Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases

Article | Tort Law
Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases
by Jonathan Cardi,
* Valerie P. Hans & Gregory Parks

From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 507 (2020)

Keywords: Implicit Racial Bias, Tort Decision Making

They say that black lives matter, but how much relative to white lives? Political activists and legal theorists have debated whether the injuries suffered by African Americans are devalued relative to the injuries of whites. This study is one of the first comprehensive experimental examinations of how race affects judgments of tort injuries. We tested the role of the litigant’s race and the impact of implicit racial bias in tort case decision making. Using scenarios based on classic tort cases, we systematically varied the race of the plaintiff and the race of the defendant to create multiple versions of each scenario. Participants read one version of each scenario, judged whether the defendant ought to be legally responsible for the injury, and gave an award in money damages. As an added layer, participants also completed the Implicit Association Test (“IAT”) for black and white races.

The results revealed that race—and implicit racial bias—matter in evaluating the responsibility and remedies for tort injuries. Participants who had high IAT scores attributed significantly more legal responsibility to black defendants than to white defendants and recommended higher awards for plaintiffs who sued black defendants. The dollar awards for the injuries suffered by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs. These results offer troubling new evidence of how race, responsibility, and injury are intertwined. The results are complex and nuanced, revealing once again that the role of implicit bias in legal decision making—particularly in the torts arena—is ripe for further study.

*. Jonathan Cardi is Professor of Law and Executive Associate Dean for Academic Affairs, Wake Forest University School of Law. The research was supported by Wake Forest University School of Law and Cornell Law School. Conversations with Anthony Burrow, Stephen Ceci, Kayla Burd, Krystia Reed, Jeffrey Rachlinski, and Doron Teichman about research on implicit bias were helpful to us. Jasmine Burgess provided excellent research assistance; Francoise Vermeylen gave excellent statistical advice; and Nan Smith and Peter Hook helped us with the tables and figures. Presentations at the Aix Remedies Discussion Forum (June 27, 2018), a Cornell Law School Faculty Workshop (June 27, 2018), and the Conference on Empirical Legal Studies (November 9, 2018) were extraordinarily useful in helping us think about our results.
†. Valerie P. Hans is Charles F. Rechlin Professor of Law, Cornell Law School.
‡. Gregory Parks is Professor of Law and Associate Dean of Research, Public Engagement, and Faculty Development, Wake Forest University School of Law.

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Rethinking Racial Entitlements: From Epithet to Theory – Article by Tristin K. Green

Article | Race and Legal Theory
Rethinking Racial Entitlements: From Epithet to Theory
by Tristin K. Green*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 217 (2020)

Keywords: Racial Entitlements, Voting Rights Act, Affirmative Action, Title VII

Abstract

From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.

In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.

Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.

*. Professor of Law, University of San Francisco School of Law. This Article benefited from participation in the UCLA Critical Race Studies Symposium: Whiteness as Property (2014), where I first presented the idea, and the panel on Law, Discrimination, and Constructions of Inequality at the Annual Law and Society Meeting in Mexico City (2017), as well as from presentations at the University of Washington School of Law and USF School of Law. I also owe thanks to Rachel Arnow-Richman, Angela Harris, Peter Honigsberg, Osamudia James, Yvonne Lindgren, Orly Lobel, Rhonda Magee, Gowri Ramachandran, Jalen Russell, Leticia Saucedo, Michelle Travis, and Deborah Widiss for feedback on drafts. Most of all, thanks to Camille Gear Rich for intense re-tooling and inspired conversation about racial entitlements and more.

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In Defense of International Comity – Article by Samuel Estreicher & Thomas H. Lee

Article | International Law
In Defense of International Comity
by Samuel Estreicher* & Thomas H. Lee

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 169 (2020)

Keywords: International Comity, Federal Common Law, Republic of Argentina v. NML Capital

Abstract

A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction because of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. legal system that attract foreign litigants. The problem is ubiquitous. For instance, four cases decided in the Supreme Court’s 2017 October Term raised international comity concerns and illustrate the Court’s difficulty grappling with these issues.

This Article cuts against prevailing academic commentary (endorsed, to some extent, by the newly-minted Restatement (Fourth) of the Foreign Relations Law of the United States) and presents the first sustained defense of the widespread practice of international comity abstention in the lower federal courts—a practice the Supreme Court has not yet passed on but will almost certainly decide soon. At the same time, we acknowledge that the critics are right to assert that the way lower courts currently implement international comity—through a multi-factored interest analysis—is too manipulable and invites judicial shirking. Consequently, we propose a new federal common law framework for international comity based in part on historical practice from the Founding to the early twentieth century when federal courts frequently dealt with cases implicating foreign governmental interests with scant congressional or executive guidance, primarily in the maritime context. That old law is newly relevant. What is called for is forthright recognition of a federal common law doctrine of international comity that enables courts to exercise principled discretion in dealing with asserted foreign governmental interests and clears up conceptual confusion between prescriptive and adjudicative manifestations of international comity.

*. Dwight D. Opperman Professor of Law & Codirector, Institute for Judicial Administration, New York University School of Law.

. Leitner Family Professor of Law, Fordham University School of Law.

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Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech – Article by Thomas E. Kadri & Kate Klonick

Article | Freedom of Speech
Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech
by Thomas E. Kadri* & Kate Klonick†

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 37 (2019)

Keywords: Speech, Content Moderation

 

Abstract

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts of “public figures” and “newsworthiness.”

This Article offers the first empirical analysis of how judges and content moderators have used these two concepts to shape the boundaries of free speech. It first introduces the legal doctrines developed by the “Old Governors,” exploring how courts have shaped the constitutional concepts of public figures and newsworthiness in the face of tort claims for defamation, invasion of privacy, and intentional infliction of emotional distress. The Article then turns to the “New Governors” and examines how Facebook’s content-moderation system channeled elements of the courts’ reasoning for imposing First Amendment limits on tort liability.

By exposing the similarities and differences between how the two systems have understood these concepts, this Article offers lessons for both courts and platforms as they confront new challenges posed by online speech. It exposes the pitfalls of using algorithms to identify public figures; explores the diminished utility of setting rules based on voluntary involvement in public debate; and analyzes the dangers of ad hoc and unaccountable newsworthiness determinations. Both courts and platforms must adapt to the new speech ecosystem that companies like Facebook have helped create, particularly the way that viral content has shifted normative intuitions about who deserves harsher rules in disputes about harmful speech, be it in law or content moderation.

Finally, the Article concludes by exploring what this comparison reveals about the structural role platforms play in today’s speech ecosystem and how it illuminates new solutions. These platforms act as legislature, executive, judiciary, and press—but without any separation of powers to establish checks and balances. A change to this model is already occurring at one platform: Facebook is creating a new Oversight Board that will hopefully provide due process to users on the platform’s speech decisions and transparency about how content-moderation policy is made, including how concepts related to newsworthiness and public figures are applied.

*. Resident Fellow, Yale Law School; Ph.D. Candidate, Yale University.

†. Assistant Professor of Law, St. John’s University School of Law; Affiliate Fellow, Yale Law School Information Society Project. Authors listed alphabetically. Portions of this Article build on research and ideas featured in Thomas Kadri’s and Kate Klonick’s doctoral dissertations and as well as an essay published in the Emerging Threats series organized by the Knight First Amendment Institute at Columbia University. See Kate Klonick, Facebook v. Sullivan, Knight First Amend. Inst. (Oct. 1, 2018), https://knightcolumbia.org/content/facebook-v-sullivan [https://perma.cc/W9R8-7K9B]. The authors are grateful for the friends and colleagues whose insights improved this piece, especially Jack Balkin, Molly Brady, Aaron Caplan, Danielle Citron, Jennifer Daskal, Evelyn Douek, Sarah Haan, Margot Kaminski, Daphne Keller, Jennifer Rothman, Robert Post, Rory Van Loo, Morgan Weiland, and colleagues at the Yale Information Society Project. Additional thanks for the opportunity to present this work and receive excellent feedback at the Cornell Tech Speed Conference, Loyola Law School Los Angeles Faculty Workshop, Washington School of Law Faculty Workshop, University of Colorado Boulder Silicon Flatirons Conference, UCLA Social Media Conference, and Yale Freedom of Expression Conference. A very special thank you to David Pozen, whose excellent, patient editing and thoughtful feedback consolidated this Article’s central arguments and encouraged new ones.

 

 

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The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion – Article by Frank Fagan & Saul Levmore

Article | Legal Theory
The Impact of Artificial Intelligence on Rules, Standards, and Judicial Discretion
by Frank Fagan & Saul Levmore*

From Vol. 93, No. 1 (November 2019)
93 S. Cal. L. Rev. 1 (2019)

Keywords: Artificial Intelligence, Machine Learning, Algorithmic Judging

 

Abstract

Artificial intelligence (“AI”), and machine learning in particular, promises lawmakers greater specificity and fewer errors. Algorithmic lawmaking and judging will leverage models built from large stores of data that permit the creation and application of finely tuned rules. AI is therefore regarded as something that will bring about a movement from standards towards rules. Drawing on contemporary data science, this Article shows that machine learning is less impressive when the past is unlike the future, as it is whenever new variables appear over time. In the absence of regularities, machine learning loses its advantage and, as a result, looser standards can become superior to rules. We apply this insight to bail and sentencing decisions, as well as familiar corporate and contract law rules. More generally, we show that a Human-AI combination can be superior to AI acting alone. Just as today’s judges overrule errors and outmoded precedent, tommorrow’s lawmakers will sensibly overrule AI in legal domains where the challenges of measurement are present. When measurement is straightforward and prediction is accurate, rules will prevail. When empirical limitations such as overfit, Simpson’s Paradox, and omitted variables make measurement difficult, AI should be trusted less and law should give way to standards. We introduce readers to the phenomenon of reversal paradoxes, and we suggest that in law, where huge data sets are rare, AI should not be expected to outperform humans. But more generally, where empirical limitations are likely, including overfit and omitted variables, rules should be trusted less, and law should give way to standards.

*. Fagan is an Associate Professor of Law at the EDHEC Business School, France; Levmore is the William B. Graham Distinguished Service Professor of Law at the University of Chicago Law School. We are grateful for the thoughtful comments we received from William Hubbard, Michael Livermore, and Christophe Croux, as well as participants of the University of Chicago School of Law faculty workshop. 

 

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The New Data of Student Debt – Article by Christopher K. Odinet

Article | Regulations
The New Data of Student Debt
by Christopher K. Odinet*

From Vol. 92, No. 6 (September 2019)
92 S. Cal. L. Rev. 1617 (2019)

Keywords: Student Loan, Education-Based Data Lending, Financial Technology (Fintech)

 

Abstract

Where you go to college and what you choose to study has always been important, but, with the help of data science, it may now determine whether you get a student loan. Silicon Valley is increasingly setting its sights on student lending. Financial technology (“fintech”) firms such as SoFi, CommonBond, and Upstart are ever-expanding their online lending activities to help students finance or refinance educational expenses. These online companies are using a wide array of alternative, education-based data points—ranging from applicants’ chosen majors, assessment scores, the college or university they attend, job history, and cohort default rates—to determine creditworthiness. Fintech firms argue that through their low overhead and innovative approaches to lending they are able to widen access to credit for underserved Americans. Indeed, there is much to recommend regarding the use of different kinds of information about young consumers in order assess their financial ability. Student borrowers are notoriously disadvantaged by the extant scoring system that heavily favors having a past credit history. Yet there are also downsides to the use of education-based, alternative data by private lenders. This Article critiques the use of this education-based information, arguing that while it can have a positive effect in promoting social mobility, it could also have significant downsides. Chief among these are reifying existing credit barriers along lines of wealth and class and further contributing to discriminatory lending practices that harm women, black and Latino Americans, and other minority groups. The discrimination issue is particularly salient because of the novel and opaque underwriting algorithms that facilitate these online loans. This Article concludes by proposing three-pillared regulatory guidance for private student lenders to use in designing, implementing, and monitoring their education-based data lending programs.

*. Associate Professor of Law and Affiliate Associate Professor in Entrepreneurship, University of Oklahoma, Norman, OK. The Author thanks Aryn Bussey, Seth Frotman, Michael Pierce, Tianna Gibbs, Avlana Eisenberg, Richard C. Chen, Kaiponanea Matsumara, Sarah Dadush, Jeremy McClane, Emily Berman, Donald Kochan, Erin Sheley, Melissa Mortazavi, Roger Michalski, Kit Johnson, Eric Johnson, Sarah Burstein, Brian Larson, John P. Ropiequet, the participants and the editorial board of the Loyola Consumer Law Review Symposium on the “Future of the CFPB,” the participants of the Central States Law Schools Association Conference, the faculty at the University of Iowa College of Law, and Kate Sablosky Elengold for their helpful comments and critiques on earlier drafts, either in writing or in conversation. This Article is the second in a series of works under the auspices of the Fintech Finance Project, which looks to study the development of law and innovation in lending. As always, the Author thanks the University of Oklahoma College of Law’s library staff for their skillful research support. All errors and views are the Author’s alone.

 

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Binary Governance: Lessons from the GDPR’s Approach to Algorithmic Accountability – Article by Margot E. Kaminski

Article | Regulations
Binary Governance: Lessons from the GDPR’s Approach to Algorithmic Accountability
by Margot E. Kaminski*

From Vol. 92, No. 6 (September 2019)
92 S. Cal. L. Rev. 1529 (2019)

Keywords: Algorithmic Decision-Making, General Data Protection Regulation (GDPR)

 

Abstract

Algorithms are now used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. A quickly growing literature has split on how to address algorithmic decision-making, with individual rights and accountability to nonexpert stakeholders and to the public at the crux of the debate. In this Article, I make the case for why both individual rights and public- and stakeholder-facing accountability are not just goods in and of themselves but crucial components of effective governance. Only individual rights can fully address dignitary and justificatory concerns behind calls for regulating algorithmic decision-making. And without some form of public and stakeholder accountability, collaborative public-private approaches to systemic governance of algorithms will fail.

In this Article, I identify three categories of concern behind calls for regulating algorithmic decision-making: dignitary, justificatory, and instrumental. Dignitary concerns lead to proposals that we regulate algorithms to protect human dignity and autonomy; justificatory concerns caution that we must assess the legitimacy of algorithmic reasoning; and instrumental concerns lead to calls for regulation to prevent consequent problems such as error and bias. No one regulatory approach can effectively address all three. I therefore propose a two-pronged approach to algorithmic governance: a system of individual due process rights combined with systemic regulation achieved through collaborative governance (the use of private-public partnerships). Only through this binary approach can we effectively address all three concerns raised by algorithmic decision-making, or decision-making by Artificial Intelligence (“AI”).

The interplay between the two approaches will be complex. Sometimes the two systems will be complementary, and at other times, they will be in tension. The European Union’s (“EU’s”) General Data Protection Regulation (“GDPR”) is one such binary system. I explore the extensive collaborative governance aspects of the GDPR and how they interact with its individual rights regime. Understanding the GDPR in this way both illuminates its strengths and weaknesses and provides a model for how to construct a better governance regime for accountable algorithmic, or AI, decision-making. It shows, too, that in the absence of public and stakeholder accountability, individual rights can have a significant role to play in establishing the legitimacy of a collaborative regime.

*. Associate Professor of Law, Colorado Law School; Faculty Privacy Director at Silicon Flatirons; Affiliated Fellow, Information Society Project at Yale Law School; Faculty Fellow, Center for Democracy and Technology. Many thanks to Jef Ausloos, Jack Balkin, Michael Birnhack, Frederik Zuiderveen Borgesius, Bryan H. Choi, Kiel Brennan-Marquez, Giovanni Comandé, Eldar Haber, Irene Kamara, Derek H. Kiernan-Johnson, Kate Klonick, Mark Lemley, Gianclaudio Maglieri, Christina Mulligan, W. Nicholson Price, Andrew Selbst, Alicia Solow-Niederman, and Michael Veale for reading and for detailed comments. Thanks to the Fulbright-Schuman program, Institute for Information Law (“IViR”) at the University of Amsterdam, and Scuola Sant’Anna in Pisa for the time and resources for this project. Thanks to the faculty of Tel Aviv University, the Second Annual Junior Faculty Forum on the Intersection of Law and Science, Technology, Engineering, and Math (STEM) at the Northwestern Pritzker School of Law, and my own Colorado Law School faculty for excellent workshop opportunities. Extra thanks to Matthew Cushing, whose incredible support made this project possible, and to Mira Cushing for joy beyond words.

 

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Regulating Entities and Activities: Complementary Approaches to Nonbank Systemic Risk – Article by Jeremy C. Kress, Patricia A. McCoy & Daniel Schwarcz

Article | Financial Regulation
Regulating Entities and Activities: Complementary Approaches to Nonbank Systemic Risk
by Jeremy C. Kress*, Patricia A. McCoy† & Daniel Schwarcz‡

From Vol. 92, No. 6 (September 2019)
92 S. Cal. L. Rev. 1455 (2019)

 

Abstract

The recent financial crisis demonstrated that, contrary to longstanding regulatory assumptions, nonbank financial firms—such as investment banks and insurance companies—can propagate systemic risk throughout the financial system. After the crisis, policymakers in the United States and abroad developed two different strategies for dealing with nonbank systemic risk. The first strategy seeks to regulate individual nonbank entities that officials designate as being potentially systemically important. The second approach targets financial activities that could create systemic risk, irrespective of the types of firms that engage in those transactions. In the last several years, domestic and international policymakers have come to view these two strategies as substitutes, largely abandoning entity-based designations in favor of activities-based approaches. This Article argues that this trend is deeply misguided because entity- and activities-based approaches are complementary tools that are each essential for effectively regulating nonbank systemic risk. Eliminating an entity-based approach to nonbank systemic risk—either formally or through onerous procedural requirements—would expose the financial system to the same risks that it experienced in 2008 as a result of distress at nonbanks like AIG, Bear Stearns, and Lehman Brothers. This conclusion is especially salient in the United States, where jurisdictional fragmentation undermines the capacity of financial regulators to implement an effective activities-based approach. Significant reforms to the U.S. regulatory framework are necessary, therefore, before an activities-based approach can meaningfully complement domestic entity-based systemic risk regulation.

*. Assistant Professor of Business Law, University of Michigan Ross School of Business. Kress was previously an attorney in the Federal Reserve Board’s Legal Division.

†. Liberty Mutual Insurance Professor, Boston College Law School. McCoy founded the Mortgage Markets group at the Consumer Financial Protection Bureau in 2011 and was responsible for mortgage policymaking at the Bureau.

‡. Fredrikson & Byron Professor of Law, University of Minnesota Law School. Schwarcz has testified before Congress on issues relating to entity-based nonbank designations on six different occasions, and he was one of four academic participants in the Presidential Memorandum Engagement Process for the 2017 United States Department of Treasury Report to the President on Financial Stability Oversight Council Designations. For helpful comments and suggestions, we thank Anat Admati, Hilary Allen, Michael Barr, Christopher Bruner, Gregg Gelzinis, Erik Gerding, Claire Hill, Michael Malloy, Heidi Mandanis Schooner, Steven Schwarcz, Art Wilmarth, David Zaring, and the audiences at presentations at The Wharton School, Tulane Law School, Center for International Governance Innovation, National Business Law Scholars Conference, Academy of Legal Studies in Business Annual Conference, Office of Financial Research—University of Michigan Annual Conference, and Villanova Workshop on Insurance and Contract Law. Thanks to Alexander Tibor for research assistance.

 

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Too Big to Be Activist – Article by John D. Morley

Article | Corporate Law
Too Big to Be Activist
by John D. Morley*

From Vol. 92, No. 6 (September 2019)
92 S. Cal. L. Rev. 1407 (2019)

 

Abstract

Big investment managers, such as Vanguard and Fidelity, have accumulated an astonishing amount of common stock in America’s public companies—so much that they now have enough corporate votes to control entire industries. What, then, will these big managers do with their potential power?

This Article argues that they will do less than we might think. And the reason is paradoxical: the biggest managers are too big to be activists. Their great size creates intense internal conflicts of interest that make aggressive activism extremely difficult or even impossible.

The largest managers operate hundreds of different investment funds, including mutual funds, hedge funds, and other vehicles that all invest in the same companies at the same times. This structure inhibits activism, because it turns activism into a source of internal conflict. Activism by one of a manager’s funds can damage the interests of the manager’s other funds. If a BlackRock hedge fund invests in a company’s equity, for instance, at the same time a BlackRock mutual fund invests in the company’s debt, then any attempt by either fund to turn the company in its favor will harm the interests of the other fund. The hedge fund and mutual fund might similarly come into conflict over the political and branding risks of activism and the allocation of costs and profits. Federal securities regulation and poison pills can create even  more conflicts, often turning activism by a hedge fund into serious legal problems for its manager’s entirely passive mutual funds. A big manager, in other words, is like a lawyer with many clients: its advocacy for one client can harm the interests of another.

The debate about horizontal shareholding and index fund activism has ignored this truth. Research on horizontal ownership tends to treat a manager and its funds as though they were a single unit with no differences among them. Traditional analyses of institutional shareholder activism tend to go the opposite direction, treating mutual funds as though they were totally independent with no connection to other funds under the same management.

By introducing a subtler understanding of big managers’ structures, I can make sense of shareholder activism more clearly. Among other things, I show why aggressive activism tends to come entirely from small managers—that is, from the managers whose potential for activism is actually the weakest.

*. Professor of Law, Yale Law School. E-mail: john.morley@yale.edu. I thank Mark Andriola, Aslihan Asil, Eli Jacobs, John Jo, and Alex Resar for excellent research assistance. For helpful conversations and comments, I thank Vince Buccola, Florian Ederer, Marcel Kahan, Roy Katzovicz, Chuck Nathan, Roberta Romano, Dorothy Shapiro, Robert Zack, and workshop participants at the American Law and Economics Association Annual Meeting, Northwestern University Law and Economics Workshop, NYU Institute for Corporate Governance and Finance Corporate Governance Roundtable, UCLA Law School, and the Wharton School Department of Legal Studies and Business Ethics.

 

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Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Crimes – Article by Zachary D. Kaufman

Article | Criminal Law
Protectors of Predators or Prey: Bystanders and Upstanders amid Sexual Crimes
by Zachary D. Kaufman*

From Vol. 92, No. 6 (September 2019)
92 S. Cal. L. Rev. 1317 (2019)

Keywords: Bad Samaritan Laws, Bystanders, Sexual Violence Prevention

 

Abstract

In the wake of widespread revelations about sexual abuse by Harvey Weinstein, Larry Nassar, and others, the United States is reckoning with the past and present and searching for the means to prevent and punish such offenses in the future. The scourge of sexual crimes goes far beyond instances perpetrated by powerful men; this misconduct is rampant throughout the country. In some of these cases, third parties knew about the abuse and did not try to intervene. Scrutiny of—and the response to—such bystanderism is increasing, including in the legal world.

In order to align law and society more closely with morality, this Article proposes a more holistic, aggressive approach to prompt involvement by third parties who are aware of specific instances of sexual crimes in the United States. This Article begins by documenting the contemporary scope of sexual crimes in the United States and the crucial role bystanders play in facilitating them.

The Article next provides an overview and assessment of “Bad Samaritan laws”: statutes that impose a legal duty to assist others in peril through intervening directly (also known as the “duty to rescue”) or notifying authorities (also known as the “duty to report”). Such laws exist in dozens of foreign countries and, to varying degrees, in twenty-nine U.S. states, Puerto Rico, U.S. federal law, and international law. The author has assembled the most comprehensive global database of Bad Samaritan laws, which provides an important corrective to other scholars’ mistaken claims about the rarity of such statutes, particularly in the United States. Despite how widespread these laws are in the United States, violations are seldom, if ever, charged or successfully prosecuted.

Drawing on historical research, trial transcripts, and interviews with prosecutors, judges, investigators, and “upstanders” (people who intervene to help others in need), the Article then describes four prominent cases in the United States involving witnesses to sexual crimes. Each case provides insight into the range of conduct of both bystanders and upstanders.

Because not all such actors are equal, grouping them together under the general categories of “bystanders” and “upstanders” obscures distinct roles, duties, and culpability for violating those duties. Drawing on the case studies, this Article thus presents original typologies of bystanders (including eleven categories or sub-categories), upstanders (including seven categories), and both kinds of actors (including four categories), which introduce greater nuance into these classifications and this Article’s proposed range of legal (and moral) responsibilities. These typologies are designed to maximize generalizability to crimes and crises beyond sexual abuse.

Finally, the Article prescribes a new approach to the duty to report on sexual abuse and possibly other crimes and crises through implementing a combination of negative incentives (“sticks”) and positive incentives (“carrots”) for third parties. These recommendations benefit from interviews with sexual violence prevention professionals, police, legislators, and social media policy counsel. Legal prescriptions draw on this Article’s typologies and concern strengthening, spreading, and standardizing duty-to-report laws at the state and territory levels; introducing the first general legal duty to report sexual crimes and possibly other offenses (such as human trafficking) at the federal level; exempting from liability one of the two main bystander categories the Article proposes (“excused bystanders”) and each of its six sub-categories (survivors, “confidants,” “unaware bystanders,” children, “endangered bystanders,” and “self-incriminators”); actually charging the other main bystander category the Article proposes (“unexcused bystanders”) and each of its three sub-categories (“abstainers,” “engagers,” and “enablers”) with violations of duty-to-report laws or leveraging these statutes to obtain testimony from such actors; and more consistently charging “enablers” with alternative or additional crimes, such as accomplice liability. Social prescriptions draw on models and lessons from domestic and foreign contexts and also this Article’s typologies to recommend, among other initiatives, raising public awareness of duty-to-report laws and creating what the Article calls “upstander commissions” to identify and “upstander prizes” to honor a category of upstanders the Article proposes (“corroborated upstanders”), including for their efforts to mitigate sexual crimes. A combination of these carrots and sticks could prompt would-be bystanders to act instead as upstanders and help stem the sexual crime epidemic.

*. Associate Professor of Law and Political Science, University of Houston Law Center, with additional appointments in the University of Houston’s Department of Political Science and Hobby School of Public Affairs. J.D., Yale Law School; D.Phil. (Ph.D.) and M.Phil., both in International Relations, Oxford University (Marshall Scholar); B.A. in Political Science, Yale University. Research for this Article, including fieldwork, was generously facilitated by a grant from Harvard University as well as institutional support from Stanford Law School (where the author was a Lecturer from 2017 to 2019) and the Harvard University Kennedy School of Government (where the author was a Senior Fellow from 2016 to 2019).

The author primarily thanks the following individuals for helpful comments and conversations: Will Baude; Frank Rudy Cooper; John Donohue; Doron Dorfman; George Fisher; Richard Ford; Jeannie Suk Gersen; Hank Greely; Chris Griffin; Oona Hathaway; Elizabeth D. Katz; Amalia Kessler; Tracey Meares; Michelle Mello; Dinsha Mistree; Mahmood Monshipouri; Joan Petersilia; Camille Gear Rich; Mathias Risse; Peter Schuck; Kathryn Sikkink; David Sklansky; Kate Stith; Mark Storslee; Allen Weiner; Robert Weisberg; Lesley Wexler; Alex Whiting; Rebecca Wolitz; Gideon Yaffe; audiences at Yale Law School, Stanford Law School, Harvard University Kennedy School of Government, Stanford University Center for International Security & Cooperation, University of Virginia School of Law, University of Southern California Gould School of Law, Louisiana State University Paul M. Hebert Law Center, Penn State Law, University of Hawai’i Richardson School of Law, West Virginia University College of Law, University of Sydney Law School, University of Western Australia Law School, South Texas College of Law, University of Houston Department of Political Science and Hobby School of Public Affairs, and Colorado College; audiences at the 2018 conferences of the Harvard Law School Institute for Global Law & Policy, Law & Society Association, American Political Science Association, International Studies Association, and Policy History Association; and audiences at the 2019 conferences of the Law & Society Association, International Studies Association, CrimFest (at Brooklyn Law School), and the Southeastern Association of Law Schools. The author is especially indebted to his students in the reading group at Stanford Law School on “The Law of Bystanders and Upstanders” he led in spring 2019: Jamie Fine, Katherine Giordano, Bonnie Henry, Jeremy Hutton, Allison Ivey, Andrew Jones, Azucena Marquez, Camden McRae, Sergio Sanchez Lopez, and Spencer Michael Schmider. The author also thanks the following individuals for their valuable feedback: Fahim Ahmed, Matthew Axtell, Maria Banda, Adrienne Bernhard, Isra Bhatty, Charles Bosvieux-Onyekwelu, Sara Brown, Ben Daus-Haberle, Brendon Graeber, Melisa Handl, Janhavi Hardas, Elliot Higgins, Hilary Hurd, Howard Kaufman, Linda Kinstler, Chris Klimmek, Tisana Kunjara, Gabrielle Amber McKenzie, Noemí Pérez Vásquez, Tanusri Prasanna, and Noam Schimmel.

The author is grateful to the following individuals for granting interviews for this Article: an anonymous attorney involved in the Steubenville case; an anonymous employee of the Massachusetts Attorney General’s office; an anonymous employee of the Massachusetts Sentencing Commission; Jake Wark of the Suffolk County District Attorney’s office in Massachusetts; Manal Abazeed, Jehad Mahameed, Mounir Mustafa, and Raed Saleh of the White Helmets/Syria Civil Defense; Naphtal Ahishakiye of IBUKA in Rwanda; Holocaust survivors Isaac and Rosa Blum; Gili Diamant and Irena Steinfeldt of Yad Vashem in Israel; Alexandria Goddard; Martin Niwenshuti of Aegis Trust in Rwanda; Lindsay Nykoluk of the Calgary Police Service in Canada; Ruchika Budhraja, Gavin Corn, Neil Potts, and Marcy Scott Lynn of Facebook; Jessica Mason of Google; and Regina Yau of the Pixel Project.

For thorough, thoughtful research assistance, the author thanks Chelsea Carlton, Michelle Katherine Erickson, Jana Everett, Thomas Ewing, Matthew Hines, Ivana Mariles Toledo, and Allison Wettstein O’Neill. The author also thanks the following individuals for research assistance on particular topics: Kathleen Fallon, Alexandria Goddard, Josh Goldman, Farouq Habib, Naomi Kikoler, Mariam Klait, Shari Lowin, Riana Pfefferkorn, Kenan Rahmani, Yong Suh, Paul Williams, Regina Yau, and library staff at Harvard Law School (including Aslihan Bulut and Stephen Wiles), Stanford Law School (including Sonia Moss and Alex Zhang), and the University of Houston Law Center (including Katy Badeaux, Christopher Dykes, and Amanda Watson). Of these individuals, the author owes the most gratitude to Katy Badeaux.

Finally, the author thanks the editors of the Southern California Law Review (“SCLR”)—particularly Editor-in-Chief Kevin Ganley, Managing Editor Christine Cheung, Executive Senior Editor Rosie Frihart, Executive Editor Celia Lown, and Senior Editor Evan Forbes—for their excellent editorial assistance. The author was honored that SCLR selected this Article as the subject of its annual symposium held at the University of Southern California’s Gould School of Law on March 21, 2019.

The author’s public engagement on this topic has drawn on the research and recommendations contained in this Article. Those activities include advising policymakers on drafting or amending Bad Samaritan laws and other legislation (including the federal Harassment and Abuse Response and Prevention at State (HARPS) Act sponsored by Congressperson Jackie Speier) and publishing op-eds in the Boston Globe (When Speaking Up is a Civic Duty, on August 5, 2018) and the San Francisco Chronicle (No Cover for Abusers; California Must Close Gap in its Duty-to-Report Law, on June 23, 2019).

This Article is current as of September 27, 2019. Any errors are the author’s alone.

 

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