Yearly Archives: 2021
Apr 22, 2021 Robert RosenCorporate Law
Roy Shapira,
A New Caremark Era: Causes and Consequences, 98
Wash. U. L. Rev. __ (forthcoming, 2021), available at
SSRN.
It is well known that corporate compliance departments’ effectiveness depends on the quality of information they receive. In A New Caremark Era: Causes and Consequences, Professor Roy Shapira argues that providing information to attorneys for plaintiffs also can enhance compliance. Delaware courts have broadened and are broadening shareholder inspection rights, interpreting DGCL §220. When plaintiff attorneys take advantage of this procedural change, their cases can survive motions to dismiss. Shapira traces out the substantive consequences of this expansion of access: It puts teeth into their Caremark arguments.
Demonstrating a confidence in their abilities to prevent fishing expeditions and quickly dismiss strike suits, and generally to engage in what Shapira calls “micro-management,” Delaware courts minimize the costs to corporations of expanding discovery. Also demonstrating a confidence in corporations’ abilities to properly respond to discovery requests, Delaware courts also have found that the absence of records can demonstrate a violation of Caremark duties. As a result, corporations increasingly will paper their decision-making. Even if this is only window-dressing, Shapira insightfully explains that when it is known that these papers are discoverable, internal compliance will be enhanced. Continue reading "If It Is Discoverable, It May Count: From Shareholder Rights to Inspect Books and Records to Implementing Caremark Duties"
Apr 21, 2021 David HoffmanContracts
Theresa Arnold, Amanda Gray Dixon, Hadar Tanne, Madison Sherrill and G. Mitu Gulati,
‘Lipstick on a Pig’: Specific Performance Clauses in Action, __ Wisconsin L.R. __ (forthcoming, 2020), available at
SSRN.“Lipstick on a Pig”: Specific Performance Clauses in Action, forthcoming in the Wisconsin Law Review, is a good example of how to pack a deep insight into a short essay. The authors—Theresa Arnold, Amanda Dixon, Hadar Tanne, Madison Sherrill and Mitu Gulati—have made a real contribution. That they were able to do so about an old topic—damages or injunctions in contract law—illustrates the continuing value of the Wisconsin-school tradition of looking at real contracts to teach us something about the state of doctrine.
As readers will be well-aware, we teach specific performance as a disfavored remedy, available rarely outside of the unique goods and real estate contexts. But, as the authors cogently show, this is a puzzle: the damages preference is both comparatively exceptional and theoretically hard to defend. It’s also hard to know if it’s a majoritarian default. The existing literature on the prevalence of specific performance opt-in clauses in contracts is sparse, being limited to Eisenberg and Miller’s (2015) finding that lawyers drafted specific performance clauses in around 50% of a small sample of M&A clauses from 2002. Continue reading "Folk Wisdom about Remedies"
Apr 20, 2021 Kristin HickmanAdministrative Law
Agency reliance on subregulatory guidance to advise the public is a perennial topic of discussion among regulatory practitioners and administrative law scholars. We want agencies to be forthcoming in sharing their thoughts regarding the laws that they administer, yet we fret that they rely inappropriately on subregulatory guidance to avoid their procedural responsibilities, and we struggle to balance the two.
The use of artificial intelligence in the administration of government statutes and programs is another hot topic these days, and rightly so. Optimism abounds that agencies will be able to harness the machines to make administration fairer and more efficient, yet of course we should think critically as well about the problems that relying on computer algorithms to achieve administrative ends may raise. In Automated Legal Guidance, Joshua Blank and Leigh Osofsky extend their wonderful work on “simplexity” in tax administration to put these concepts together and offer a critique of government reliance on artificial intelligence to provide guidance to the public. Continue reading "Artificial Intelligence Meets Simplexity"
Apr 19, 2021 Kim BrooksTax Law
Handbooks are the best. A good one tells you something about how the discipline is organized, identifies major debates, showcases thoughtful researchers, and captures the momentum of the field. Brauner’s editorial work on the Research Handbook on International Taxation achieves all those advantages.
The volume has twenty chapters, organized in five parts. Part I, Fundamentals, digs into some of the issues that situate the discipline as a whole. Is there such a thing as international tax law? How did we get here? Who is responsible? And is there an international doctrine of tax fairness that can serve as a platform for constructive engagement? Continue reading "A Hand Up in International Tax: Brauner’s Research Handbook on International Taxation"
Apr 16, 2021 Marcia L. McCormickWork Law
Increasingly sophisticated data analytics paired with machine learning is changing the world, and workplace applications are already a thriving industry. Over the last five years or so, legal scholars have increasingly explored the legal implications of these new technologies. Most of that work has focused on concerns related to privacy or discrimination, and quite a bit focuses on use of this technology in hiring. This focus only reaches part of the “people analytics” industry–it leaves out the application of predictive analytics to first analyze and then shape worker behavior and the working environment.
In Preventing #MeToo: Artificial Intelligence, the Law and Prophylactics, James P. de Haan tackles this kind of application of AI in the workplace by looking at how predictive analytics could be used to prevent harassment. It’s a great time to be thinking of this potential application for at least three reasons. The effects of the #MeToo movement have caused employers to pay more attention to preventing harassment, the technology appears to be soon in reach, and thinking about this application might help us think carefully about other ways AI might be used to shape worker behavior and the working environment. Continue reading "An Early Warning on an Early Warning System: Avoiding Minority Report, Workplace Edition"
Apr 15, 2021 Allison Anna TaitTrusts & Estates
For those who pay attention to trust law developments, it’s clear that a vast transformation in trust law is taking place. American states like Wyoming, Alaska, Nevada, Delaware, and South Dakota are rewriting their laws to permit trusts that promise perpetual duration, maximum asset protection, and continued settlor control in order to compete with offshore jurisdictions for billions of dollars in trust business. Even for those who don’t usually take notice of trusts, trust law and the uses of the trust as a mechanism to create and perpetuate wealth inequality is becoming better understood. Katarina Pistor, for example, has aptly explained how trusts are “one of [the] most ingenious modules for coding capital” in Anglo-American law. Moreover, economists like as Emmanuel Saez and Gabriel Zucman, have increasingly started to look at the roles of trusts in building a landscape of wealth inequality.
Into this conversation step Mark Bennett and Adam Hofri-Winogradow with their new article entitled, The Use of Trusts to Subvert the Law: An Analysis and Critique. Their aim is to widen the scope of the debate and inquire into what constitutes a proper normative theory of the trust. This type of inquiry has been fraught, the authors remark, in part because the normative nature of the trust is law-subverting – a poorly kept secret but one that nobody wants to discuss in polite company. Continue reading "Trust Law Secrets, Revealed"
Apr 14, 2021 Christopher J. RobinetteTorts
Alex B. Long,
Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, (Mar. 31, 2021) __
U. Ill. L. Rev. __ (forthcoming), available on
SSRN.
The intentional infliction of emotional distress (IIED) is, in some ways, an outlier among the intentional torts. Most intentional torts are ancient, dating back centuries. By contrast, the original Restatement of Torts, published in the 1930s, did not recognize IIED; it first appeared in a supplement in 1948. More importantly, the intentional torts tend to focus on delineated forbidden conduct. The gist of battery is contact; of assault, it is apprehension; of false imprisonment, it is confinement. IIED is broader, vaguer than the other intentional torts. Although vagueness has the advantage of flexibility, it creates significant difficulties in application.
Alex Long’s recent article, Using the IIED Tort to Address Discrimination and Retaliation in the Workplace, provides concrete guidance on a specific and important fact pattern.
In spite of Title VII and other antidiscrimination statutes, discrimination and harassment in the workplace remain a problem. Long wants to use tort law to help. Mindful of courts’ reluctance to use the tort of IIED in the employment context, Long singles out a limited set of circumstances for liability. He argues that “courts should recognize retaliatory conduct as an especially weighty factor in deciding whether conduct is extreme and outrageous for purposes of IIED claims, particularly where it is coupled with discriminatory conduct.” (P. 4.) Long’s reasoning is partially instrumental; deterring retaliation would arguably incentivize people to complain about and, thus, reduce harassment. He focuses primarily, however, on the harm to the victim, using social science research to support his argument. Continue reading "Filling the Gaps in IIED"
Apr 13, 2021 James GrimmelmannTechnology Law
Content moderation is a high-stakes, high-volume game of tradeoffs. Platforms face difficult choices about how aggressively to enforce their policies. Too light a touch and they provide a home for pornographers, terrorists, harassers, infringers, and insurrectionists. Too heavy a hand and they stifle political discussion and give innocent users the boot. Little wonder that platforms have sometimes been eager to take any help they can get, even from their competitors.
evelyn douek’s The Rise of Content Cartels is a careful and thoughtful exploration of a difficult tradeoff in content-moderation policy: centralized versus distributed moderation. The major platforms have been quietly collaborating on a variety of moderation initiatives to develop consistent policies, coordinated responses, and shared databases of prohibited content. Sometimes they connect through nonprofit facilitators and clearinghouses, but increasingly they work directly with each other. douek’s essay offers an accessible description of the trend and an even-handed evaluation of both its promise and its perils. Continue reading "Content Cartels and Their Discontents"
Apr 12, 2021 Douglas NeJaimeFamily Law
In her insightful Comment on June Medical Services L.L.C. v. Russo in the Harvard Law Review’s Supreme Court Issue, Professor Melissa Murray uncovers the “complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence.” (P. 312.) She shows not only that stare decisis principles structure the Court’s abortion jurisprudence, but also that conflict over the abortion right shapes the Court’s approach to stare decisis. In this sense, Murray persuasively demonstrates how abortion casts a long shadow over other bodies of law, not least of which is the trans-substantive question of stare decisis.
Murray’s perspective invites us to appreciate how the abortion conflict provides a template for other struggles, both inside and outside the courts. Without saying so explicitly, her analysis helps us to make sense of ongoing contestation over the meaning and reach of Obergefell v. Hodges, the Supreme Court’s 2015 landmark decision recognizing same-sex couples’ constitutional right to marry. Even as same-sex couples exercise the right to marry nationwide, opponents of LGBTQ equality are seeking to narrow and limit the decision’s reach—without asking the Court to expressly overrule it. They rely, often expressly, on the campaign against abortion rights as a model. Continue reading "The Shadow of Abortion"
Apr 9, 2021 Andrew HalpinJurisprudence
Jeff Pojanowski,
Reevaluating Legal Theory, 130
Yale L. J. 1300 (forthcoming, 2021), available at
SSRN.
Reevaluating Legal Theory, by Jeff Pojanowski, is a review essay on Julie Dickson’s work on indirectly evaluative legal theory takes in her 2001 book, Evaluation and Legal Theory, and her subsequent writing on the topic. More than this, it situates Dickson’s work within wider jurisprudential debates, preceding and continuing after her contributions. The essay amounts to a detailed guide through the terrain of jurisprudential methodology, which is both informative and stimulating, both cautious and boldly innovative. The reader is invited on a journey to be undertaken with less than favourable weather conditions, taking place under the menacing clouds gathering from the positivist/anti-positivist conflict. The route has been selected not so much as to feature moments of breathtaking vistas, as to require the reader to trudge through disappointing locations which have not lived up to their proclaimed attractions. We have to confront a dead end, or cul-de-sac (Pp. 1300, 1306), as well as admitting to being on the road to nowhere. (P. 1324.) Disappointing as this may be, one has to admire the instructive commentary accompanying each mis-step along the journey. Ultimately, this prepares us for the promise of a brighter destination, which holds out the hope of delivering what previous stopping points have failed to deliver.
Pojanowski characterizes what Dickson has sought to achieve by her indirectly evaluative approach as a dilemma for her: in reconciling within a concept of law “features of law that are (a) necessary or essential to all legal systems, based on (b) what those subject to the legal system find important and significant about law (c) without imposing a morally evaluative filter on those important and significant theoretical necessities.” (P. 1313.) At the heart of this dilemma is the need to bridge the contingent, relativistic, or particularistic perceptions discoverable at (b) with the universal features required at (a). (Pp. 1315, 1320, 1307, 1322.) This is exacerbated by a tension, or even outright conflict, between the participant perception and the theorist perception of what features are significant at (b). (Pp. 1317 n.86, 1319, 1323, 1328.) There is no easy fix available to the theorist so as to be able to impose uniformity on the range of participant perceptions of those features. Continue reading "Taking Theory Out of a Participatory Cul-De-Sac"
