Yearly Archives: 2024
Aug 13, 2024 Ann LiptonCorporate Law
Hilary J. Allen,
Interest Rates, Venture Capital, and Financial Stability, __
U. Ill. L. Rev. __ (forthcoming), available at
SSRN (March 8, 2024).
The last decade has seen a transformation in patterns of corporate organization. Enabled by loosened restrictions on private capital raising, venture capital firms have fueled the creation of a new ecosystem of large, privately held “unicorn” companies that are so well capitalized that they have not sought to access the public markets. That shift has been accompanied by a host of new questions about optimal governance arrangements, fiduciary obligations, the positive externalities of securities disclosure, fraud prevention, the role of shareholder agreements, and the disciplining effect of the capital markets.
In her new paper, Interest Rates, Venture Capital, and Financial Stability, forthcoming in the Illinois Law Review, Professor Hilary Allen adds a new question: what are the risks to financial stability? Allen claims that low interest rates fueled the growth of venture capital, which is itself prone to inflating bubbles and exacerbating panics. She ultimately argues that financial regulators need to be more attuned to unexpected places where funding tends to flow during periods of accommodative monetary policy. Continue reading "Venture Capital and Financial Stability"
Aug 12, 2024 Robert HillmanContracts
Kimberly D. Krawiec, Nathan B. Oman,
The Case for Specific Performance of Personal Service Contracts, 110
Iowa L. Rev. __ (forthcoming, 2025), available at
SSRN (May 17, 2024).
Professors Krawiec and Oman’s insightful new article caught my eye, having myself challenged various contract remedial rules in my research and writing over the years. The title of the Professors’ article made me wonder, however, whether the authors can convince readers that the seemingly inviolate rule against specific performance of personal service contracts should be overturned. But it turns out that the call for specific performance in the article actually applies to a quite limited set of personal service contracts, with the rule against specific performance still governing most such contracts. Despite the title, the authors have a good explanation for why their more narrow thesis is important: Personal service contracts that should be subject to specific performance are “legally and economically significant.” (P. 58.)
Early on, the authors clarify that their goal is to show that specific performance should not be ruled out and the general rules governing equitable remedies should apply if the breaching employee is wealthy, sophisticated, and money damages are incalculable or insufficient to make the employer whole. Further, courts should consider specific performance only when a reasonable substitute employee is not available. In addition, specific performance would only apply if the parties agreed to the remedy in their contract and would never apply if the employee had little bargaining power nor to contracts with at-will employees (the latter for obvious reasons). Finally, the duration of a specific performance order would be limited to one year or less. Thus, the authors would target for specific performance fixed-term contracts between employers and employees such as sports figures, entertainers, and teachers, and even in these instances the typical flexible rules of equitable remedies would apply so that specific performance would not be automatic. Continue reading "The Case Against Static Contract Remedies"
Aug 9, 2024 Jaya Ramji-NogalesLexImmigration
Immigration law as a field of scholarly inquiry is largely critical of the status quo, with much of the literature describing inequities authorized by law and implemented through policy. An increasing number of these works foreground the work that race performs in perpetrating and perpetuating injustice in the immigration system. Yet there remains a profound silence around the question of blackness in migration. Modern Migrations, Black Interrogations begins to dismantle that silence, presenting the reader with “the unasked question” in the field of migration studies. (P.1.) This critique of antiblackness upends existing assumptions and presents important new directions for scholarly inquiry in immigration law.
As the Introduction to this edited volume explains, blackness should be the starting point for any study of mobility. But we cannot just “add blackness and stir”; the editors insist that we must begin by interrogating the antiblackness at the heart of the U.S. immigration system. (P. 11.) It is only through this more profound inquiry that we can begin to understand all borders and bordering processes, and to combat the antiblack violence enabled and obscured by the vast silence that greets questions of blackness and mobility. (Pp. 1, 14). Continue reading "Dismantling Silence Around Blackness and Mobility"
Aug 8, 2024 Ilya SominConstitutional Law
If one of the purposes of constitutional law is to protect liberty against abuses of government power, the War on Drugs must be regarded as one of America’s greatest constitutional failures. Over the last century, and especially since its expansion beginning with the Controlled Substances Act of 1968, the War on Drugs has led to thousands of needless deaths, the imprisonment of hundreds of thousands of people, and severe violations of civil liberties—all without doing much to curb the social problems of drug abuse and addiction. With rare exceptions, constitutional law has done little to curb these great evils.
In The Constitution of the War on Drugs, David Pozen gives us the most through and insightful overview of this failure to date. As he demonstrates, there were a number of plausible constitutional arguments for curbing the War on Drugs that—if accepted by the courts—might have significantly limited at least the most severe abuses. But, for the most part, they were rejected. He also offers useful suggestions for future strategy by drug law reformers. Continue reading "The War on Drugs as a Constitutional Failure"
Aug 7, 2024 Christopher WalkerAdministrative Law
If it is true that the Roberts Court overrules one precedent per year, Humphrey’s Executor is likely one of its next targets. Nearly ninety years ago, the Supreme Court in Humphrey’s Executor upheld the constitutionality of statutory for-cause removal protections for the multimember heads of the Federal Trade Commission (FTC). That precedent allowed Congress to continue to insulate the leaders of so-called independent agencies from at will firing by the president. Many progressives view Humphrey’s Executor as critical for preserving expert-driven regulatory governance insulated from excessive politics. Many conservatives, by contrast, view Humphrey’s Executor as a direct threat to political accountability through presidential control.
As the debate over Humphrey’s Executor intensifies, one may reasonably wonder whether independent agencies are as great as progressives believe or as dangerous as conservatives fear. In The Independent Agency Myth, Neal Devins and David Lewis shed some important empirical light on those questions. Based on two large surveys of agency officials, they conclude that “the independent agency model no longer works; most independent agencies are not particularly expert, not particularly influential, and their policies and policy-making processes are subject to (not insulated from) elected branch oversight and manipulation.” (P. 1309.) This conclusion is reminiscent of my colleague Dan Crane’s take that today’s FTC “bears almost no resemblance to the Progressive-technocratic vision articulated by the [Humphrey’s Executor] Court. The Commission is not politically independent, uniquely expert, or principally legislative or adjudicative.” Continue reading "A World Without Humphrey’s Executor?"
Aug 6, 2024 Elizabeth C. TippettWork Law
In her new book, Racial Emotion at Work, Tristin Green discusses the social science regarding our emotions about race and racism and what it implies about our interactions at work. (P. 28.) This research goes beyond the more familiar research on implicit bias, cognitive biases, and automatic associations.
Green examines, for example, the anxiety white people face in interracial interactions (P. 43), and how they avoid such interactions. (P. 45.) She also examines research suggesting that Black men and women are more likely to view adverse reactions through a racial lens but are reluctant to share those experiences with others. (Pp. 38-39, 112-15.)
In so doing, Green criticizes the cultural tendency to prioritize the racial emotions of white people—in particular, the fear of being called “racist”—over the lived experience of Black men and women who experience adverse treatment. To illustrate, she turns to Title VII jurisprudence: for example, in a case where the plaintiff called a supervisor “racist in front of subordinate staff,” the court took that as enough for a legitimate non-discriminatory basis for discipline. (P. 82.) Continue reading "Racial Emotions As Symptoms of Systemic Bias"
Aug 5, 2024 Carol Necole BrownProperty
Noah M. Kazis,
The Radical Fair Housing Act, 111
Va. L. Rev. __ (forthcoming, 2025), available at
SSRN (February 27, 2024).
Is geography fate, as Ralph Ellison proclaimed; is geography our destiny; does it determine our life’s course? I tend to think so because my own personal life story has been incredibly, indelibly, positively impacted by geography. Perhaps this is why I was drawn to share Noah M. Kazis’ forthcoming article, The Radical Fair Housing Act. In his article, Professor Kazis describes the radical features and nature of the Fair Housing Act (FHA) that call into question whether housing markets should be restructured in pursuit of housing equality rather than conceding that housing equality may only be pursued within existing structures.
While some take the view that housing discrimination and segregation continue to persist, that an adequate stock of affordable housing continues to elude most communities, and that this evidences the failures of the FHA, Kazis’ approach is different, fresh, and yes, even hopeful. He has chosen to focus on the FHA’s strengths and its “structural ambitions” that make the FHA’s approach to discrimination “broader, more searching, and already more structural” than Title VII’s anti-discrimination approach. (P. 16.) This is not to say that Kazis ignores the FHA’s weaknesses; rather, he chooses to focus on the FHA’s “radical ambitions” because only by recognizing the distinctive nature of the FHA’s structure and approach to housing discrimination, can the FHA’s breadth and strength be fully appreciated and built upon. Continue reading "Perhaps Geography is Everything"
Aug 2, 2024 Allison Anna TaitTrusts & Estates
Climate change and environmental justice are topics that thread through and are pushing the boundaries of legal inquiry in multiple doctrinal areas. From reproductive justice to corporate investing, environmental concerns have emerged as both salient and pressing. One subject area still awaiting robust exploration of the relationship between environmental concerns and legal rules is inheritance law. This lack of energetic conversation about the environment and estate planning might be, on the one hand, surprising. Estate planning is all about the future and provisioning future generations. On the other hand, it is perhaps not a complete surprise since estate planning tends to focus on the preservation of private family wealth rather than the creation of extended public benefit.
Given the need for increased scholarly attention to this area, it is encouraging to see two short pieces about environmental justice and estate planning in the Fall 2023 volume of the ACTEC Law Journal dedicated to a critical analysis of inequality in the field. The first of the two articles is Trace Brooks’ article, Incorporating Social Justice and Environmental Sustainability into Estate Planning Through Conservation Easements. In the article, Brooks explores “the intersection of estate planning, private land conservation, social justice, and environmental sustainability,” and discusses ways in which conservation easements have been used both to entrench and erode inequality. Conservation easements, in which a landowner donates an easement to a conservation organization (think a land trust or even the government) in exchange for a tax deduction, have historically been a tool for wealth preservation and obtaining tax advantages. So, while these kinds of easements provide environmental benefit by restricting development and preserving the land, they have also comprised a mechanism for consolidating and increasing family wealth, particularly for white families and communities, and particularly for those who can afford homes and land in desirable geographies. The existence and effects of this trend in high-wealth locales have been compellingly documented and explored by sociologists like Justin Farrell in Billionaire Wilderness and Lisa Sun-Hee Park and David Pellow in The Slums of Aspen. Continue reading "The Wealth Planning Climate"
Aug 2, 2024 Victoria J. HanemanTrusts & Estates
A billionaire invests in human cryopreservation so that his head may be preserved in hopes of his entire person being revived later. His head, and his favorite dog, will be preserved at minus 320 degrees Fahrenheit in a cylindrical tank filled with liquid nitrogen in the hopes that the advanced medical technology of the future will allow for their reanimation. And no, the technology does not currently exist to reanimate a cryogenically preserved human or dog, but cryogenics companies are optimistic that it will be possible in the future.
As part of his revival plan, the billionaire consults with an estate planning attorney. He would like a perpetual trust to be established in the state of South Dakota, so that he and his dog need not be poor in the future. The perpetual trust can shelter a large chunk of money (often transfer tax-free) for centuries, in relative secrecy. Because of the climate crisis, our unfrozen billionaire may awaken to find himself in a world without Greenland or Antarctica. Important megacities will be gone, including New York City, London, Shanghai, Mumbai, and Bangkok, and so he needs to buy a new house. Or two.
Planning for immortality in a bleak apocalyptic future has become big business for an unknown number of billionaires who also appreciate the importance of maintaining status as a “have” (instead of a “have not”). This billionaire hypothetical (which may not actually be hypothetical—I will leave it to you to figure out) raises a myriad of rarely discussed ethical issues for both estate planners and legislators. Estate Planning Ethics for the Apocalypse, by Carla Spivack, published in 2023 in the ACTEC Journal, seeks to open this important conversation. Continue reading "Climate Conscious Advocacy and Perpetual Burdens"
Aug 1, 2024 Christopher J. RobinetteTorts
In discussing tort theory, Professor Gregory Keating sometimes refers to a “third way.” By this, I take him to mean an approach to tort theory different than, and drawing from, the two major ways of explaining and/or justifying tort law. For decades, those dominant approaches were law and economics efficiency and corrective justice, though I suspect civil recourse theory has now supplanted corrective justice as the primary “rights-based” theory.
Keating’s own version of a third way emerges in the course of reading his excellent book, which builds on his previous scholarship. While engaging with law and economics (hereafter “L&E”) and corrective justice (hereafter “CJ”)/civil recourse (hereafter “CR”) scholars, Keating constructs a theory of tort law that draws from both sources. Keating is not, however, Solomonic in the sense that he is simply splitting the baby. He embraces a deontological perspective that he believes is inherent in tort law. In sum, “[t]ort is about what we owe to each other in the way of coercively enforceable obligations not to impair or interfere with each other’s urgent interests as we go about our lives in civil society.” (P. 6.) Continue reading "Professor Keating’s Third Way"
