Monthly Archives: March 2021

Delaware’s Place in the World

William J. Moon, Delaware’s Global Competitiveness (Jan. 30, 2021), available at SSRN.

Post-election headlines that Delaware is finally “on the map” after “centuries of obscurity” are anathema to corporate law scholars. Delaware has long been at the center of US corporate law. US corporations may choose where they organize, untethered to their physical location. This creates the tantalizing – and much-studied – possibility of a market for corporate law. In many accounts Delaware dominates that market, with the majority of Fortune 500 companies organized in the state. But the market for corporate charters is not just a domestic US market. It is also a global market. And in the context of that market, Delaware is not doing so well. In Delaware’s Global Competitiveness, Professor William Moon studies the place of Delaware corporate law in the world.

Moon steps into a crowded field, against the backdrop of decades of articles about the reasons for Delaware’s dominance, debunking or promoting or explaining the market for corporate law. But Delaware’s Global Competitiveness and Moon’s recent companion article Delaware’s New Competition fill a key gap. As Moon points out, the discussion of Delaware’s corporate dominance has almost entirely neglected the global scope. Continue reading "Delaware’s Place in the World"

Illuminating The Problems of Electricity Regulation

Shelley Welton, Rethinking Grid Governance for the Climate Change Era, Calif. L. Rev. (forthcoming 2021), available at SSRN.

Energy law today should be everyone’s concern, and especially the concern of administrative law scholars. Scientists report that we are in a climate emergency. Policymakers agree that the electricity sector will be vital to the clean energy transition. A functional electric grid is also a public good that cannot be taken for granted, as the recent disaster in Texas underscores. State and federal agencies, in partnership with their sibling branches, will play a pivotal role in administering the energy solutions the nation adopts. It is an administrative law problem for the ages.

Yet the field of energy law can be an impenetrable slog (I say this as a once and future teacher of the class). Really grappling with energy administration requires excavating dense layers of complex science and technology, unusual regulatory structures, and endless insiders’ terminology to reveal the important problems that lie beneath. Professor Shelley Welton is here to help. In a series of articles, she has elegantly translated the core dilemmas of the clean energy transition. Problems that seemed hyper-technical emerge as familiar administrative law issues of accountability, institutional design, and allocations of power among public and private entities. I’ll focus on one article, Rethinking Grid Governance for the Climate Change Era, but I recommend the entire series, available on SSRN. Continue reading "Illuminating The Problems of Electricity Regulation"

Using Public Health Law to Minimize the Racially Disparate Impact of COVID-19

Govind Persad, Allocating Medicine Fairly in an Unfair Pandemic, __ Illinois L. Rev. __ (forthcoming 2021), available at SSRN.

Since the start of the COVID-19 pandemic, there has been significant public debate about how to fairly allocate scarce medical resources. Questions about resource allocation have become even more pressing now that vaccines are finally being distributed. This has resulted in important body of scholarly work arguing that the allocation of scarce resources for the prevention and treatment of COVID-19 should prioritize groups that have been hardest-hit by the pandemic as a result of structural disadvantages like systemic racism.

Govind Persad’s article, Allocating Medicine Fairly in an Unfair Pandemic (forthcoming in the University of Illinois Law Review) is a welcome addition to these conversations. Persad’s article focuses on issues of racial justice in resource allocation, and applies a much-needed legal lens to the practicalities of distribution systems that are often addressed from a more theoretical perspective. Many commentators in the fields of medicine, medical ethics, and public health have proposed that racial disparities be taken into account in the criteria for resource distribution, but not all have the legal background to understand whether and how such criteria could actually be implemented. Persad’s work offers valuable suggestions for how allocation priorities that minimize the disproportionate effects of COVID-19 on racial minorities might be implemented without being struck down on constitutional grounds. Continue reading "Using Public Health Law to Minimize the Racially Disparate Impact of COVID-19"

A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law

Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN.

Two empirical studies demonstrating the impact of vigorous family defense legal work on child protection cases bookended the 2010s.  In 2012, Mark Courtney and Jennifer Hook found that cases in which a specialized interdisciplinary law office (ILO) represented parents had faster reunifications, guardianships, and adoptions than similar cases with different parental representation, though it did not explore how those results were obtained.1  In 2019, Lucas Gerber, Yuk Pang, Timothy Ross, Martin Guggenheim, Peter Pecora, and Joel Miller found that, compared to solo and small office practitioners, ILOs in New York City hastened reunification and guardianships for their clients, leading to 118 fewer days in foster care per child on average, without any negative child safety outcomes.2

The New York City study also led to a 2020 qualitative study3 offering insight into what made these specialized ILOs so impactful and helping define what makes for high-quality parent representation (known as “family defense”). The answer: traditional lawyering, done aggressively and in collaboration with an interdisciplinary team. Continue reading "A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law"

Uncovering the Little-Known History of Suffragists of Color

Recasting the Vote: How Women of Color Transformed the Suffrage Movement is an essential read for anyone interested in women’s history, the history of voting rights in the United States, Indigenous history, or the history of other under-represented groups. Cathleen D. Cahill brings to light the little-known contributions of Native, African-American, Asian, and Latina women to the struggle for voting rights in America. Cahill combed multitudinous sources to paint robust portraits of these women, including Native activists Laura Cornelius Kellogg, Marie Louise Bottineau Baldwin, and Zitkala-Ša, African-American voting rights advocate Carrie Williams Clifford, Chinese-born activist Mabel Lee, and Latina activist Nina Otero-Warren, among others.

The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.) Continue reading "Uncovering the Little-Known History of Suffragists of Color"

AI & the End of Lawyers… Defeating Class Certification

Peter Salib, Artificially Intelligent Class Actions (December 16, 2020), __ Tex. L. Rev. __ (forthcoming), available on SSRN.

The effect of artificial intelligence (AI) on legal services is one of the most pressing issues facing the profession and legal education. AI has enormous potential to improve efficiencies and reduce costs for clients across many fields, from due diligence to online dispute resolution. This potential renders AI a highly disruptive force in the legal profession. In The End of Lawyers, Richard Susskind asked whether lawyers have any future given the ability of machines to take on many of the tasks we once believed required human lawyers.

In Artificially Intelligent Class Actions, however, Peter Salib argues that in the field of class action litigation at least, AI may lead to more, not less, work for litigators. Salib explores the use of AI to manage large numbers of individual assessments of causation and harm among class members. Rule 23(b)(3) requires that common issues predominate over individual ones for a lawsuit to proceed as a class action. Thus, the need to prove individual causation in product liability cases, or to assess damages for thousands of class members, may be fatal to certification. In other words, some cases are too big to succeed. Continue reading "AI & the End of Lawyers… Defeating Class Certification"

Criticizing Crimmigration

David Mofette & Anna Pratt, Beyond Criminal Law and Methodological Nationalism: Borderlands, Jurisdictional Games and Legal Intersections, in Contemporary Criminological Issues: Moving Beyond Insecurity and Exclusion 15 (Carolyn Côté-Lussier, David Moffette & Justin Piché eds. 2020).

The publication I would like to discuss in this Jot is a chapter in a book that is, in its entirety, a great and important read for those interested in the field of (critical) criminology and criminal justice. The 2020 edited collection “Contemporary Criminological Issues” provides its readers with an interesting set of chapters that challenge current critical criminological theoretical perspectives, themes and methods.

In the opening chapter, Mofette and Pratt introduce a new way to look at the intersection of criminal justice with immigration. According to the authors, this process is by no means fully captured – or understood – by applying the increasingly popular conceptual lens of ‘crimmigration’. The authors claim that the crimmigration lens tends to unjustly focus on finding evidence for the notion of the convergence – or merger – of criminal law and immigration law. As a result, the heterogeneity, contingency, and multiplicity of ordering and bordering practices, including the important ways that jurisdiction brackets and authorizes different legal powers and practices, remains hidden. This leads to false – and oversimplified – claims concerning the mechanisms driving the intersection of criminal justice with immigration.  It also pushes into the background many other legal and quasi-legal regimes that are engaged in bordering practices and that contribute to the regulation and punishment of immigrants. Continue reading "Criticizing Crimmigration"

Index Funds and Millennial Assets

Michal Barzuza, Quinn Curtis & David H. Webber, Shareholder Value(s): Index Fund ESG Activism and the New Millennial Corporate Governance, 93 S. Cal. L. Rev. __ (forthcoming, 2020), available at SSRN.

Index funds have become a subject of intense scrutiny, first and foremost, because they are enormous. BlackRock, Vanguard, and State Street – the “big three,” with several trillion dollars in assets under management collectively – control around one-quarter of the stock of the S&P 500 companies. Accordingly, there is keen interest in understanding how they exercise the rights associated with that mountain of stock. As a threshold matter, why exert themselves at all, when their passive management model thrives on low fees, and therefore low costs? And why, despite these incentives, have they become increasingly vocal on sustainability-related matters, sometimes described as “environmental, social, and governance” (ESG) issues? As Michal Barzuza, Quinn Curtis, and David Webber argue in the paper cited above, the answer may relate to an overlooked dimension of the competition among these major institutions – the urgent effort to attract Millennial assets.

Whereas actively managed funds aim to beat the market, and accordingly compete on performance, index funds simply aim to match the market, and accordingly compete on price. Index funds cannot sell underperforming stocks because, by definition, they track a particular index, and they would seem to lack any straightforward incentive to engage in activism because this drives up costs and correlatively diminishes the competitiveness of their fees. As the authors acknowledge, this view of the matter is consistent with evidence showing that “index funds vote their proxies, but rarely initiate shareholder action, and have small – but growing – corporate governance operations.” Continue reading "Index Funds and Millennial Assets"

Bargaining with an AI

John Linarelli, Advanced Artificial Intelligence and Contract, 24 UNIF. L. REV. 330 (2019), available at SSRN.

Contracts and contracting have changed dramatically in the past fifty years. We have moved from negotiated paper contracts to standard form contracts to digital contracts presented in various ways. The next fifty years promises even more dramatic changes, and not just to the form of contracts. Technological innovation and marketplace needs will undoubtedly disrupt contracting in ways that don’t exist today. John Linarelli’s article Advanced Artificial Intelligence and Contract addresses one of the biggest anticipated disruptions – a not-quite human contracting party. In this article, Linarelli asks the provocative question, “How might contract law adapt to a situation in which at least one of the contract parties could, from the standpoint of a capacity to engage in promising and exchange, be an AGI?”

Linarelli states that artificial intelligence will bring about transformational changes in the law. He uses the term “artificial general intelligence” or “AGI” to refer to an advanced form of artificial intelligence which has a cognitive architecture of its own, unlike the artificial intelligence that currently exists. He invites us to consider the “feasibility of investing an AGI, from a legal point of view, with the power to enter into contracts, either with humans or other AGIs.” Continue reading "Bargaining with an AI"

A Democratic Solution to Social Media Election Warfare, and the First Amendment

David L. Sloss, Information Warfare and Democratic Decayin Tyrants on Twitter: Protecting Democracies from Chinese and Russian Information Warfare (forthcoming 2021), available on SSRN.

During the rise of big tech like Facebook, Twitter, and YouTube, there has been an increase in autocratic governments. Political leaders in Hungary and Poland have used democratic constitutions to curb democracy. They have ignored the European Union’s complaints about their actions. But perhaps the most dangerous development is the information warfare carried out by Russia, China, Iran, and others with the intention of interfering with democratic elections. Some experts argue that Russia’s “organized social media manipulation” was the reason for Trump’s victory over Clinton.1 These countries used U.S. First Amendment values against the U.S.

Professor David Sloss is authoring a book detailing how “Chinese and Russian cybertroops” accomplish their goals, as well as the weak efforts by the U.S. social media companies to respond. These platforms have profit incentives that conflict with the need to block information warfare or disinformation campaigns. This review briefly examines the newly released first chapter of the book. What makes the book significant is that Sloss proposes a multi-national alliance and registration identification system to deter this cyber-espionage and perhaps slow the corresponding democratic erosion. The solution, however, raises serious First Amendment issues even though it may promote democracy. Continue reading "A Democratic Solution to Social Media Election Warfare, and the First Amendment"

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