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Deal Momentum
Get PDFWhy do parties use non-binding agreements? This Article explores the role of nonbinding preliminary agreements in mergers and acquisitions (M&A) deals. It provides a modern, comprehensive account of how and why sophisticated parties use these common bargaining tools, even when they have the option of using binding contracts.
In M&A deals, parties enter into non-binding preliminary agreements, such as term sheets and letters of intent. Once parties sign a non-binding agreement, they behave as though bound and almost always follow up with a formal contract with terms that closely resemble the non-binding agreement’s terms. Scholars and courts have long treated preliminary agreements as contract-like tools that parties will enforce when counter-parties breach. This Article develops an alternative explanation for why parties use non-binding preliminary agreements. These agreements are not contracts—rather, they are signposts for when enough momentum has accumulated that a deal has become “sticky” and is likely to go forward. Although non-binding preliminary agreements are not contracts, their signaling, organizational, and formal functions can facilitate complex dealmaking.
Using interviews with deal lawyers, this Article provides a rich and layered account of how sophisticated parties use these agreements in modern dealmaking. Parties almost never disclose non-binding preliminary agreements publicly, so interviews offer a rare glimpse into this common, but little-understood, deal practice. This Article also differentiates, for the first time, between the formal and substantive functions of preliminary agreement-making. By focusing exclusively on these agreements’ contractual qualities (their substantive functions), scholars have overlooked their useful formal functions. By reframing preliminary agreements as signposts for deal momentum, rather than as contracts, this Article highlights those functions, and discusses the implications of this reframing for contract theory, contract enforcement, and deal design
Hate Speech on Social Media
Get PDFThis essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate speech are appropriate. In October 2015, twenty thousand Israelis joined a civil lawsuit filed against Facebook in the Supreme Court for the State of New York. Led by the civil rights organization, Shurat HaDin, the suit alleges Facebook allows Palestinian extremists to openly recruit and train terrorists to plan violent attacks calling for the murder of Israeli Jews through their Facebook pages. The suit raises important questions, amongst them: When should the government initiate similar suits to impose criminal sanctions for targeted hate speech posted to Facebook? What constitute effective restrictions on social media that also balance society’s need for robust dialogue and free communication, subject to limitations reflecting a need for order and respect among people? Our essay progresses in four stages. First, we examine philosophical origins of free speech and the historical foundations of free speech in the United States. Second, we provide an overview of American free speech jurisprudence. Third, we address particular jurisprudence that provides a framework for imposing limitations on free speech in the context of social media. American history and jurisprudence embrace free speech as a grounding principle of democracy, yet simultaneously subject speech to limitations. Finally, through a comparative exploration of real-world examples, we address the narrow instance when limitations on inciteful and targeted hate speech are appropriate
Gloucester County School Board v. G.G. : Brief of Amicus Curiae in Support of Respondent
Get PDFThe sex-segregated public restroom, first man- dated by laws in the late nineteenth century, has be- come a pervasive architectural feature of contemporary America that is unlikely to disappear any time soon. Title IX and its implementing regulations recognize, and do not seek to alter, this arrangement. Understanding the origins of this social convention in the United States, however, illustrates that separating such facilities by sex was not simply a natural, neutral response to anatomical differences, but rather an ideological cultural response that reflected and reinforced the prevailing gender norms of the time
The Ends and Means of Pollution Control: Toward a Positive Theory of Environmental Law
Get PDFAn understanding of environmental law’s means and ends makes it possible to understand the field as a whole, both in terms of the overall structure of statutes and relationships between means and ends. This analysis of means and ends yields a host of valuable insights and significant research questions. It also provides an important foundation for evaluating proposed regulatory reforms. A reasonably complete theory, at a minimum, should also explain key features of the enforcement regime and the allocation of authority among governments. The theory of means and ends articulated here constitutes a very substantial step forward in constructing a positive theory of environmental law as a whole
Water Law and Climate Disasters
Get PDFClimate and water supply have always been intimately connected. As a result, a given society’s water law generally reflects climatic realities, including its most common climate disasters. In the future, however, water-related climate disasters are likely to increase in frequency and perhaps even change in kind, because some of the most-predicted consequences of climate change are impacts on water supply, although those impacts will vary from region to region. This chapter examines the roles of water law in addressing three different forms of water-related climate disasters: drought, flooding, and coastal inundation. Each discussion begins with a closer examination of the relevant water-related climate predictions. From a legal perspective, however, the subject of water law and climate disasters is made more complex by the fact that water law systems themselves vary considerably. As such, two issues regarding the role of water law in climate disasters are likely to emerge as most critical: the extent to which a given water law system provides for flexibility in how water supplies are allocated; and the extent to which a given water law system both can adapt existing water supplies to changing ecological realities and can increase the short-term and long-term resilience of the overall water supply to the impacts of climate disasters
Benchslaps
Get PDFThe practice of judges issuing so-called benchslaps is growing both in popularity and concern. Such published decisions and orders seek to publicly shame lawyers for their alleged unethical or unprofessional lawyering. Legal blogs have picked up on this trend, celebrating and elevating benchslaps to become a part of legal popular culture. However, the practice of using embarrassing and belittling published decisions to punish or to deter unethical or professional conduct raises serious concerns that the issuing judge is violating his or her own ethical duties.
This Article criticizes the practice and concludes that it must end based on three arguments: (1) benchslaps breach a judge’s ethical obligation to take appropriate action in response to attorney misconduct; (2) benchslaps by their nature breach a judge’s ethical obligation to treat those appearing in court with courtesy, respect, and patience; and (3) the lack of appeal rights from a benchslap compounds their inappropriateness.
The Article concludes that we retain the flexibility that judges need to manage attorney conduct while eliminating benchslaps as a disciplinary method. The Article rejects radical approaches such as limiting judicial immunity. Instead, the Article posits that current judicial ethical enforcement regimes—properly strengthened—are best equipped to address the issue and prevent future benchslaps
Examining the Role of Law of War Training in International Criminal Accountability
Get PDFTraining and dissemination of the fundamental rules and principles of law of armed conflict (LOAC) is the first step in any process to ensure lawful military operations. A soldier, a military unit, an entire military must know the rules and parameters for appropriate, lawful and effective action during armed conflict. In the same manner, accountability for violations of LOAC — whether individual criminal accountability or state responsibility — is an equally essential tool for enforcing the law. Exploring the intersection between these two endpoints of the spectrum of LOAC implementation highlights how training and accountability can actually work together to maximize each one’s effectiveness. The way in which information about training contributes to accountability under command responsibility is a strong reinforcement of the message that commanders must ensure that their troops are properly trained in LOAC and that such training is effective and provided to all troops, regular or irregular. A commander’s commitment to providing training can also be evidence of his or her good character for purposes of mitigation. And a state’s failure to implement a regular and effective program of training and instruction can help determine its responsibility for regular or repeated abuses by its troops
Bystander No More? Improving the Federal Response to Sexual Violence in Indian Country
Get PDFFor better or worse, the federal government has taken responsibility for providing for the protection of Native people. So long as the federal government refuses to allow tribes to govern themselves completely and independently, it is imperative that the federal government enact policies empowering Native survivors of sexual assault. The federal government must do more to protect tribal members from sexual predators, to safeguard reservations not only from career criminals but also to ensure that federal agencies like the Bureau of Indian Affairs and the Indian Health Services do not hire men with a history of violence against women or children. Further, when attacks do occur, the federal government must investigate and prosecute these crimes in a timely manner
Costs of Pretrial Detention
Get PDFSpending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees—inmates not convicted of a crime—which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants—including the most dangerous—and others detaining most defendants—even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis. Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena. This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants. The results show that relying on the cost-benefit model provided here, judges could bring significant savings—approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions
Anti-Gay Curriculum Laws
Get PDFSince the Supreme Court’s invalidation of anti-gay marriage laws, scholars and advocates have begun discussing what issues the LGBT movement should prioritize next. This article joins that dialogue by developing the framework for a national campaign to invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools. These laws are artifacts of a bygone era in which official discrimination against LGBT people was both lawful and rampant. But they are far more prevalent than others have recognized. In the existing literature, scholars and advocates have referred to these provisions as “no promo homo” laws and claimed that they exist in only a handful of states. Based on a comprehensive survey of federal and state law, this article shows that anti-gay provisions exist in the curriculum laws of twenty states, and in several provisions of one federal law that governs the distribution of $75 million in annual funding for abstinence education programs. In light of the Supreme Court’s rulings in four landmark gay rights cases, these laws plainly violate the Constitution’s equal protection guarantees, because they are not rationally related to any legitimate governmental interests. For the moment, however, federal and state officials still have the legal authority to enforce these laws, because no court has enjoined them from doing so. By challenging one of the country’s last vestiges of state-sponsored homophobia, advocates can help to protect millions of students from stigmatization and bullying, giving them an opportunity to thrive in our nation’s public schools