Legal Theory Blog

Roberts on Disgorgement as Remedy for Emoluments Clauses Violations

Caprice L. Roberts (The George Washington University Law School) has posted Disgorging Emoluments on SSRN.  Here is the abstract:

Modern emoluments controversies raise important unanswered and undertheorized questions connecting liability to remedy. Scholars have begun to debate what constitutes unlawful emoluments and where to draw liability lines. Earning greater gains by virtue of a governmental position? Receiving benefits in exchange for access? But, if yes, what should be done about it? The open question this paper answers is: If wrongdoing exists, what remedies should lie?

This article is the first to assess what remedy best addresses the goals underlying the Constitution’s Foreign and Domestic Emoluments clauses. If an emolument is unlawful, it is also a quintessential example of unjust enrichment. Yet the literature, cases, Congress, and the courts are silent on unjust enrichment and restitution. I argue that restitutionary disgorgement of improper gains will best deter corruption and self-dealing and also prevent unjust enrichment. The article explores private common law causes of action such as freestanding unjust enrichment claim and a breach of fiduciary duty claim. It also proposes a statutory solution to assess the scope of liability, articulate desired goals, and operationalize the ideal restitution-based remedy of disgorgement as the preferred remedy in this context.

Schneider on Gender & Negotiation

Andrea Kupfer Schneider (Marquette University - Law School) has posted What's Sex Got to Do With it: Questioning Research on Gender & Negotiation (Nevada Law Journal, Vol. 19, No. 3, 2019) on SSRN.  Here is the abstract:

Negotiation scholars and teachers often talk about negotiation skills through the metaphor of tools in the toolbox. This article focuses on the fact that negotiation scholarship primarily studies the hammer, the skill of assertiveness in negotiation. In fact, the majority of empirical negotiation studies take this even further—studying only the hammer and imagining only a single opportunity to hit the nail on the head. Based on those studies, we make conclusions that if one chooses not to use the hammer at all or does not hold it as well as another, one is not a good builder. And negotiation scholars’ advice is also too often focused only on this hammer—how to swing it harder, how to position your hands, the angle of the swing, and so forth. We see this as well in the study of gender differences in negotiation where the vast majority of articles examining gender and negotiation focus on assertiveness—the hammer—and how women need to pick it up, swing harder, or hold it differently. Women’s supposed lack of assertiveness has been used to explain the pay gap between the salaries of women and men along with a whole host of other inequities. This story falls short primarily because our research falls short. And when our research falls short—when we are only researching and emphasizing a part of the skills that are needed to be effective—this does a disservice to all negotiators.

First, researchers focus on assertiveness, a typically masculine trait, and only one of several important negotiation skills. Therefore, we assume that both men and women need only to master that skill to the detriment of the mastery of any other negotiation skills. Second, assertiveness has become the only regularly tested negotiation skill as it is easily quantified. By failing to study the impact of any other skills—including skills that women might be better at than men—the practice to theory to practice cycle is hijacked by this narrow focus. Third, we tend to study negotiation in one-shot interactions with distributive outcomes. Far less often do we study the possibility of integrative outcomes. Even when we set up studies that focus on repeated interactions, they are often limited to prisoner’s dilemma or dictator game scenarios—highly stylized and unrealistic structures. What this means is that while women are not recognized for the skills at which they might be inherently better, it also means that we are failing men by not highlighting opportunities for growth and improvement.

This article attempts to fill in the picture of the skills necessary for effective negotiation by examining the existing negotiation and gender literature discussing traits and skills related to negotiation and the gender literature of those traits outside of the negotiation context. Importantly, this article outlines what we know—and what is still missing—in terms of research on negotiation skills and research on gender differences in these skills. Understanding this gap is the first step toward recognizing what we should be studying and testing in the future.

This article will examine five negotiation skills—social intuition, empathy, ethicality, flexibility, and assertiveness—each of which has been shown to make negotiators more effective and add importantly to each negotiator’s toolbox. Each section will outline how the skill is generally defined in negotiation literature, what gender differences exist or research has been done under each category, and then where future research might be needed. Particularly, this article will note how much more research is needed in all of these other skills to help negotiators learn the specific behaviors that can increase effectiveness. Finally, the article will circle back to assess what we have learned about using a gender lens to study negotiation and the importance of broadening the skill base for all negotiators.

Ruple & Tanana on Energy & National Monument Protection

John Ruple (University of Utah, S.J. Quinney College of Law) & Heather Tanana (University of Utah - S.J. Quinney College of Law) have posted Beyond the Antiquities Act: Can the BLM Reconcile Energy Dominance and National Monument Protection? (34 Natural Resources & Environment __ (2019)) on SSRN.  Here is the abstract:

On December 4, 2017, President Donald J. Trump carved more than 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments. He also directed federal land managers to prepare management plans for both monuments. Draft plans have been released, and the preferred alternative under both plans promotes right-of-way development, minerals exploration, livestock grazing, and other traditional uses over protection of monument resources. Our paper argues that this approach violates both the Federal Land Policy and Management Act and the Omnibus Public Lands Act of 2009 because these statutes require the Bureau of Land Management to emphasize protection of monument resources over more impactive uses. We also argue that the Bureau of Land Management violated the National Environmental Policy Act when it failed to account for its statutory obligations to protect monument resources in the environmental baseline contained in the environmental impact statements for the management plans.

Bradshaw on Expropriating Habitat

Karen Bradshaw (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Expropriating Habitat (Harvard Environmental Law Review, Vol. 43 p 77, 2019) on SSRN.  Here is the abstract:

This Article identifies a disturbing trend: wildlife management agencies permitting landowners to shift threatened and endangered species from their native habitat on commercially valuable land to public land, land in foreign countries, and even captive breeding facilities. Surprisingly, this occurs under the auspices of the Endangered Species Act. Certainly, there are many instances of translocation that serve goals of species preservation. But, in practice, political pressures sometimes cause agencies to shift endangered wildlife populations from higher-value lands to lands with less commercial value. Analyzing the political economy of species translocation suggests that the continuous shift of wildlife to public and foreign land appears to be an almost inevitable outcome given the social, economic, ecological, and political context of the Endangered Species Act.

To illustrate this phenomenon, I present a detailed case study of the U.S. Fish and Wild- life Service paying Mexico to provide habitat for the endangered thick-billed parrot rather than re-establishing a population in the United States. This is not an isolated phenomenon; any one of the individual examples that I provide may seem relatively small. In aggregate, however, the long-term effects of shifting wildlife populations to make way for development or industrial activity may prove devastating. Moreover, translocations are a small part of the much broader trend of humans expropriating land from wildlife bit-by-bit, species-by-species. This reality, coupled with the current political climate, suggests that the Endangered Species Act, as applied, is insufficiently protective of wildlife habitat. I analyze the potential of an animal property rights regime—a new, habitat-preservation-focused solution to species preservation—as a new tool for stemming systemic habitat loss and related extinctions.

Lee on Regulating the Border

Eunice Lee (University of California, Berkeley, College of Letters & Science, Department of Anthropology, Students; Center for Gender & Refugee Studies, UC Hastings College of the Law) has posted Regulating the Border (Maryland Law Review, Forthcoming) on SSRN.  Here is the abstract:

Under the current Administration, asylum seekers at our southern border have prompted enormous political controversy. Amidst a record-breaking government shutdown, the separation of asylum-seeker families, the declaration of a national emergency, and other drastic actions, agency adjudicators at the border have continued their daily work of screening asylum applicants. This process was not, however, untouched by the ongoing politicization of the border. Rather, in June 2018, then-Attorney General Jefferson Sessions issued a restrictive precedent decision, Matter of A-B-, targeting domestic violence asylum claims. The Department of Homeland Security (DHS) rushed to implement A-B- in its border screenings, i.e., credible fear determinations. In December 2018, a federal district court judge enjoined as unlawful several aspects of that decision and its implementation in credible fear processes. In the interim, however, DHS likely refouled refugees at the border as a result of the Attorney General’s asylum interpretations.

My article examines these border adjudications within the structure of our administrative state. I consider proper roles between and within agencies, as well as among the three branches of our government. Specifically, I consider how the underlying aims of judicial review of agency decision-making should shape and guide credible fear processes. I argue that revised agency practices and recalibrated judicial review can help ensure fair screenings: ones that abide by statutory design and thereby help avoid refoulement of refugees. For the agencies, I suggest delayed or declined implementation of restrictive DOJ asylum precedents at the border, as well as greater consideration of the views of the asylum office. For the courts, I propose stronger assertion of Article III primacy in declaring “what the law is” for screening purposes, as well as a recalibration of judicial review to favor agency expertise over politicized decision-making. I conclude with recommendations for structural and statutory reforms of agency decision-making at the border and beyond.

Gstrein & Kochenov on Digital Identity & Distributed Ledger Technology

Oskar Josef Gstrein (University of Groningen - Campus Fryslân; Europa-Institut, Saarland University) & Dimitry Kochenov (University of Groningen - Faculty of Law) have posted Digital Identity and Distributed Ledger Technology: Paving the Way to a Neo-Feudal Brave New World? (Frontiers in Blockchain, 2019 (Forthcoming)) on SSRN.  Here is the abstract:

While the digital layer of social interaction continues to evolve, the recently proclaimed hopes in the development of digital identity could be both naïf and dangerous. Rather than just asking ourselves how we could digitize existing features of identity management, and corresponding financial transactions on a community or state level, we submit that truly useful and innovative digital identities need to be accompanied by some significant rethinking of the essential basics behind the organization of the world. Once digital technologies leave the realm of purely on-line or deeply local projects, the confrontation with the world of citizenship’s biases and the random distribution of rights and duties precisely on the presumption of the lack of any choice and absolute pre-emption of any disagreement comes into a direct conflict with all the benefits Distributed Ledger Technology purports to enable. Some proponents of Distributed Ledger Technology-based identity systems envisage ‘cloud communities’ with truly ‘self-sovereign’ individuals picking and choosing which communities they belong to. We rather see a clear risk that when implemented at the global scale, digital identity systems could be deeply harmful, reinforcing and amplifying the most repugnant aspects of contemporary citizenship. In this contribution we present a categorization of existing digital identity systems from a governance perspective, and discuss it on basis of three corresponding case studies which allow us to infer opportunities and limitations of Distributed Ledger Technology based identity. Subsequently, we put our findings in the context of existing preconditions of citizenship law, and conclude with a suggestion of a combination of several tests which we propose to avoid the plunge into a neo-feudal ‘brave new world’. We would like to draw attention to the perspective that applying digital identity without rethinking the totalitarian assumptions behind the citizenship status will result in perfecting the current inequitable system, which is a move away from striving towards justice and a more dignified future of humanity. We see the danger that those might be provided with plenty of opportunity who already do not lack such under current governance structures, while less privileged individuals will witness their already weak position becoming increasingly worse.

Harvey on Diluting Prejudice to Criminal Defendants from On-Line Material

David John Harvey (University of Auckland; District Court of Auckland) has posted Diluting Prejudice on SSRN.  Here is the abstract:

This paper is about the steps that may be taken to dilute but not totally eliminate the prejudicial effect of on-line material that relates to a defendant about to stand trial. It is posited upon the fact that jurors, despite strong judicial directions, will go on-line to seek out information relevant to the case that they are trying. The solution lies in the use of what could be described as “take-down” orders whereby material is removed from websites and de-indexed from search engines during the course of the trial to eliminate or dilute any prejudice that may otherwise arise. The remedy of a “take-down” order restores the qualities of practical and partial obscurity of prejudicial information that was a characteristic of the pre-Digital Paradigm. The paper also discusses the issue of juror contempt in light of proposed changes to the law in the Administration of Justice (Reform of Contempt) Bill.

Bradshaw & Facemire on Biodiversity Loss & Property Rights

Karen Bradshaw (Arizona State University (ASU) - Sandra Day O'Connor College of Law) & Challie Facemire (Arizona State University (ASU), College of Liberal Arts and Sciences, School of Life Sciences, Students) have posted Biodiversity Loss, Viewed through the Lens of Mis-matched Property Rights (International Journal of the Commons, Forthcoming) on SSRN.  Here is the abstract:

Americans like the image of wildlife, dislike the costs associated with maintaining it, and petulantly pretend that the two inexorably intertwined are separable. Property theory unwittingly replicates this bifurcated thinking, with disastrous results for biodiversity. Amidst growing awareness of ecosystems as complex adaptive systems, it is time to bring a new perspective to the decades-old analysis of wildlife preservation. Happily, innovations in property theory provide a radical opportunity to re-examine how humans and wildlife interact.

We are observing a disruption in property theory in real time, writing even as it is happening. For decades, property theorists have envisioned rights as bilateral, focusing on intersections between directly adjacent landowners, or landowners and government actors. This over-simplified, two-dimensional model of property rights has resulted in laws that facilitate epic socio-ecological imbalances. Commentators and scholars observe these imbalances, but have yet to identify that the root of the problem is not property itself but instead a flaw in the theoretical construct of property.

In this paper, we apply the emergent theory of mismatched property rights to the problem of biodiversity loss. We observe that wildlife habitat for a single species can consist of tens of thousands of acres. Land parceling systems artificially divide wildlife habitat, fragmenting ownership of landscape-level resources. Managing large-scale habitats requires coordinating the interests of many property owners, often with divergent views on habitat management. Public lands avoid this feature, but nevertheless still have competing resource users seeking to maximize allocation of natural resources rights. Wildlife habitat provides a particularly challenging variation on the theme of mis-matched property rights. In this context, a primary stakeholder—wildlife—owns no property rights and cannot represent itself.

We suggest that stakeholder collaborations are one understudied tool that functionally reincorporates wildlife resource uses into the existing property regime. Stakeholder collaborations bring together parties with a shared interest in—but divergent views on—a problem. The group works collaboratively to craft solutions to the problem, often in parallel with formal systems of government. In terms of mis-matched property rights, collaborations serve to re-scale resources so that they can be efficiently managed at their natural scale. Close examination of resource fragmentation in these examples illuminate how stakeholder collaborations enable different actors to operate a parallel communal governance model that operates in tandem with law and private land ownership.

Stakeholder collaborations cross administrative and property boundaries to create a landscape-level management plan that accommodates overlapping rights within differing boundaries. The reflect a middle-way in resource disputes that courts cannot achieve and serve to integrate resource users without formal property rights. In this way, they appear to be playing a crucial, under-appreciated role in stemming biodiversity loss.

Dorff, Hicks, & Solomon on an Empirical Study of Early-Stage Investment in Public Benefit Corporations

Michael B. Dorff (Southwestern University School of Law), James Hicks (University of California, Berkeley - School of Law), Steven Davidoff Solomon (University of California, Berkeley - School of Law; University of California, Berkeley - Berkeley Center for Law, Business and the Economy; European Corporate Governance Institute) have posted The Future or Fancy? An Empirical Study of Public Benefit Corporations on SSRN.  Here is the abstract:

The public benefit corporation ("PBC") is one of the most hyped developments in corporate law. The reason is the PBC’s potential social purpose. PBC directors are required under their fiduciary duties to consider purposes other than profits in decision-making. These new forms are hailed by their champions as offering a new hope for a reformed capitalism. Critics have assailed them as unworkable, and a thin disguise for ordinary corporate profit-seeking behavior.

What has been lacking in this debate is evidence. We aim to fill this gap by conducting an empirical study of early-stage investment in PBCs. Early-stage investment, consisting of venture capital and similar funds, presents an interesting test case for PBC funding, because the investors often have profit-maximizing incentives and fiduciary duties of their own. Using our novel dataset, we can discern whether for-profit investment is occurring in PBCs, and if so, whether it is different in kind from ordinary early stage investment.

We find that PBCs are receiving investment at significant rates, and that investment is coming from typical sources of venture capital including traditional, profit-seeking VC firms — Sequoia Capital, Andreessen Horowitz, and others. We also find that venture capital funds are investing in more consumer-facing industries, as well as investing smaller amounts than traditional investments.

We conclude that PBCs are attracting for-profit investment, supporting arguments that these new forms may be able to earn an acceptable rate of return while serving various purposes. We use these results to develop a theory of future PBC development, which asserts that investment in PBCs is likely to remain siloed in smaller, newly-formed firms. We conclude that widespread adoption of the form will take time, as network effects build and experience with the form becomes embedded within the entrepreneurial ecosystem. The PBC is not a failure. But it is in its infancy and any full embrace will take a significant period of time.

Kreis on Employment Anti-Discrimination Laws & GLBT and Gender Identity Discrimination Claims

Anthony Michael Kreis (Chicago-Kent College of Law) has posted Dead Hand Vogue (University of Richmond Law Review, Vol. 54, 2020) on SSRN.  Here is the abstract:

For decades, courts read employment anti-discrimination laws’ prohibition of sex discrimination to exclude gay, lesbian, bisexual, and transgender workers’ sexual orientation and gender identity discrimination claims — purportedly because the claims were not linked to employees’ status as a man or a woman. And while significant doctrinal developments have afforded some gender-nonconforming persons critical workplace safeguards under sex anti-discrimination laws, many older decisions that deemed sexual orientation and transgender discrimination claims to be outside the ambit of sex discrimination still control. These decades’ old precedents all suffer from the same analytical error: a failure to adhere to the principle that anti-discrimination law does not protect groups; it protects individuals. Because courts in the 1970s and 1980s focused on groups rather than individuals, judges were able to rely on legislative dead hand as performative analysis to keep LGBTQ people out of the law’s workplace protections and reinforce gender variants’ second-class status. This Article traces the anti-individualist origins of sex discrimination doctrine that has improperly kept LGBTQ workers outside of anti-discrimination protections and argues that the protective promise of anti-discrimination law is realized most fully when courts take individuals seriously.

Highly recommended.