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The Summary Judgment Revolution That Wasn\u27t
Get PDFThe U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in antitrust, an ambiguous effect in civil rights cases, and no effect in securities regulation. We also find that, in the trilogy’s wake, antitrust appellate cases were far more likely to cite trilogy cases— particularly the one trilogy case that was an antitrust case—than appellate cases in the other areas. This suggests that the lone trilogy case that arose in antitrust had an effect on decision making in that field, but that the trilogy had a limited effect across other substantive areas of law. This finding differs from Twombly and Iqbal where an antitrust decision ultimately reshaped the entire body of law across doctrines around motions to dismiss
Activism By Any Other Name: Stakeholder Capitalism, ESG, and Political Pushback
Get PDFIn recent years, Stakeholder Capitalism and ESG have become widely used terms not only in corporate board rooms, but in media commentary more generally. As their use and influence in practice have both grown, so, too, has the pushback from opponents of these values-based norms for the way the world does business. Indeed, in recent months, numerous Republican-led states, like Texas, have taken more substantive actions designed to thwart the actions and aims of ESG- and stakeholder capitalism-oriented corporations and investment funds. But what, exactly, do these terms mean? And where do these terms come from? Moreover, what’s all the fuss about? And why are states like Texas taking active steps to discourage or even ban corporate ESG initiatives
Supreme Court Interruptions and Interventions: The Changing Role of the Chief Justice
Get PDFInterruptions at Supreme Court oral argument have received much attention in recent years, particularly the disproportionate number of interruptions directed at the female Justices. The Supreme Court changed the structure of oral argument to try to address this problem. This Article assesses whether the frequency and gender disparity of interruptions of Justices improved in recent years, and whether the structural change in argument helped. It shows that interruptions decreased during the pandemic but then resurged to near-record highs, as has the gender disparity in Justice-to-Justice interruptions. However, although the rate of advocate interruptions of Justices also remains historically high, for the first time in years it no longer shows any gender disparity. Thus, the structural change to oral argument had mixed results.
The problem of gendered interruptions at Supreme Court oral argument has led to calls for the Chief Justice to take a more active role at oral argument. This Article also addresses whether and how Chief Justice Roberts has responded to this call. It shows the Chief intervened more, not in response to the increasing number of interruptions, but in response to the gender disparity growing more severe. Further, he directed his interventions at supporting those most interrupted, disrupting those making the most interruptions, and, significantly, using his interventions to recognize and combat interruptions of the female Justices. When it comes to interruptions at the Court, the Chief Justice is no longer simply the first among equals but has a new role, as a referee, attempting to address a social and institutional problem
Climate Change and The Specter of Statelessness
Get PDFWhat happens when climate change extinguishes entire nations? Neither international nor environmental law has provided a satisfactory answer to this weighty question. Climate change-induced flooding, storm surge, and sea level rise threaten the territorial integrity and habitability of several small island developing states, raising the specter of statelessness. We know that climate catastrophe is coming, but we have failed to take the necessary steps to safeguard several developing nations. This Article argues that innovative legal and policy solutions are needed today to prevent nation extinction tomorrow. I focus on two potential international governance solutions: the U.N. Framework Convention on Climate Change’s loss and damage mechanism and the U.N. Security Council’s capacity to address environmental threats to international peace and security.
This Article proceeds in four Parts. I first describe and analyze how climate change is threatening to destroy several island nations. Second, I analyze both the Framework Convention and Security Council’s legal authorities and capacity to prevent and compensate nations for climate-driven habitability loss. Third, I argue that wealthier, developed nations—responsible for the bulk of current and historic greenhouse gas emissions—must take the lead in saving nations from extinction. I conclude by offering a “climate-security” roadmap. This encompasses funding and implementing a loss and damage mechanism to compensate nations for harm already done. This roadmap offers a bolder vision for a reimagined Security Council that takes proactive steps to confront climate change as a threat to international peace and security
Climate Security Insights from the COVID-19 Response
Get PDFThe climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps not surprisingly, the military has played a critical role in the government’s pandemic response. The National Guard has staffed hospitals, vaccination sites, and schools. As our pandemic response continues, what insights are emerging that will inform our climate response? This Article identifies and analyzes several, focusing on the relationship between health security and climate security. These insights— particularly the U.S. domestic military response and how we conceptualize “security”—have normative implications for climate governance and disaster response
Disclosure Procedure
Get PDFSecurities disclosure is a human process. Each year, public companies collectively spend over fifteen million hours producing disclosures that undergird an equities market with tens of trillions in market capitalization. The procedures they follow in doing so affect whether their disclosures contain misstatements or omissions—errors that can cause trading losses for investors, and litigation for issuers. Yet despite the importance of the disclosures that firms produce, the literature says little about how they do it, including whether they are spending too much, too little, or just enough on their disclosure procedures. To fill that gap, this Article uses original surveys and interviews with in-house lawyers and accountants at S&P 1500 companies to give an institutional account of how disclosure is produced and how disclosure procedure affects firms and investors. In short, on a risk-adjusted basis, higher-quality procedures are likelier to produce higher-quality disclosures. That relationship promises social gains if procedures can be identified as higher- or lower-quality and firms adopt the higher-quality options. As a first step toward that promise, this Article compares S&P 1500 firms’ procedures and presents tentative evidence of divergence among them. It closes by explaining the need for firms to say more about their procedures in order to generate information that supports market-wide best practices
Alliance Politics in Corporate Debt Restructurings
Get PDFAlliance politics have always been a complicating factor in corporate restructurings. Negotiations between and among large groups of corporate stakeholders naturally require that parties expend time and resources on building coalitions, overcoming holdouts, and fleshing out their collective action. But recent trends suggest that alliance politics—rather than sound financial and economic decisions—may be driving restructuring outcomes, introducing new risks and inefficiencies in the financial markets. For instance, restructuring proponents increasingly use wedge strategies and divide-and-conquer tactics to exacerbate the coordination problems that lenders in large syndicates already face, giving rise to hostile restructurings that have the potential to introduce dangerous ripple effects in the capital markets. These strategies succeed because they introduce new opportunities for lender defection from the syndicate, essentially recasting the high-stakes coordination game played by lenders and driving up strategic uncertainty. By design, these transactions siphon value away from senior creditors, ultimately causing capital market participants to behave in inefficient ways. They may also enable economically wasteful restructurings by overpowering senior lender groups that would have collectively (and rightfully) pushed a company to liquidate. These developments call for a renewed focus on the role of alliance politics in corporate debt restructuring. This Article contributes to these efforts, laying the conceptual groundwork for subsequent works that explore other dimensions of the complicated, high-stakes relationships that make up the modern firm’s capital structure
Bankruptcy in the Golden Years: The Case for Increasing Exemptions for Elderly Americans
Get PDFThis Comment analyzes 11 U.S.C. § 522(d) and several state exemption statutes for their success at providing elderly debtors sufficient exemptions to maintain their quality of life after filing for bankruptcy. Exemptions are assets that are excluded from an individual debtor’s estate upon filing for bankruptcy and that serve as protection against creditors stripping the debtor of all pre-petition property interests. State and federal exemptions vary dramatically, with some states carving out additional exemptions specifically for elderly debtors. For example, states like Massachusetts and Maine recognize additional exemptions for elderly debtors with regards to their homesteads.
Bankruptcy filing rates for elderly Americans have increased while elderly debtors continue to receive inconsistent treatment in bankruptcy across various states. Accordingly, similarly situated debtors can face disparate outcomes based solely on their state of residence.
This Comment argues that Congress should follow the lead of states like Massachusetts and Maine by providing additional bankruptcy exemptions for all elderly Americans, because elderly debtors have different fundamental needs and goals from other American debtors. A revised federal exemption statute is the best approach for resolving the unequal state-by-state treatment of elderly debtors, as well as for meeting their unique bankruptcy needs
Militant Democracy Comes to the Metaverse?
Get PDFSocial media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this ensuing platform-based public sphere has lately become increasingly sour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism. They are now perceived as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If it is justified, this skepticism yields a difficult tension: How can the state protect its democratic character against unravelling pressure from actors who are usually understood as necessary components of democratic practice? What happens, that is, when the private infrastructure of democracy is turned against the project of collective self-rule?
Of course, this is not the first time that a private actor understood to be a necessary component of the democratic system has turned out to pose a potential threat to the quality of democracy itself. The paradox of regulating private actors qua threats to democracy has been both recognized and theorized in relation to parties of the extreme left and extreme right in postwar Europe. The principal theoretical lens through which those earlier challenges were analyzed went under the name of “militant democracy,” a term coined by the émigré German political scientist Karl Loewenstein.
The midcentury militant democracy debate, this Article suggests, offers an alternative frame for evaluating the problem of digital platforms—now Facebook, tomorrow the Metaverse—and democracy. Because this debate unfolded outside the scope of the First Amendment, it starts from different premises and provides an opportunity for considering digital platforms’ role in a democracy from a novel perspective. Of course, it is not possible to generate in some mechanical way a laundry list of effectual interventions today from yesterday’s experience with anti-systemic parties. But this Article suggests that the midcentury debate on militant democracy can illuminate by suggesting questions and issues that are marginal or ignored within First Amendment discourse. This Article concludes with five such “lessons” from that earlier debate