Monthly Archives: June 2023
Jun 30, 2023 Joan MacLeod HeminwayCorporate Law
Public company law and practices in the United States are rooted in line-item and gap-filling disclosure regulation. Although the precise place and value of disclosure in business law and regulation has been—and (appropriately) continues to be—debated, mandatory disclosure has been a cornerstone of the U.S. federal securities laws applying to public companies since the enactment of the Securities Act of 1933. Together with liability (including antifraud) provisions and substantive regulation, mandatory disclosure rules have been one of the three core regulatory tools employed at the federal level to promote capital formation and fair, honest markets for securities, while at the same time providing core protections for investors.
At its core, Lisa Fairfax’s Dynamic Disclosure: An Exposé on the Mythical Divide Between Voluntary and Mandatory ESG Disclosure embraces mandatory disclosure rules in the spirit in which they have been enacted and employed in U.S. federal securities regulation. The article also, however, articulates the independent and cooperative value of voluntary disclosure as an important piece of the regulatory puzzle. In essence, Fairfax suggests that “the modern publicness of corporate information has eroded the walls between voluntary and mandated disclosure, making it impossible not to consider voluntary disclosure as an integral aspect of mandated disclosure and the overall disclosure regime in which corporations operate.” Importantly, Fairfax illustrates this proposition in the context of one of the most hotly contended areas of current regulatory debate: ESG (environmental, social, and governance) disclosures, including the U.S. Securities and Exchange Commission’s climate change disclosure proposal. Her insightful and diplomatic treatment of the subject matter is a breath of fresh air in ongoing debates about both the regulation of ESG disclosures specifically and mandatory disclosure as a component of securities regulation more generally. Continue reading "Toward A Non-Binary Vision of Disclosure Regulation"
Jun 29, 2023 Ezra RosserLexPoverty Law
Michelle Wilde Anderson’s The Fight to Save the Town: Reimagining Discarded America is worth reading for its optimistic approach to the challenges facing poor communities. Governments in such communities are often beset by significant legal and structural limitations that make it hard for them to provide even basic services to poor residents. With government programs related to poverty largely forced into retreat since the War on Poverty, the Affordable Care Act being the notable exception, it is easy for those who care about how the government responds to poverty to fall into despair. Poverty law offers little solace. The promise of Goldberg v. Kelly having long since faded, poverty law scholars are left searching for reasons for hope. The Fight to Save the Town provides glimmers of hope despite the legal and structural limitations facing struggling communities.
Anderson explains in the introduction that she aligns herself with the “‘call in,’ rather than ‘call out,’ tradition of social change,” (P. 31) which captures the book’s tone and approach. Portraits of community leaders and community organizations fighting back against urban decay and government decline form the heart of the book. But for all the heroism depicted in The Fight to Save the Town, readers are left—as they arguably should be—simultaneously inspired by the many examples of communities coming together and horrified by the fact that anti-government and anti-poor sentiment has been so effective in gutting these same communities for so long. Continue reading "Building Community in Poor Towns and Cities"
Jun 28, 2023 Martha ErtmanContracts
Marissa Jackson Sow’s brilliant article Whiteness as Contract pushes contracts scholars and critical race theorists to think about old topics in new ways by revealing connections between seemingly separate areas. It builds on Cheryl Harris’ Whiteness as Property, 106 Harv. L. Rev. 1709 (1993), to show the deep synergy between contract and white supremacy the way that Harris connected the private law of property to public law regulating racial subordination. Like Harris, Jackson Sow marshals high theory – here social contract theory — to explain persistent structural, economic, and physical harms to African Americans and in doing so prescribes a fix to those injustices. Jackson Sow’s “whiteness as contract” theory could and should shape many if not most future scholars’ writing about law and inequality.
We’re on the Contracts Jotwell page, so I focus on Jackson Sow’s Washington & Lee Law Review article. But you may already know about the breadth and ambition of Jackson Sow’s theory from the wide range of contexts to which she’s applied it: police brutality in Protect and Serve, 110 Cal. L. Rev. 743 (2022); enfranchisement in (Re)Building the Master’s House: Dismantling America’s Colonial Politics of Extraction and Exclusion, 121 Mich. L Rev. 113 (2023); and to defend critical race theory in Whiteness as Guilt: Attacking Critical Race Theory to Redeem the Racial Contract, 69 UCLA L. Rev. Disc. 20 (2022). Continue reading "Contract as a Tool of Systemic Racism & (Maybe) Reparations"
Jun 27, 2023 Lyrissa B. LidskyConstitutional Law
Merritt E. McAlister,
Macro-Judging and Article III Exceptionalism, UF Law Faculty Publications 1197 (2023), available at
UF Law Scholarship Repository.
In Macro-Judging and Article III Exceptionalism, Professor Merritt E. McAlister spotlights largely overlooked aspects of the operation of federal courts that work against the interests of litigants and society. Not only does the article expose the unintended consequences of institutional design choices, but it is written in an engaging and accessible style that more of us should emulate.
Broadly speaking, Professor McAlister analyzes and critiques the reshaping of the operation of the federal courts over the last fifty years through decisions concerning judicial workflow and workload. This reshaping is the product of what she calls “macro-judging,” i.e., “macro-level” decisions made or influenced by Article III judges concerning who decides which cases and how they decide them. Although “macro-judging” decisions over the last fifty years may have enhanced judicial efficiency, the aggregate effect has been to prioritize “the view that Article III courts are ‘special’ places, with elite judges whose work should focus on only the most important federal cases.” In other words, the effect of macro-judging decisions by the Article III judiciary has been to “entrench [ ] . . . Article III exceptionalism.” This article persuasively illustrates that Article III exceptionalism has had negative consequences for the public interest, and it lights a path toward reform. Continue reading "Aren’t We Special?: Article III’s Institutional Design"
Jun 26, 2023 Wendy WagnerAdministrative Law
Farhang Heydari,
The Invisible Driver of Policing, 76
Stan. L. Rev. __ (forthcoming 2024), available at
SSRN (June 3, 2023).
The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM communications to shore up rule proposals and avoid the logical outgrowth test. Agencies might even rely on guidance to sidestep onerous notice-and-comment requirements for rulemaking. By following the path of least resistance, agencies can accomplish their statutory assignments more swiftly and with fewer risks.
In The Invisible Driver of Policing, which is forthcoming in the Stanford Law Review, Farhang Heydari brings the toothpaste tube theory to a new level in unveiling NHTSA’s displaced efforts at enhancing the safety of vehicle transportation. In sixty riveting pages, Heydari details how NHTSA—finding itself effectively blocked from regulating the powerful auto industry—shifted significant energies towards targeting the drivers themselves. Indeed, a whopping 80% of NHTSA’s budget is apparently dedicated to traffic enforcement. (P. 54.) Heydari then links a significant component of this enforcement to encouraging the use of “high traffic stops, ostensibly as a tack both to improve traffic safety and fight crime” (P. 2), transforming the agency into the “unexpected enabler of pretextual stops.” (P. 1.) To that end, NHTSA’s sponsored research “called for a 400-500% increase in traffic enforcement.” (P. 33.) Although Heydari’s article was intended to alert his fellow criminal law scholars to the prevalence of clandestine law enforcement by nonexpert governmental agencies (Pp. 52-55), his article is perhaps even more jolting for administrative law readers. Continue reading "NHTSA’s Incredible Journey from Industry Regulator to Surrogate Cop"
Jun 23, 2023 Henry L. Chambers, Jr.Work Law
In Regulating Marginalized Labor, Professor Mary Hoopes discusses the Equal Employment Opportunity Commission’s (EEOC) innovative approach to protecting farmworkers. She focuses on two key factors – a decentralized, entrepreneurial structure of enforcement and aggressive collaboration with advocacy organizations – in explaining the EEOC’s success. Professor Hoopes then suggests the broader implementation of those ideas could help lead to the “robust enforcement of civil rights within [other] administrative agencies.” (P. 1045.) That is a story worth telling and worth reading.
Professor Hoopes explores the special difficulties inherent in protecting the rights of farmworkers before detailing how an under-resourced EEOC helped bring justice to many farmworkers. She notes our history of agricultural exceptionalism – the exclusion of farmworkers from the protections of specific labor and employment laws – is a prime barrier to justice. For example, the National Labor Relations Act (NLRA) excludes agricultural workers from protections provided to workers who attempt to unionize, and the Fair Labor Standards Act (FLSA) exempts farmworkers from its overtime provisions. Continue reading "The EEOC’s Innovative Approach to Protecting Farmworkers"
Jun 22, 2023 Allison Anna TaitTrusts & Estates
Victoria Haneman,
Prepaid Death, 59
Harv. J. on Legis. 329 (2022).
Victoria Haneman’s recent article, Prepaid Death, is a call for change in the way that people shop for and ultimately purchase burial and funeral services as well as a plea for policy reforms that would encourage consumers to make these important decisions pre-need rather than at the time of death. At death, the time of need, family members and others involved in the funeral services selection are grieving, vulnerable, and willing to pay exorbitant amounts for things that the decedent might not even have wanted. As Haneman points out: “The pre-need consumer is cost-sensitive and far less likely to make decisions that are time-pressured or driven by guilt. Although decisions may be unfamiliar, there is time to research and familiarize oneself with options and providers — including new and innovative death care technologies that may not be on the menu of choices offered at one’s local funeral home.” She also points out that when consumers have more time to explore their options, low- and middle-income consumers benefit because of increased opportunities to access financing options.
The solution that Haneman suggests is leveraging Internal Revenue Code section 125 and flexible spending account principles. The current Flexible Spending Accounts (FSAs) program allows eligible employees to make voluntary pre-tax contributions for certain qualified benefits that do not currently include death care. One option would be to allow consumers to create a dedicated Death Care Flexible Spending Account funded with pre-tax earnings contributed to this earmarked account. A second option would be to continue using FSAs in their current form but add death care expenses to the list of reimbursable “qualified expenses.” Continue reading "Economies of Death"
Jun 21, 2023 Nora Freeman EngstromTorts
In The Civil Jury: Reviving an American Institution, authors Richard L. Jolly, Valerie P. Hans, and Robert S. Peck sound a dire—and important—warning: the jury trial has almost completely vanished from civil litigation, and its disappearance comes at great cost. While many have noted civil trials’ decline over the past century, the Report goes a step further, not only compiling data to track the jury trial’s demise, but also cataloguing reasons for it, explaining why it matters, and offering concrete ways to reverse this ominous trend.
In this Jot, I’ll focus on why those of us interested in tort law, and the role of juries in tort law, should read—and heed—the authors’ warnings.
First, a primer on the civil trial landscape writ large. As Jolly, Hans, and Peck explain, between 1962 and 2020, the percent of federal civil cases disposed of via jury trial fell from a respectable 5.5% to an almost non-existent 0.48%. And though state court statistics are spottier, the limited data that are available suggest that, in the states, civil jury trial rates have fallen from 1.8% of civil case dispositions in 1976 to just 0.6% of such dispositions in 2002 to a miniscule .09% in 2019. Further, the few trials that do occur are, on average, shorter and more constricted—with fewer jurors, stricter time limits, more bifurcation, and compressed voir dire. Continue reading "Tort Trials and Tribulations"
Jun 20, 2023 James GrimmelmannTechnology Law
Samuel R. Bowman,
Eight Things to Know About Large Language Models, available at
arXiv (Apr. 2, 2023).
Lenin did not actually say, “There are decades when nothing happens, and there are weeks when decades happen,” but if he had, he might have been talking about generative AI. Since November 30, 2022 when OpenAI released ChatGPT, decades have happened every week. It’s not just that generative AI models are now able to emit fluent text on almost any topic imaginable. It’s also that every day now brings news of new models, new uses, and new abuses. Legal scholars are scrambling to keep up, and to explain whether and how these AIs might infringe copyright, violate privacy, commit defamation and fraud, transform the legal profession, or overwhelm the legal system.
Samuel R. Bowman’s preprint Eight Things to Know About Large Language Models is an ideal field guide for the scholar looking to understand the remarkable capabilities and shocking limitations of ChatGPT and other large language models (LLMs). Bowman is a professor of linguistics, data science, and computer science at NYU, and a visiting researcher at the AI startup Anthropic. Eight Things is clear, information-dense, and filled with helpful citations to the recent research literature. It is technically grounded, but not technically focused. And if you are paying attention, it will grab you by the lapels and shake vigorously. Continue reading "Words of Wisdom"
Jun 19, 2023 Adam RosenzweigTax Law
Steven Dean,
Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was, Brooklyn L. Sch., Legal Stud. Paper No. 728, available at
SSRN (Mar. 28, 2023).
As has become almost cliché at this point, the international tax regime is facing a defining moment … spearheaded by the Base Erosion and Profit Shifting (BEPS) project of the Organization for Economic Cooperation and Development (OECD). While BEPS addresses a wide-ranging number of topics, one of its primary focuses is combating tax havens. BEPS is the successor to the 1998 OECD Harmful Tax Competition project which, unlike the wide ranging BEPS, focused almost exclusively on a “name-and-shame” campaign against tax havens. These anti-tax haven efforts can trace their history back to the enactment of “Subpart F” of the Internal Revenue Code which is typically considered the first concerted anti-tax haven effort. The intellectual force behind Subpart F was Assistant Secretary of Treasury for Tax Policy Stanley Surrey (while he was on leave from the faculty at Harvard Law). Surrey has been referred to as the greatest tax lawyer of his generation; his influence can be felt to this day throughout the tax laws of the United States and the world.
In the face of this towering presence, Steven Dean dares to ask the question “Was Surrey racist?” in his new article Surrey’s Silence: Subpart F and the Swiss Subsidiary Tax that Never Was. This question is not buried in a footnote or even in the final section but is the first three words of the abstract. The effect is palpable, in part because the reader is forced to consider the provocative question in a vacuum without the benefit of reading the article itself. As with all good use of rhetorical hyperbole, Dean effectively employs strong language to shake the reader’s assumptions and open space to consider a difficult topic in a deep and subtle way. Continue reading "Is There Implicit Bias Implicit in International Tax Law?"
