Oct 17, 2024 Joan MacLeod HeminwayCorporate Law
The rise and dominance of institutional investors in public company stockholder profiles has increasingly shifted significant scholarly and popular attention toward those institutions and away from individual investors. Market factors periodically refocus attention on retail investors, however. One of those factors in recent years has been the meme stock phenomenon, which attracted widespread public attention in early 2021 when the common stock of GameStop Corp. and AMC Entertainment Holdings Inc. achieved record high public market prices. The continued salience of activist retail investors recently has been reinforced by a meme stock resurgence that has again put GameStop and AMC in the news.
The ongoing work of Professors Sergio Alberto Gramitto Ricci and Christina Sautter is helping to educate many audiences about legally significant demographics that shed light on current retail investors and their behaviors. Specifically, their joint work addresses ways in which investors’ behaviors have responded to the nearly universal availability of wireless access through a variety of ubiquitous devices (including especially cell phones). This broad-based wireless access has created a new cadre of “wireless investors” who collect and share investment information through social media and Internet applications and buy and sell securities through online trading platforms.
In Wireless Investors & Apathy Obsolescence, Gramitto Ricci and Sautter focus on the potential for wireless investors to overcome investor apathy. They describe that apathy and explain its genesis. They then illustrate why the advent of wireless investors may more optimally empower retail shareholders. Continue reading "Digital Engagement and the Retail Investor"
Oct 16, 2024 Eyal ZamirContracts
Scott Schanke, Gordon Burtch & Gautam Ray,
Digital Lyrebirds: Experimental Evidence that Voice-based Deep Fakes Influence Trust, __
Management Science __ (forthcoming), available at
SSRN (May 1, 2024).
The reviewed article describes an experiment in which an audio chatbot was either imbued with a random voice or with a clone of the participant’s voice, and the participant was either informed or not informed that they were communicating with a bot. It found that people tended to trust the bot more when it imitated their voice and that this effect was not influenced by whether or not participants were informed that their partner was a bot. While the article does not discuss any legal questions, it is submitted that it carries interesting implications for consumer law and regulation.
In recent decades, thousands of behavioral studies have documented numerous systematic and substantial deviations from the assumptions of economic rationality (Zamir & Teichman 2018). A very influential strand of scholarship has called for the use of behavioral insights not only to better understand deficiencies in human judgment and decision-making, but also as a means to mitigate those deficiencies through nudges—“low-cost, choice-preserving, behaviorally informed approaches to regulatory problems” (Sunstein 2014). While effective in some contexts, it has been persuasively argued that nudges are unlikely to be effective in business-to-consumer relationships, where firms are both able and motivated to undo their effect (Willis 2013). In fact, firms are quicker and more effective than legal policymakers at taking advantage of consumer heuristics and biases for their own interests. Unlike nudges, which aim to improve decision-making for the benefit of the decision-maker or society at large, sludges aim to benefit the entities that employ them. The proliferation of online transactions, the spread of personalized marketing techniques, and advancements in AI technology provide marketers with new opportunities to exploit consumer heuristics—and pose new challenges for legal policymakers. Continue reading "Hearing It in Your Own Voice: Audio Deepfake as a Marketing Technique"
Oct 15, 2024 Erez AloniEquality
In Andrew Sean Greer’s Pulitzer-winning novel Less, protagonist Arthur Less embarks on a global journey to avoid his younger ex-lover Freddie’s wedding. Through his adventures, Arthur grapples with his experiences as both the younger and older partner in age-gap relationships. This fictional journey resonates with the real-world dynamics explored in Tony Silva’s sociological study Daddies of a Different Kind: Sex and Romance Between Older and Younger Adult Gay Men. Silva examines these intergenerational relationships—especially common among same-sex male couples, who are more likely to have large age gaps than other types of pairings—and delves into the construction of the “daddy” identity, a role characterized by mentorship, age, and masculinity. His research offers a nuanced analysis of daddy-younger pairings, challenging stereotypes and revealing the emotional depth and cultural significance of these partnerships.
Silva’s research is built on the narratives of 39 men who identify as daddies and 26 younger men who were in relationships with age gaps of at least ten years. Importantly, all the interviewees were adults over 21, and the study exclusively focuses on relationships between adults. This distinction is crucial in avoiding harmful stereotypes, emphasizing instead the mutual emotional enrichment these partnerships often provide. Silva’s book seeks to answer several key questions: Why are gay men more open to such connections compared to heterosexuals or lesbian and bisexual women? What does it mean to be a “daddy,” including the forms of masculinity it involves? What is the quality of these relationships, and how do financial arrangements operate within these dynamics? Along the way, Silva addresses deeper themes such as LGBTQ+ culture, politics, nonmonogamy, and the fluid boundaries between friendship and kinship within the gay community. Continue reading "Queering Daddy Issues"
Oct 14, 2024 Margaret KwokaAdministrative Law
Most arms of government are subject to stringent transparency requirements in an effort to improve public accountability and, relatedly, public trust. For example, the Freedom of Information Act requires public access to most government records, and the Administrative Procedure Act requires agency explanations for final actions such as new regulations or adjudicatory decisions. By contrast, other powerful institutions in society, namely businesses and corporations, are required to reveal very little about their operations or publicly to justify their positions. Paradoxically, though, the public distrusts government far more than these opaque actors and believes government is incompetent, at best, and nefarious, at worst.
Shedding remarkable light on the underlying reason for this illogical result is a new article, The Submerged Administrative State, by Gabriel Scheffler and Daniel Walters. Scheffler and Walters persuasively argue that a significant contributing factor to the lack of public trust in government is that the work of administrative agencies is “submerged.” Some scholars have studied the incomprehensibility of government documents and disclosure to the public, while others (myself included) have examined the failures of transparency laws. What makes Scheffler and Walters’ approach to studying the visibility of government unique, though, is their ability to deftly amalgamate a variety of legal constraints, doctrines, and incentives that push agency work under the radar. Indeed, they convincingly demonstrate that this phenomenon works to the detriment of government by breeding distrust among the citizenry. Continue reading "Surfacing Agencies"
Oct 11, 2024 Charles A. SullivanWork Law
Good “outside the box” scholarship, even if not fully persuasive, can provide useful insights for those of us still stuck inside our boxes. And that’s a good description of Ryan H. Nelson’s An Employment Discrimination Class Action By Any Other Name. It offers a creative and engaging solution to the problem of mandatory, pre-employment arbitration agreements, even if I would not wager much that judges would approve it.
Any Other Name begins well inside the box with a dead-on, refreshingly-candid look at how the Supreme Court caused the decline of the employment discrimination class action. Although he names other culprits (including that Court’s pleading and class action decisions), Ryan mostly blames how the Supreme Court has read the Federal Arbitration Act (FAA) to eradicate class relief in any forum by validating express waivers of the right to proceed collectively either in court or before an arbitrator. He also traces the failure of direct doctrinal attacks on the FAA’s applicability to employment or the validity of particular arbitration agreements. In contrast, “relatively successful strategies” included public enforcement and qui tam actions. These approaches “accepted the validity and ubiquity of individual arbitration agreements but nevertheless found a way around them by litigating through nonworker real parties in interest” that never executed an agreement to arbitrate. (P. 1427.) That struck me as an important insight—not obvious but sensible once Ryan pointed it out! Continue reading "Avoiding the Federal Arbitration Act in Title VII Cases"
Oct 10, 2024 Phyllis C. TaiteTrusts & Estates
Miranda Perry Fleischer,
A New Look at Old Money, 98
S. Cal. L. Rev. __ (forthcoming, 2024) available at
SSRN (March 4, 2024).
Professor Miranda Fleischer contributes to the wealth tax discourse by analyzing a taxation theory proposed a century ago by philosopher Eugenio Rignano: an inheritance tax imposed on old, unearned wealth. This inheritance tax would facilitate the goals of a wealth tax, including combating wealth concentration and providing greater tax preferences for earned wealth. Following a brief historical overview of transfer taxes and proposed alternatives, Fleischer analyzes the pros and cons of a wealth tax, suggests key design structures for implementation, and concludes with policy justifications in support of such a tax. This article stands out because Professor Fleischer proposes a comprehensive structural design for the tax and addresses key policy questions that would make a Rignano tax politically feasible and administratively workable.
In the overview, Professor Fleischer describes key features of the current transfer tax system, including the imposition of the tax on the donor, higher lifetime exemptions, and reduced rates. The effect of increasing exemptions is that fewer estates are required to pay the tax and more wealth is transferred tax-free. Further, the current tax design creates other avenues for the transfer of tax-free wealth such as the annual exclusion, even while recipients pay no income tax on gift and estate transfers, irrespective of their size. Fleischer discusses alternative proposals for taxing wealth such as imposing an income tax on gifts and bequests (subjecting them to similar tax rules applicable to lottery winnings), imposing a carryover basis in place of a stepped-up basis for purposes of the capital gains tax, and various other models such as inheritance and accession taxes. Continue reading "New Money: No Problem, No Tax"
Oct 9, 2024 Kenneth W. SimonsTorts
Leo Boonzaier,
Is a tort a failure to do what one ought?,
in New Directions in Private Law Theory 165 (Fabiana Bettini, Martin Fischer, Charles Mitchell, Prince Saprai eds., 2023).
“Is a tort a failure to do what one ought?,” asks the South African scholar Leo Boonzaier. In this book chapter, Boonzaier provides an insightful analysis of the question, which he frames as follows. A distinguishing feature of many non-instrumentalist theories of tort law is how they conceive of a tort—as a wrong, not merely as a cost or loss that the law has an interest in efficiently deterring through a compensatory remedy. But what does it mean to characterize negligent conduct or an intentional battery or a defamatory statement as a wrong?
Here is a very appealing answer: “The commission of a tort is a failure by the tortfeasor to do what, in the law’s view, he ought to do, all things considered.” (P. 169.) This answer helps explain why negligence is defined as unreasonable conduct, and why tort law sometimes awards injunctions to prevent the commission of torts and sometimes awards punitive damages. Note that the failure in question is the unjustifiability of the actor’s conduct, not the culpability of the actor. After all, tort law employs objective tests and does not recognize excuses: “one may blamelessly fail to do what one ought.” (P. 170.) Continue reading "Why The Law Of Tort Ought Not Be Limited To What We Ought Not Do"
Oct 8, 2024 Natalie RamTechnology Law
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, pregnant women seeking to terminate a pregnancy, and medical providers who care for them, have found themselves increasingly subject to invasive law enforcement scrutiny in many states. For instance, while many states’ anti-abortion laws permit abortion if the pregnant person was the victim of a sexual assault, many of these laws require that physicians verify that the sexual assault was reported to law enforcement. The exception thus compels physicians to serve as handmaidens to the police.
Yet the abortion context is hardly the first or only one where policing has thrust itself into medical practice. As Teneille R. Brown observes in her new article, When Doctors Become Cops, from gender-affirming care, to prescription drug monitoring programs, to law enforcement demands for DNA samples from hospital staff, policing often encroaches on patient privacy. These intrusions generate medical mistrust that undermines both individual and public health. Moreover, this medical mistrust is likely to exacerbate inequities in population health, as police mistrust is at “record highs” and structural inequities are present in “virtually all aspects of the criminal legal system.” Brown persuasively argues that “[t]o respect patient autonomy, repair medical mistrust, and promote individual and public health,” “law enforcement and health care need to be more completely divorced from one another.” Continue reading "Policing Patient Privacy"
Oct 7, 2024 Miranda StewartTax Law
Sometimes a book arrives at just the right moment in history. That is the case for The United Nations in Global Tax Coordination by Dr. Nikki J. Teo, which tells the story of the United Nations (UN) Fiscal Commission, a short-lived attempt in the mid-20th century to create an international tax process that would reflect and support the interests of developing countries. The product of years of doctoral research, the book was published just before the UN General Assembly adopted Resolution 78/230 (22 December 2023) to establish a new UN process for international tax cooperation. It has deservedly won the 2024 IBFD Frans Vanistandael Award for a publication in international taxation.
The United Nations in Global Tax Coordination is a work of substance about tax cooperation at the UN and before it, the work of the Fiscal Committee of the League of Nations. Teo explores the growth and decline of the UN Fiscal Commission at a time that saw a growing divide between “developed” and “developing” countries. She draws on archives of the UN, the League, and British and US governments to tell an intriguing story of shifting geopolitical, economic, and business alliances during the second world war, and Cold War gameplaying. Continue reading "The Voice of All Nations in Global Tax Coordination"
Oct 4, 2024 Brooke D. ColemanCourts Law
Which judge decides a case? This evergreen civil procedure question occupies many a civil procedure class. Discussions of Erie and related topics often focus on the litigating parties’ motivations and whether their filings were strategic, gamesmanship, or some mix of both. In Constitutional Case Management, Katherine Macfarlane shifts our focus to the courts themselves by exploring the mechanisms courts use to assign cases.
Macfarlane begins by exploring and questioning the source of case assignment power. Article III empowers Congress to create inferior courts, which includes the power to structure the lower federal judicial system. This power includes case assignment. For example, Congress has adopted laws allowing federal judges to sit by designation. These statutes, which authorize judges appointed to a specific federal court to temporarily sit elsewhere, change the cases they would otherwise hear in their home courts. Continue reading "Case Assignment & Its Constitutional Implications"
