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Systemic Risk of Contract
Get PDFComplexity and uncertainty define our world, now more than ever. Scholars and practitioners have celebrated modular contract design as an especially effective tool to manage these challenges. Modularity divides complex structures into relatively discrete, independent components with simple connections. The benefits of this fundamental drafting approach are intuitive. Lawyers divide contracts into sections and provisions to make them easier to understand and reduce uncertainty. Dealmakers constructing complex transactions use portable agreements as building blocks to reduce drafting costs and enable innovation. Little attention, however, has been paid to the risks introduced by modularity in contracts. This Article demonstrates how this touted and now-ingrained drafting approach introduces new forms of the very costs it seeks to minimize. The Article is the first to identify the types of risks introduced by modularity at the intra-contract level, among provisions, and the inter-contract level, among agreements that constitute deals. The Article groups these risks into three categories: First, intertextualism, which occurs when the operation of a discrete, or even standard, provision seems clear in isolation but is made uncertain by the presence of other discrete terms. Second, modular drift, which occurs when drafters transplant provisions specific to one transactional context into another transactional context, introducing uncertainty. Third, latent triggers, which occur when compartmentalization invite s error or obscures a nuance in the interaction among discrete provisions. The Article urges courts to articulate distinctions between contract types and offers tools to contract drafters to mitigate uncertainty. It also makes a theoretical contribution with implications for contract doctrine and contract innovation. It shows how modularity can disrupt seemingly stable, standardized provisions, diminishing their certainty and imposing information costs on future drafters who seek to rely on precedent provisions or agreements. It thereby identifies a critical dimension of contract risk that complicates the balancing of standardization and private choice in contracts
Clark Memorandum: Spring 2022
No full textClark Memorandum: Spring 2022 General Joseph Smith and His Candidacy for the Presidency of the United States Leadership Lessons from the Life of Dallin H. Oaks Flunking the Founding Seven Lessons from the Life of Rex Leehttps://digitalcommons.law.byu.edu/clarkmemo_gallery/1067/thumbnail.jp
Liberalism, Catholic Integralism, and the Question of Religious Freedom
Get PDFThis Article investigates new Catholic integralism and its critique of liberalism and aims to answer whether a liberal idea of religious freedom is possible under an integralist regime. To do so, we first sketch the respective views of liberalism and Catholic integralism on each other, with an emphasis on integralism. For integralism, liberalism is not merely a political phenomenon, but a comprehensive worldview with hidden metaphysical and theological implications. Integralism views the function of political rule as ordering human beings to their final cause. We specifically delve in foundational Catholic principles to guide rulers when governing—prudence and subsidiarity—to establish how their application should influence freedom of religion within an integralist regime. We conclude that religious freedom might be possible under a soft integralist regime and that the answer remains unclear for hard integralist ones, as the ultimate answer lies with the Church
The Prudential Standing Quandary When Discriminatory, Facially Neutral Laws Allegedly Cause Collateral Damage
Get PDFReshaping College Athlete Sports Betting Education
Get PDFLegal sports wagering has been rapidly expanding across the United States since 2018. In the wake of the Supreme Court\u27s Murphy decision, more than twenty five states have legalized sports betting and billions of dollars have followed the cascades of legalization. As the legal market continues to grow, professional sports leagues have been quick to embrace the regulated expansion, but the National Collegiate Athletic Association (NCAA) has not changed their steadfast opposition. Despite the NCAA\u27s vehement opposition, the organization has seemed to gain little traction in getting states to either wholly exclude wagering on collegiate sports or getting the federal government to preempt these nascent state initiatives. The NCAA\u27s opposition to sports betting expansion is futile. Despite the organization\u27s reluctance to embrace the now mainstream activity, the time has come for the organization to acknowledge the reality of the situation and create an environment that provides a modernized means of protecting college athletes from those who may wish to do them harm for gambling purposes. The expansion of legal sports betting is likely to be a net positive for the integrity of both betting markets and sporting events. As sports bettors begin accessing the legal regulated sports wagering market in larger numbers, illegal products and markets will likely become less attractive alternatives . The time has come for the NCAA , collegiate athletic conferences, and colleges and universities to take the steps necessary to coexist with widespread legal betting markets. This Article provides the necessary framework for collegiate sports organizations to move forward with modernizing sports wagering education and awareness for collegiate athletes through (a) adopting best practices; (b) establishing reporting processes; and (c) creating a necessary system of education that provides additional measures of protection and awareness of the threats brought on by nefarious individuals
Moderating from Nowhere
Get PDFWe are living in the midst of a battle over online hate speech regulation, and the stakes could not be higher. Hate speech not only harms its intended victims, be they individuals or groups, but it also polarizes and divides society in ways that undermine the health of democratic regimes. While there is widespread agreement that the current situation of online discourse is untenable, scholars and policymakers are deeply divided on the best way to improve it.
Until recently, American free speech norms have dominated the content moderation policies of digital media platforms. First Amendment norms are extremely resistant to censorship and therefore very protective of offensive and hateful speech. However, in recent years, this influence has been gradually eroded by what could be called European free speech norms, which are significantly more comfortable with directly regulating speech to try to prevent social and political harm. The epitome of the European approach is Germany s Network Enforcement Act (NetzDG), which requires platforms to enforce domestic hate speech laws within that country s borders. This general transformation, and NetzDG especially, have been met by nearly unanimous rebuke by digital free speech scholars, who argue that such measures might steer the platforms into creating a public sphere in which speech is stunted, and the values of free speech are not upheld.
While acknowledging (to some extent, at least) the strength of these critiques, this Article argues that they may well be outweighed by how laws like NetzDG respond effectively to one of the major challenges of the new digital platform public sphere: its detachment from civil society and the public discourse of particular democratic societies. Digital platforms are moderating the digital public sphere from nowhere. This disconnection between the new information gatekeepers (the platforms) and the circumstances and needs of democratic states undermines the social conditions necessary for a healthy democracy. Specifically, the rise of a transnational digital sphere dominated by major digital platforms undermines traditional media gatekeepers capacity to moderate the public debate. Without this guiding hand and without any legal regulation, the public debate quickly devolves, as is evident from the increasingly divisive impact online hate speech has on democratic societies. When tried and true social mechanisms – such as traditional media – are rendered ineffective, it makes sense to counteract the effects of hate speech and stabilize public debate by turning to legal speech regulation such as NetzDG. In at least this sense, we are likely to be better off with an internet influenced by European norms
