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Temporary Securities Regulation
Get PDFIn times of crisis, including the 2020-21 global pandemic, the U.S. Securities and Exchange Commission (SEC) has engaged in a type of securities regulation that few scholars have acknowledged, let alone evaluated. Specifically, during recent market crises, the SEC has adopted rules that are temporary, designed to help the securities markets and its participants—both public companies and public investment funds, such as mutual funds and ETFs—weather the crisis at hand but go no further. Once that goal has been accomplished, these rules usually expire, replaced by the permanent rules that they temporarily supplanted. Although the temporary-rulemaking endeavor is laudable—and arguably necessary for the sake of maintaining well-functioning markets in crisis circumstances—neither the SEC nor its observers have sufficiently acknowledged the meaningful risks that temporary rules might present to investors. At the same time, they have also not appreciated the opportunities that temporary rules may create for furthering the cause of more effective regulation. This Article seeks to illuminate the potential and the pitfalls of temporary rules, thereby contributing to a better understanding of what is at stake when the SEC adopts them and what considerations should inform the agency’s rulemaking during future crises
Do Experts Matter? A Study of the Effect of Musicologist Testimony in Music Cases (forthcoming)
No full textThis Article presents the results of a behavioral experiment we conducted to identify what effect, if any, expert musicologist testimony has on jurors in a simulated music copyright lawsuit. Forensic musicologists are considered essential to deciding whether one song infringes the copyright of another song. But this conventional wisdom has never been tested or validated. Contrary to this accepted view, our study found that expert musicologists have little to no effect on jurors when presented as a battle of experts of the parties. However, a court-appointed expert had a significant effect on subjects who lacked training or knowledge in music. These findings call into serious question the current approach to expert testimony in music lawsuits. We consider several alternatives as possible reforms, including greater use of court-appointed experts, the courts’ exercise of a greater gatekeeping role in permitting expert testimony, and, more radically, the rejection of expert testimony altogether. The issue examined by this Article goes well beyond evidence. The current manner in which music cases are litigated with a battle of experts may disproportionately impact musicians who lack resources to afford a musicologist—meaning less established, unknown, and aspiring musicians. The need to hire a musicologist to litigate a copyright lawsuit becomes a barrier to entry for new artists
Liminal Labor Law
No full textHow do people, organizations, and even movements bounce back from losses and setbacks? For organized labor, the disappointments are routinely legal: an overturned precedent, a loss of coverage, or even the accelerated degradation of the National Labor Relations Act (Act) regime itself. In aggregate, these and other law-based defeats pose a serious, even existential, threat to unions. And yet, the labor movement does not just forge ahead, it renews, shape-shifts, and, in many circles, energizes. This article suggests that the legal setbacks, and the persistence, are sometimes connected. Put otherwise, the way labor law is bad is sometimes linked to the movement’s resiliency. In making this case, the article argues that the law’s deficiencies often force movement actors and institutions to operate within “in-between” spaces: precedential instability means rules often exist between what a current decision says it is and predictions about when a future decision will say it is not; organizing protections can hang in a balance between NLRB-created identity poles; and if labor law might range from no rights to great rights, current rights rest, and frequently backslide, between those two extremes. These and other legal in-betweens are ultimately corrosive to collective bargaining and must be fixed. But in the meantime, there is increasing academic, business, and even pop-empirical evidence that in-between or, as described in cultural anthropology, “liminal” states are ripe for creative thought, new relational commitments, and beneficial change. How these and other liminal effects might be located within the labor movement are explored through three very recent case studies involving reversed joint-employer precedent, graduate student misclassification, and the Trump NLRB’s aggressive attempts to further limit the role of collective bargaining in American life
Vol. 39, No. 2
Get PDFBargaining in the Time of Covid: How Collective Bargaining Impacts Schools and Their Mitigation Strategies
By Nicki Bazer
Fighting for the Living
By Stephen A. Yokich
Recent Developments
By the Student Editorial Board: Bradley Kupiec, Carrie Kumiega, Damia Marshall, Sara Rashhttps://scholarship.kentlaw.iit.edu/iperr/1126/thumbnail.jp
The First Step Act -- Constitutionalizing Prison Release Policies (forthcoming)
No full textIn the First Step Act of 2018, Congress directed the Department of Justice to develop a tool to make an algorithmic assessment of recidivism risk based on factors such as the nature of the underlying offense, evidence of prior substance abuse, and education level. In addition, Congress established ways for offenders to shorten their stay in prison, such as by pursuing vocational courses and thereby earning credits toward early release. The First Step Act thus links the length of confinement in part to predictions of recidivism as in the past, but also attempts to parlay a prison stay into an opportunity to incentivize offenders to make adjustments in their lives to minimize the risk of future dangerousness. Many have praised the Act for reintroducing rehabilitation as one of the driving forces of our federal criminal justice system.But, commentators to date have not considered that, in revamping criminal justice policies, the First Step Act may have constitutionalized such early release measures. Unlike in most state systems that use algorithms as guidelines to assess recidivism risk, the Act dictates that the algorithm alone determines eligibility for early release – no discretion on the part of prison authorities is involved. Accordingly, the First Step Act presents one of the first instances in which an algorithm by itself governs eligibility for a government entitlement. We argue that prison authorities must under Due Process principles allow those inmates excluded from eligibility an opportunity to argue that the risk of recidivism determined by the algorithm should be adjusted in light of facts unique to them. Relatedly, we argue that prison authorities must disclose the inputs that underlie the findings of ineligibility under the algorithmic tool. Moreover, in contrast to prior practice, we argue that Congress’s encouragement of inmates to pursue rehabilitative programming to reduce recidivism requires prison authorities to grant early release once those credits are earned because of the entitlement to “earned” credits created in the Act. We conclude that such constitutionalization of release policies, though likely unintended, should further the Act’s rehabilitative goal in seeking to reduce the likelihood of inmate recidivism prior to reentering society