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Standing and Probabilistic Injury
Get PDFStanding to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of probabilistic standing to cover categories of cases that ask distinct questions, such as cases involving who is subject to a challenged action, on the one hand, and those involving whether a person subject to such an action is sufficiently likely to be harmed, on the other. Second, courts should not ask how probable elements of a plaintiff’s case must be in order to support standing, but rather who should decide whether a given probability is sufficient. Judges and parties struggle in litigation to assess the actual probability of occurrences, and Article III of the Constitution provides no standard for how probable an injury must be to support a lawsuit. Third, any doctrinal probability threshold for standing would encounter a related problem, which is that the probability of an injury depends significantly on how that injury is framed. Which harms “count” for standing is thus a vital question in assessing the probability of injury, but Article III is an unlikely place to look for answers. Within certain constraints, courts should look instead to the underlying substantive law to define the relevant injuries for standing purposes. Finally, we contend that many of the concerns associated with probabilistic claims are better addressed through the law of remedies and prudential elements of the timing doctrines (mootness and ripeness) than through the constitutional law of standing
Environmentalism and Antitrust
Get PDFIn recent years, there has been a proliferation of interest concerning environmental issues and the application of the antitrust laws. Numerous commentators, for instance, have argued that the antitrust enforcement should adjust to reflect the environmental harm (or benefit) that is generated from a competitive condition. In this paper, we take a step back and argue that analysis of the intersection between antitrust and environmentalism should begin with more mundane questions of economics. More specifically, we argue that environmental regulations can inform antitrust analysis by considering (at least) three issues: (1) the impact of environmental regulation on the firms\u27 production cost; (2) how consumers\u27 preferences are affected by environmental regulation; and (3) those environmental considerations that do not readily manifest through either cost or demand structures. We also use the electric vehicle market as an example to illustrate how these different factors can impact antitrust calculus
Shareholder Agreements in India: An Unsettled Jurisprudence.
No full textShareholder agreements (SAs) are becoming more common around the world as the ownership of companies become more concentrated. Larger investors— in particular, private equity investors— often document their understandings about their investments in increasingly sophisticated SAs. India has also witnessed a rise in SAs, usually with foreign private equity players, which reflects a level of sophistication and formality in contract negotiations that was not always present when such agreements were between family or affinity groups. This has placed increasing pressure on Indian case law to evolve in response to these agreements.
This chapter explores that response and finds that it is difficult to identify a unifying thread to the treatment of SAs in case law. Indeed, it appears that many different considerations animate the emerging case law, making it difficult for contracting parties to understand the legal terrain. The chapter then argues that greater conceptualization of the concerns at play would facilitate the development of a less confusing jurisprudence, which would inure to the benefit of all. It also begins the process of sketching out some of that conceptualization.
Section II begins by describing what SAs are and why they are important. In particular, we spend some time discussing the recent rise of SAs involving private equity, which tend to have more sophisticated provisions than agreements in the past and tend to be more carefully lawyered. Section III explores how the law in India addresses SAs and some changes in recent years. Section IV discusses the policy concerns at play. Section V concludes with observations about the state of Indian law on SAs and what steps may benefit its development and the involved parties. It also notes that the very recent proposal by the Securities and Exchange Board of India (SEBI) to require disclosure of certain agreements is a commendable first step in that direction but that some provisions in the proposal may benefit from more careful discussion attuned to the sorts of policy considerations highlighted in this chapter
De Minimis Non Curat Lex?: Law and Little Things
Get PDFWe are all familiar with the maxim de minimis non curat lex. It is not true at all; a good portion of law is concerned with nothing if not little things. Yes, there are often jurisdictional amounts that purport to deny jurisdiction to disputes too trivial for the courts to get moving. But sometimes these amounts are so minimal that it falsifies the maxim, a maxim which is not classical, apparently being a late medieval modification of de minimis non curat praeter.\u3c.p\u3
\u3cem\u3eCrawford\u27s\u3c/em\u3e Revolutions
Get PDFCrawford v. Washington, the starting point for the Supreme Court’s modern Confrontation Clause jurisprudence, has long been described as a “revolution.” At the time of the Crawford decision, it was perfectly natural for commentators to view it as revolutionary: The case upended the existing doctrinal framework under Ohio v. Roberts, which grounded Confrontation in hearsay doctrine. In its place, the Supreme Court placed Confrontation doctrine on originalist underpinnings, requiring that any “testimonial” statement be subject to cross-examination. The resulting uncertainty was destabilizing, and in the intervening years, courts, practitioners, and commentators alike have struggled to predict and interpret each of the Court’s new pronouncements. But was Crawford really a revolution? Indeed, did the Supreme Court even intend for Crawford to be a revolution? The answers to those questions turn on what exactly we mean by “revolution,” a fraught word with multiple meanings. This short Essay explores Crawford’s revolutions—the one that was not, the one that was, and the one that may be yet to come
A Proposal to Replace the Hearsay Rules
Get PDFThis essay proposes a set of rules to replace entirely the 800 series of the Federal Rules of Evidence, the hearsay rules, with a very different, and relatively compact, set of procedural rules. (The current hearsay rules run over 3000 words; the proposed rules run under 1000.) The change will improve truth-determination, make trials more efficient, and better protect the rights of criminal defendants and other parties. There would, of course, be some adjustment period for lawyers and judges as they get accustomed to a different system, but I am confident that it would soon be easier to administer than the system we have now. The basic perception underlying this proposal is that a core of the hearsay rule should be preserved by a stringent exclusionary rule and that, beyond that core, the law should be far more receptive to hearsay than it is now. That core is the principle that witnesses, particularly those who testify against an accused, must, absent consent, give their testimony subject to an opportunity for cross-examination and under other prescribed conditions. Crawford v. Washington establishes that principle as a matter of constitutional law when the evidence is offered against an accused, but I believe that the principle applies, albeit with lesser force, in other contexts. Hearsay statements that are not testimonial, and indeed other conduct that is offered to prove the truth of a belief assertedly held by the actor, do not pose this problem. In some settings there might be good ground to exclude such evidence, but there is no need for a complex, categorical body of doctrine to govern the area. The introduction to this essay explains why making such a dramatic change is justified and outlines the general ideas underlying the proposal. I then present each proposed rule and detailed comments in conjunction with each one. The aim of this essay is simply to present and explain what I consider to be an ideal replacement for the current body of hearsay law. In drafting the proposal, I have made many subsidiary choices in addition to the most significant ones. Of course, if any jurisdiction does decide to revise its hearsay law along the lines I propose, its ultimate codification may differ in many respects, both large and small, from the one I present here
Regulating Robo-advisors in an Age of Generative Artificial Intelligence
Get PDFNew generative Artificial Intelligence (AI) tools can increasingly engage in personalized, sustained and natural conversations with users. This technology has the capacity to reshape the financial services industry, making customized expert financial advice broadly available to consumers. However, AI’s ability to convincingly mimic human financial advisors also creates significant risks of large-scale financial misconduct. Which of these possibilities becomes reality will depend largely on the legal and regulatory rules governing “robo-advisors” that supply fully automated financial advice to consumers. This Article consequently critically examines this evolving regulatory landscape, arguing that current U.S. rules fail to adequately limit the risk that robo-advisors powered by generative AI will convince large numbers of consumers to purchase costly and inappropriate financial products and services. Drawing on general principles of consumer financial regulation and the EU’s recently enacted AI Act, the Article proposes addressing this deficiency through a dual regulatory approach: a licensing requirement for robo-advisors that use generative AI to help match consumers with financial products or services, and heightened ex post duties of care and loyalty for all robo-advisors. This framework seeks to appropriately balance the transformative potential of generative AI to deliver accessible financial advice with the risk that this emerging technology may significantly amplify the provision of conflicted or inaccurate advice
Review of \u3cem\u3eThe Movement for Black Lives: Philosophical Perspectives\u3c/em\u3e
Get PDFPhilosophy gets a bad rap when it comes to its engagement with the world’s most pressing social problems. Recall that famous epigrammatic final note from Karl Marx’s Theses on Feuerbach: “The philosophers have only interpreted the world, in various ways; the point, however, is to change it.” It may be tempting to take this line as a call to substitute studious reasoning for an “act first, think later” strategy. But that doesn’t seem to be Marx’s intention. Rather than being a call for “blind activism” that rejects “rational dialogue, discourse, or discussion,” Marx is better read as challenging philosophy to avoid becoming a barren discipline disconnected from social struggle (Cornel West, The Ethical Dimensions of Marxist Thought [New York: Monthly Review Press, 1991], 68–69). Marx’s point, in other words, was not that philosophers should move aside and let the activists handle things. Instead, he wanted to recommend a more purposeful role for philosophy in our society: a philosophy that informs activism and other social activity
Consent Searches and Underestimation of Compliance: Robustness to Type of Search, Consequences of Search, and Demographic Sample
Get PDFMost police searches today are authorized by citizens’ consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer’s request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants (“Experiencers”) with intrusive search requests and measured their behavioral compliance and self-reported feelings of psychological freedom. Another group of participants (“Forecasters”) reported whether they would comply if hypothetically placed in the same situation. Study 1 investigated participants’ willingness to allow experimenters access to their unlocked personal smartphones in order to read through the search histories on their web browsers — a private sphere where many individuals feel they have something to hide. Results revealed that whereas 27% of Forecasters reported they would permit such a search, 92% of Experiencers complied when asked. Study 2 replicated this underestimation-of-compliance effect when individuals were asked to permit a search of their purses, backpacks, and other bags — traditional searches not eligible for the heightened legal protection extended to digital devices. Study 3 replicated the gap between Forecasters’ projections and Experiencers’ behavior in a more representative sample, and found it persists even when participants’ predictions are incentivized monetarily
Destined to Deceive: The Need to Regulate Deepfakes with a Foreseeable Harm Standard
Get PDFPolitical campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question as to whether these laws unconstitutionally infringe on deepfake creators’ First Amendment rights. Second, some worry that these laws do not adequately protect against the most harmful deepfakes. This Note proposes a new approach to regulating deepfakes. By delineating a “foreseeable harm” standard, with a totality-of-the-circumstances test rather than a patchwork system of discrete elements, this Note addresses both major concerns. Not only is a foreseeable harm standard effective, workable, and constitutionally sound; it is also grounded in existing tort law. Moreover, a recent Supreme Court decision pertaining to false statements and the First Amendment, United States v. Alvarez, lends support to such a standard. Adopting this standard will combat the looming threat of politically oriented deepfakes while preserving the constitutional right to free speech