Volume 163

In Insider Trading via the Corporation, Professor Jesse M. Fried expresses his frustration that “when insiders are subject to strict trade‐disclosure requirements and firms are not, insiders have a strong incentive to exploit the relatively lax trade‐disclosure rules that apply to firms in order to engage in indirect insider trading.” Professor Fried divides insider trading into so‐called “direct” and “indirect” styles. His Article does not concern the former—that is, the well‐worn world of insiders trading their own shares. Instead, it examines a more circuitous brand—where corporate insiders maneuver the levers of the corporation to buy and sell shares at favorable prices and, in turn, boost the value of their own equity. Professor Fried views indirect insider trading as both costly to public investors and deleterious to the firm's economic value. The Article also proposes to reduce these costs through the imposition of trade‐disclosure rules which more closely mirror those applied to insiders themselves.

This short Response aims to lend new insight and perspective to this topic, the importance of which cannot be overstated given the demonstrable increase in the number of corporate buybacks in recent years. The Response proceeds in four parts. Part I simply recaps the Article, offering a synopsis of its main insights. Here, no improvement is sought. Instead, a summary and prioritization of the Article's observations is the goal.

Part II asserts that the problem of insider trading via the corporation is overstated. As a foundational matter, incentive does not behavior make. More particularly, any personal benefit obtainable through indirect insider trading is significantly diluted, with an offender unlikely to hold a sufficiently sizeable portion of the firm to make such behavior as desirable as the Article suggests. Additionally, the Article fails to address meaningfully the full cost of any iniquitous behavior when measured by the professional, legal, and reputational risk to which it subjects an unmasked offender.

Part III focuses attention on the more benign (and more likely) rationale supporting firms' stock issuance and repurchase choices. Regulatory and market distortions inspire corporate decisions surrounding open market repurchases (OMRs) and at the money sales (ATMs) of shares. In particular, the various accounting and corporate finance considerations described in this Part of the Response frequently encourage these transactions. Further, most often, decisions can be defended because they are in a firm's interest, and therefore consistent with corporate insiders' fiduciary duties. Regulation of corporate repurchases is also far more robust than the Article concedes. As this Part suggests, any firm employing a responsible model of corporate governance routinely considers many concerns beyond those mentioned by Professor Fried. The final section of the Response offers a brief conclusion, positing that Professor Fried's analysis rests on the tenuous assumption that the corporation and its officers are somehow inherently prone to malevolent action and self‐dealing.

The state action doctrine has been a significant impediment in the campaign against anticompetitive conduct by provider‐dominated state licensing boards. In Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny?, Professors Edlin and Haw argue that state licensing boards operate as a “massive exception” to the Sherman Act's ban on cartels, and that the Supreme Court should use a pending case (North Carolina State Board of Dental Examiners v. FTC) to “hold boards composed of competitors to the strictest version of its test for state action immunity, regardless of how the board's members are appointed.” They also propose the application of a modified rule of reason when deciding similar cases on the merits.

Professors Hyman and Svorny suggest three modifications to Edlin and Haw's proposal. These modifications aim to limit occupational licensing's anticompetitive tendencies and licensing boards' anticompetitive behavior. First, in reviewing the decisions of licensing boards, courts should presume that states were not actively supervising the boards, absent compelling evidence to the contrary. Second, defendant–licensing boards should be required to present persuasive evidence of actual harm that their proposed licensing restrictions or restraints will prevent and should be required to show that private market and non‐regulatory forces (including brand names, private certification, credentialing, and liability) are insufficient to ensure that occupations maintain a requisite level of quality. Finally, Professors Hyman and Svorny argue that legislators should take steps to roll back existing licensing regimes.

In their ambitious Article, Shyam Balganesh and Gideon Parchomovsky seek to make sense of the Supreme Court's recent copyright jurisprudence. The authors articulate an “equity of the statute” that allows courts “to extend or restrict the otherwise clear words of a statute to give effect to the statute's ‘ratio or purpose.’” They also find, in some tension, that copyright law is indeterminate, as “a close reading of the [Copyright Act] reveals hardly any guidance” on how to apply it.

Whether copyright law is clear or indeterminate, the authors conclude that “the Court's stated objective [i]s to bring the substantive content of copyright doctrine in line with its own conception of copyright's principal values and ideals.” The authors contend that the “equity of the statute” allows the Court to effectuate copyright's “primary purpose,” which is to balance the “utilitarian ideal of encouraging creativity” with “the public's need for access.”

The authors lament that “constant technological change” has “required copyright law to update the applicability of its core goals and ideals to new situations” but that “[t]he formal content of its statutory directives has routinely proven to be outdated, and legislative reforms have often proven to be an inadequate means of redress.” They are heartened, however, that the Court “has effectively determined the equity of the copyright statute's substantive content,” which has “protect[ed] the normative integrity of our copyright system.” Finally, the authors find that the Court applies “adjectival equity” in “preserv[ing]” its “flexibility for the future.”

In this response, I offer three critiques of the Article. First, the notion of an “equity of the statute” designed to promote copyright's incentives/access paradigm does not provide the most persuasive explanation of the cases. Second, the authors' “adjectival equity” cases are not best explained by preserving judicial flexibility. Third, two of the three cases involving technology do not present a “successful ‘updat[ing]’” of copyright doctrine.

Theoretical inquiries into the nature and functions of legal doctrine typically focus on adjudication. These inquiries explore, for example, whether and the extent to which doctrine constrains decisionmaking, as well as when and how often it dictates unique outcomes. Relatedly, they also explore the extent to which legal reasoning is “autonomous”—that is, whether doctrine guides decisionmaking and dictates outcomes without reliance on nonlegal normative sources. In his insightful article, Professor Alex Stein picks up the other end of the theoretical stick and discusses the extent to which doctrine on the law of evidence should guide and constrain the practice of theorizing about evidence.

In his characteristically deep and bracing style, Stein argues that evidence doctrine places significant constraints on evidence theory. He then goes on to chastise a number of prominent scholars (Louis Kaplow, Amos Tversky and Daniel Kahneman, and Ronald Dworkin) for failing to adhere to these constraints. I am sympathetic to several aspects of Stein's analysis, although in some cases for different reasons than those he articulates. Rather than focus on areas of overlapping agreement, however, this Response aims to situate Stein's arguments within the domain of evidence theory more generally, and then to raise some doubts about one of the principles he articulates. My hope is that providing this wider lens will clarify and illuminate not only Stein's specific claims, but also the general relationship between evidence law and evidence theory. Perhaps this treatment will even shed light on some of the broader questions raised in the University of Pennsylvania Law Review's symposium on legal doctrine.

Part I of this Response discusses evidence theory. Part II explicates Stein's methodology. Part III questions Stein's case‐specificity principle.

What did legal realism bring to the conflict of laws? Why was the realist critique of the received wisdom so successful? And why, despite that success, is the realist movement in conflict of laws—and, indeed, the whole American choice of law revolution—seen as a failure?

In this Response, I suggest some brief answers to those questions. Realism, I suggest, is more successful than its critics think—though its project remains unfinished. A better understanding of realism's contributions can show us what work remains in the realist project.

A colleague of mine has a simple piece of advice for any student planning to write on a private law topic: for clear analysis of the doctrinal issues, find an American law review article published before 1920. This pre‐realist scholarship shares an important feature with much of the research currently undertaken in common law jurisdictions beyond the United States: the concepts used by the courts are taken seriously, and an attempt is made to see if those concepts form part of a coherent system. However, such contemporary research does not stubbornly proceed as if the realist revolution had never occurred. Instead, it is possible to adopt a “new doctrinalist” approach by accepting some important points made in realist critiques and using those insights to inform a careful inquiry into the nature and operation of legal concepts. This brief response considers some of the key features that might be possessed by such a “new doctrinalist” account of property law.

In locating a particular approach on a doctrinal–realist spectrum, it is useful to consider the relative importance of means as opposed to ends, concepts as opposed to contexts, and rights as opposed to value. Those three pairs will be considered here in relation to the nature and operation of legal property rights; of equitable property rights; and of choses in action.

This Symposium presents an imagined conflict and then a puzzle. The conflict dates back to the 1930s, when American Legal Realism challenged the (old) doctrinalism, a creaky relic of a bygone era. For decades, the two schools clashed over the importance of doctrine in determining the outcome of legal disputes. One side insisted that doctrine is essential. The other countered that rules are indeterminate and decide few cases. Along the way, interdisciplinary scholarship joined the fray, on the side of Realism. Yet, doctrinalism proved a stubborn adversary. It remains unvanquished. To the contrary, a “New Doctrinalism” has taken the place of the old. Doctrinalism's persistence is the mystery the symposium contributors hope to solve.

In Professor Tess Wilkinson‐Ryan's contribution, Intuitive Formalism in Contract, she describes the continuing “doctrinalism” of consumer contract law and the failure of legal rules to adapt to “our changing contractual culture.” Based on her own empirical investigations into the psychology of consumer contracting, she concludes that consumers think contract law is highly formalistic. Moreover, consumers seem to make contractual decisions based on their formalist intuitions. Although Wilkinson‐Ryan cannot yet pinpoint the source of consumers' legal instincts, they likely derive from the “consumer experience with contract law.” She observes that a consumer “discerning a law of contracts from a sample comprised almost entirely of boilerplate would come quickly to the conclusion that contract law is highly formal.”

This Response draws on Professor Wilkinson‐Ryan's essay, as well as other interdisciplinary scholarship, to assess whether interdisciplinary ideas really pose a threat to contract “doctrinalism,” as the Symposium organizers suggest. The Response argues against that premise, finding that interdisciplinary scholars take doctrine seriously. Doctrine often matters in the stories they tell, just not, perhaps, in the way that doctrinalists would predict. This research finds doctrine's influence to be deep and broad, casting a shadow that reaches far beyond the judicial resolution of disputes. The Response concludes with a brief reflection on the policy implications of contract doctrine's long shadow.

Several different, if related, questions are swirling about in this fascinating and wide‐ranging symposium. One question asks whether “law” is “autonomous.” A second inquires into the “determinacy” of “legal doctrine.” Yet a third concerns whether there are ever legally correct answers to legal questions. I take this third question to be equivalent to asking whether legal propositions are truth‐apt and, if so, whether any are true.

If I read him correctly, this third question is the focus of Professor Leo Katz's characteristically inventive and thought‐provoking contribution, Nine Takes on Indeterminacy, with Special Emphasis on the Criminal Law. What Professor Katz calls “the skeptical thesis” is the contention that no legal propositions are true. It is the contention, in other words, that statements of the form “the law prohibits φing” and “it is legally permissible to ψ” are never true. Professor Katz does not affirm the skeptical thesis. Rather, by drawing on a well‐known article on the criminal law authored nearly thirty‐five years ago by Mark Kelman, and offering nine “perspectives” of his own, Professor Katz aims to show that there are good grounds both to affirm and to deny global legal skepticism.

I believe that global legal skepticism is false, which is to say that some statements of the form “the law prohibits φing” are true. I cannot offer, in this very limited space, affirmative arguments against global legal skepticism. Instead, I explain why none of Professor Katz's nine perspectives provides the support for global legal skepticism—what I will henceforth often call “skepticism,” for short—that he claims.

Imagine a benighted student of the law, devoted to attaining a secure professional qualification by learning the rules and passing the exams, who has never read or heard anything about Legal Realism, that is, who has missed out entirely on twentieth century American jurisprudence. Such a Rip Van Winkle of the law, perhaps not so very rare in British law schools, would quickly learn what was at stake in the Legal Realist revolution by reading Professor Edward Rock's fine essay on corporate law doctrine. In this comment I will summarize my outsider's understanding of what Professor Rock has taught us regarding the Realists' conceptions of legal doctrine and judgment, and then offer an English counterpoint. I will show how English lawyers evade the realist embrace of policy by projecting law inter‐temporally—that is, allowing the law to inhabit two successive times and allowing one time state to affect the other—in order to yield legal results, and ultimately effect change in the legal system itself. I will then assess Rock's juxtaposition of the Delaware courts' realist approach and the “traditionalist” or formalist techniques of leading English commercial judges when dealing with some of the more difficult areas of corporate doctrine. This proves to be an interesting laboratory for the hypothesis that inter‐temporality can be an effective approach to the determination of complex corporate or civil cases, and is a viable alternative to policy analysis.

Benjamin Zipursky's Reasonableness In and Out of Negligence Law is a characteristically thoughtful, sensible, and learned discussion of the idea of reasonableness in and out of negligence law. As he rightly observes, his views are very similar to my own. Except in one respect. For Professor Zipursky, the Hand Formula is the Lord Voldemort of negligence law. It looms over the law of negligence, but it must not be named. Indeed, it must be killed, or at least banished. We part ways on this point and I confess to finding Professor Zipursky's vendetta perplexing. Trying to write the Hand Formula out of negligence law at this late date is tantamount to repudiating one hundred years of tort law and theory. This revisionary theorizing is as unnecessary as it is quixotic. The Hand Formula is not only too deeply embedded in negligence law to uproot; it is also unobjectionable. Indeed, the Hand Formula is one of modern negligence law's more important achievements. It frees the concept of due care from a disturbing identification with customary practice and ties due care more closely to the idea of justified conduct. By doing so, it gives negligence law an important critical dimension.

The Hand Formula draws its deep appeal from two sources. First, as Landes and Posner observe, it has the feel and smell of an exercise in making explicit what had long been implicit in negligence cases. Second, it strikes us as a cogent distillation of considerations that are plainly relevant to determining whether due care has been exercised. When we ask if a defendant should have acted as she did—or should instead have exercised more care—it is eminently sensible to inquire into the magnitude and probability of the harm that the defendant risked and the burden of avoiding that harm. Economic and philosophical theories of negligence are eager to claim the Hand Formula as their own because it is both a central construct of negligence law and independently attractive. If there were no Hand Formula, we would have to invent it. To be sure, the economic theory of the Hand Formula is a different matter. Professor Zipursky and I both think that it is deeply flawed. The economic interpretation, however, is not the Hand Formula itself. It goes well beyond the Hand Formula in important and questionable ways. The economic interpretation of the Hand Formula imposes a debatable theory of social choice on a conceptual tool. In so doing the economic interpretation makes claims about the commensurability of harms and the cost of their avoidance that Hand himself explicitly rejected.

Melissa Murray's Family Law's Doctrines provides a fascinating case study of legal parentage cases involving assisted reproductive technology, where judges applied relatively new laws to even newer circumstances never contemplated by the laws' drafters. The Uniform Parentage Act (UPA) was a modernizing statute intended to resolve legal questions generated by new societal developments: namely, the rise of nonmarital heterosexual relationships producing children, and the use of artificial insemination within heterosexual marital relationships.

In the decades after its adoption in California, the UPA confronted a brave new world. Two developments further transformed the reality of family life: assisted reproductive technologies such as in vitro fertilization (IVF) and gestational surrogacy, and same‐sex relationships producing children. By the law's thirtieth anniversary, California—the perennial leader in family law reform—had once again taken the lead, this time by recognizing the parental rights and obligations of lesbian partners.

Compared with states that were more reluctant to move beyond traditional legal definitions of parentage, California appeared enlightened, modern, and progressive. In many ways, it was. Other states relied on rigid, formalistic definitions of parentage primarily dependent upon marriage—and failing that, biology. California courts instead used functional and biological definitions of family to extend parental rights and obligations to individuals who were unmarried or not genetically related to their children.

But as Professor Murray argues, California's retreat from the formalistic application of categorical distinctions based on marital status did not uproot the bedrock values underlying family law doctrine. In fact, the turn toward biology, intent, and functionality offered courts new tools to maintain the primacy of conjugal relationships as the site of reproduction and childrearing, and, most crucially, to reinforce the privatization of dependency within the two‐parent family. The functional turn, Murray writes, did not undermine traditional doctrine; rather it furthered many of the same ends. And, notably, formal categories such as marriage—and biology—did not disappear; they simply ceased to be the exclusive determinants of legal parentage. In this way, the California courts' liberal interpretation of the UPA's provisions in the face of unanticipated factual circumstances arguably served the statute's purpose quite faithfully. After all, the UPA was drafted and promoted by Harry Krause, whose primary motivation was to ensure that all children, regardless of their parents' marital status, had the opportunity to know—and, most importantly, be supported by—their fathers.

This continuity in the midst of change raises a question: should we understand the reform of legal parentage as an instance of “preservation through transformation,” to borrow Reva Siegel's term? Preservation through transformation occurs when progressive reform efforts indirectly reinforce, rather than disrupt, status hierarchies by motivating modernizing alterations to the rhetorical and substantive rationales for unjust legal regimes. For instance, equal protection doctrines attack overtly invidious racial classifications but embrace the principle of colorblindness, thereby maintaining racial inequality on more palatable terms. Another classic example is the rise of facially gender‐neutral sexual and domestic violence laws that obscure the hugely disproportionate impact of state enforcement failures on women. Arguably, the biological, intentional, and functional definitions of parentage dress up traditional notions of what makes a family legitimate in a progressive guise. Nonmarital partners and non‐biological parents are no longer excluded from the legal definition of family, but the traditional marital family remains the gold standard against which all else is measured. Or does this characterization go too far? Do the doctrinal developments Professor Murray describes augur a more profound change, or at least one with a more ambiguous political valence? I am inclined to think so, but perhaps only time will tell.