3394 research outputs found
Sort by
Rightsizing Local Legislatures
Full text linkLocal councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.
This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size can affect the content of local law and the way that it is perceived. The fundamental problem with a micro-legislature is that it is not inclusive of the diversity of interests in a modern society. Too few seats results in a deficit of descriptive representation—meaning the legislature will not “look” like its community—and also of democratic deliberation, since all voices will not be a part of political debate. This works to silence or muffle minority viewpoints, resulting in more extreme legislation. Moreover, minorities will perceive this exclusion, and may view local law as less legitimate because of it.
Rather than being models of democratic involvement, localities—at least as they are currently structured—are sites of exclusion, not inclusion. The path forward is uncertain and depends on one’s appetite for reform
Coercive Rideshare Practices: At the Intersection of Antitrust and Consumer Protection Law in the Gig Economy
Full text linkThis Essay considers antitrust and consumer protection liability for coercive practices vis-à-vis drivers that are prevalent in the rideshare industry. Resale price maintenance, nonlinear pay practices, withholding data, and conditioning data access on maintaining a minimum acceptance rate all curtail platform competition, sustaining a high-price, tacitly collusive equilibrium among the few incumbents. Moreover, concealing relevant trip data from drivers is both deceptive and unfair when the platforms are in full possession of the relevant facts. In the absence of these coercive practices, customers too would be better off due to platform competition, which would lower average prices by sharpening competition between incumbents, enable entry by rivals charging lower take rates, and unravel pervasive price discrimination. Coercive practices in the rideshare industry and elsewhere, and the business models they enable, result from the preference for hierarchy and domination inherent in the contraction of liability for vertical restraints since the 1970s
Corporate Democracy and the Intermediary Voting Dilemma
Full text linkCorporate governance is changing. For the past two decades, the focus of shareholder voting and engagement was deconstructing impediments to shareholder power and increasing managerial accountability. The goal of these interventions was to increase firm value by reducing agency costs. Increasingly, however, environmental and social issues have risen to the fore. This new focus is arguably more about values than value. This Article is the first to argue that, because of this shift, institutional intermediaries—namely, pension and mutual fund managers—can no longer vote and engage on the affairs of their portfolio companies without seeking the input of the pension-plan participants and mutual-fund shareholders who are their beneficiaries. We argue that the fiduciary duties of fund managers compel them to seek this input. We further argue that regulators should supplement existing fiduciary standards by adopting formal requirements that managers of mutual funds and pension funds seek input from their beneficiaries on their views, reflect those views in both their engagement efforts and their votes, and publicly disclose how they have complied. At the same time, we caution against an approach in which fund managers shirk their intermediary role by implementing pass-through voting or rigidly voting in proportion to the preferences expressed by their beneficiaries. Instead, fund managers should engage in informed intermediation—a stewardship process in which they continue to exercise voting power over the securities in the portfolios that they manage and retain discretion in how to incorporate the input they receive from fund beneficiaries. This enables professional fund managers to use their sophistication and experience to translate beneficiary preferences—which might be incomplete, vague, and contradictory—into individualized and informed votes at each of their portfolio firms. It also preserves the ability of fund managers to leverage the economic power of dispersed beneficiaries consistent with their historical success in reducing the traditional collective action problems associated with shareholder voting. In reconceptualizing the role of intermediaries, this approach maintains the benefits of intermediation while better aligning intermediary stewardship with beneficiary best interests
Private Ownership of Public Facts: Docudramas, Deals, and Life Story Rights
No full textFrom Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from the subjects of docudrama features based on actual events, sometimes for large sums. In this Article, we explore, critique, and propose to remedy the growing privatization of life stories and show that while the life story deal may seem to reflect beneficial private ordering, it in fact creates a significant negative externality by converting an essential part of the public domain into private property, thereby upsetting the balance of shared and proprietary information on which our systems of free speech and creative expression depend. We offer a parsimonious solution to this problem: Congress should enact a new federal statute barring the enforcement of state rights of publicity against fact-based creative productions such as books, films, and television programs, provided that, for private individuals, their name, image, and likeness are altered to protect their identities. Having a single, clear rule that operates ex ante provides uniformity and clarity that will secure the status of life story facts as part of the public domain without limiting the legal protection of individuals’ dignitary, reputational, and privacy interests
How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar\u27s Sentencing
Full text linkWhether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature. But relatively little is known about the content of VISs and how victims use them. This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs. The VISs reveal the victims’/survivors’ motive for presenting VISs, their manner of presenting the impact of sexual abuse, their interactions with the sentencing judge and the defendant, and other features of the VISs. Analyzing the VISs’ contents confirms many of the arguments supporting using VISs at sentencing and challenges some lingering objections to them. The findings support the desirability of VISs for informational, therapeutic, and educational purposes in criminal sentencings
Climate Insecurity
Full text linkGlobal climate change causes climatic events such as hurricanes, droughts, floods, and heat waves to occur more frequently and with greater severity. In addition to inflicting direct harms, climatic events disrupt the flow of commerce and natural resources, creating shortages of goods and services, sometimes temporarily, sometimes not. Climate change is getting worse, so climatic events will escalate over time, and as events cumulate, there is the potential for multiple events to heap harm on top of harm, exponentially increasing misery and disruption. What looms is the prospect of shortages of basic life necessities.
A vast literature on food and water insecurity now documents droughts and crop failures creating dire shortages in lesser developed places in the world. But this atomistic literature largely treats destructive climatic events as singular, episodic tragedies, not a gathering storm that cripples the ability of whole countries to feed or care for themselves. This literature also fails to extrapolate: a worsening trajectory of climatic changes will cause insecurity to spill over into previously secure populations. In a climate-changed future, large parts of even wealthy countries will experience climate insecurity. Vulnerable populations in the United States have always had to face insecurity on many levels, and their hardship will be less bearable in the future, and more often fatal. But previously secure populations now face jeopardy as well.
In addition to reducing greenhouse gas emissions that cause climate change, efforts to adapt to an already-changing climate must redouble. This article argues that in particular, adaptation efforts must ensure broad access to life necessities. Not only must some measures be undertaken to augment supply, but directly aiding vulnerable populations – including those newly vulnerable in a climate-changed world – will be most effective by framing adaptation within existing markets. This article proposes market-oriented measures to alleviate climate insecurity. These measures must be undertaken now, because once prolonged shortages become endemic, it will be difficult to set right the markets and distribution networks that are so vital to ensuring supply
Adopting Social Media in Family and Adoption Law
Full text linkSocial media has dramatically changed the landscape facing families brought together through adoption. Just as adoptive families thirty years ago could not have predicted the impact of DNA technology on postadoption family life, adoptive families are only now beginning to grasp the impact of social media connectivity on the lives of their growing children. This change is related both to social media’s impact on family life and to fundamental shifts in our understanding of privacy more generally. Understanding the legal rights of parents and children in these circumstances is a novel and underexplored area of family law, constitutional law, and privacy law.
Adoptions have traditionally been cloaked in confidentiality. Hearings that previously only took place in private courtrooms are now often broadcast on social media, giving a very public face to a traditionally private experience. This Article explores these changes and examines social media’s impact on family life in the context of nontraditional families, including in that definition separated parents, foster parents, and families where parents live apart. These issues relate to how parents share about their children online and how such sharing impacts the children now and years into the future. Prospective adoptive parents and birth parents are uniquely situated to use social media to connect with each other and with their shared children. This Article offers a cogent path forward and provides model contractual language for attorneys and parents seeking to address these complex issues proactively. It also offers a potential legal remedy for children in the context of the right to be forgotten. Lastly, it encourages all adults engaged in non-traditional and adoptive families’ lives to seek child-centered solutions that allow all family members the opportunity to thrive in our connected world
Laws Governing Restrictions on Charitable Gifts: The Consequences of Codification
Full text linkOver the last two decades we have seen marked changes in the laws governing donor-imposed restrictions on charitable gifts. These changes have occurred primarily as a result of the adoption in many states of the Uniform Trust Code (the UTC) and the Uniform Prudent Management of Institutional Funds Act (UPMIFA). This Essay explains that codification in the UTC and UPMIFA of liberalized versions of cy pres and deviation, as well as other related changes to the common law, have had unintended negative consequences. Those negative consequences include a lack of coherence in the law, an elevation of form over substance when it comes to the laws applicable to a particular gift, uncertainties regarding how the statutory provisions operate, inequities between sophisticated or well-represented donors and donees and those who are less sophisticated and without the resources to hire experienced advisors, and confusion in the courts as they grapple with this new, much more complex landscape of laws. This Essay outlines these problems and begins to consider what might be done to address them
Consumer-Facing Competition Remedies: Lessons from Consumer Law for Competition Law
Full text linkAssigning consumers the task of disciplining markets is frequently attempted but rarely achieved. We teach financial literacy classes with the hope that consumers will avoid overly-risky and overly-costly financial products. We require calorie labels with the hope that consumers will use them to reduce obesity. We pre-select a no-overdraft default with the hope that consumers will stick with the default and avoid overdraft fees. None of these approaches are terribly effective at achieving the ends sought because, in each instance, the intervention—the classes, the disclosures, or the defaults—produce unexpected heterogeneous consumer responses and are met with a barrage of firm countermeasures.
So too with consumer-facing competition remedies, the firm subject to the remedy gets the last move and can run circles around the remedy. Reducing firm access to consumer data holds some promise for slowing the speed at which firms can run; microtargeted tactics are likely to be more effective than generic plays in undercutting consumer-facing remedies, and firms need personal data to microtarget. By changing firm incentives, performance-based remedies promise to cut through this dynamic entirely, and while their effectiveness in the competition realm remains to be seen, they should be preferred to the consumer-facing remedies that have already failed. Parallel to the imposition of performance-based competition remedies on firms that have engaged in anticompetitive conduct, competition authorities must engage in market-wide regulation that facilitates effective consumer comparison shopping and therefore substantive competition. Given widespread concern about concentration in so many industries today, competition law may need to break new legal ground to remedy and constrain anticompetitive behavior
Free Market State (of Mind): Antitrust Federalism, John J. Flynn and the Utah Constitution’s Free Market Clause
Full text linkThe Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust federalism was rooted in Rawlsian notions of distributive justice and economic equality. One of the early critics of the Chicago School’s output-based economic approach to antitrust analysis, Flynn actively sought to infuse antitrust regulation, primarily at the state level, with the consideration of wealth inequality, distributive justice, and individual liberty. Yet, in recent years, conservative groups have taken up the Free Market Clause as a potential deterrent to progressive regulation. And in the three decades since it was enacted, the courts of Utah have all but forgotten the origin and purpose of this unique and empowering constitutional pronouncement, finding it to be non-self-executing and thereby non-justiciable. This Article, for the first time, unearths the forgotten intellectual history of Utah’s Free Market Clause and explores its three principal applications as: (1) an interpretive aid to Utah’s Antitrust Act, which was modeled on the federal Sherman Antitrust Act; (2) a standalone constitutional claim against anticompetitive state regulations and private conduct; and (3) an alternative approach to federal antitrust analysis that supplements neoclassical economics with concerns over wealth inequality, distributive justice, and individual liberty