This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in the global theater. These complexities include global dissemination of offensive expression, incitement to unlawful activities abroad, enemy-aiding expression that crosses territorial borders, and global free press concerns. The author argues that traditional First Amendment doctrines and principles ought generally to apply in the global theater. Reliance on marketplace and self-governance principles, application of speech-protective incitement standards, and continued support for an expansive and robust conception of press freedoms will preserve transborder First Amendment liberties in the digital era and allow the global theater to develop and mature. The author urges government officials not to react to potentially dangerous global theater expression by adopting new restrictions on transborder expressive and associational activities; creating new criminal offenses that inhibit transborder information flow; establishing broad penalties relating to transborder commingling and association; resorting to extrajudicial and potentially extralegal penalties for dangerous speakers; or imposing new limits on press freedoms.

In addition to these specific First Amendment issues, the Article also discusses several broader concerns relating to the development of the global theater. The author contends that in the global theater era, it will be critically important to the protection of speech and press liberties that officials and courts act with due regard for the First Amendment’s transborder dimension. Moreover, in the global theater, First Amendment justifications should be interpreted to encompass global information flow, cross-border collaboration, and the global spread of democratic principles. More attention must also be paid to the unique legal, professional, ethical, and identity challenges the press will face in the global theater. Finally, the author urges that more careful legal and scholarly attention be given to new restrictions on global information flow, including actions of private intermediaries and nonconventional forms of government censorship.

Sharfstein’s book follows three families whose members at some point crossed the color line separating black from white—or tried and failed to. These case studies tell us what it is to be American—how race is central to our identity, how we use race to take down opponents or to exclude—and how the line separating black and white is sometimes porous. However, is not the story of race and American legal history about the ways that race is defined by law and by norms? Race mattered because people policed the line separating blacks and whites. That many states classified people with a small percentage of African ancestry as white suggests that it was possible to move across the color line. Still, the cases where the color line was policed, rather than crossed, are significant.

The author addresses the controversial subject of impeachment disclosures from both an institutional and a substantive perspective. A great deal of legal scholarship aims directly at the content of proposed law reform without considering the threshold and pivotal question of what institution is best situated to administer those imposed duties. The author argues that as a matter of institutional competence and legitimacy, the courts are far better equipped to enforce criminal discovery obligations through rules of procedure than bar disciplinary authorities are capable of doing through attorney conduct rules. With regard to the substantive issue—that is, how much impeachment evidence should be turned over by a prosecutor before a guilty plea—the author proposes a categorical approach to impeachment disclosures that will mediate the tension between the defendant’s interest in accurately assessing the strengths and weaknesses of the government’s case and the state’s interest in protecting the privacy and security of potential witnesses.

This Article argues that the mishandling of seemingly impossible inventions vitiates the presumption of patentability, prevents the patent system from sitting at the cutting edge of technology, and frustrates the patent system’s overarching goal to promote scientific and technological progress. In an effort to resolve these problems and fill a gap in patent scholarship, this Article offers a new framework for gauging the patentability of seemingly impossible inventions. Briefly, it contends that a more robust enforcement of patent law’s enablement requirement can and should perform the gatekeeping role because it can resolve whether an invention works by weighing objective, technical factors. This approach would quickly reveal technical merit for inventions that really work or, alternatively, the fatal flaw for inventions that are truly impossible. Its implementation would not only eliminate the need for the operability requirement, but it would also streamline patent examination, improve the disclosure function of the patent system, promote scientific and technological progress, and ultimately foster innovation.

Why this tragic choice? A primary challenge of immigration law is that it is notoriously difficult to screen poor visa applicants. In a quintessential problem of information asymmetry, the typical applicant knows much more about her likely behavior in the United States than the government; the government typically has no way of evaluating the sincerity of her promise to be law-abiding. Reflecting the long-time recognition in the common law that a contracting party is more likely to abide by her commitment if she pledges something of value, this Article recommends that the applicant should have to post a bond as a condition of receiving her visa. In the event that the applicant later fails to keep her promises, including an assurance not to overstay her visa, she would forfeit this bond.

However, there are problems with bonding regimes in the U.S. context. Bonding regimes appear to offend deeply held-public values. For example, bonding systems may reinforce perceptions that market-based mechanisms are being utilized to determine who receives visas, thus potentially excluding the poor. Yet, ironically, bonding systems may actually improve the opportunity sets of the poor. For example, a bonding system should raise the costs of noncompliance with visas and in so doing, make it more likely that a poor applicant will receive a visa. Thus, bonding systems may also improve access for the poor migrant to the United States, where she typically significantly improves her earnings.

The real issue, therefore, is not the bonding regime itself—after all, immigration law already routinely uses market-based mechanisms to screen rich migrants—but why poor migrants do not have access to similar opportunities. Otherwise, if poor people in developing countries cannot access transparent credit facilities from formal financial institutions to finance bonds, they will be left at the mercy of black-market money lenders.

This Article seeks to make labor mobility bankable by advocating a reconceptualization of guest worker visas as a type of property, namely, licenses for temporary admission to the United States. If appropriately designed, these visa-licenses could be collateral-like devices, which allow poor migrants to access transparent law-bound credit markets.

In practice if not in print, courts define “interests” in terms of a widely shared desire to recover one’s losses. This broad definition allows judges to certify securities class actions and thus promote private enforcement’s public function by holding the government and corporations accountable. But it also means that attorneys can pursue an institutional lead plaintiff’s interests at the other class members’ expense. The “other class members” are principally individual investors, those who need the class-action vehicle the most. The logical solution is to appoint a lead-plaintiff group. But so far, groups have underperformed largely because courts prefer members with preexisting relationships and group cohesion—the same qualities that lead to group polarization and confirmation bias. Consequently, this Article suggests an alternative remedy: appoint a cognitively diverse lead-plaintiff group with individuals and institutions and link diversity to class members’ heterogeneous interests. Once a richly representative group exists, it should have more decisionmaking autonomy; lead counsel should consult and defer to the group’s decisions on matters that implicate plaintiffs’ values and litigation objectives or affect the case’s merits just as attorneys do in individual litigation.

Instead of simply instructing the courts to consult tort law, we stress two specific reforms to make contributory infringement decisions more logical and predictable. First, tort law’s rules for causal analysis provide a significant resource for contributory infringement doctrine. The intuitive appeal of causal reasoning as well as its frequent presence in other legal subjects makes it a natural fit for contributory infringement doctrine. In particular, we urge courts wrestling with contributory infringement to adopt tort law’s bifurcation of factual causation and the separate public policy questions of proximate cause. An unfortunate trend in the recent contributory infringement decisions has been a blending of these two legal issues, resulting in normative decisionmaking cloaked in empirical language. Observing a strict line between factual and proximate cause would cure this problem and produce precedents less threatening to nascent technologies.

Second, courts can profit from the refinements in causal analysis already developed in the field of epidemiology. By modeling the complex interaction between causal agents, epidemiologists gain a better sense of where resources should be deployed in combating diseases that adversely affect public health. We advocate similar moves in intellectual property law to help determine which intermediaries should face liability for others’ infringing conduct. Epidemiologists sort out causal effects by explicitly defining minimally sufficient multiple component mechanisms, distinguishing between general and specific causation, and identifying suitable referents for each identified link on a causal chain. By borrowing from the epidemiologist’s playbook, judges evaluating contributory infringement disputes can separate the causal from the non-causal and the actionable from the non-actionable instead of relying on hazy intuition to determine the viability of online business models.

The U.S. Bankruptcy Code generally contemplates the appointment of a committee of the debtor’s unsecured creditors to serve as a fiduciary for all general unsecured creditors and as a statutory watchdog over the debtor and its assets. The creditors’ committee typically includes seven to nine of the debtor’s largest unsecured creditors, and it receives access to much of the debtor’s proprietary and confidential information, as well as a seat at the plan of reorganization negotiation table. Serving as a member of the creditors’ committee often gives a creditor a say in how the asset pie is divided. Whether that creditor uses its committee seat for the benefit of all creditors or simply to further its own agenda is an open question.

This Article presents the first in-depth empirical analysis of the activities of creditors’ committees in, and their impact on, Chapter 11 reorganization cases. The primary data examine 296 Chapter 11 cases in six different jurisdictions. This analysis is supplemented by survey data collected from individuals who have served on creditors’ committees or worked as a professional to business debtors or creditors’ committees. The data support several strong associations between the presence of a creditors’ committee and, for example, whether the debtor reorganizes or pursues a sale of substantially all of its assets and the ultimate percentage recovery distributed to general unsecured creditors. Overall the Article provides critical data and analyses to help policymakers, judges, and Chapter 11 participants refine the role of creditors’ committees to maximize their utility.

In this Article, Professors Hovenkamp and Leslie examine how price-fixing cartels govern themselves and maximize their profits by cooperating and colluding, instead of competing. They then use this cartel theory to explain the recent American Needle decision, in which the Supreme Court held that the National Football League (“NFL”) is a collaboration among its individual teams rather than a single entity. Much of the argument by those favoring single entity status for an organization such as the NFL confuses the entity question, which is essentially structural, with the question of cooperation, which is functional or behavioral. Many markets require firms to cooperate in the delivery of their product but the need to cooperate does not make the cooperating firms a single entity immune from Section One liability.

Despite the fact that antitrust law has condemned price-fixing cartels for over a century and the Supreme Court created the single-entity defense over twenty-five years ago, the link between cartel theory and the single-entity question remains largely unexplored. Many successful cartels function by taking control away from the individual members and giving it to a single organization. A business organization such as a corporation becomes an ideal vehicle for cartel management. Understanding how cartels actually operate can help courts distinguish between a legitimate single entity and a centralized cartel structure subject to Section One liability. This Article uses a series of case studies to illustrate how to make this distinction properly.

Consultants have several important roles. Firstly, they act as experts, providing market data and advising on plan design and implementation. Because of this role, they not only guide their clients as to the requirements of the market, they also help create those selfsame market practices and norms. They also have a role in liaison with institutional shareholders, either with or on behalf of the committee.

Companies and committees select consultants based on their reputation, with personal contacts playing an important part in the choice. Consultants use impression management techniques to ensure that their reputations remain strong. Reputation is important for all parties, as the use of consultants also acts to legitimize the decisions of the remuneration committee in this increasingly contentious area. However, there is much debate about the consultants’ independence and their practices, which could reduce such legitimacy. This Article considers how the legitimacy is evidenced, and considers the ways in which committees and consultants are working to maintain it.

This Article contributes to the literature on compensation consultants by taking a qualitative approach, providing explanations of current practice which

In addition, this Article provides some new evidence on the correlation between CEO pay and consultants using U.S. and U.K. data. Adopting a slightly different approach to prior studies, I show that there is a positive cross-section correlation between executive pay and compensation consultants. Conditional on the estimation strategy, the existing evidence supports the hypothesis that CEOs of U.K. firms using consultants receive higher pay than those that do not use compensation consultants. There is less evidence that firms facing conflicts of interest, such as supplying other business services, are associated with higher levels of CEO pay. However, the findings may be sensitive to the type of estimation methods employed, and addressing this concern is a challenge for future research. I also find little support for the hypothesis that firms switch consultants as a mechanism of increasing CEO pay. Again, interpreting the data is fraught with difficulties because of selection effects and the possibility of reverse causation.

Finally, the recent Dodd-Frank Act significantly upgrades disclosure about executive compensation and compensation advisors. Future research on the efficacy of compensation consultants will undoubtedly take advantage of these new provisions. At present, it is difficult to unambiguously conclude that pay consultants simply promote executive interests at the expense of shareholders, or that pay outcomes and contracts are not optimal.

In Part II we note that political support for regulating bankers’ pay has been strong and led to reforms promoting long-term incentives to executives on the assumption that short-term incentives were a cause of the crisis. The Financial Stability Board Principles for Sound Compensation Practices (the “Principles”) follow this trend, at the same time representing a political compromise between the various interest groups concerned. They pick up traditional compensation criteria from pre-crisis best practices, adapting them to the post-crisis setting, while leaving some flexibility in pay structures. We suggest that a certain degree of flexibility should be kept when implementing the Principles in national jurisdictions.

In Part III we analyze the regulatory developments concerning executive pay at banks in Europe and find variations in the implementation of the Principles. We also show that remuneration policies at large European banks are converging toward the international Principles, while varying in the implementation of individual standards. However, recent EU reforms may change the situation considerably by imposing detailed requirements as to pay structures in the financial sector. The analysis in Parts I, II, and III speaks directly to this issue by
explaining why historic baselines will prove effective in certain applications but decidedly problematic in others.

In addition, this Article explores the legal issues associated with paying executives from illegal profits. As a matter of policy, the data seriously undercut criticisms of the laissez-faire view of insider trading most closely associated with Henry Manne. At least with respect to classic insider trading (that is, a manager of a firm trading on the basis of information about the firm where she works), if boards are taking potential trading profits into consideration when setting pay, it is difficult to locate potential victims of this trading. Current shareholders should be at least indifferent to a deal that pays managers in part out of the hide of future shareholders. The firm should also internalize any costs arising from this payment scheme, since future shareholders should take this into account when deciding whether and at what price to buy shares. While there still may be good reasons to prohibit some individuals from trading on material, nonpublic information, the data make the case for classic insider trading much weaker.

In order to do our comparison, we create pairs of U.S. and Australian firms that are matched on a number of dimensions including firm size and industry. We find that Australian CEOs have significantly greater base salaries than their U.S. counterparts, while U.S. CEOs are more likely to be compensated with restricted stock and stock options than the Australian CEOs. More striking is the fact that U.S. CEO employment contracts tend to last longer than Australian contracts, and they are more likely to have arbitration provisions, change-in-control provisions, tax gross ups, do-not-compete clauses, and supplemental executive retirement plans. We also find that Australian contracts are much more apt to include performance hurdle requirements before CEOs can receive restricted stock and options, and restrictions on CEO hedging of restricted stock and options. A number of the contractual differences we document appear to be consistent with key institutional differences between the two countries.

Using examples from environmental and land use regulation, this Article examines the attributes, design issues, and strategic uses and abuses of historic baselines. Part I unpacks the structure and design of historic baselines, identifying four core attributes and examining the design issues particular to each to demonstrate the different forms historic baselines can take. Part II explores the attractiveness of historic baselines to policymakers and the conditions under which they may be preferable to using absolute standards or risk-based, technology-based, or cost-based standards. Part III explores the opportunities for rent-seeking in more detail, delving into the gaming possibilities created by historic baselines. Part IV then provides a practical context by examining the role of historic baselines in climate change policy. The demand for action will require policymakers to consider a wide array of regulatory goals for controlling greenhouse gas emissions, sequestering carbon from the atmosphere, and adapting to climate change impacts that cannot be avoided. The analysis in Parts I, II, and III speaks directly to this issue, explaining why historic baselines will prove effective in certain applications but decidedly problematic in others.

The theory of the inauthentic claim asserts that there is a quality, separate and in addition to legal validity, which confers “authenticity” to a lawsuit. The theory does not presuppose that “inauthentic” lawsuits are more likely to be spurious, fraudulent, or frivolous than “authentic” lawsuits. It holds, instead, that the mere fact that a third party involved him- or herself in the suit for the wrong reasons (either by taking an assignment in the suit or supporting the suit), is proof that the suit is against public policy.

The theory of the inauthentic claim is important because it plays an important role in restraining transactions between litigants and third parties today. The law of assignment, while much more liberal than it was at the time of Blackstone, still forbids the assignment of numerous causes of action, including suits for personal injury and fraud. The law of maintenance has not been liberalized nearly as much as the law of assignment, and there is an active debate occurring within the courts and among policymakers today about whether to allow increased investment in litigation.

This Article examines two arguments that might be used to defend the theory of the inauthentic claim, one from history and one from jurisprudence. In my opinion, neither argument is persuasive. I conclude the Article by sketching a research agenda based on empirical evidence that would help policymakers and judges choose the socially optimal set of rules for third-party investment in litigation.

The Article applies a body of experimental psychology to examine the ability of factfinders to assess the evidence and draw correct inferences from it. The psychological research indicates that the mental processes involved in determining facts in criminal trials are more complex and fickle than generally believed. Part I exposes the difficulties in deciphering the human testimony that is frequently encountered in criminal trials, including eyewitness identification, witness memory for the event, confessions, alibis, and witness demeanor. The task is further hindered by two systemic problems with the integrity of the evidence: false corroboration and the paucity of the investigative record. Part II demonstrates that the inference-making process is susceptible to distortion from the context of legal decisionmaking. Intrusive factors include courtroom persuasion, exposure to impermissible information, emotional arousal, racial prejudice, and the decisionmaker’s cognitive process itself.

In sum, the accuracy of the criminal trial falls short of the system’s high epistemic demands and the certitude it exudes. The findings contribute to our understanding of the causes of mistaken verdicts, particularly wrongful convictions. The Article proposes ways to improve the diagnosticity of the process.

These scholars contend that a more sophisticated and rational approach would be to calibrate punishment according to the amount of suffering produced, trading objective measures of punishment—years in prison, etc.—for subjective measures. Looking forward to a day when advances in neuroscience and psychology will provide us with reliable qualitative and quantitative metrics of suffering, these scholars are setting the stage now, arguing that no matter our theory of criminal law and punishment—be we retributivists or utilitarians—we are obliged to dial the machine according to who is in its thrall and to titer both the form and extent of punishment so as to achieve just the right kind and amount of suffering.

This view of the criminal law may strike some readers as troubling. It should. The problem can be traced to three contestable propositions. The first is that “subjective disutility” is a necessary feature and primary goal of punishment. The second is that comparative proportionality serves as an independent measure of justice in punishment. The third is that punishment theory must justify all of the suffering caused by the punitive practices it endorses. This Article rejects each of these claims. It defends retributivist and utilitarian theories of punishment on objectivist grounds by explaining why arguments based on the proposition that punishment is suffering have no bite on these theories. These arguments urge punishment theorists to reject outright the claim that punishment should be calibrated according to the subjective suffering it inflicts. So too do the uncomfortable outcomes subjectivist critics deploy against objective theories of punishment as purported reductio ad absurdum. While admittedly absurd, those results obtain only if punishment is defined, measured, and justified subjectively.

As this Article explains, as Erie has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions. Federal outcomes result not in civil liability but rather deprivations of physical liberty and have significant implications for federalism and separation of powers, affecting the historic police power authority of state and local governments. The Article, in short, examines the impact of the “Erie megadoctrine” in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever- greater significance in the years to come.

My basic claim is that Brandeis’s mature views on privacy and its relationships to free speech were more complex and interesting than the simplistic tort theory of privacy he expounded in The Right to Privacy. As a young lawyer, Brandeis envisioned privacy as a tort action remedying emotional injury caused by the revelation of embarrassing private facts by the press. But Brandeis’s ideas evolved over his life. He soon came to believe strongly in a contrary idea he called “the duty of publicity.” This is the notion that disclosure of most kinds of fraud and wrongdoing are in the public interest; that as he famously put it, “sunlight is the best disinfectant.” When Brandeis came to think through First Amendment issues after the First World War, tort privacy could no longer consistently fit into his influential theories of civil liberty.

But while Brandeis changed his mind about tort privacy, what he replaced it with is even more interesting. In his Olmstead dissent and free speech writings, Brandeis identified a second conception of privacy that I call “intellectual privacy.” Brandeis reminds us that the generation of new ideas requires a certain measure of privacy to succeed, and that in this way intellectual privacy and free speech are mutually supportive. I conclude by suggesting some modern implications of Brandeis’s ambivalence about tort privacy and his linkage of intellectual privacy with free speech.