create a legal framework for AI? This Article argues that regulation should create a compensatory structure for potentially catastrophic harms created by an unknown (or not fully understood) technology
Professional Discipline and the Labor Market: Evidence from Lawyers
No full textI investigate the labor market outcomes of American lawyers after they are professionally disciplined. To do so, I match employment data for 672,000 lawyers in 2012 and 2020 to novel data on public disciplinary measures imposed by state licensing bodies since 1990. I find that lawyers who are professionally disciplined are not representative of the legal profession in terms of the type of law firms they work for and their practice areas. Compared with similar nondisciplined lawyers, disciplined lawyers are more likely to subsequently end up in law firms with limited oversight and in practice areas with unsophisticated clients. Investigating causal channels, I find suggestive evidence that the labor market outcomes of lawyers after they are disciplined likely operate through law firms’ concerns over reputation and by serving as a signal of lawyer type
Bruen and the Gun Rights of Pretrial Defendants
No full textNew York State Rifle & Pistol Association v. Bruen announced a novel constitutional test for gun regulation. This test requires gun regulation to be “consistent with this Nation’s historical tradition of firearm regulation.” This Comment provides the first scholarly sketch of historical pretrial firearms regulations. Based on this history, I argue that forbidding non-dangerous individuals awaiting trial from possessing a firearm violates the Second Amendment under Bruen. I also reject attempts to justify gun regulation by classifying defendants as categorically unvirtuous or dangerous, by appealing to the “seriousness” of a crime or by analogizing pretrial release conditions to historical surety laws. Moreover, I draw a big-picture conclusion about the Court’s historical tradition analysis. Under Bruen, courts need to fabricate a suitably described historical tradition by which to compare historical and modern firearm regulations. In that respect, despite Bruen’s promise to reign in judicial discretion, its historical-tradition analysis ultimately increases judicial discretion by allowing courts to set the relevant description by which to compare historical and modern gun regulations.
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Trademarking Virtual Goods in the Metaverse: Just Because You Can\u27t Touch Them Doesn’t Mean They Aren\u27t Real
No full textThe purpose of this Essay is to discuss how brands are venturing into the metaverse particularly through the use of trademarks and to address some of the legal issues such brands may face. Section I of this Essay provides background information about the metaverse and discusses the ways in which brands are currently engaging consumers in the metaverse. Section II then focuses on the various trademarks filed by brands and professional athletes for virtual goods. Having laid the foundation, Section III then seeks to address a number of legal issues that have arisen recently in connection with brands in the metaverse