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ENVIRONMENTAL PROTECTION, SUSTAINABILITY AND THE PREVENTION OF SATELLITE COLLISIONS IN OUTER SPACE
No full textWith space commercialization and privatization continuing apace, more space objects are expected to be launched and put into operation in the future, adding to the already large number of defunct satellites and space debris present in outer space. Hence, serious study should be devoted to possible mechanisms for dealing with potential collisions in outer space for the purpose of realizing environmental protection and space sustainability. In view of the inadequacy of the existing legal regime, this article explores possible such mechanisms (including a preventive mechanism, avoidance mechanism and compensation mechanism) from the perspective of interdependence theory and puts forward a practical approach to constructing future mechanisms to realize the goal of environmental protection and space sustainability
The Business of Securities Class Action Lawyering
No full textPlaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet there is remarkably little data on the business of securities class action lawyers, leaving lead plaintiffs and judges to oversee this area without the tools to understand how it works.
This Article looks inside the black box of securities class action lawyering to explore the business behind these cases. Our study includes hand-collected data on all securities fraud class actions against public corporations filed between 2005 and 2018, a total of nearly 2500 cases. We find that the business of securities class action lawyering is far more complex than prior scholarship has recognized. Contrary to conventional wisdom, there are not two tiers of plaintiffs’ law firms; instead, there are multiple tiers of firms, each with its own client base, litigation patterns, and revenue model. Our study gives lead plaintiffs and judges the data and tools they need to understand these tiers and to compare the performance of the law firms within them. We also examine how these law firms are compensated, finding that judges’ fee awards fail to account for the difficulty of cases or the risk of nonrecovery in any systematic way. These fees are crucial to ensuring that law firms pursue the right cases on behalf of shareholders, so we suggest ways that judges can use data to improve fee awards. As we will see, the path to reforming securities class actions starts with understanding the business behind them
Judicial Discipline through the Prism of Public Law Values: A Contextual Analysis of Bill C-9, An Act to Reform the Judges Act
No full textBill C-9 is the first significant legislative reform to the Judges Act in five decades. The goal of the legislation is to enhance public confidence in the administration of justice by modernizing the complaints and discipline regime for federally appointed judges. This essay is a contextual analysis of Bill C-9. The authors begin by outlining a conceptual framework which identifies eight public law goods that can guide an assessment of a complaints and discipline system. They then locate Bill C-9 in a historical context by identifying a crisis of legitimacy that had overtaken the Canadian Judicial Council by the early 2020’s. Having established this context the authors outline seven key strengths of the reform legislation. In a follow up essay entitled, “A Critical Analysis of Bill C-9,” the authors revisit the eight public goods identified in this essay and argue that the legislative reforms are vitiated by five significant weaknesses. The authors conclude that Bill C-9, despite some improvements, reveals a failure of nerve on the part of its proponents and therefore it is unlikely to generate the improved public confidence that is central to the legitimacy of the Canadian judiciary as a democratic institution
Love, Liberalism, Substituted Judgment
No full textUnder the doctrine of substituted judgment, decision-makers for adults without legal capacity are to make the decision the person in their care would have made. In cases involving irreversible cognitive decline—where substituted judgment is most frequently applied—scholars have struggled to explain it, resorting to mysterious metaphysical claims. These philosophical acrobatics seem necessary because the person for whom the decision is made cannot appreciate it, and, philosophically, they may not be the same person they had been.
This Article offers a novel account of substituted judgment that circumvents these challenges. I argue first that the doctrine is straightforwardly justified in cases of temporary incapacity, such as that of a psychotic episode, and then explain why the law might justifiably treat permanent incapacity as though it were temporary. In cases of temporary incapacity, substituted judgment is grounded in love. “Love” describes (at least) intimate knowledge of and concern for the personal identity of another. To make the decision someone would have made while they are temporarily unable to is an act of love.
And there are at least three reasons the law might justifiably treat permanent incapacity as though it were temporary. First, there is substantial medical uncertainty about the prognosis of brain disorders. Second, it is characteristic of love that it is partially constitutive of the identities of those who love—a doctrine justified by love might recognize this. Finally, a liberal private law might acknowledge that, under many worldviews, what looks like permanent incapacity is in fact temporary
Regulating the Data Market: The Material Scope of American Consumer Data Privacy Law
No full textThis Article compares the material scope of several comprehensive consumer data privacy (or data protection) laws enacted recently in the United States, both with each other and with the European Union’s General Data Protection Regulation (“GDPR”). Our comparative analysis covers five broad state consumer data privacy laws enacted and in effect as of the end of 2023, specifically those adopted in California, Virginia, Colorado, Utah, and Connecticut. We contrast these against each other and the GDPR. We compare how each of these laws define and scope their subject matter (e.g., what constitutes “personal data”), how they define data subjects, what amounts to data processing, and which entities are obligated to respect the data subjects’ rights provided by these laws. We demonstrate how the existing state laws are more limited in most respects than the GDPR, and how their framing as consumer protection laws significantly limits their applicability and restricts their ability to adequately address the broad range of data privacy problems that confront contemporary society. Drawing on neorepublican political philosophy, we argue that most of these laws generally fail to adequately constrain commercial data markets in many contexts and that they also fail to address the problem of law enforcement agencies acquiring personal information from the commercial sector—ultimately raising concerns about domination and the potential for uncontrolled interference by both corporate and state interests in the private lives of the data subjects who ostensibly acquire rights. In the end, most of these “comprehensive” consumer data privacy laws at the state level in the United States do little to reign in corporate and state power to collect and use personal data in many contexts and represent a missed opportunity to provide much more significant protections for individual data privacy rights in the United States