Monthly Archives: May 2022

The Pandemic’s Testing of Stakeholder Governance

Stavros Gadinis and Amelia Miazad, A Test of Stakeholder Capitalism, __ J. Corp. L. __ (forthcoming, 2021), available at SSRN.

Stavros Gadinis and Amelia Miazad’s thought-provoking paper, A Test of Stakeholder Capitalism, reveals certain shortcomings of the current academic debate on stakeholder governance.

Somewhat buried in a polarized corporate-purpose debate between shareholder primacy and stakeholder-centric perspectives is a novel narrative of evolution within companies. The authors note that the pandemic’s far-reaching and diverse effects on all types of companies and stakeholders offer a unique glimpse into corporate engagement with stakeholders. However, they caution that we cannot attribute the recent emphasis on stakeholders to the pandemic alone.

Instead, they argue, the pandemic has hastened an ongoing evolution: companies adapt to the complex business environment by developing mechanisms to proactively address stakeholder concerns as a risk management tool. Their collection and evaluation of stakeholder information is a process that ultimately enhances director oversight. Gadinis and Miazad capture this trend and illustrate how companies are becoming more sensitive to business risks, particularly those that are hard to predict; for example, various types of social and political risks. Continue reading "The Pandemic’s Testing of Stakeholder Governance"

Vast Scale Undue Influence

Jamie Luguri & Lior Strahilevitz, Shining a Light on Dark Patterns, 13 J. Legal Analysis 43 (2021).

Each time we browse the web, we are steered into making dubious contracts. A common example is digital platforms’ pressure that users click to ‘ACCEPT ALL COOKIES.’ Web designers not only make the ‘accept’ button the most eye-catching option, they often enhance the effect by having it block what users really want to view. Additionally, the disfavored behavior of rejecting some cookies is intentionally made to frustrate, frequently requiring users to navigate through several screens and choose between deliberately confusing alternatives. When users surrender to this design, they consent to sell their information to innumerable entities without reward—manipulated into donating their private data to sophisticated strangers.

In Shining a Light on Dark Patterns, Jamie Luguri and Lior Strahilevitz do a remarkable job explaining and demonstrating the problem and starting the search for solutions. Their important article contributes to a growing body of literature that discusses the fast-spreading phenomenon of using big data and advanced technologies to prey on human biases and maneuver the decision-making of countless people. As the authors specify, the behavior is based on “altering online choice architecture in ways that are designed to thwart users’ preferences for objectionable ends.” (P. 52.) Their article presents a long list of recognized methods used to manipulate customers, offering examples that would be too familiar to apps and digital platforms users. And, yes, these examples include the method of convincing people to choose the firm-friendy option of accepting all cookies, calling it “interface interference.” Continue reading "Vast Scale Undue Influence"

Using the Past

Sarah A. Seo, A User’s Guide to Historyin Research Handbook on Modern Legal Realism (Shauhin Talesh, Elizabeth Mertz, & Heinz Klug eds., 2021), available at SSRN.

In A User’s Guide to History, Sarah A. Seo offers a thoughtful and challenging assessment of the possibilities and pitfalls of using historical scholarship to guide our present. At the heart of her essay is a tension between needs and methods. We need to know the past to understand the present; we need to know what we’ve done before so we can make the right choices about policies today. But, as Seo strikingly puts it, “history’s methods seem unsuited for determining what, exactly, those policies should be.” To demand that history has a “practical use,” that it serves as “a tool for reform,” may be “something like a suicide mission,” putting at risk “the integrity of the discipline.” (P. 465.)

Seo’s essay—a contribution to the Research Handbook on Modern Legal Realism— thus offers historians a warning, a reminder of the limits of their craft. The essay can be read as a critique of historians who, moved by some combination of enthusiasm, desire for attention, and moral commitment, too confidently claim special insight into present-day legal and political choices. Continue reading "Using the Past"

Nondelegation and Originalism

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Eggert’s opening salvo takes aim at the claim that the Framers of the Constitution adopted a theory of government embodied in John Locke’s Second Treatise of Government of 1689, which includes what originalists characterize as a sweeping rejection of legislators’ delegating lawmaking power. This is the basis of Professor Ilan Wurman’s argument in Nondelegation at the Founding, and, as Eggert points out, Justices Gorsuch, Rehnquist and Thomas have all cited Locke as a source for their argument that the Constitution incorporates a strict nondelegation doctrine. Adding to the chorus of scholars who reject the conclusion that the Framers embodied a nondelegation principle based on Locke’s Second Treatise, Eggert demonstrates convincingly that Locke’s influence had largely disappeared before the Constitutional Convention of 1787 and that his only real influence was in favor of rebellion in the 1770s, not on the structure of the new government created in the 1780s. In fact, only Anti-Federalists opposed to the Constitution relied heavily on Locke and then only to cite his natural rights theories as a reason to reject a powerful central government. Continue reading "Nondelegation and Originalism"

More Just, More Efficient Workplace Regulation

Hiba Hafiz, Interagency Coordination on Labor Regulation, 6 Admin. L. Rev. Accord 199 (2021).

Dozens of administrative agencies regulate American workplaces. Yet, those agencies often fail to coordinate to their full potential, leaving workers and employers without efficient and just labor market regulation. For example, consider the 2015 memorandum of understanding (MOU) between the EEOC and the DOJ’s Civil Rights Division regarding ADA and GINA charges against state and local governments, which clarifies the jurisdiction of the respective agencies, but fails to establish a mechanism for sharing information between them. On the other hand, the MOU between the DOL and the DOJ regarding criminal prosecutions of workplace safety laws from the same year establishes an information-sharing mechanism, but fails to coordinate interagency investigation and enforcement efforts. Neither commits to interagency consultations, compliance reviews, or research initiatives.

Should they? How are federal labor market regulators coordinating, and what might ideal coordination look like? Professor Hiba Hafiz’s new essay, Interagency Coordination on Labor Regulation, answers those questions with the support of untold legal histories, administrative law doctrine, and a remarkable empirical analysis. She assesses how these regulators coordinate in haphazard, ineffective ways—like long-time business partners slowly hammering out, over the span of decades, how to best work together when they could have sat down and established the framework for an efficient working relationship years earlier. Having explicated the problem, she concludes by identifying some best practices and offering a normative proposal for agencies to benchmark the effectiveness of their coordinating efforts. In my estimation, Hafiz’s essay is that rare piece that not only identifies a problem that has not been given proper attention, but also proposes a salve that would make regulation more just and more efficient at the same time. Continue reading "More Just, More Efficient Workplace Regulation"

New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia

The Hagia Sophia Case, Recent Case: Daniștay, Onuncu Daire [Council of State, Tenth Chamber] Matter No. 2016/16015, Decision No. 2020/2595, July 2, 2020, 134 Harv. L. Rev. 1278 (2021).

English legal historian Frederic William Maitland declared in the late 19th century, “[i]f we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think [of] any better answer . . . than . . . the development from century to century of the trust idea.”1 Maitland, indeed, had good reason to applaud the innovation of trust law. But his claim of English exceptionalism may have been a bit immodest.

As beautifully recounted in an unattributed student case note,2 English legal tradition is not alone in recognizing beneficial ownership, the concept that underlies the enduring ingenuity of trust law. The Hagia Sophia Case: Turkey’s Highest Administrative Court Annuls Ataturk’s 1934 Decision Converting the Hagia Sophia into Museum, reveals that the validity of a fifteenth-century Islamic charitable trust emerged in 2020 as a pivotal question on appeal to Turkey’s highest administrative court. In that case, the petitioner sought to invalidate the conversion of one of Istanbul’s famous landmarks, the Hagia Sophia, from an active mosque into a public museum. Continue reading "New Developments in Fifteenth-Century Ottoman Trust Law and the Fate of the Hagia Sophia"

Data-Driven Procedural Inequality

Danya Shocair Reda, Producing Procedural Inequality Through the Empirical Turn, 94 U. Colo. L. Rev. __ (forthcoming, 2023), available at SSRN.

Data is all the fashion, not just in the legal academy and other academic disciplines, but in our daily lives. We have been glued to COVID-19 statistics to make decisions about whether to wear masks, send our kids to school, or take that rescheduled trip. While these graphs and statistics have been helpful, they have not been without controversy. The pandemic has brought into full relief how data can be manipulated, misunderstood, and even misleading.

Danya Reda’s Producing Procedural Inequality Through the Empirical Turn questions and critiques how data is gathered and used in another important context—the federal civil rulemaking process. Reda’s prior work has contributed to how we think about the civil justice system and the rules that govern it. She has shown that elite lawyers and judges constructed and marshalled a cost-and-delay narrative that affects the civil rulemaking process. She has interrogated the effect of casting the rulemaking process as political. In this article, Reda takes her critique a step further by arguing that the rulemakers’ attempts at neutrality—and their attempts to keep the process “neutral” using data—distort the rulemaking process and deepen systemic inequality. Continue reading "Data-Driven Procedural Inequality"

Confronting Surveillance

Amanda Levendowski, Resisting Face Surveillance with Copyright Law, 100 N. C. L. Rev. __ (forthcoming, 2022), available at SSRN.

One prevailing feature of technological development is that it is not sui generis. Rather, new technologies often mirror or reflect societal anxieties and prejudices. This is true for surveillance technologies, including those used for facial recognition. Although the practice of facial recognition might be positioned as a type of convincing evidence useful for identifying an individual, the fact remains that racial and gender biases can limit its efficacy.. Scholars such as as Timnit Gebru and Joy Buolawmini have shown through empirical evidence that facial recognition systems, which are often trained on limited data, display stunningly biased inaccuracy. The two AI researchers reviewed the performance of facial analysis algorithms across four “intersectional subgroups” of males or females featuring lighter or darker skin. They made the startling discoveries that the algorithms performed better when determining the gender of men as opposed to women, and that, darker faces were most likely to be misidentified.

In her path-breaking article, Resisting Face Surveillance with Copyright Law, Professor Amanda Levendowski identifies these harms and others, and advocates for the proactive use of copyright infringement suits to curb the use of photographs as part of automated facial surveillance systems. First, Levendowski illustrates why the greater misidentification of darker faces by algorithmic systems is a problem of great concern. Levendowski shares the story of Robert Julian Borchak Williams who was placed under arrest in front of his home and in view of his family. A surveillance photograph had been used to algorithmically identify him.. However, once the photograph was compared to the actual person of Mr. Williams, it was obvious that he had been misidentified. The only explanation Mr. Williams got was, “The computer must have gotten it wrong.” The sad reality is that Williams’ case is not unique, there are many more stories of Black men being wrongfully arrested based on misidentification by AI systems. Given the glacial creep of federal legislation to regulate face surveillance, Levendowski advocates for turning to the copyright tools she believes we already have. Continue reading "Confronting Surveillance"

Autonomy as Corporeal, Not Just Cognitive

Megan S. Wright, Resuscitating Consent, 63 Bos. Coll. L. Rev. 887 (2022).

Contemporary discussions of the law and ethics of informed consent to medical treatment tend to focus on the process of information communication, including the scope of the disclosures physicians are required to make, and the ability of patients to truly understand those disclosures and integrate them into their medical decision-making. Without dismissing the importance of communication and understanding in securing consent to treatment, Prof. Megan Wright’s article, Resuscitating Consent, directs the reader’s attention to a fundamental concept that seems to have been overlooked as the law and practice of informed consent have developed. Namely, that the principle of patient autonomy upon which informed consent doctrine is based has a corporeal – not just cognitive – component.

Prof. Wright wisely reminds readers that respect for bodily integrity was a foundational principle in the development of autonomy-based legal protections for patients. However, evidence suggests that health care providers in acute care hospitals are willing to violate this principle by imposing medical treatment against contemporaneous patient objections. Prof. Wright argues that all patients – not just those deemed to have decision-making capacity – have an absolute right to refuse treatment as a matter of bodily autonomy. “[P]atients,” according to Prof. Wright, “continue to have bodily integrity interests that should be respected even if they acquire decisional impairments and are deemed incapable of autonomy understood as capacity for rationality.” Contemporary U.S. law, however, fails to adequately protect these interests, and this article offers several compelling recommendations for addressing this issue. Continue reading "Autonomy as Corporeal, Not Just Cognitive"

The International Tax System is There to Achieve Justice

Allison Christians & Laurens van Apeldoorn, Tax Cooperation in an Unjust World (2021).

I love everything about this book book, Tax Cooperation in an Unjust World, by Allison Christians and Laurens van Apeldoorn. It’s short, it’s readable, there’s no mystery about the point (and the authors don’t belabour it), and it’s important.

The main claim: our international tax system has justice at its heart. And when we fail to attend to its justice consequences, we enable states with great wealth to “facilitate[] and feed[] off continued human suffering.” (P. 1.) Continue reading "The International Tax System is There to Achieve Justice"

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