Yearly Archives: 2015
May 11, 2015 Caroline BradleyCorporate Law
- Yesha Yadav, Insider Trading in Derivatives Markets, 103 Georgetown L.J. 381 (2015)
- Yesha Yadav, Structural Insider Trading, Vanderbilt Law and Economics Research Paper No. 15-8 (March 27, 2015), available at SSRN.
The question of distinguishing between the informational advantages insiders and outsiders may and may not legitimately exploit in trading in the financial markets is perennial: is securities regulation about achieving a level playing field for investors or about imposing sanctions for certain fiduciary and fiduciary-like breaches of duty which go beyond traditional remedies for such breaches. The Second Circuit’s decision in US v Newman emphasizes the fiduciary duty component of liability: at least in a criminal case involving tipping by insiders “the Government must prove beyond a reasonable doubt that the tippee knew that an insider disclosed confidential information and that he did so in exchange for a personal benefit.”
In these papers Yesha Yadav focuses on two specific problem areas in insider trading regulation, relating to trading in credit default swaps (CDS) by lenders and “structural” trading using a combination of preferential access to information and locational advantages. Both examples present arguments for a rethinking of how insider trading regulation should address the realities of modern, complex, financial markets. Continue reading "Rethinking Insider Trading Regulation"
May 8, 2015 Helen NortonConstitutional Law
Genevieve Lakier,
The Invention of Low-Value Speech,
Harv. L. Rev. (forthcoming), available at
SSRN.
Bedrock First Amendment law calls for the Supreme Court to apply strict scrutiny to the government’s content-based regulation of speech. Except when it doesn’t. Over time, the Court has identified several categories of expression as sufficiently “low value” to trigger a First Amendment analysis less suspicious than strict scrutiny, thus enabling greater government regulation of that speech. These categories have included commercial speech, true threats, incitement to imminent illegal action, “fighting words,” obscenity, defamation, fraud, child pornography, and speech that is integral to criminal conduct. This subject, and what we think we know about it, is the focus of Genevieve Lakier’s valuable new article, The Invention of Low-Value Speech. Especially useful and novel for its strong historical look at the long first era of First Amendment law prior to the twentieth century, it is also important as a refutation of the Court’s current approach that purports to rely entirely on historical analysis to identify categories of low-value speech.
Taking a categorical approach to First Amendment protection, of course, requires a methodology for determining which speech belongs in which categories. In its decision in United States v. Stevens, 559 U.S. 460 (2010), the Supreme Court surprised many observers with its insistence that historical tradition alone has driven its determination that a category of expression is of only low First Amendment value. The Stevens Court struck down a federal statute that prohibited the commercial creation, sale, or possession of depictions of animal cruelty. In so doing, the Court rejected as “startling and dangerous” what it characterized as the government’s proposed “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” To be sure, the Court started by acknowledging that, “[a]s the Government correctly notes, this Court has often described historically unprotected categories of speech as being ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” The Court went on to assert, however:
But such descriptions are just that – descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor. When we have identified categories of speech as fully outside the protection of the First Amendment, it has not been on the basis of a simple cost-benefit analysis. . . . [but we have instead] grounded [our] analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.
Stevens thus made the descriptive clam that the Court has relied only on historical analysis to identify categories of low-value speech (i.e., that it has focused on whether courts have historically treated the contested expression as low-value), rather than on balancing analyses that identify contested expression as “low-value” when its threatened harms outweigh its capacity to further key free speech values. Continue reading "How Do We Know When Speech is of Low Value?"
May 6, 2015 Lisa Larrimore OuelletteIntellectual Property Law
- Tejas N. Narechania, Patent Conflicts, 103 Geo. L. Rev. (forthcoming 2015), available at SSRN.
- Jacob S. Sherkow, Administrating Patent Litigation, 90 Wash. L. Rev. (forthcoming 2015), available at SSRN.
In these new articles, Tejas Narechania and Jake Sherkow push the contextualizing trend in IP scholarship in a novel direction. As noted by Rob Merges, scholars are increasingly recognizing that formal IP laws are embedded in a broader economic context, and this wave of scholarship includes case studies of fields in which innovation is supported by norms and market incentives (like fashion, cuisine, roller derby names, and tattooing) and increased analysis of non-IP mechanisms like tax credits and direct transfers through which the state provides significant financial support for innovators. But in addition, I think this contextualizing move involves recognition that the innovation ecosystem is shaped not only by non-IP laws and norms, but also by a broad array of institutions.
Most discussions of institutional actors in patent law have analyzed interactions among the Federal Circuit, the Supreme Court, Congress, and the PTO. But these two new articles by Narechania and Sherkow focus on administrative agencies beyond the PTO. Building on terrific work by scholars such as Arti Rai, Sapna Kumar, and Kali Murray, Narechania and Sherkow provide detailed examples of the ways in which agencies such as the FTC, FCC, ITC, NIH, and FDA have played key roles in influencing patent policy. Continue reading "The PTO Is Not the Only Patent Agency"
May 5, 2015 Peter ShaneAdministrative Law
Margo Schlanger’s article, Intelligence Legalism and the National Security Agency’s Civil Liberties Gap, is an important contribution to both administrative and national security law. She explains in illuminating detail how the NSA, the hub of so much controversial electronic surveillance activity, is not a rogue enterprise, but deeply enmeshed in and committed to a complex regime of legal compliance. The question she poses is why so elaborate a compliance system is seemingly ineffective in advancing civil liberties values more robustly. Her argument is thematically related to an earlier and equally thoughtful paper, Offices of Goodness: Influence Without Authority in Federal Agencies (reviewed here), which likewise explored the difficulties for administrative agencies in honoring overarching values that are relevant to their programs, but which may appear as orthogonal to a particular agency’s specific primary objectives. (Think about the Department of Transportation promoting park land conservation or the Army Corps of Engineers protecting endangered species.)
Professor Schlanger argues that, within the NSA, the applicable legal rules are insufficient to induce a proper balance between the likely security gains from a particular surveillance initiative and the privacy and civil liberties risks and costs entailed in that initiative. Constitutional restrictions won’t produce the optimal balance between costs and benefits because the scope of constitutional rights doesn’t turn on that balance. Policy is not a major factor driving constitutional interpretation concerning the scope of individual privacy rights, especially where courts may not fully grasp the privacy implications of programs under review. (And, of course, private lawsuits are likely to exert little leverage over the intelligence community because the state secrets doctrine will insulate many government practices from effective—or any—judicial challenge.) Continue reading "Getting from “May We?” to “Should We?” at the NSA"
May 4, 2015 Gerry W. BeyerTrusts & Estates
Professor Reid Kress Weisbord’s article astutely addresses the growing problem of demand outpacing supply for organ donations needed for lifesaving medical procedures. Professor Weisbord’s discussion of the debate surrounding whether compensation should be allowed for posthumous organ donations to encourage higher donation rates focuses on the parameters of a proposed regulatory system to respect the wishes of the donor. This respect for the decedent’s preference for whether their organs may be sold by his or her estate forms the foundation of the article and is referred to by Professor Weisbord as “anatomical intent.”
The article describes a system that would allow compensation for organ donations by striking a balance that both encourages donation by avoiding unnecessary hurdles, and yet still deters fraud and undue influence. Professor Weisbord addresses this balancing act by suggesting specific parameters for registration of anatomical intent that are “sufficiently secure to protect the donor but sufficiently simple to avoid deterring willing donors from registering their intent,” and default rules when no expression of anatomical intent has been made that “respect the autonomy, privacy, and religious liberty interests of non-donors by presuming that the decedent prefers to prohibit the postmortem sale of his or her bodily remains absent an affirmative indication of intent to donate.” Continue reading "Organ-izing Your Estate"
May 1, 2015 Alex B. LongWork Law
Jessica L. Roberts,
Protecting Privacy to Prevent Discrimination, 56
Wm. & Mary L. Rev. (forthcoming, 2015), available at
SSRN.
Jessica Roberts’ upcoming article, Protecting Privacy to Prevent Discrimination, explores the pros and cons of enacting privacy protections to thwart discrimination. Using the Genetic Information Nondiscrimination Act (GINA) as her primary example, Roberts argues that the two areas of law may “operate symbiotically rather than separately.” Thus, privacy law may be used to further anti-discrimination goals and vice versa.
Roberts’ article contains a thoughtful discussion regarding the different principles underlying privacy law and anti-discrimination law. The article also raises interesting issues about the extent to which the right to privacy has, over time, evolved. As originally conceived, the privacy torts and their statutory counterparts sought to further the norm of autonomy. The wrong that resulted from an intrusion upon an area of solitude or the public disclosure of a private fact was the invasion of privacy itself. But Roberts suggests that privacy law may also be used as a means of preventing and addressing more tangible harms occurring in the employment context by working in harmony with anti-discrimination principles. Continue reading "The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law"
Apr 29, 2015 Kathleen DeLaney ThomasTax Law
Reuven S. Avi-Yonah,
Just Say No: Corporate Taxation and Corporate Social Responsibility __ NYU J. Law & Bus. __ (forthcoming), available at
SSRN.
The recent wave of corporate inversion transactions, in which domestic companies essentially move their headquarters abroad to lower their U.S. tax bill, is just the latest in a decades-long trend of aggressive tax avoidance behavior by corporations. From the government’s perspective, inversions and other tax avoidance strategies erode the U.S. tax base and impose a costly enforcement challenge on Treasury and the IRS. But from the perspective of corporate managers, aggressive tax planning may simply be part of the corporation’s duty to maximize shareholder value. Reuven Avi-Yonah questions this latter proposition in Just Say No: Corporate Taxation and Corporation Social Responsibility. He offers a compelling argument that corporate managerial duties are not hopelessly at odds with the goal of promoting better corporate tax compliance.
Avi-Yonah frames the issue of corporate tax avoidance as one of corporate social responsibility (CSR). If it is legitimate for corporations to engage in activities that do not directly benefit shareholders—for example, involvement in philanthropic causes—then it should be legitimate for corporations to act as good tax citizens. On the other hand, if CSR is outside of the scope of legitimate corporate functions, then presumably corporations should seek to minimize their tax liability as much as possible. Continue reading "Do Corporate Managers Have a Duty to Avoid Taxes?"
Apr 28, 2015 Eric BiberLexEnvironmental Law
Cary Coglianese and Jennifer Nash have added yet another thoughtful contribution to the debates over whether voluntary compliance programs can significantly improve environmental law and policy. This thorough and careful empirical review of the most important voluntary environmental compliance programs is essential reading for anyone interested in environmental law and policy.
In the 1990’s and early 2000’s, a strong strain in environmental legal scholarship argued that environmental regulation was too punitive, inflexible, and rigid. According that scholarship, regulation punished regulated parties who sought, in good faith, to comply with the law; it imposed regulatory standards without regard to the benefits of the regulation as applied to a particular regulatory party, or of the feasibility or appropriateness of compliance for a particular regulatory party; it was unable to keep up with complex and rapid economic and technological change. Many of these critiques were initially raised and made prominent by Bob Kagan and Eugene Bardach, beginning with their 1982 book Going by the Book: The Problem of Regulatory Unreasonableness. Continue reading "Do Voluntary Compliance Programs Really Improve Environmental Law?"
Apr 27, 2015 John FloodLegal Profession
Ronit Dinovitzer & Bryant Garth,
Lawyers and the Legal Profession, (
UC Irvine School of Law Research Paper No. 2015-19), available at
SSRN.
One of the main concerns of the authors is the structure of the legal profession in which perpetual reproduction of hierarchies forms a contest among different elements of the profession. The configuration of the profession shapes its research which places corporate lawyers and firms at the top of the hierarchy. This seems to stem from the early Cravath idealisation of law firm development. Even though the Cravath model dates from the late 19th century, it reverberates still in the 21st century and has captured scholars’ thinking. It appears difficult to shake off these established idealisations and models when discussing the legal profession. Dinovitzer and Garth (D&G) endeavour to show how these cleavages rip through the study of legal professions.
“Lawyers and the Legal Profession” draws on the research done on the structure of the legal profession, its divisions, lawyers’ backgrounds (gender, ethnicity, class), law firms and globalisation. The range is broad but there is one caveat, which is most of the work referred to is based on research done within the US. It is legitimate to question this given the global differences between legal professions, regulatory systems and the like. Although the Cravath model might have been the blueprint for law firm organisation that was exported by American lawyers—and its residues are apparent—whether it remains the dominant model is open and contested, even, perhaps, within the US. See, for example, the rise of the “smart” law firm (Wald). I return to this later. Continue reading "The New World Order for Lawyers and the Legal Profession(s)"
Apr 24, 2015 Brian BixJurisprudence
Roger Cotterrell,
Why Jurisprudence Is Not Legal Philosophy, 5
Jurisprudence 41 (2014), available at
SSRN.
Most people who use the terms at all treat “jurisprudence” and “legal philosophy” as interchangeable terms. In “Why Jurisprudence is Not Legal Philosophy,” Roger Cotterrell argues for a distinct meaning for the two terms, and for a greater emphasis on jurisprudence, in comparison to what he perceives as undue current attention to and an unduly high valuation of legal philosophy.
For Cotterrell, legal philosophy is the application to law, usually at a high level of abstraction, of ideas from philosophy, sociology, economics, or other disciplines in the humanities or social sciences. His particular concern is that much of what goes on under “legal philosophy” today—in particular, under what he calls “contemporary legal positivism”—inclines towards questions about what is true “essentially” or “necessarily” of all legal systems (or legal systems “in all possible worlds,” he might have added). These kinds of inquiries might be the sort of thing that is of interest to professional philosophers, Cotterrell maintains, but they are of little interest—and little use—to practicing lawyers. Continue reading "Bricolage Jurisprudence"
