Notice & Comment

Author: Guest Author

Notice & Comment

A Fuller Picture of Internal Morality, by Mila Sohoni

*This is the third post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Adminstrative State. For other posts in this series, click here. In Law and Leviathan, an expertly written account of contemporary administrative law, Cass Sunstein and Adrian Vermeule show us how to fight a theory […]

Notice & Comment

Putting Lon Fuller to Work in the Trenches, by Kevin M. Stack

*This is the second post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Adminstrative State. For other posts in this series, click here. At the heart of Cass Sunstein and Adrian Vermeule’s insightful and important book, Law and the Leviathan: Redeeming the Administrative State, is a claim […]

Notice & Comment

Law & Leviathan: The Best Defense?, by Ronald M. Levin

*This is the first post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Adminstrative State. For other posts in this series, click here. In their recent book Law & Leviathan, Cass Sunstein and Adrian Vermeule unveil a novel and provocative approach to legitimating the modern administrative state.  […]

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The Non-Consequentialist Uses of Economic Analysis: A Comment on Dagan and Kreitner, Economic Analysis in Law

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Lewis A. Kornhauser† Introduction Dagan and Kreitner have offered a rich and elegantly written discussion of the normative uses of economic analysis of law. For Dagan and Kreitner, a scholar uses economic analysis normatively either when she evaluates a legal rule or institution or when she makes policy recommendations. These two normative uses of economic […]

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Response to Jennifer Arlen on The Essential Role of Empirical Analysis in Developing Law and Economics Theory

Tamar Kricheli Katz† Jennifer Arlen’s The Essential Role of Empirical Analysis in Developing Law and Economics Theory explores the relationship between law-and-economics theory and empirical analysis. The paper provides a rich discussion of empirical-analysis examples to inform normative theoretical understandings.  The paper focuses on empirical investigation of decision making, documenting the instances and conditions in […]

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The Sustainable Corporate Governance Initiative in Europe

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Mark Roe, Holger Spamann, Jesse Fried & Charles Wang† In July 2020, the European Commission published the “Study on directors’ duties and sustainable corporate governance” by Ernst & Young (EY). The Report purports to find evidence of debilitating short-termism in EU corporate governance and recommends many changes to support sustainable corporate governance. In this paper, […]

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ESG Investing Under ERISA

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Bernard S. Sharfman† Introduction The Department of Labor (“DOL”), through its administration of ERISA, has a critical role to play in the regulation of private “employee pension benefit plans.”. Most importantly, the DOL is tasked with enforcing the fiduciary duties of ERISA plan managers (trustees who retain investment and voting authority or “investment managers” who […]

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Killing Innovation?: Antitrust Implications of Killer Acquisitions

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Amy C. Madl† Killer instinct is a key business asset. Firms live and die by their strategic choices, and the desire to outcompete rivals colors most business decisions. While many firms strive to win market share on their merits, economists have recently identified an anti-competitive practice—killer acquisition—that enables incumbents to maintain market share by burying, […]

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But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies

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Susan Benesch† Private social media companies regulate much more speech than any government does, and their platforms are being used to bring about serious harm. Yet companies govern largely on their own, and in secret.  To correct this, advocates have proposed that companies follow international human-rights law.  That law–by far the world’s best-known rules for governing […]

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Applying International Human Rights Law for Use by Facebook

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Michael Lwin† In recent years, social media platforms have been beset with hate speech, misinformation, disinformation, incitement of violence, and other content that cause real-world harm. Social media companies, focusing solely on profit-maximization and user-engagement, have been largely asleep at the wheel during outbreaks of violence in countries such as Myanmar, Sri Lanka, New Zealand, […]

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Regulation and Innovation: Approaching Market Failure from Both Sides

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Yafit Lev-Aretz† & Katherine J. Strandburg†† Regulation is often claimed to be the enemy of socially desirable innovation because of factors including innovation’s unpredictability and reulation’s compliance costs. In this essay, we bring two intellectual property scholars’ perspectives to bear on the question of regulation’s impact on innovation. We offer a novel, yet intuitive, analytical framework […]

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Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies

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In Trump v. Pennsylvania, the Supreme Court faces the question whether the Administrative Procedure Act’s provision governing scope of judicial review instructs courts to give universal injunctions – injunctions telling the government not to apply a challenged agency action to anyone, not just the plaintiff. That provision, section 706 of title 5 of the United States […]

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Haystack in a Hurricane: Mandated Disclosure and the Sectoral Approach to the Right to Privacy

Tyler J. Smith† Privacy law is an extremely complex and complicated problem. And, unfortunately, the United States remains one of the only Western countries without comprehensive consumer data protection laws. Until the federal government decides to address the ubiquitous collection and use of data by corporations with omnibus legislation similar to the EU’s GDPR—or until […]

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Wall Street and Progressivism

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William S. Laufer† & Matthew Caulfield†† On the margins of the partisan political divide is a groundswell of anti-corporate rhetoric conjuring images of an unbridled, unregulated, and uncontrollable corporate America. This Essay considers a casualty of this progressive imagery: serious legislative and regulatory reforms to ensure corporate accountability. Demonizing all corporations does little to promote […]