Sep 8, 2023 Andrew F. TuchCorporate Law
- Michael Klausner & Michael Ohlrogge, Was the SPAC Crash Predictable?, 40 Yale J. Reg. 101 (2023).
- Michael Klausner, Michael Ohlrogge & Emily Ruan, A Sober Look at SPACs, 39 Yale J. Reg. 228 (2022).
- Michael Klausner & Michael Ohlrogge, SPAC Governance: In Need of Judicial Review, (Nov. 19, 2021), available at SSRN.
- Michael Klausner, Michael Ohlrogge & Harald Halbhuber, Net Cash Per Share: The Key to Disclosing SPAC Dilution, 40 Yale J. Reg. 18 (2022).
- Michael Klausner & Michael Ohlrogge, Is SPAC Sponsor Compensation Evolving? A Sober Look at Earnouts, (Jan. 31, 2022) available at SSRN.
Few scholars have done more to illuminate little-understood but vitally important areas of corporate and securities practice than Michael Klausner and Michael Ohlrogge. Their work has been an essential guide to the boom in special purpose acquisition companies (SPACs). Once a remote corner of securities practice, mergers of SPACs suddenly became a mainstream method for taking companies public. And just as suddenly, they faltered. The boom having now ended, Professors Klausner and Ohlrogge ask: “Was the SPAC Crash Predicable?” It is the title of their latest article. The answer, they think, is yes.
In the article, Professors Klausner and Ohlrogge replicate much of the analysis of an earlier, critically important study coauthored with Emily Ruan. At the time, the group promised a “sober look” at SPAC transactions and presented compelling evidence that SPACs are a rigged game. That evidence attracted strong industry skepticism but has since become broadly accepted. The influence of their findings is apparent in the Securities and Exchange Commission’s proposed SPAC reforms and in recent decisions from the Delaware Court of Chancery. Continue reading "Explaining the SPAC Crash"
Sep 7, 2023 Eboni NelsonContracts
One would be hard pressed to find a law school graduate in the past half century who was not aware of the Williams v. Walker-Thomas Furniture Co. case. Many law professors consider the case, which challenges the enforceability of a cross-collateralization clause in an installment sales contract, to be a classic for its contribution to the doctrine of unconscionability. However, this elevation to “classic” status has not been without controversy and a great deal of commentary. Some scholars have questioned the continuation of teaching the case in first year Contracts due to concerns about the racial and socioeconomic issues imbedded in the case. They fear that the case perpetuates harmful stereotypes about people of color and those living in economically disadvantaged communities. Others claim that the case lays the foundation for legal remedies that will ultimately harm certain communities rather than help them. In his thought-provoking article The Bitter Ironies of Williams v. Walker-Thomas Furniture Co. in the First Year Law School Curriculum, Professor Duncan Kennedy convincingly counters this claim and asserts the importance of the case’s contribution to the unconscionability defense, which he argues ultimately benefits rather than harms people living in certain communities, specifically those living in poor Black neighborhoods.
Professor Kennedy’s article is “part of a larger project exploring the economics of housing and credit in poor Black neighborhoods” in which he “defends the range of legal initiatives that legal services lawyers and clinicians, with progressive lawyers and academic allies, have undertaken on behalf of poor Black neighborhoods against the perennial neoliberal accusation that they ‘hurt the people they are supposed to help.’” He begins his piece by discussing how professors and casebooks present and examine the case, which often involves querying whether banning the challenged clause would hurt or help poor buyers or borrowers. The ensuing discussion often includes arguments regarding the possibility of increased risk and costs for the seller that will be passed on to consumers resulting in higher sales prices or increased interest rates that will prevent some buyers from participating in the market. Professor Kennedy notes that some argue that this outcome is “especially unfortunate” for buyers like Ms. Williams who are poor and demonstrates “the quintessential case for the idea that well-meaning humanitarian policy initiatives are chronically counterproductive as well as grossly paternalist.” Continue reading "Where’s the Harm?"
Sep 6, 2023 Emily BremerAdministrative Law
Jodi L. Short, In Search of the Public Interest, 40 Yale J. Reg. 759 (2023).
Congress often instructs agencies to act in the “public interest,” but what does that mean? Does it mean anything at all? Professor Jodi Short tackles this in an important new article, In Search of the Public Interest. How one defines the term “public interest” matters, for as Short explains, it appears approximately 1,280 times in the U.S. Code. (P. 767.) Critics of the administrative state decry the term as vacuous—an indication of congressional abdication and unconstitutional delegation of legislative power. Proponents of the administrative state, on the other hand, view “public interest” standards as integral to sound regulatory schemes—a meaningful instruction to administrators that can help ensure Congress’s policy goals are achieved. The debate, which is often abstract and ideologically freighted, can seem intractable.
Short seeks to cut the Gordian Knot with an empirical analysis of how agencies have interpreted and applied “public interest” standards in the real world. She begins by offering a thorough yet concise overview of various theoretical approaches to defining the public interest, breaking them down into categories centered on substantive values, efficiency claims, and procedural arguments. This primer swiftly orients the reader to the contours of the broader debate, while providing a taxonomy for the subsequent analysis. The remainder of the article offers a real-world view of how a sampling of federal and state agencies have given the concept of the public interest content and effect. Continue reading "Finding the Public Interest (and the Rule of Law) in On-the-Ground Administration"
Sep 5, 2023 Elizabeth C. TippettWork Law
Deborah A. Widiss,
Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model,
Ind. Legal Stud. Rsch. Paper No. 506, available at
SSRN (June 13, 2023).
In this informative article, Professor Deborah Widiss guides us through a recent trend in “red” states towards authorizing employer-sponsored family leave insurance.
Unlike state paid family leave laws—which “mandate paid leave for new parents,” (P. 8), and are typically funded through a payroll tax—a privatized model permits insurance companies to offer paid family leave insurance policies to employers. Employers can then choose whether to offer coverage to their workers.
Widiss explains that paid family leave insurance is a relatively recent phenomenon. Because “the insurance market is tightly regulated,” state legislatures must first “authorize sale of the [insurance] product to individuals or companies within its jurisdiction.” (P. 16.) Continue reading "Are Family Leave Insurance Policies the Wave of the Future?"
Sep 4, 2023 Gerry W. BeyerTrusts & Estates
Many of us love and cherish our pets and want to ensure their safety even after we are gone. Some may wish to make specific accommodations for their pets via inter vivos or testamentary pet trusts. Others may “keep it simple” by merely bequeathing their non-human companions to someone they know and trust. But what happens when owners leave provisions in their wills asking for their pets to be euthanized humanely after the owners die? While most courts in the past have refused to enforce these provisions, their justifications vary from the testator’s “true” intent to public policy and the anti-waste doctrine. Kaity Y. Emerson and Kevin Bennardo provide a thoughtful analysis of some of these justifications. They ultimately conclude that the anti-waste doctrine provides the most straightforward argument against dead-hand control. They discuss background on the legal status and value of animals, dead-hand control and its limitations, relevant caselaw, and finally provide their advice on how this issue should be handled in the future.
Pets have consistently been recognized as the personal property of their owners, who are free to treat them as they wish, barring animal cruelty. Courts apply this concept by allowing claims for wrongful death or negligent harm to a pet. In these cases, an owner may recover damages stemming from economic harm, but may not recover for emotional damages or loss of companionship. While courts disagree on the amount of recovery for such charges, even mixed-breed animals can yield some amount of recovery. Like tort law, bankruptcy law also recognizes animals as property. A companion animal may be listed as an asset and is given an exemption, allowing debtors to retain their pets in bankruptcy proceedings. By looking at other areas of law, we see clearly that animals have value as their owner’s personal property. Continue reading "Protecting Pets From the Death-Hand"
Sep 1, 2023 Leslie KendrickTorts
Gregory Keating,
Irreparable Injury and the Limits of the Law of Torts in 2
Oxford Studies in Private Legal Theory 185 (Paul B. Miller & John Oberdiek eds. 2023), available at
SSRN (Dec. 8, 2022).
Gregory Keating’s absorbing and insightful new article, “Irreparable Injury and the Limits of the Law of Torts,” surveys familiar territory from a distinctive vantage. As he does in his recent book, Reasonableness and Risk, Keating invites us to reconsider the fundamentals of what tort law is for and what reasonable care looks like. In this paper, he presents these questions through a central motivating problem: reparation is one of the central goals of tort (some would say its only goal), but in many cases, “tort reparation is not fully up to its assigned task.” (P. 1.) In particular, serious physical injury and death are two harms that tortious wrongdoing may inflict but the tort system cannot repair.
Keating argues that this problem finds its clearest expression in cases of premature death. (P. 3.) He observes that common-law tort failed to address the death of plaintiffs at all, and to the extent that tort suits address it today, they do so through statutory survival and wrongful death actions. (Pp. 4-5.) Even then, generally speaking, neither action compensates for the specific harm that occupies Keating: the harm of no longer being alive. Survival and wrongful death actions may account for financial resources lost on account of tortious premature death, and loved ones may receive recompense for their own emotional harms, but hedonic damages—damages for pain and suffering or loss of enjoyment of life—are generally available only for the period in which an injured plaintiff was alive. They are not typically awarded to the dead. (P. 5.) Continue reading "What If a Moral Theory of Tort Requires Deterrence?"
Aug 31, 2023 Geovanna MedelProperty
Today’s dominant narratives of American advancement present urbanization as progress and rural America as a wasteland. The misconception of rural decay helps rationalize rampant labor and resource exploitation and slows the nation’s ability to respond to national challenges including climate change, housing inequality, and finite natural resources.
In Rural America as a Commons, Ann Eisenberg advocates reconceptualizing rural America as a common resource (“the commons”), belonging to everyone in America, including the urban majority. She adeptly centers key questions at the heart of this contentious relationship: Does rural distress warrant urban intervention and why should urbanites care? Continue reading "Rurality for All: Reconceptualizing America"
Aug 30, 2023 Scott Skinner-ThompsonTechnology Law
Brenda Dvoskin,
Speaking Back to Sexual Privacy Invasions, 98
Wash. L. Rev. __ (forthcoming 2023), available at
SSRN (March 6, 2023).
Thanks in part to the ardent work of dedicated activists and scholars, there is a growing body of law and industry self-regulation governing violations of individuals’ sexual privacy, such as the unconsented distribution of another’s intimate images online. In her thoughtful piece, Speaking Back to Sexual Privacy Invasions, scholar Brenda Dvoskin powerfully argues that a key example of such regulation—many internet platforms’ self-imposed total ban on nudity—goes too far and is in many ways counterproductive to the goals of sexual privacy. As Dvoskin explains in her effort to deepen sexual privacy legal theory and make its application more consistent with its professed values of fostering (consensual) sexual expression, any effort to completely abate the harms flowing from sexual privacy violations requires not just preventing unconsented disclosures ex ante, “but also transforming the meaning of public representations of sexuality.”
Dvoskin argues that one of the principal harms flowing from unconsented disclosures originates in the social stigma associated with nudity. If self-authorized nudity became more commonplace via deregulation, the social harm of having one’s body seen might be decreased (albeit not eliminated). Put succinctly by Dvoskin, “[p]ublic representations of sex are an essential tool to destabilize the meaning of unwanted exposures and, in turn, reduce the harms experienced by victims of privacy losses.” As conceptualized by Dvoskin, diminishing the negative social meaning ascribed to nudity reduces the power of privacy invaders to inflict any harm and, in that view, is an intervention that more fully captures feminism’s emancipatory potential. Continue reading "Sexuality’s Promise for Sexual Privacy"
Aug 29, 2023 Adam ThimmeschTax Law
The fiscal federalism literature has long recognized that the mobility of capital and labor counsel toward the use of benefits taxes, like property taxes and fees, at local levels to avoid distortions in the location and amount of economic activity. The strength of this accepted wisdom on tax assignment has changed slightly since the so-called “first-generation theory” of fiscal federalism, but the general notion remains strong that local jurisdictions should not impose income taxes on local business activity, because of the risk of losing tax base. And in an era where workers and businesses are more mobile than ever, a tax on local workforces and business income would seem to be on a particularly poor footing.
In The Surprisingly Strong Case for Local Income Taxes in the Era of Increased Remote Work, Erin Scharff and Darien Shanske provide a compelling counter narrative to this accepted wisdom. In doing so, Scharff and Shanske contribute significantly to the fiscal federalism literature and to the current debates about how the ease with which labor and capital can move in the modern world should shape how governments fund their operations, both within the United States and globally. Continue reading "Taxing the Value of Being Together"
Aug 28, 2023 Nick AllardLegal History
For months I have been carrying, wherever I take my briefcase, a captivating new book of American constitutional history and analysis which offers a brilliant lens for examining American federalism. That is because whenever time permits, I want to read, reread, and think about the book’s meticulous, original, deep research and the illuminating insights that the author has packed neatly within his single volume. My near constant companion has been Christian Fritz’s fascinating and exquisitely timely Monitoring American Federalism: The History of State Legislative Resistance. His book addresses in a fresh and comprehensive way the great unsolved conundrum of the founding of our republic: how America’s unprecedented theory of a federal system of dual sovereigns, involving national and state governments which are both empowered by the citizens of overlapping geographies, can and should work in practice.
Monitoring American Federalism is a rich source that likely will become an essential text about the distribution and exercise of constitutional powers for scholars and educators who are experts in the subject matter. Yet it also is accessible to a broader audience of readers, including those who wish to be better informed while navigating real contemporary questions about balancing federal and state power. This latest book by Professor Fritz, in my opinion, is a must-read for those interested in examining, questioning, teaching, judging, upholding, and more fully grasping the constantly evolving complexity of our brilliantly conceived but flawed, cantilevered, self-correcting constitutional democratic form of limited representative government, a model of government which depends upon the informed consent of the governed. Continue reading "The Unfinished Symphony of American Federalism"
