Oct 6, 2022 Jessica M. EaglinCriminal Law
Fanna Gamal,
The Miseducation of Carceral Reform, 69
UCLA L. Rev. _ (forthcoming 2022), available at
SSRN.
Educate, don’t incarcerate. Schools, not prisons.
The call to invest in institutions of care, not prisons and carceral surveillance has grown in popularity in legal and policy circles in recent years. But how should we spend our money to build a world that is safe and equitable for all? A popular response centers on schools. In her forthcoming article,The Miseducation of Carceral Reform, Fanna Gamal critiques this popular response. She contends that there is nothing inherently benevolent about investment in schools over prison. Yet if we take seriously the idea of reinvestment beyond that conceptual confine, we might begin to imagine a transformative pathway forward. Because her work challenges readers to confront the shortcomings in an underlying assumption central to criminal legal reform efforts in recent years, this article is a must-read for anyone curious about the connection between criminal legal reform and education in the era of mass incarceration. Continue reading "Reimagining Reinvestment"
Oct 5, 2022 Bill BrattonCorporate Law
Mark Roe,
Corporate Purpose and Corporate Competition,
Euro. Corp. Governance Inst. (forthcoming 2023), available at
SSRN.
There has been a subtle shift in the standard academic account of shareholder primacy. The touchstone citation for shareholder primacy used to be Jensen and Meckling’s famous 1976 paper on the theory of the firm. This has been displaced by Milton Friedman’s equally famous takedown of corporate social responsibility in 1970 on the pages of the Sunday New York Times. The shift in the citation pattern follows a shift in the leading discussion points. Where people once worried that agency costs were burning up billions of dollars of shareholder value, now, with agency cost containment and the emergence of ESG investing along with movement towards social welfare enhancement as corporate purpose, shareholders sacrifice their own returns for the greater good (or at least make gestures in that direction). A formidable task results for academic corporate law. It needs to reconstruct its own paradigm to explain and justify this turn to social responsibility. Friedman as a result emerges as the fundamental theory-giver rather than as a “but cf.” cite in a footnote describing corporate social responsibility as a related but irrelevant policy discussion.
Friedman’s New York Times essay expanded on a handful of pages in his book on political economy, Capitalism and Freedom, first published in 1962. We there come across a structural observation heretofore missing in discussions about ESG, corporate purpose, and the voting habits of institutional shareholders. Friedman turned to CSR in a chapter on monopoly, observing that the manager of a corporate entity operating as a pure competitor had no room to worry about CSR. The managers of a producer possessing monopoly power, in contrast, had rents to dispose of and allocative choices to make. CSR concerns are thereby conceptually tied to and perhaps limited by market power.
It is a powerful point. Kudos to Mark Roe for bringing it to bear on today’s governance discussion in his forthcoming article, Corporate Purpose and Corporate Competition. Continue reading "The Complicated Business of Corporate Purpose"
Oct 4, 2022 Robert HillmanContracts
Adam J. Levitin,
Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency, 101
Tex. L. Rev. _ (forthcoming 2022), available at
SSRN.
Not Your Keys, Not Your Coins: Unpriced Credit Risk in Cryptocurrency, by Professor Adam J. Levitin, is a must read for anyone writing about or just interested in (or even trying to understand) the world of digital currency. The article is filled with important information and explanations about cryptocurrency, cryptocurrency exchanges, the language and meaning of investor agreements, and current and proposed regulation. The article nonetheless has a particular concern: It focuses on the risks investors face if a cryptocurrency exchange, which not only facilitates trades between sellers and buyers, but also serves as custodian for their cryptocurrency, becomes insolvent. Such an issue, the article points out, likely escapes many investors passively holding their cryptocurrencies in such a custodial account (hence the title’s reference to “unpriced credit risk”). Although no U.S. exchange has yet filed for bankruptcy, the article posits its inevitability in part because of the likelihood of exchange hacking or poor exchange investment strategies. In fact, as I write this JOT, cryptocurrency values are plummeting, raising questions about their future.
Although Not Your Keys discusses an assortment of exchange account arrangements, the article focuses on a particular common one: Cryptocurrency is held in a custodial account, but for various reasons well documented in the article, the exchange has exclusive access to the cryptocurrency and comingles the asset with other investors’ holdings. Further, the custodial account may “lull customers with misleading language about ‘ownership’ and ‘title.’”(P. 52.) In such instances, investors face an insolvency risk possibly unknown to them. The bankruptcy court may treat the co-mingled cryptocurrency as the property of the exchange, with investors holding only a general creditor contract right. This is crucial because in such circumstances, customers must compete with all unsecured creditors of the bankrupt exchange after secured creditors and others with priority rights have taken assets off the top. Continue reading "Cryptocurrency Custodial Arrangements: A Red Flag"
Oct 3, 2022 Helen NortonConstitutional Law
At a time when it’s all too easy to dump on the press, it may be surprising to find press law scholar Erin Carroll, a former journalist herself, adding to the criticism. Yet in News as Surveillance, a symposium essay, she illuminates “how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well.”
21st-century technologies now empower platforms to collect and aggregate information about us, and then to use this information to influence our choices to their own advantage, and in ways that we would resist if we were aware of their efforts. More specifically, platforms’ surveillance of our reading habits and preferences enables them to design and deploy interfaces that change our decisions about when to buy, click on, read, or forward specific content. Informed by data surveillance and fine-tuned through A-B testing, these interfaces can double, triple, even quadruple our willingness to accept online offers and requests. Continue reading "The Press’s Responsibilities as a First Amendment Institution"
