Pirate Arbitration
By David Horton. Full Text. The U.S. Supreme Court’s expansion of the Federal Arbitration Act (FAA) has transformed the American civil justice system. In a series of controversial opinions, the Court has held that the FAA preempts state law, bars class actions, and empowers companies to delegate questions about the arbitration itself to arbitrators. For…
Continue ReadingChilling Effects and Unequal Subjects: A Response to Jonathon Penney’s Understanding Chilling Effects
By Karen Levy. Full Text. The mark of a strong theoretical argument is that it opens our minds to new empirical questions. In his generative article Understanding Chilling Effects, Jonathon Penney provides a persuasive and nuanced argument for interpreting chilling effects through the lens of social conformity, rather than self-censorship of lawful conduct. Penney’s own…
Continue ReadingSize Matters (Even If the Treasury Insists It Doesn’t): Why Small Taxpayers Should Receive a De Minimis Exemption from the GILTI Regime
By Patrick Riley Murray. Full Text. The Tax Cuts & Jobs Act drastically altered the U.S. international tax landscape. Among its most significant changes is the implementation of the Global Intangible Low-Taxed Income (GILTI) regime. GILTI attempts to increase the U.S. tax base by preventing both the offshoring of intangible assets and the avoidance of…
Continue ReadingShow Me the Money: Addressing the Oversight Gap in Private Foundation Donations to Donor-Advised Funds
By Kerry Gibbons. Full Text. Americans’ charitable giving habits are changing. Since the 1990s, a new form of charitable giving (donor-advised funds, or “DAFs”) has skyrocketed in popularity. In 2018, DAFs held at least $72 billion in charitable dollars—representing a 200% increase from four years prior. DAFs’ ascendance can be attributed to their ease of…
Continue ReadingA Moral and Legal Imperative to Act: The Bail Bond Industry, Consumer Protection, and Public Enforcers
By Brandie Burris. Full Text. Bail is not a fine, and it is not a punishment. In theory, bail serves a simple goal: it ensures an accused defendant will appear at their criminal hearings. Yet, as practiced, the American bail system is insidious. Bail bond agencies exploit their grossly unequal bargaining power, depress consumer access…
Continue ReadingUnderstanding Chilling Effects
By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or…
Continue ReadingPatent Law’s Deference Paradox
By Paul R. Gugliuzza. Full Text. Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no…
Continue ReadingLifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance
By Leo E. Strine, Jr., Aneil Kovvali & Oluwatomi O. Williams. Full Text. In view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because…
Continue ReadingContractual Depth
By Cathy Hwang & Matthew Jennejohn. Full Text. Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more…
Continue ReadingThe Input Fallacy
By Talia B. Gillis. Full Text. Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails…
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