Regulating Dynamic Risk in Changing Market Conditions

How successful are the SEC\u27s attempts to regulate dynamic risk in financial markets? Using mutual fund disclosure data from two financial shocks--the Puerto Rican debt crisis and COVID-19--this Article finds evidence that SEC open-ended regulations, like the obligation to disclose changing market conditions, are largely successful in capturing dynamic, future risk. Funds engage in widespread and, often, detailed disclosures for new risks--although these disclosures vary widely in specificity. But not all funds disclose new risks. This creates perverse incentives for funds to opt out of disclosure or downplay threats with boilerplate language when new risks are emerging. This Article recommends several SEC interventions to improve dynamic risk disclosures including empirically monitoring disclosures, issuing guidance when problematic variation is observed, and enforcing disclosure standards

Divide & Concur: Separate Opinions & Legal Change

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true of a type of concurrence we identify here for the frst time: the pivotal concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority\u27s rule in the case. Under the Supreme Court\u27s rule of fve, lower courts ought to disregard pivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case. Utilizing a dataset created for this purpose, we demonstrate that pivotal concurrences are more common than one might think, are becoming yet more so, and-despite the Supreme Court\u27s admonition to the contrary-are taken quite seriously by lower courts. Especially in constitutional, salient cases, lower courts appear to disregard a binding majority opinion in favor of the path offered by the concurrence. Rather than condemning this, we rely on the historical development of concurrences to show the vitalfunction they play in motivating and smoothing the way for legal change. Contrary to conventional wisdom, we argue, there is beauty in a fractured court. Precisely in those cases that are most high-stakes and most contentious, it is inportant that the Justices reveal their individual views. Those views send essential signals to litigants and lawyers about where legal change is possible and where it is not, helping both to temper expectations and to move the law itself

Divide & Concur: Separate Opinions & Legal Change

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true of a type of concurrence we identify here for the frst time: the pivotal concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority\u27s rule in the case. Under the Supreme Court\u27s rule of fve, lower courts ought to disregard pivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case. Utilizing a dataset created for this purpose, we demonstrate that pivotal concurrences are more common than one might think, are becoming yet more so, and-despite the Supreme Court\u27s admonition to the contrary-are taken quite seriously by lower courts. Especially in constitutional, salient cases, lower courts appear to disregard a binding majority opinion in favor of the path offered by the concurrence. Rather than condemning this, we rely on the historical development of concurrences to show the vitalfunction they play in motivating and smoothing the way for legal change. Contrary to conventional wisdom, we argue, there is beauty in a fractured court. Precisely in those cases that are most high-stakes and most contentious, it is inportant that the Justices reveal their individual views. Those views send essential signals to litigants and lawyers about where legal change is possible and where it is not, helping both to temper expectations and to move the law itself

Women in the United States Congress: 1917-2011

This report identifies the names, committee assignments, dates of service, and (for Representatives) congressional districts of the 274 women who have served in Congress

Supreme Court Justices: Demographic Characteristics, Professional Experience, and Legal Education, 1789-2009

This report provides an introduction of Supreme Court appointments in historical context. The report discusses the Supreme Court Justices demographic characteristics, professional background, and educational background

Missing Missingness in Merger Analysis

Data and statistical modeling have played an increasingly important role in analysis across disparate areas of law. But courts’ ability to assess the validity and reliability of the analyses that rely on these data has not kept apace. This mismatch between the law’s reliance on data and an ability to appropriately evaluate analyses using these data is especially acute in antitrust challenges to horizontal mergers by the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC). Whereas enforcement agencies and courts once applied relatively simple rules about the structure of a market, the analytical landscape has become more dependent on sophisticated economic theories and data analysis techniques. Increased reliance on such models presents opportunities for creating better economic outcomes on average. But the use of observational data also carries with it often unacknowledged hazards. This is a problem. Observational data often suffer from missingness, meaning these data may be randomly or systematically incomplete. Whereas random missingness creates imprecision, systematic missingness results in bias, which may lead a court or agency to improperly enjoin or allow a merger. This Article explores the conditions under which data vital to merger analysis may be missing, as well as its effects. As an illustration, this Article evaluates the court’s discussion of data in F.T.C. v. Sysco through the lens of missingness and conducts simulations to examine how more complete data would have altered the court’s analysis. Finally, this Article offers changes to current practice to both increase transparency of and public confidence in the courts’ use of these data in merger review