Recent UW Law Faculty Scholarship: Health & Criminal Justice Disparities, Access in Copyright Law & Policy, Countermajoritarian Legislatures, & Misplaced Faith in Corporate Governance Data

This article is written as a series of letters between a law professor and a medical doctor in reaction to the events surrounding the rise of the Black Lives Matter movement. The letters discuss the antebellum origins of health and criminal justice disparities and the cultural mistrust of doctors and law enforcement spawned by that history. The letters also briefly summarize institutional efforts undertaken to address both types of disparities, noting that these solutions have had limited efficacy due to their failure to address the symbiotic relationship between discretion, domination, and disparity. The article concludes with a recommendation to reduce both disparities and domination by establishing a non-discretionary minimum in health care and criminal justice.

Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms.

So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive. These decisions—where the courts refused to enforce copyright where the owners attempted to shut down a market rather than participate in it—have been criticized for their unclear policy guidance and lack of doctrinal grounding. We can reconcile these cases with copyright policy by focusing on access. These cases provide rich examples showing how expanded access advances copyright’s higher-order goals of promoting a more democratic and participatory culture.

Focusing on access also provides a means for bringing doctrinal coherence to these cases through the fair-use defense. The courts permitted the use of copyrighted works in new markets despite the copyright owners’ objections because these markets could expand public access without diminishing the copyright industries’ creative incentives. Indeed, copyright owners often found the markets profitable after being forced to enter them. Copyright owners’ market refusal in these scenarios is a distinct type of market failure, and fairuse doctrine allows courts to correct it.

State and federal courts routinely cast state legislatures in the role of democratic hero. In the past year alone, some states have warmed to the nondelegation doctrine, striking down governors’ pandemic responses on the idea that the legislature must make such weighty choices. During the 2020 election, federal judges invoked an “independent state legislature” doctrine to question voting rights measures from state executive actors and courts. Democratic romanticism regarding state legislatures permeates public dialogue, too: the legislature is cast as the true majoritarian branch, unlike “unelected bureaucrats,” courts, local governments, and governors.

But this rhetoric is not reality. As this Article explains, state legislatures are almost always a state’s least majoritarian branch. The combination of districting itself, geographic clustering, and extreme gerrymandering mean that state legislatures are recurrently controlled by the state’s minority party. Indeed, the article finds that minority-party rule has afflicted state legislative chambers hundreds of times in the modern era. In contrast, state governors and state courts are overwhelmingly chosen via simple statewide elections, with no electoral college or lifetime appointment.

This reframing destabilizes conventional narratives about state government and opens a host of broader inquiries—about the extent to which state and federal courts should and do rely on majoritarian analysis, the appropriate relationships between the state branches, and the vertical distribution of power between states and local governments. Most immediately, the Article offers a series of course corrections that can bring prominent doctrines in line with state legislative reality.

Although empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the accuracy and integrity of a small, specialized collection of corporate governance data. In this paper, we unveil a novel collection of three decades’ worth of corporate charters for thousands of public companies, which shows that this faith is misplaced.

We make three principal contributions to the literature. First, we label our corpus for a variety of firm- and state-level governance features. Doing so reveals significant infirmities within the most well-known corporate governance datasets, including an error rate exceeding eighty percent in the G-Index, the most widely used proxy for “good governance” in law and finance. Correcting these errors substantially weakens one of the most well-known results in law and finance, which associates good governance with higher investment returns. Second, we make our corpus freely available to others, in hope of providing a long-overdue resource for traditional scholars as well as those exploring new frontiers in corporate governance, ranging from machine learning to stakeholder governance to the effects of common ownership. Third, and more broadly, our analysis exposes twin cautionary tales about the critical role of lawyers in empirical research, and the dubious practice of throttling public access to public records.