Monthly Archives: April 2021
Significant new technologies have often been invented nearly simultaneously, and some scholars have worried that patent law’s rewards for the first to file create incentives to race to the patent office and do less to refine the invention. Similar concerns have been voiced about competition for academic priority leading to rushed, low-quality publications. But measuring whether competition for IP or academic credit actually decreases quality has proven difficult, and this difficulty limits the usefulness of models of innovation races.
In a creative and important new working paper, Race to the Bottom: Competition and Quality in Science, economists Ryan Hill and Carolyn Stein tackle this empirical challenge. They focus on structural biologists, whose research deciphering protein structures has advanced drug and vaccine development (including for COVID-19) and led to over a dozen Nobel Prizes. Journals and funding agencies generally require structural biologists to deposit their structures for proteins and other biological macromolecules in a worldwide repository, the Protein Data Bank (PDB). Using this rich dataset, Hill and Stein have documented that structures with higher expected reputational rewards induce more competition and are completed faster—but at lower scientific quality. Recognizing and navigating this tradeoff is important for scholars and policymakers concerned with allocating awards among competing innovators through a range of policy instruments, ranging from academic credit to intellectual property. Continue reading "How Do Innovation Races Affect Research Quality?"
Despite the dominance of COVID-19 in our media feeds this past year, we still do not hear much about the anthropogenic origins of zoonotic diseases or the anthropocentrism that frames anthropogenic activity. We hear even less about the corresponding need to combat anthropocentrism, the monumental roadblocks legal systems erect in this regard, and how legal systems can and should adopt anti-anthropocentric perspectives in order to make inroads against an array of inequality-producing social phenomena. Going against this grain, and exacting much-needed pressure against Western legal orders’ exclusionary anthropocentric worldview of “nature” as property, is Alyse Bertenthal’s Standing Up for Trees: Rethinking Representation in a Multispecies Context.
In this elegantly-written article—that reads more like a cogent literary meditation than standard law review writing itself—Bertenthal casts a critical lens on the anthropocentrism of Western legal cultures and, in particular, the legal devaluation of trees in the American landscape (figuratively and literally). But she also challenges us further by asking us to interrogate the human-made legal constructs that are meant to rectify the subordinate position of “nonhuman nature” (P. 356)—such as the extension of legal personhood—for their residual anthropocentric exclusions. Continue reading "Legal Human Humility: Contending with the Representation of Trees and Other “Nature” Beings"
Conceptually, “terrorism” is complicated. Although a definition is simply stated – terrorism is the unlawful use of violence for political ends, usually against civilians – the “unlawful” component of the definition and the “civilian” component blur quickly. An attack by a non-uniformed independence fighter on a police station closely aligned with military operations treads the line. So does the civilian who is willing to give coded warnings to fighters when regime forces enter a neighborhood. One man’s terrorist is another man’s freedom fighter, or so they say.
Notwithstanding the legal gray zones, there are national and international legal regimes dedicated to stamping out the practice. Enter Pooja R. Dadhania’s Paper Terrorists: Independence Movements and the Terrorism Bar, which tackles a discrete, specific ambiguity in the law of terrorism and proposes a practical, reasonable, and immediate measure that can be taken to bring clarity to at least a thread of the far more intricate tapestry. Her article is one I like a lot, and it is one with which I encourage scholars of this difficult area of the law to engage. Continue reading "Clarifying the Legal Consequences of “Terrorism”"
Millions of Americans are in cohabiting relationships marked by varying degrees of intimacy and dependency. Although at least some of these relationships are functionally similar to marriage, the law has had a limited role in regulating them. Nonmarital partners are ineligible for benefits like family leave, Social Security, favorable tax treatment, and more. Moreover, marital property rules do not apply to them, meaning that economically vulnerable partners may find themselves with nothing at the relationship’s end. In most states, one legal tool available to nonmarital partners is contract. Since the California Supreme Court’s Marvin v. Marvin decision over forty years ago, the vast majority of jurisdictions have allowed partners in intimate relationships to enter into contracts governing property, as long as sex is not consideration for the contract. The problem, most scholars observe, is that the vast majority of couples either do not bother to make agreements in the first place or do not express them in the form of a concrete exchange. Taking courts at their word, scholars assume that courts will enforce nonmarital contracts when they find them.
Albertina Antognini’s latest article, Nonmarital Contracts, disrupts this account. Through a painstakingly detailed examination of the entire universe of cases involving express contracts between nonmarital partners, Antognini shows that courts very rarely enforce agreements between opposite-sex partners exchanging domestic labor for money or other property, the very type of exchange that Marvin theoretically greenlighted. Thus, contract fails to make much of an impact, but for a different reason than is commonly assumed: the very courts that proclaim a right to contract in theory decline to enforce them in reality. Continue reading "Restating the Law of Nonmarital Contracts"
Garrett Felber’s book, Those Who Know Don’t Say, offers a fresh and fearless new intellectual and activist history of the Nation of Islam (NOI), which situates a critique of the carceral state as central to the Black Freedom movement. Felber is a historian, who has become a recent cause celebre among academics for his firing by the University of Mississippi as retaliation for calling out the school’s allegiances to racist donors over public service. His firing has been a buckshot warning that academic freedom and free speech are not as free as we might think. In response, over 5,000 scholars and professors signed on to an “open letter” to his school demanding he be reinstated.
While Felber might be viewed as terminable by his home institution, his research is anything but, and instead, opens up academic study in new and exciting directions. Grounded in excavations of archival sources, court documents, and religious records, he offers meticulous, high-caliber scholarship that revises a portion of civil rights history and the NOI’s place in that history. The author shows that Muslims in America have been subject to surveillance and Islamophobia for decades. This, in turn, has helped fuel the Muslim community’s decisively antagonistic view of the prison system. Continue reading "Unveiling Religion’s Challenge to the Carceral State"
Marcus Alexander Gadson, Stolen Plausibility, __ Geo. L. J. __ (forthcoming, 2021).
I often explain to my brilliant first-year law students that, unlike most of their education before law school, originality is not required, nor is it always rewarded. Creativity is certainly key to being a successful lawyer but hewing to convention is critical too. I recall my discomfort as a law clerk when I first copied and pasted a summary judgment rule paragraph from my judge’s prior order into the order I was drafting. It feels odd, but it is something we do in the legal profession. We borrow language, ideas, and arguments all the time.
Which is why Marcus Gadson’s Stolen Plausibility is so striking. Examining post-Twombly and Iqbal decisions, Gadson finds that plaintiffs have adapted by using other parties’ complaints and investigations to fill in the facts required for plausibility. This makes sense. In discrimination cases, for example, a plaintiff who cannot make it to discovery is unlikely to obtain the facts required to plead a plausible claim. Yet if other parties have already established key facts through an investigation, it makes sense for the aggrieved plaintiff to borrow those facts. There seems no good reason to re-invent facts just as there was no good reason for me to rewrite my judge’s standard summary judgment rule paragraph. Continue reading "Something Borrowed"
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"
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"
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"
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"