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You Should See The Other Person : Redacted Codefendant Confessions in Light of Samia v. United States
Full text linkCapital Formation, The SEC, and Accredited Investors
Full text linkProtecting the investing public, while simultaneously facilitating the efficient flow of capital needed by all new and growing businesses continues as a primary responsibility of the U.S. Securities and Exchange Commission (SEC). Enhancing the capital formation process is a necessary step in the creation of jobs and growth of any economy. Central to the SEC’s regulatory schematic is the proposition that some particularly sophisticated and wealthy investors require less protection than those with less knowledge, experience, and resources. During December 2023, for just the third time, the SEC staff issued a report examining the status of the natural person accredited investor pool and whether the definition needs to be adjusted or modified. With arguments against making the definition either overinclusive or underinclusive, the SEC did not revise the wealth test for natural people to be accredited investors. This standard has not significantly changed since 1983, which has led to many more people qualifying as accredited investors, altering the SEC’s original intentions of the role of these accredited investors. Herein lies the central purpose of our inquiry. Exactly what criteria constitutes the optimal, appropriate definition for an “accredited investor”
Preserving Research Ethics Oversight Amid Decimation of the Research Enterprise
No full textFrom the start of his second term, the Trump administration has launched several blows to the US research enterprise, including swaths of canceled grants, unprecedented workforce reductions at the US Department of Health and Human Services (HHS), and efforts to slash the overhead rates (“indirects”) essential to supporting the infrastructure and administration needed to conduct research. Legal challenges are pending against each of these actions, but the impact on scientists and scientific progress is already devastating
Psychology and Jurisprudence across the Curriculum
No full textPsychology and law, by their nature, are deeply entwined. Both are about human behavior – understanding it, modifying it, regulating it. Psychology’s research engagement with legal topics enjoys a long history, but until recently has been largely limited to clinical assessment (e.g., capacity, insanity) and police and trial evidence and procedures (e.g., eyewitnesses, jury instructions). The traditional canon of “Psychology & Law” research gained prominence when DNA evidence revealed that many wrongful convictions involved problems foreseen by psychologists. Also, the emergence of “Behavioral Law & Economics” likely provided more legitimacy to law’s engagement with empirical psychology topics and methods, spurring “Law & Psychology” teaching and research in law schools. The expanded range of research can be found across the US law curriculum as illustrated in four main first-year courses – Criminal Law, Torts, Contracts, and Property – and two commonly taken or required courses – Evidence and Professional Responsibility. The current experimental jurisprudence boom has added to the topics and methods used in this research and amplifies the existing trend in which psychology engages more closely with the content and values of law
Sustaining Stare Decisis as a Post-Merits Determination
Full text linkMost procedural doctrines are applied before the Court hears the merits of the case. What is unique to stare decisis is that the Court makes the determination after deciding the merits—what this Article calls a “post-merits” determination. This means the Court normally upholds an erroneous decision not because of its merits but because of the resulting policy benefits of keeping the law the same (e.g., reliance, judicial efficiency). If the policy benefits are not present, however, this Article argues that stare decisis would be of little value, because the Court would advance an argument which is both erroneous and has no policy justification. Simple though it sounds, the Court can get this wrong, and the result can be worse than if the Court had simply overruled.
This Article will argue that it is inappropriate for a Court to apply stare decisis to erroneous precedent if three conditions are not satisfied. First, a Court must have the power to overrule the previous case. Second, the previous case must be relevantly similar to the instant case. Third, the previous case must be erroneously decided. Applying stare decisis to erroneous precedent is only appropriate in this specific circumstance, and a proper understanding of these prerequisites will help the Court better understand how and when to apply the doctrine—avoiding further misuse of stare decisis.
The unfortunate consequence of misusing stare decisis is exemplified in Kisor v. Wilkie, where the Court invokes stare decisis to uphold a previous line of cases but simultaneously changes the rule laid out in those cases. In Kisor , the Court effectively eliminates a stare decisis prerequisite— erroneous precedent—by applying stare decisis while also changing the merits of the law. Applying a post-merits doctrine to the merits hollows out many policy benefits of stare decisis—the whole reason to apply the doctrine. The depletion of policy benefits is especially problematic in Kisor because stare decisis was the only basis on which the Court could form a coalition to uphold. Thus, by changing the law, the Kisor Court negates its only justification for upholding the case. Although Kisor proclaims “stare decisis,” it is but stare decisis in name only
The Making of The Chinese Working Class
No full textThis essay is an advance excerpt from a book entitled The Unmaking of the Chinese Working Class: The Global Limits of Capitalism, to be published by Verso Books in 2026. The title of the essay is a deliberate nod to E.P. Thompson’s classic The Making of the English Working Class. The English working class constituted the paradigmatic proletariat in the initial stages of industrial capitalism in the West. It provides an ideal lens for examining the emergence of another proletariat of global significance on the opposite edge of the Eurasian landmass, one that is emblematic of capitalism’s latest stage. Thompson framed his analysis in terms of the Enclosure Movement, which expropriated peasants of their land and left them with no option but to sell their labor. In China, too, there is occurring a similar dispossession of peasantry that is sometimes described as a New Enclosure Movement. However, the two enclosure movements differ notably in their temporal and spatial scope. First, processes that took place over a period of several centuries in England are being telescoped into just three decades in China. Second, they are taking place in the opposite order: the initial commodification of industrial labor in the 1990s was accompanied by a seemingly inexhaustible stream of migrant laborers into cities even without the large-scale commodification of rural land. Why, then, dispossess a peasantry that has already submitted to capital voluntarily, i.e., under economic duress without the need to resort to forcible dislocation? This essay, and the book of which it is a part, address this question by focusing on distinctive forms of ownership of rural and urban land in China—a legal distinction that has no precedent in Chinese history, Marxian thought, or Soviet praxis
Structural Tax Reform and the Next REIT Revolution
No full textAlthough often treated as monolithic, contemporary tax reform typically bundles disparate provisions into a single legislative act, or tax package. This tax package may support a discrete set of congressional objectives, but the vagaries of the tax legislative process make disjunctures likely. Multiple provisions, taken together, may advance ends unforeseen— and perhaps unforeseeable—by legislators. Within a tax package, these disjunctures often emerge post-enactment, during implementation by both the Treasury Department and private actors. This article denotes these emergent disjunctures as “structural noncoordination.”
Structural noncoordination—when provisions in a tax package, taken together, advance unanticipated ends—is not unique to tax law. Ordinary legislative processes, such as logrolling and horsetrading, lead to structural noncoordination. The tax legislative process, however, has unique features that tend to yield structural noncoordination. Policy norms that favor basebroadening tax reform, self-imposed constraints derived from quantitative budget scoring, and the cross-cutting aspects of tax planning each facilitate structural noncoordination.
To illustrate the problem of structural noncoordination, this article develops a detailed case study. This case study describes how a recent major tax package, the Tax Cuts and Jobs Act of 2017, created a constellation of provisions that enhanced incentives for businesses to move real property into tax-favored entities known as real estate investment trusts (REITs). These incentives for “REIT-ification” stand at odds with the stated purposes of these individual provisions, as well as any holistic idea of legislative intent. Instead, this ad hoc assemblage illustrates how structural noncoordination can emerge from disparate provisions in a tax package. This article concludes with several possible solutions, ex ante and ex post, for the problem of structural noncoordination
Designing a New Framework to Regulate Hostile Takeovers in a Changing Japan
No full textThis Article reexamines the existing theoretical framework of hostile takeover regulation, with the goal of aiding the development of an effective takeover regime for a changing Japan and other countries. Revising the takeover regime would support Japan’s decade-long objective of achieving sustained economic growth. With a burst of hostile takeover cases since 2021, Japan faces a long-sought “tipping point” as foreign investors take interest in the country’s recent innovation, capital efficiency, stock market performance, corporate governance reforms, and significant revisions to M&A best practice guidelines. Supported by a more welcoming attitude toward hostile takeovers, the old paradigm of “fortress Japan” is in the process of being supplanted by a new “market-oriented Japan.”
These changes both create a need for effective takeover regulation and present a new opportunity for the involvement of institutional players. Accordingly, there is a new urgency to reconsider both the theory and practice of Japan’s approach to regulating hostile takeovers, in order to update the current framework and create a takeover regime that is commensurate with Japan’s important position in global business and financial markets.
Research to date has generally emphasized the contrasting models of a shareholder-oriented UK system and a board-oriented US regime. In both cases a single “subordinate lawmaker”—the takeover panel in the UK and Delaware courts in the US—creates and enforces takeover rules. Under this analysis, Japan has a mixed and incomplete system of regulation with competing subordinate lawmakers. We highlight Australia as a “new” point of reference for hostile takeover regulation and institutions, as it lies “in-between” the US and the UK by separating the rulemaking and enforcement functions and creating a takeover panel with substantially limited authority and activities compared to the UK
We discern three basic roles in a framework for takeover regulation: (1) a “Rule-maker,” (2) a “Bid Decision-maker,” and (3) an “Umpire” (both adjudicator and propagator of standards of conduct and best practice norms). Applying this revised framework to Japan, we find that, although all relevant institutional players have improved their capabilities, the strength of shareholders has increased substantially more than that of courts and independent directors. Thus, the main weakness in the Japanese system is having the courts as the primary Umpire. Our main recommendation is that Japan consider an Australian-style limited takeover panel for its Umpire, along with a separate Rule-maker. We hope that our analysis will stimulate further research and discussion on a topic that is of renewed importance in Japan and elsewhere