Finance is undergoing a fundamental and technological shift. In the years ahead, there will inevitably be new financial characters and new financial cliffhangers. In this reply to the response of Professor Stephen Bainbridge to my article, The New Investor, I offer commentary on one particular new financial character, then on the general trope of cliffhangers as they relate to financial regulation.
Adam Chodorow’s recent essay, Death and Taxes and Zombies, has alerted the legal world to the dangers posed by the eventual zombie apocalypse. Chodorow successfully demonstrates that existing tax laws are woefully inadequate in a world where the living are outnumbered by the undead. In this essay, I argue that while tax laws may be ill-suited to address the zombie apocalypse, the federal criminal law offers an alternative approach to solving the problems that Chodorow identifies. The only plausible explanation for the existence of certain features of federal criminal law is that these features are precautions for this eventual disaster. The extensive scope of the federal criminal law, its frequent use of low or nonexistent mens rea requirements, and federal laws concerning mandatory victim restitution create a legal structure that can effectively transfer resources from the undead to the living.
Does a judicial decision that vindicates minority rights inevitably give birth to a special kind of backlash, a more virulent reaction than legislation achieving the same result would produce? We examine this question with respect to Roe v. Wade, so often invoked as the paradigmatic case of court-caused backlash, and with the pending marriage cases in mind. As we have shown, conflict over abortion escalated before the Supreme Court ever ruled in Roe, driven by movements struggling over legislative reform and Republican Party efforts to recruit voters historically aligned with the Democratic Party. These and other features of the abortion conflict suggest that the Court’s decision in Roe was not the abortion conflict’s sole or even its principal cause.
When change through adjudication or legislation threatens the status quo, it can prompt counter-mobilization and “backlash.” We do not doubt that adjudication can prompt backlash, but do doubt that adjudication is distinctively more likely than legislation to prompt backlash, or the abortion conflict illustrates this supposed property of adjudication. Advocates concerned about these questions have to make in-context and on-balance judgments that consider not only the costs but also the benefits of engagement.