Topics

Economic theory that suggests underperforming boards of directors should be fearful of an ouster vote by shareholders underappreciates the complexity of shareholder voting decisions. Skill at enhancing firm value has less to do with whether directors win votes and stay at the helm of public companies than previous commentators have presumed. Instead, like incumbent politicians, managers of some of the largest U.S. firms tend to stay in charge of firms because they understand—and take advantage o —the political dynamics of corporate voting. This Article presents a competing theory of shareholder voting decisions, one that suggests that shareholder voting in corporate elections is not dissimilar from citizen voting in political elections. Next, the Article presents the evidence. Using a hand-collected dataset from recent board elections, the Article compares the explanatory power of a standard economic variable (long-term stock price returns) and a political variable (money budgeted for campaigning) on election outcomes. Based on the data, directors’ ability to enhance firm value (as measured by stock price returns) is not significantly related to whether they win reelection. Rather, the likelihood of being returned to office appears to be a function of typical election politics—how much was spent by challengers to persuade shareholder voters. These findings have at least two implications. First, the theory that shareholder voting may be politicized helps point the way to how the SEC ought to craft reforms—and, just as important, how not to craft them. Recent SEC reform efforts have the laudable goals of creating new conduits for shareholders to participate in firm affairs, increasing shareholder-nominated candidate success, and disciplining incumbent managers.

The results of this study suggest that these reforms will not achieve the stated goals. Even with these reforms, the board continues to have an important political advantage, which likely translates into real votes. As the research here shows, the outcome of elections depends on persuasion and, not simply, as the SEC contends, on shareholders’ director nominees being presented alongside those of management. Second, the evidence and theory about shareholder voting presented here has significant implications for understanding mergers and acquisitions, particularly hostile acquisitions. The theory is that acquirers have steep incentives to target firms with poor performance. In most cases, however, such acquisitions depend on winning a vote from shareholders. Thus, if there is any disciplinary effect created by the prospect of takeovers, it depends crucially on understanding what motivates shareholder voting behavior. If voting shareholders respond to political motivations, not economic ones, then the performance of target board members might not be as relevant as takeover theorists had previously surmised.

Because punishable guilt requires that bad thoughts accompany bad acts, the
Model Penal Code (MPC) typically requires that jurors infer the mental state of a
criminal defendant at the time the crime was committed. Specifically, jurors must
sort the defendant’s mental state into one of four specific categories—purposeful,
knowing, reckless, or negligent—which will in turn define both the nature of the
crime and the degree of the punishment. The MPC therefore assumes that ordinary
people naturally sort mental states into these four categories with a high degree of
accuracy, or at least that they can reliably do so when properly instructed. It also
assumes that ordinary people will order these categories of mental state, by
increasing amount of punishment, in the same severity hierarchy that the MPC
prescribes.
The MPC, now turning fifty years old, has previously escaped the scrutiny of comprehensive
empirical research on these assumptions underlying its culpability architecture.
Our new empirical studies, reported here, find that most of the mens rea
assumptions embedded in the MPC are reasonably accurate as a behavioral matter.
Even without the aid of the MPC definitions, subjects were able to distinguish regularly
and accurately among purposeful, negligent, and blameless conduct.
However, our subjects failed to distinguish reliably between knowing and reckless conduct. This failure can have significant sentencing consequences for certain
crimes, especially homicide.

Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, that intuition has largely gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judge in question will vote for business litigants. Surprisingly, though, when we disaggregate partisan and nonpartisan elections, we find that a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests exists only for judges elected in partisan elections, and not for judges elected in nonpartisan ones. Our findings therefore suggest that political parties play an important causal role in creating this connection between campaign contributions and favorable judicial decisions. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention.

It was with great interest that we read David Law and Mila Versteeg’s thoughtful article on the influence of the U.S. Constitution. Their piece contributes some very useful and clearly-drawn empirical benchmarks, which will undoubtedly advance the conversation about the historical role of the U.S. Constitution in interesting and even provocative ways. Law and Versteeg provide many empirical nuggets to consider.

Many people—perhaps most—want to make money and lower their taxes, but few want to unabashedly break the law. These twin desires have led to a range of strategies, such as the use of “paper corporations” and offshore tax havens, that produce sizable profits with minimal costs. The most successful and ingenious plans do not involve shady deals with corrupt third parties, but strictly adhere to the letter of the law. Yet the technically legal nature of the schemes has not deterred government lawyers from challenging them in court as “nothing more than good old-fashioned fraud.”

In this Article, we focus on government challenges to corporate financial plans—often labeled “corporate shams”—in an effort to understand how and why courts draw the line between legal and fraudulent behavior. The scholars and commentators who have investigated this question nearly all agree: Judicial decision making in this area of the law is erratic and unpredictable. We build on the extant literature with the help of a new, large dataset, and uncover important and heretofore unobserved trends. We find that courts have not produced a confusing morass of outcomes (as some have argued), but instead have generated more than a century of opinions that collectively highlight the point at which ostensibly legal planning shades into abuse and fraud. We then show how both government and corporate attorneys can exploit our empirical results and explore how these results bolster many of the normative views set forth by the scholarly and policymaking communities.

The last decade has seen a noted increase in the amount of traffic-stop data available for researchers hoping to analyze racial profiling on America’s highways. A group of economic scholars—Knowles, Todd, and Persico—proposed a bright-line statistical test that asks whether different racial groups have the same hit rate, or to put it differently, are searches of individuals equally efficacious, regardless of their race? Accepting this conception of racial profiling as a minimum floor, I apply the test to a superior and newly-compiled data set of nine million Illinois traffic stops. The Illinois police fail the bright-line test and show signs of discrimination against Hispanic, Asian, and Black motorists. I then examine whether Seventh Circuit equal protection precedent would permit an Equal Protection claim based on that statistical disparity alone, concluding that additional evidence is needed to satisfy the discriminatory intent prong.

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. Little is known in an empirical and systematic way, however, about the extent to which the U.S. Constitution influences the revision and adoption of formal constitutions in other countries.

In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. Analysis of sixty years of comprehensive data on the content of the world’s constitutions reveals that there is a significant and growing generic component to global constitutionalism, in the form of a set of rights provisions that appear in nearly all formal constitutions. On the basis of this data, we are able to identify the world’s most and least generic constitutions. Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

The fact that the U.S. Constitution is not widely emulated raises the question of whether there is an alternative paradigm that constitutional drafters in other countries now employ as a model instead. One possibility is that their attention has shifted to some other prominent national constitution. To evaluate this possibility, we analyze the content of the world’s constitutions for telltale patterns of similarity to the constitutions of Canada, Germany, South Africa, and India, which have often been identified as especially influential. We find some support in the data for the notion that the Canadian Charter of Rights and Freedoms has influenced constitution making in other countries. This influence is neither uniform nor global in scope, however, but instead reflects an evolutionary path shared primarily by other common law countries. By comparison, we uncover no patterns that would suggest widespread constitutional emulation of Germany, South Africa, or India.

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local officials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither necessary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the constitutional and theoretical implications of these processes: It presents an evidence-based theory of state and local policy proliferation; it cautions legal scholars to rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these subfederal enactments.

The reliability of eyewitness identification has been increasingly questioned in recent years. Despite acknowledgment that such evidence is not only unreliable, but also overly emphasized by judicial decisionmakers, in some cases, antiquated procedural rules and lack of guidance as to how to properly weigh identification evidence produce unsettling results. Troy Anthony Davis was executed in 2011 amidst public controversy regarding the eyewitness evidence against him. At trial, nine witnesses identified Davis as the perpetrator. However, after his conviction, seven of those witnesses recanted. Bogged down by procedural restrictions and long-held judicial mistrust of recantation evidence, Davis never received a new trial and his execution produced worldwide criticism.

On the 250th anniversary of Bayes’ Theorem, this Note applies Bayesian analysis to Davis’s case to demonstrate a potential solution to this uncertainty. By using probability theory and scientific evidence of eyewitness accuracy rates, it demonstrates how a judge might have included the weight of seven recanted identifications to determine the likelihood that the initial conviction was made in error. This Note demonstrates that two identifications and seven nonidentifications results in only a 31.5% likelihood of guilt, versus the 99% likelihood represented by nine identifications. This Note argues that Bayesian analysis can, and should, be used to evaluate such evidence. Use of an objective method of analysis can ameliorate cognitive biases and implicit mistrust of recantation evidence. Furthermore, most arguments against the use of Bayesian analysis in legal settings do not apply to post-conviction hearings evaluating recantation evidence. Therefore, habeas corpus judges faced with recanted eyewitness identifications ought to consider implementing this method.

Every year, medical error kills and injures hundreds of thousands of people and costs billions of dollars in lost income, lost household production, disability, and healthcare expenses. In recent years, hospitals have implemented multiple systems to gather information about medical errors, understand the causes of these errors, and change policies and practices to improve patient safety. The effect of malpractice lawsuits on these patient safety efforts is hotly contested. Some believe that the fear of malpractice liability inhibits the kind of openness and transparency needed to identify and address the root causes of medical error. Others believe that malpractice litigation brings crucial information about medical error to the surface and creates financial, political, and institutional pressures to improve. Yet neither side in this debate offers much evidence to support its claims.

Drawing on a national survey of healthcare professionals and thirty-five in-depth interviews of those responsible for managing risk and improving patient safety in hospitals across the country, I find reason to believe that malpractice litigation is not significantly compromising the patient safety movement’s call for transparency. In fact, the opposite appears to be occurring: The openness and transparency promoted by patient safety advocates appear to be influencing hospitals’ responses to litigation risk. Hospitals, once afraid of disclosing and discussing error for fear of liability, increasingly encourage transparency with patients and medical staff. Moreover, lawsuits play a productive role in hospital patient safety efforts by revealing valuable information about weaknesses in hospital policies, practices, providers, and administration. These findings should inform open and pressing questions about medical malpractice reform and the best ways to continue improving patient safety.