Increasingly, firms are knitting together newly available mass data collection, Internet-driven interconnective power, and automated algorithmic selling with their traditional supply-chain and sales functions. Traditional sales functions such as competitive intelligence gathering and pricing are being delegated to software “robo-sellers.” This Article offers the first descriptive and normative study of the implications of this shift away from humans to machines (the “robo-sellers”) for antitrust law. This change is a critical challenge for antitrust law – both in how it is currently applied and in highlighting and exacerbating its existing weaknesses. First – and critically – robo-sellers will increase the risk that oligopolists will coordinate prices above the competitive level, thereby harming consumers. The Sherman Act contains a well-known gap in its coverage under which oligopolists that achieve price coordination interdependently, without communication or facilitating practices, generally escape antitrust enforcement, even when their actions yield supracompetitive pricing that harms consumers. Because robo-sellers possess traits that will make them better than humans at achieving supracompetitive pricing without communication, all things being equal, they will increase consumer harm …

Comedians know from experience, and research supports the proposition, that an audience will predictably laugh when observing a censored statement (whether bleeped or otherwise obscured) – at least where the audience has been primed by the context to interpret the statement as comedic. In a society that condemns censorship as the enemy of our cherished right of free expression, one might reasonably ask how this can be: why is censorship funny? This article begins by canvassing the various forms of censorship humor flourishing throughout United States culture in print, film, television, music, and internet entertainment. The article then probes mainstream condemnation of censorship – observing that individuals, law, and society all benefit from line drawing – even in the context of something as special as freedom of communication. Through the lens of interdisciplinary humor studies as well as First Amendment doctrine, the article explores the notion that the laughter emerging from comedy featuring censorship might be a “tell” that exposes this truth. Many censorship jokes simply ridicule the censor. Others, however, are more nuanced, suggesting …

The technological revolution has brought dramatic changes to the world of law practice, including legal research and writing, yet the basic conventions of legal writing have remained unchanged for decades. Memoranda and briefs today look much as they did early in the last century. Yet if the medium of legal communication has shifted from print to pixels, shouldn’t that lead to changes in the way legal analysis is communicated? This article considers the differences as a result of both writing and reading in a digital medium, and addresses the changes in writing that should flow from that, including changes in typography and document design, changes in document navigation and communicating organization, and the use of hyperlinks and images to create multi-dimensional documents. The article suggests that lawyers must make changes in traditional forms of legal writing in order to be effective writers for the 21st century. Download the paper at SSRN.

Contract recitals are ubiquitous. Yet, we have a thin understanding of how individuals behave with respect to these doctrinally important relics. Most jurists follow Lon Fuller in concluding that when read, contract recitals accomplish their purpose: to caution against inconsiderate contractual obligation. Notwithstanding the foundational role that this assumption has played in doctrinal and theoretical debates, it has not been tested. This Article offers what we believe to be the first experimental evidence of the effects of formal recitals of contract obligation — and, importantly too, disclaimers of contractual obligation — on individual behavior. In a series of online experiments, we found that participants were less likely to back out of an agreement, forgoing personal gain, when they were endowed with a small extra sum of money at the time of contracting, and when they acknowledged that they were not forming a contract. They were more likely to back out of their original commitment when their agreeing was accompanied by a recital of consideration, and in a control condition in which the natural consideration of …

Chapter 11 of the Bankruptcy Code presumes that managers will remain in possession and control of a corporate debtor. This presents an obvious agency problem: these same managers may have gotten the company into trouble in the first place. The Bankruptcy Code thus includes checks and balances in the reorganization process, one of which is supposed to be an “examiner,” a private individual appointed to investigate and report on the debtor’s collapse. We study their use in practice. Extending prior research, we find that examiners are exceedingly rare, despite the fact that they should be “mandatory” in large cases ($5 million in debt), and are recommended in all, if “in the interests of creditors.” Using a hand-collected dataset (n=1225) of chapter 11 bankruptcies from 1991-2010, we find that they are sought in less than 9% of cases (104), and appointed in fewer than half of those (48, or 3.9% of the sample). We offer three observations about the under-use of examiners. First, regression modeling shows that the factors that predict when an examiner will be …

Learning communities can improve legal education through their unique ability to integrate the three core apprenticeships: theory, practice, and professionalism. They offer students a collaborative learning experience while instilling “soft skills,” building an appreciation for diversity, and fostering creativity.

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but other significant U.S. interests as well by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts. This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it, i.e., doctrines that permit or require courts to dismiss a case based on its “foreignness.” Doing so helps to identify the particular concerns justifying this kind of avoidance and to evaluate them on their own terms. Second, the Article presents evidence of emerging foreign trends that increasingly (and surprisingly) permit traditionally American, plaintiff-friendly procedures, including higher damages awards, aggregate litigation, and third-party litigation financing. Third, the Article demonstrates that, particularly in light of these foreign trends, avoidance …

In a recent essay on what he identifies as “customary deviations” from the dictates of the Internal Revenue Code, Professor Larry Zelenak asserts that the Internal Revenue Service has regularly created administrative deviations from the Code that produce taxpayer-favorable results that cannot be challenged in the courts because taxpayers lack standing to bring such challenges.[1] He worries that “the lack of any judicial check on unauthorized giveaways by tax administrators threatens rule-of-law values,” [2] and he concludes by proposing “legislation aimed at retaining the practical advantages of customary deviations while assuaging rule-of-law concerns.” [3] To illustrate the customary deviations that he identifies, Professor Zelenak analyzes the IRS’s announced decision not to take the position that employee-retained frequent flyer miles earned on employer-funded or business travel produce income when used for personal travel by employees, but observes that other examples abound. As Professor Zelenak notes, we have devoted some effort to exploring the gap between the expansive literal meaning of various statutory and judicial definitions of income and the narrower meaning that emerges from IRS policies …