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Restoring Public Trust in Elections: An Empirical Study of How Campaign Finance Reform Can Restore Public Trust in Elections
Full text linkThe American public has become deeply distrustful of elections. This distrust is partly due to Supreme Court decisions curtailing campaign finance restrictions, on First Amendment grounds, to spending that creates an appearance of quid pro quo corruption. The Court’s reasoning assumes that, although the government has an interest in protecting the public’s trust in elections, campaign spending does not pose a threat to the public’s trust absent the appearance of quid pro quo corruption. However, it is unclear if campaign spending undermines the public’s trust in elections through means other than the appearance of quid pro quo corruption. If it does, the Court’s narrow focus on quid pro quo corruption as the only mechanism through which campaign spending can undermine public trust would be unfounded and paradoxically reduce public trust in elections. Rather than accepting, at face value, the Court’s assumption that quid pro quo corruption is the only mechanism through which campaign spending can reduce public trust and solely focusing on whether campaign spending decreases public trust in elections through quid pro quo corruption, this Article tests the Court’s assumption.
The Article analyzes four original survey experiments involving 1,974 respondents and provides new empirical evidence that, even in the absence of quid pro quo corruption, campaign spending consistently undermines public trust in elections by creating concerns among members of the public about unequal access to voters, outsized influence over elections, dissemination of misinformation, and inefficiency. What’s more, this Article provides empirical evidence that campaign spending may reduce public willingness to vote in and contribute to elections, even in the absence of quid pro quo corruption. Given the demonstrated loss of public trust and reduced willingness to participate in elections, this Article argues that the Court should return to the original, underlying reason motivating its campaign finance jurisprudence—namely, the government’s compelling interest in protecting the public’s trust in elections—rather than focusing on the derivative goal of preventing the appearance of quid pro quo corruption. Doing so will allow campaign finance regulations to better safeguard American elections
April 2025 Poetry Month Display Photo 03
No full textImage of Percy Bysshe Shelley (1792-1822)
Percy Bysshe Shelley (1792-1822) wrote a famouse defense of poetry. Shelley turns to reason and imagination, defining reason as logical thought and imagination as perception, adding, “reason respects the differences, and imagination the similitudes of things.” From reason and imagination, man may recognize beauty, and it is through beauty that civilization comes. Language, Shelley contends, shows humanity’s impulse toward order and harmony, which leads to an appreciation of unity and beauty. Those in “excess” of language are the poets, whose task it is to impart the pleasures of their experience and observations into poems. Shelley argues, that civilization advances and thrives with the help of poetry. This assumption then, through Shelley’s own understanding, marks the poet as a prophet, not a man dispensing forecasts but a person who “participates in the eternal, the infinite, and the one.” He goes on to place poetry in the column of divine and organic process: “A poem is the very image of life expressed in its eternal truth . . . the creation of actions according to the unchangeable forms of human nature, as existing in the mind of the Creator.” The task of poets then is to interpret and present the poem; Shelley’s metaphor here explicates: “Poetry is a mirror which makes beautiful that which is distorted.” (poetry Foundation entry on Shelley. https://www.poetryfoundation.org/articles/69388/a-defence-of-poetryhttps://scholarship.law.tamu.edu/poetry-month-2025-photos/1005/thumbnail.jp
Every Law School Should Have a Poet
Full text linkThis is an imaginative work that explores gaslighting in the workplace
Corporate Governance Outside Wall Street
Full text linkPrivate companies far outnumber public ones but receive scant scholarly attention and little is known about their governance. The largest private companies are on par with public corporations in terms of their annual revenues, number of employees, and impact on the economy. At the same time, private companies are not subject to the reporting requirements that apply to public corporations. Furthermore, private companies are virtually free of all the other market forces that improve corporate governance. They need not comply with the governance norms that institutional investors impose on public corporations or worry about activist hedge funds intervening in their affairs. Nor do they need to abide by the rules of stock exchanges. Even the searching gaze of analysts or the media rarely reaches private companies. As a result, the largest private companies have almost complete autonomy to manage their own affairs. While private companies are content to be left to their own devices, their sentiment is not shared by others. Recently, there is a growing concern among academics and lawmakers about the largest private companies, which has given rise to calls to impose additional regulation on them. Presently, however, there is no empirical data to support these initiatives. This Article is the first to offer a comprehensive, detailed, and careful account of the governance of the largest 200 private companies in the U.S. For almost two years, we hand-collected data about the governance of the companies on the Forbes 200 Index. We analyzed approximately 5,000 fields to produce as complete a picture as possible of the inner governance of these companies, employing the same measures of good governance used by institutional investors and scholars with respect to public corporations. We then ran additional tests to verify our results. We expected to find that the governance of the largest private companies lags far behind that of public corporations. Surprisingly, our findings reveal that no such gap exists. There are differences on various metrics between the private companies we studied and public corporations, but the disparities are mostly not substantial and do not give rise to serious concerns. On most good governance metrics, private companies do as well as the flagship public corporations. We raise five different explanations for our results: importation of governance norms, desire to keep the regulator at bay, indirect impact of institutional investors, plans to go public, and uniformity among large private and public companies. We show that the most plausible explanation of our findings is provided by the first theory—that there are governance spillovers from public to private companies via a process we term “acculturation.” The Article enriches extant academic discourse by illuminating the hitherto overlooked world of corporate governance in private companies. In so doing, it substantially expands the customary scholarly focus that has been concentrating exclusively on public companies. Normatively, it sheds new light on an ongoing debate between two policy approaches—the “free market” paradigm and the “regulatory” school of thought. Intuitively, our results may be interpreted by conservative, free-market champions as evidence of the redundancy of regulation: after all, private companies perform well on most accepted governance measures without being subject to regulatory requirements. Be that as it may, we read the results as indicating exactly the opposite and credit them to regulatory spillovers—i.e., to governance norms that regulation has originally embedded within the world of public corporations—but have been slowly permeating into the private domain
The World Intellectual Property Organization
No full textThis chapter analyses the evolution of the World Intellectual Property Organization (WIPO) from the perspective of international laws on economic integration. It explores how WIPO enabled innovation and ideas by establishing a treaty regime. It examines the Trilateral Cooperation (TCs) and WIPO’s role in its success by inspecting its strategies against the challenges posed by the changing world. Further, the chapter delves into the question of WIPO’s future plans with regard to its effectiveness as a member of the TC agreement. Subsequently, the chapter reviews how WIPO can adopt measures to combat the challenges of the post-COVID-19 pandemic world. The chapter concludes that the future stature of WIPO will depend on its ability to enable development through promoting access to digital technology and to medication in a manner that promotes global economic development
Drive-By Mediation and Other Opportunistic Distortions of Process
No full textMany states in the United States, along with many nations, have implemented special benefits and privileges to encourage parties’ use of mediation to assist their communication, negotiation, and ultimate resolution of disputes. This is despite how loosely mediation is defined. This Article discusses how vague definitions, paired with special benefits and privileges, are incentivizing both the opportunistic distortion of mediation and the use of mediation for improper purposes. In Texas, for example, judges are extraordinarily limited in their ability to disapprove parents’ mediated child custody agreements—even if there is reason to worry that an agreement is contrary to the best interests of the children. As a result, lawyers now advise clients to engage in “drive-by mediation” in which a mediator meets with the clients and their lawyers for just a half hour, often online, and only after the parties have already negotiated a complete agreement on their own. Several years ago, in California, lawyers learned that they could use an evidentiary statute uniquely protecting mediation communications to shield themselves from clients’ potential legal malpractice claims—as long as the lawyers waited until mediation to advise their clients on settlement. In various states in the United States, but particularly in California, parties contract for something they call “binding mediation” in which mediators may impose decisions upon the parties. “Rogue mediation,” meanwhile, superficially complies with courts’ orders to mediate but does not actually involve any negotiation or discussion of settlement. In the international sphere, the Singapore Convention entitles mediated settlement agreements to expedited judicial enforcement but defines mediation even more vaguely than U.S. states and thus invites further distortion of mediation. This Article proposes several targeted reforms to address the opportunistic distortion of mediation. But because so many of these distortions are the result of the special benefits and privileges granted to mediation, the Article also considers whether it is simply time for these benefits and privileges to expire
Shattering Negotiation Myths and Building New Foundations
No full textThis article empirically examines how lawyers negotiate and serves to shatter the myth that adversarial bargaining is more effective and less risky than problem-solving. The data reported herein is based on a wide-ranging study that asked lawyers to evaluate the negotiation styles and the resulting effectiveness of other lawyers. First, the study shows that effective negotiators exhibit certain identifiable skills. The research indicates that a negotiator who is assertive and empathetic is perceived as more effective. The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical. Furthermore, when this adversarial negotiator is unethical, he is perceived as even less effective. Third, the study found that problem-solving behavior is perceived as highly effective. This information should help focus negotiation training toward the task of learning these new skills or modifying ineffective habits
Sales: A Contemporary Approach
No full textThis book is built on (1) engagement with the actual text of the Code, (2) sufficient explanatory material to provide students with a systematic understanding of the relevant Code provisions, (3) cases that illustrate and explain how the Code works in practice, and (4) problems that require critical engagement by students with the actual text of the Code. The book provides students with a problems-based approach that incorporates the statutory language, explanatory material, and illustrative cases in a way that allows them to “own” their knowledge of the Code and their statutory interpretation skills.The book is written with a more casual tone than traditional casebooks and much of the materials that would usually be relegated to notes following cases have been moved into structured explanatory discussions that precede the cases and problems. Moreover, besides the discussion problems included in the text, additional online practice questions have been made available at the end of each chapter. This provides students with a more structured approach to understanding the Code and avoids the problem of students glossing over unstructured post-case notes. Based upon student comments regarding prior drafts of this text, this approach has been well-received and productive.This is a helpful and engaging casebook for students studying Sales & Leases, or instructors looking for a problems-based casebook that emphasizes a careful reading and application of the Code (including the 2022 UCC Amendments)
Empirical methods in contract law
No full textResearchers employ various empirical methods to provide insights into contractual legal issues. For instance, systematic content analysis has been used to examine the terms of contracts or court judgments in contractual disputes. This approach, though different from doctrinal methods, enhances our understanding of legal content. Surveys and experimental methods, on the other hand, provide evidence on people\u27s perceptions of contract terms or contractual behavior such as consent, misrepresentation, or breach. The findings from these studies inform contract law theories, which are based on assumptions about behavior in contractual relationships. Empirical studies also strengthen arguments in normative research by providing evidence on the effectiveness of contract law. This chapter provides an overview of these empirical methods, including both traditional as well as the most recent approaches. It not only introduces these methods but also discusses their limitations and advantages
From Race-Conscious to Race-Neutral: The Next Generation of Litigation Over Selective Admissions
No full textIn the wake of the United States Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College, there have been fierce debates over the meaning of colorblindness in the higher education admissions process. Setting the stage for these controversies are recent lawsuits challenging changes to admissions policies at selective public high schools. In these cases, the plaintiffs allege that although school officials relied on facially race-neutral criteria, their actions were motivated by a desire to improve the representation of Black and Latino students. According to the complaints, these revised policies are an impermissible form of reverse discrimination because they are designed to promote racial balance in the classroom.
So far, the federal courts have reached mixed conclusions in these cases. This Article is designed to help clarify key issues related to standing, disparate impact, and discriminatory intent. With respect to standing, affirmative action cases historically did not require plaintiffs to show that they would have been accepted to a college or university in the absence of race-based preferences. Instead, the explicit use of racial categories was enough to find a stigmatic injury that allowed disappointed applicants to sue over the policies and practices. If express racial categories are no longer part of the admissions process, as is true in the magnet school cases, then plaintiffs must find another basis for claiming an injury that merits standing. Some judges have simply required that plaintiffs show that students had applied or would apply to the magnet schools, However, as the First Circuit Court of Appeals observed, there should also be some evidence that absent the changes to the policy, these students would have been admitted.
As for disparate impact, some plaintiffs have contended that any decline in a racial or ethnic group’s offers of admission to a magnet school should be sufficient proof standing alone. Indeed, there has not even been an effort to show that the changes are statistically significant, much less legally significant. To achieve a greater degree of methodological sophistication, judges should insist that plaintiffs draw on the kind of advanced techniques used to show a disparate impact in employment discrimination cases. Moreover, courts should accord deference to school officials’ determinations of pedagogical validity when selecting criteria for admissions. With respect to discriminatory intent, the mere use of racial modeling when selecting admissions criteria should not be treated as synonymous with impermissible animus. Instead, plaintiffs should be required to show that race played an outsized role in the process that was not justifiable on pedagogical grounds. Again, deference should be accorded to school officials’ educational judgments about which criteria to use. With these safeguards in place, courts can ensure that colorblindness does not become a justification for wrongful exclusion of students of color and segregated magnet schools