Recent UW Law Faculty Scholarship: Corporate Governance Gap, Invisible Rules that Govern use of Force, Law Faculty Scholarly Impact, & Challenging James Madison as Father of the Constitution

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • “The Corporate Governance Gap” 131 Yale L. J. (Forthcoming) by YARON NILI (UW Law) and KOBI KASTIEL

    A reliable system of corporate governance is considered an important requirement for the long-term success of public companies and for the good of society at large. After decades of research and policy advocacy, there is a growing sense that corporations are finally nearing the promised land: boards of public corporations seem more diverse, large investors seem more engaged, and directors seem more accountable than ever. But is this perception really accurate? While many large, high-profile companies tend to serve as role models of “good” governance practices, the picture of corporate governance–as this Article reveals–is considerably different in the far corners of corporate America, away from the limelight of the Fortune 500 and within the universe of small-cap corporations. In these smaller, less scrutinized corporations, the adoption of governance arrangements is less organized or systematic, often representing a significant departure from the norms set by larger companies, resulting in what this article calls the “Corporate Governance Gap.”

    What prompts this governance gap? Corporate governance, we argue, is not self-driven. It requires engagement with agents and forces of change, which, as we detail theoretically and empirically, are less likely to be as prevalent or effective within smaller corporations. Corporate governance scholars have long debated the merits of contractual freedom in corporate law. Such debate cannot be resolved without a fuller understanding of how governance terms are disseminated in the marketplace and without recognition of the Corporate Governance Gap between large and small companies. This Article, the first to address the sharp divide in the governance of American corporations, makes three key contributions to the literature. First, using a comprehensive hand-collected dataset, it offers a novel and detailed empirical account of the differences in governance practices, shedding new light on the corporate governance of small-cap firms. Second, the Article develops a theoretical account of the forces that promote corporate governance, which help explain this stark divide in governance. Finally, the Article proposes policy reforms aimed at bridging the gap between large and small firms’ corporate governance norms, with the potential of prompting a new line of inquiry regarding the role of key governance agents in smaller public companies.

  • “The Invisible Rules That Govern Use of Force” Wisconsin Law Review (Forthcoming 2021) by ION MEYN (UW Law)

    Police departments reject the idea that use of force can be governed by rules. Under this rule-resistant view, officers retain broad discretion to respond to ever-changing conditions in the field. Despite the prevalence of this view, the Article finds that behind closed doors departments tend to construct hard and fast rules that limit officer discretion.

    This disconnect—between the rule-resistant narrative and the rule-bound reality—has important implications for use-of-force reform. Acceptance of the rule-resistant narrative tends to deflect public attempts to exert influence over use-of-force practices, limiting community input to an insistence on aspirational standards. At the same time, departments are internally adopting hard and fast rules, some of which require officers to engage in violence. If communities had access to these rules, they could closely interrogate, disagree with, and amend them. Ultimately, departmental efforts to convince the public that it is impossible to do what the department actually does are at the center of a struggle over who wields control over use-of-force reform—the police or the communities they serve.

    The Article’s findings are based on extensive interviews of command-level officers across the country, in addition to the transcription and examination of a comprehensive set of training videos. These sources provide rich insights that reveal the contrast between the strong departmental belief in the rule-resistant narrative that departments, however unknowingly, undermine behind closed doors.

  • “Representing Law Faculty Scholarly Impact: Strategies for Improving Citation Metrics Accuracy and Promoting Scholarly Visibility” by BONNIE J. SHUCHA (UW Law)

    In February 2019, U.S. News and World Report announced that it would expand its Best Law Schools data to include a new scholarly impact ranking of U.S. law schools using citations and publications from HeinOnline to measure faculty productivity. This news generated numerous questions and concerns from the legal academic community about this metric and how it will be calculated. Chief among these concerns is that the exclusion of interdisciplinary scholarship and books would create an incomplete representation of law faculty scholarly impact.

    This article examines the new U.S. News scholarly impact ranking and its use of HeinOnline as a data source. It compares law journal and interdisciplinary scholarship citation metrics and explores how the exclusion of the latter may severely skew scholarly impact rankings against some law schools. The remainder of this article suggests strategies to improve the accuracy of citation metrics for legal scholars and promote the visibility of their scholarship. This practical advice will benefit anyone interested in representing the scholarly impact of law faculty to its fullest effect, including legal scholars, law school administrators, and communications departments. These strategies will also interest law librarians whose extensive knowledge of research sources and methods and commitment to supporting faculty scholarship makes them uniquely qualified to bolster scholarly impact and promote scholarly visibility at their institutions.

  • “The Other Madison Problem” Fordham Law Review, Vol. 89, 2021 by DAVID S. SCHWARTZ (UW Law) and JOHN MIKHAILThe conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

    Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of the Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. The ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Moreover, virtually all of the actual drafting of the Constitution was done by other delegates, principally James Wilson and Gouverneur Morris. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

To access all the papers in the University of Wisconsin Law School Legal Studies Research Paper Series, please use the following URL: