Volume I, Issue 1: October 2020
BOOKS, MONOGRAPHS, & EDITED VOLUMES
Anu Bradford, The Brussels Effect: How The European Union Rules The World (Oxford U. P., 2020).
For many observers, the European Union is mired in a deep crisis. Between sluggish growth; political turmoil following a decade of austerity politics; Brexit; and the rise of Asian influence, the EU is seen as a declining power on the world stage. Columbia Law professor Anu Bradford argues the opposite in her important new book The Brussels Effect: the EU remains an influential superpower that shapes the world in its image. By promulgating regulations that shape the international business environment, elevating standards worldwide, and leading to a notable Europeanization of many important aspects of global commerce, the EU has managed to shape policy in areas such as data privacy, consumer health and safety, environmental protection, antitrust, and online hate speech. And in contrast to how superpowers wield their global influence, the Brussels Effect - a phrase first coined by Bradford in 2012- absolves the EU from playing a direct role in imposing standards, as market forces alone are often sufficient as multinational companies voluntarily extend the EU rule to govern their global operations. The Brussels Effect shows how the EU has acquired such power, why multinational companies use EU standards as global standards, and why the EU's role as the world's regulator is likely to outlive its gradual economic decline, extending the EU's influence long into the future.
The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (Sarah A. Cleveland & Paul Stephan, eds., Oxford U. P., 2020).
Reflecting on the Fourth Restatement of the Foreign Relations Law, these essays provide a comprehensive survey of the most significant issues in contemporary U.S. foreign relations law. They review the context and assumptions on which that work relied, critique its analysis and conclusions, and explore topics left out of the published work that need research and development. Collectively the essays provide an authoritative study of the issues generating controversy today as well as those most likely to emerge in the coming decade. The book is organized in three parts. The first provides a historical context for the law of foreign relations from the beginning of the twentieth century to the present. The second and largest part looks at contested issues in foreign relations law today, from the status of international law as federal domestic law to presidential authority to make, unmake, and apply international agreements; and to the immunity of international organizations and foreign government officials from domestic lawsuits. The last part considers how foreign relations law might develop in the future as well as the difficulties raised by using the Restatement process as a way of contributing to the law's development. These essays for the most part concentrate on U.S. law, but the problems they face are common to all democratic republics that seek to reconcile international relations with the rule of law.
John C. Coffee Jr., Corporate Crime and Punishment: The Crisis of Underenforcement (Berrett-Koehler Pub., 2020).
In the early 2000s, federal enforcement efforts sent white collar criminals at Enron and WorldCom to prison. But since the 2008 financial collapse, this famously hasn't happened. Corporations have been permitted to enter into deferred prosecution agreements and avoid criminal convictions, in part due to a mistaken assumption that leniency would encourage cooperation and because enforcement agencies don't have the funding or staff to pursue lengthy prosecutions, says distinguished Columbia Law Professor John C. Coffee. “We are moving from a system of justice for organizational crime that mixed carrots and sticks to one that is all carrots and no sticks,” he says. He offers a series of bold proposals for ensuring that corporate malfeasance can once again be punished. For example, he describes incentives that could be offered to both corporate executives to turn in their corporations and to corporations to turn in their executives, allowing prosecutors to play them off against each other. Whistleblowers should be offered cash bounties to come forward because, Coffee writes, “it is easier and cheaper to buy information than seek to discover it in adversarial proceedings.” All federal enforcement agencies should be able to hire outside counsel on a contingency fee basis, which would cost the public nothing and provide access to discovery and litigation expertise the agencies don't have. Through these and other equally controversial ideas, Coffee intends to rebalance the scales of justice.
Jane Ginsburg, Deep Dive: Burrow-Giles v. Sarony: Copyright Protection for Photographs, and Concepts Authorship in an Age of Machines (Twelve Tables P., 2020).
Burrow-Giles Lithographic Co. v. Sarony produced one of the Supreme Court s first interpretations of the term writings of authors in the Constitution s copyright clause. But Burrow-Giles also stands out in U.S. copyright jurisprudence for its analysis of the impact of new technological modes of creation on the concept of authorship. Part I of this book explores the doctrine and debates over the copyright status of photographs before and immediately after the 1865 amendment in which Congress explicitly added photographs to the statutory subject matter of copyright. Part II assembles primary sources to lay out the story of the litigation over Sarony s Oscar Wilde photograph, from Sarony s initial complaint through the Supreme Court’s decision, including a postscript on the fate of Sarony s photographic studio. Part III documents legislative and caselaw developments after Burrow-Giles, examining pre-1909 Act cases and subsequent legislative developments, the surprisingly sparse caselaw under the 1909 Act, and subsequent caselaw under the 1976 Act to the present. Notes and questions accompany each section, making the text ideal as an elective or a supplement to any course in Intellectual Property or Copyright Law.
Michael Graetz & Ian Shapiro, The Wolf at the Door: The Menace of Economic Insecurity and How to Fight It, (Harvard U. P., 2020).
This is an age of crisis. That much we can agree on. But a crisis of what? And how do we get out of it? In The Wolf at the Door, Michael Graetz and Ian Shapiro focus on what really worries people: their own economic insecurity and that of people close to them. Americans are concerned about losing what they have, whether jobs, status, or safe communities. They fear the wolf at the door. The solution is not protectionism but a return to the hard work of building coalitions around realistic goals and pursuing them doggedly through the political system. This is how earlier reformers achieved meaningful changes, from the abolition of the slave trade to civil rights legislation. The authors make substantial recommendations for tax and health-insurance law, creating jobs, improving wages, and protecting families suffering from unemployment, and they guide us through the strategies needed to enact change. These are achievable reforms that would make Americans more secure economically. The Wolf at the Door is one of those rare books that not only diagnoses our problems, but also shows us how we can address them.
Bernard Harcourt, Critique and Praxis: A Critical Philosophy of Illusions, Values, and Action (Colum. U. P., 2020).
Critical theory has always challenged the division between theory and practice. At its best, it aims to turn contemplation into emancipation, seeking to transform society in pursuit of equality, social justice, and human flourishing. Yet today’s critical theory often seems to engage only in critique. These times of crisis demand more. They demand critical praxis. Critique & Praxis challenges us to move beyond decades of philosophical detours and to harness critical thought to the need for action. In a time of increasing awareness of economic and social inequality, it calls on us to engage in critical practice to make society more equal and just. Critique & Praxis advocates for a new path forward that constantly challenges each and every one of us to ask what more we can do to realize a society based on equality and justice. Reflecting on decades of activism, social-justice litigation, and political engagement, and years of critical theory and philosophical work, Critique & Praxis charts a vision for political action and social transformation. Instead of posing the question, “What is to be done?” we must now turn back onto ourselves and ask, and answer, “What more am I to do?”
Bernard Harcourt, La Société D’Exposition: Désir ed désobéissance à l’ère numérique, (French, Sophie Renaut, trans., Seuil, 2020).
This book (in French) explores our new digital age and the way in which we willingly and unwillingly reveal our personal data on the web. Social media compile data on users, retailers mine information on consumers, Internet giants create dossiers of who we know and what we do, and intelligence agencies collect all this plus billions of communications daily. Exploiting our boundless desire to access everything all the time, digital technology is breaking down whatever boundaries still exist between the state, the market, and the private realm. Exposed offers a powerful critique of our new virtual transparence, revealing just how unfree we are becoming and how little we seem to care. This book guides us through our new digital landscape, one that makes it so easy for others to monitor, profile, and shape our every desire. We are building what could be called "the expository society"—a platform for unprecedented levels of exhibition, watching, and influence that is reconfiguring our political relations and reshaping our notions of what it means to be an individual. We are not scandalized by this. To the contrary: we crave exposure and knowingly surrender our privacy and anonymity in order to tap into social networks and consumer convenience—or we give in ambivalently, despite our reservations. But we have arrived at a moment of reckoning. If we do not wish to be trapped in a steel mesh of wireless digits, we have a responsibility to do whatever we can to resist. Disobedience to a regime that relies on massive data mining can take many forms, from aggressively encrypting personal information to leaking government secrets, but all will require conviction and courage.
The Perilous Public Square: Structural Threats to Free Expression Today (David Pozen, ed., Colum. U. P., 2020).
Americans of all political persuasions fear that “free speech” is under attack. This may seem strange at a time when legal protections for free expression remain strong and overt government censorship minimal. Yet a range of political, economic, social, and technological developments have raised profound challenges for how we manage speech. New threats to political discourse are mounting—from the rise of authoritarian populism and national security secrecy to the decline of print journalism and public trust in experts to the “fake news,” trolling, and increasingly subtle modes of surveillance made possible by digital technologies. The Perilous Public Square brings together leading thinkers to identify and investigate today’s multifaceted threats to free expression. They go beyond the campus and the courthouse to pinpoint key structural changes in the means of mass communication and forms of global capitalism. Their essays cross the disciplinary boundaries of First Amendment law, internet law, media policy, journalism, legal history, and legal theory, offering fresh perspectives on fortifying the speech system and reinvigorating the public square.
Jedediah Purdy, This Land is Our Land: The Struggle for a New Commonwealth (Princeton U. P., 2019).
Today, we are at a turning point as we face ecological and political crises that are rooted in conflicts over the land itself. But these problems can be solved if we draw on elements of our tradition that move us toward a new commonwealth—a community founded on the well-being of all people and the natural world. In this brief, powerful, timely, and hopeful book, Jedediah Purdy explores how we might begin to heal our fractured and contentious relationship with the land and with each other. "From the coalfields of Appalachia and the tobacco fields of the Carolinas to the public lands of the West, Purdy shows how the land has always united and divided Americans, holding us in common projects and fates but also separating us into insiders and outsiders, owners and dependents, workers and bosses. Expropriated from Native Americans and transformed by slave labor, the same land that represents a history of racism and exploitation could, in the face of environmental catastrophe, bind us together in relationships of reciprocity and mutual responsibility." Eric Klinenberg called it "a soulful work of political theory" in a friendly review in the NY Review of Books.
ARTICLES & BOOK CHAPTERS
Anu Bradford, Adam Chilton, Katerina Linos & Alexander Weaver, The Global Dominance of European Competition Law Over American Antitrust Law, 16 J. Empirical Leg. Stu., 731 (2019).
The world's biggest consumer markets—the European Union and the United States—have adopted different approaches to regulating competition. This has not only put the European Union and the United States at odds in high-profile investigations of anticompetitive conduct, but also made them race to spread their regulatory models. Using a novel dataset of competition statutes, we investigate this race to influence the world's regulatory landscape and find that E.U. competition laws have been more widely emulated than the U.S. antitrust laws. We then argue that both “push” and “pull” factors explain the appeal of the E.U. competition regime: the European Union actively promotes its model through preferential trade agreements and has an administrative template that is easy to emulate. As E.U. and U.S. regulators offer competing regulatory models in domains as diverse as privacy, finance, and environmental protection, our study sheds light on how global regulatory races are fought and won.
Richard Briffault, Election Law Localism in the Time of COVID-19, U. Chicago L. Rev. Online, (2020).
In just a few short months, the COVID-19 pandemic has already provoked multiple election law disputes. These have tended to track the same normative and policy conflicts that have marked election law for years, particularly the tension between strict adherence to preexisting rules and the willingness to stretch or relax those rules in order to deal with emergency conditions, and the overlapping debate over whether the primary threat to the integrity of the electoral system is fraud or the legal and administrative obstacles to voting during a pandemic. A third, but much less discussed, strand in the emerging COVID-19 election law jurisprudence is the role of local elections officers, often in conflict with state officials, in protecting the right to vote. These conflicts—and there could be more as the fall general election approaches and local officials struggle to meet the needs of their constituents—serve to underscore the pervasive role of local officials, who are either locally elected or appointed by locally elected officials, in administering election law and actually running our elections. Moreover, these conflicts suggest that although local administration is usually treated as a weakness of the system and a source of unfortunate, if not unconstitutional, lack of uniformity because of its potential for the disparate treatment of voters in different places, it can also be a source of strength. Local officials may be especially sensitive to the distinctive needs and conditions of their constituencies. Although, as the cases to date suggest, local struggles to expand alternatives to Election Day voting are unlikely to prevail in the face of determined state-level opposition, these local initiatives are important in continuing to publicly and officially express the need for accommodating election rules to the exigencies of COVID-19 in urban areas. They may also directly accomplish positive changes, either by finding flexibility in the law or by persuading higher level officials to embrace their efforts to protect the right to vote.
Richard Briffault, Constitutional Law and the Presidential Nomination Process and A better Financing System? The Death and Possible Rebirth of the Presidential Nomination Public Financing Program in The Best Candidate: Presidential Nomination in Polarized Times (Eugene D. Mazo & Michael R. Dimino, eds., 2020)
Summary of chapter 3: The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes. The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government inwriting the rules for and administering the electoral process—which may include the primary elections that determine the nominees of the political parties—and the right of the parties to determine how to pick their nominees. This government-party axis affects all nominations of candidates for state and federal office. Presidential nominations, however, are distinct. For most elections, federal as well as state, most of the rules are determined by state law. But presidential nominations involve a national-level party decision for a nationwide office. As a result, national party rules and federal laws factor into shaping the
nomination process and add the possibility of conflicts between national- and state-level rules to the more common government-party tensions. This chapter reviews the constitutional context for the presidential nomination process and its implication for reforms.
Summary of chapter 10: Public funding was an important factor in major party nomination campaigns in the first quarter-century after the program was adopted in 1974. Public funding was critical to the emergence of Jimmy Carter in 1976 and to Ronald Reagan’s near successful 1976 campaign, which helped position him for his successful 1980 run. Public funding helped to finance the candidates who were the principal challengers to their party’s front-runners—George H. W. Bush in 1980, Gary Hart in 1984, Jesse Jackson in 1988, Pat Buchanan in 1992, John McCain in 2000, and John Edwards in 2004. In 2020, however, every single one of the two dozen candidates for the Democratic nomination was entirely financed by private contributions. Nor was the absence of public funding in the 2020 race unusual. In 2016, exactly one of the 23 major party primary contenders—across both parties—took public funds, with both of the major party nomination winners—Donald Trump and Hillary Clinton—wholly privately funded. So, too, both major party nominees in 2012 and all the other 2012 contenders financed their nomination campaigns from private funds; so did both major party nomination winners and the runners-up in 2008. Indeed, the last Democratic candidate who used public funds in winning his party’s presidential nomination was Al Gore in 2000, and the last successful publicly- funded candidate for the Republican nomination was Bob Dole in 1996. So, what happened? What caused the collapse of the presidential nomination public funding program, beginning in 2000 and culminating in its complete irrelevance by 2012? What have the consequences been for presidential nomination campaigns? Should the presidential nomination public funding program be re-created, and if so, how? Part II of this chapter reviews the structure and legal framework of the presidential nomination public funding system. It tracks the declining use of public funds over the last two decades, and examines the reasons for the public funding program’s collapse. Part III then considers whether a presidential nomination public funding program should be re-created. Part IV concludes by sketching out the elements necessary for a reinvigorated public funding system.
Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev., 265 (2019).
Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors. States complicate each piece of this story. In critical respects, federalism further strengthens presidential administration. Waivers, grants, nonpreemption of state law, and other intergovernmental techniques enable Presidents to effectuate policy agendas when federal agencies lack sufficient authority. States also furnish durability because their policies may outlast a President’s tenure when federal policies do not. At the same time, federalism diversifies administration and broadens its representative base. Defenses of presidential power as “accountable” and “effective” sound increasingly empty, if not dangerously autocratic. Yet it is easier to condemn presidential administration than to locate alternatives that connect the administrative state to electoral politics and representative institutions as well as to expertise and deliberation. Because state legislators and governors may furnish these connections, plural administrative states offer the most promising path forward for the contemporary administrative state.
John C. Coffee Jr., The Future of Disclosure: ESG, Common Ownership, and Systematic Risk, European Corporate Governance Institute – Law Working Paper 541 (2020).
The U.S. securities markets have recently undergone (or are undergoing) three fundamental transitions: (1) institutionalization (with the result that institutional investors now dominate both trading and stock ownership); (2) extraordinary ownership concentration (with the consequence that the three largest U.S. institutional investors now hold 20% and vote 25% of the shares in S&P 500 companies); and (3) the introduction of ESG disclosures (which process has been driven in the U.S. by pressure from large institutional investors). In light of these transitions, how should disclosure policy change? Do institutions and retail investors have the same or different disclosure needs? Why are large institutions pressing for increased ESG disclosures? This article will focus on the desire of institutions for greater ESG disclosures and suggest that two reasons underlie this demand for more information: (1) ESG disclosures overlap substantially with systematic risk, which is the primary concern of diversified investors; and (2) high common ownership enables institutions to take collective action to curb externalities caused by portfolio firms, so long as the gains to their portfolio from such action exceed the losses caused to the externality-creating firms. This transition to a portfolio-wide perspective (both in voting and investment decisions) has significant implications but also is likely to provoke political controversy. Indeed, the Trump Administration has proposed new rules that would discourage voting based on ESG criteria and thus would by extension chill ESG investing. As institutions shift to portfolio-wide decision making, the disclosure needs of individual investors and institutional investors diverge and serious conflicts can arise. As an equity investor, institutional investors have the perspective of an option-holder and favor greater risk-taking, while typically the undiversified retail investor tends to have the opposite perspective and preferences.
Michael Doyle, The Model international Mobility Convention: Beyond Migrants and Refugees, 163 Proc. of the Am. Phil. Soc., 260 (2019).
Two demographic snapshots below illustrate the current challenges of migration regulation and refugee protection. They call out for a new legal regime for the movement of persons across borders. After describing the challenges, I note six elements of a Model International Mobility Convention that is designed to provide a global “floor” level of protection for migrants, refugees, and others moving across borders. I conclude with the compliance prospects for this proposed new regime for international mobility. My hope is that you will read it and join others in signing.
Elizabeth F. Emens, On Trust, Law, and Expecting the Worst (Review of Intimate Lies and the Law by Jill Elaine Hasday), 133 Harv. L. Rev., 1963 (2020).
This Review examines the theme of trust in response to Jill Hasday’s Intimate Lies and the Law, which won the Scribes Award for the best work of legal scholarship published in 2019. I distinguish two forms of trust: affective and cognitive. Affective trust is emotional trust—a feeling of safety. Cognitive trust is belief in the facts or statements presented. The feeling of trust is foundational to loving relationships, yet trusting can also be dangerous, as Hasday shows, with significant consequences for those who are duped by their intimates. In an ideal world, I therefore argue that individuals in intimate relationships could develop a combination of affective trust and cognitive distrust. In other words, they would have an ability to feel safe while suspending cognitive trust long enough to test the facts as presented—for instance, to find out whether a new partner is already married. Holding trust and distrust simultaneously may be too difficult, so I turn to the growing literature on curiosity—especially epistemic curiosity, the drive to know—to serve similar goals of supporting inquiry alongside affective trust. I then consider several ways that law could help to enable this combination in intimate relationships. First, the framework of affective trust and epistemic curiosity builds a firmer foundation for some of Hasday’s proposals, while offering a basis for improving upon others. For instance, she argues for greater parity in legal treatment of intimate and non-intimate lies, which would create a stronger financial safety net for those whose trust in their intimates is disappointed (supporting emotional trust); and she argues for multistate registries of public marriage records (supporting the drive to know). Moreover, the framework I offer exposes an overlooked dimension of a recent development in the law of evidence: New Mexico’s elimination of the marital confidences privilege in 2019, which made it the only state with no form of spousal privilege. This privilege scaffolds the feeling of safety, by permitting spouses to rely on one another not to betray crucial confidences, and thus enables curiosity, by creating a condition for it to be satisfied. Finally, my framework supports a novel approach to prenuptial agreements that I term prenup wrappers—non-enforceable documents in which parties can set out expectations and intentions, to learn about one another and build emotional safety at a critical juncture in formalizing their intimate relationship.
Jeffrey Fagan & Alexis Campbell, Race and Reasonableness in Police Killings, 100 Boston U. L. Rev., 951 (2020).
Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on 3933 killings to examine this intersection of race and reasonableness in police killings. First, we describe the objective circumstances and interactions of police killings and map those event characteristics to the elements of reasonableness articulated in case law. Second, we assess whether inherently vague constitutional regulation of lethal force is applied differently by officers depending on the civilian’s race, giving rise to a disproportionate rate of deaths among racial and ethnic minority groups. We then assess the prospects for remediation of racialized police killings by testing the effects of an existing evidence-based training curricula designed to reduce police use of deadly force towards persons experiencing mental illness. We find that, across several circumstances of police killings and their objective reasonableness, Black suspects are more than twice as likely to be killed by police than are persons of other racial or ethnic groups; even when there are no other obvious circumstances during the encounter that would make the use of deadly force reasonable. Police killings of Latinx civilians are higher compared to whites and other racial or ethnic groups in some but not all circumstances. We find no evidence that enhanced police training focused on mental health crises can reduce the incidence of fatal police shootings of persons in mental health crisis or racial and ethnic disparities generally in police killings. Our findings suggest that the standards in constitutional case law fail to anticipate the circumstances of fatal police shootings and are therefore seemingly irrelevant in preventing racial disparities in police fatal police shootings. In light of this constitutional landscape, we argue that the ineffectiveness of enhanced police training to reduce shootings overall and racial disparity within these shootings may reflect the absence of race-specific components in their curricula. We suggest that the addition of training components that specifically address the role of race in officers’ perceptions of risk and their decision-making in potentially dangerous interactions with citizens may remediate both the incidence of police shootings and their apparent racial and ethnic disparity.
Jeffrey Fagan & Amanda Geller, Profiling and Consent: Stops, Searches and Seizures after Soto, 27 Virginia J. Soc. Pol. & L., 16 (2020).
Following Soto v. State (1999), New Jersey was the first state to enter into a Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New Jersey Turnpike by the state police from 2005– 2007, the final months of the Consent Decree. Specifically, we exploit heterogeneity of officer and driver race to identify disparities in the probability that stops lead to a search. We assume a crime-minimizing or welfarist rationale for stops, under which race-neutral factors are equally likely to motivate stops, regardless of driver or passenger race. We also test a Fairness Presumption by comparing search patterns between driver-officer pairs where the driver and officer are different races, and a set of race-neutral benchmarks where the driver and officer are the same race. Results of fixed effects logistic regressions show that Black and Hispanic drivers, when stopped, are more than twice as likely as White drivers to be searched, regardless of officer race. The results also suggest that search patterns vary significantly by officer race: Black officers are less likely to conduct a search in the course of a stop than are White drivers. We also see significant interactions between the race of officers and that of the drivers they stop: Black drivers are significantly more likely to be searched by White officers than they are by Black officers; on the other hand, Hispanic drivers are significantly less likely to be searched by either Black or White officers than they are by Hispanic officers. Racial disparities in the selection of stopped drivers for search and in the rates of seizure of contraband suggest that despite institutional reforms under the Consent Decree in management and professionalization of patrol officers, there were no tangible gains in distributional equity. We review the design of the Consent Decree and the accompanying oversight mechanisms to identify structural weaknesses in external monitoring and institutional design in the oversight of the State Police that compromised the pursuit of equality goals.
Jane C. Ginsburg, Fair Use Factor Four Revisited: Valuing the “Value of the Copyrighted Work” J. Copyright Society., 2020.
Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies independent kinds of harm, and entails considerations distinct from market substitution. Those harms include the undermining of business models in which the “value of” the copied work may be its utility as a “draw” for goods or services other than the copied work. Relevant considerations also concern creators’ economic and moral interests in being recognized as the authors of the copied works. This Essay explores the basis for and consequences of according autonomous value to the inquiry into the impact of the use upon the “value of the copyrighted work.”
Maeve Glass, Fixing America's Founding, 118 Mich. L. Rev., 949 (2020).
Where in the archives of the past should historians look to tell the story of the creation of the American Constitution? According to one of the most recent works by a historian to capture the attention of legal academia, the best place to observe the creation of the Constitution is not in the halls of Philadelphia, but in the records of the First Congress. It is here, we learn from Jonathan Gienapp's The Second Creation: Fixing America's Constitution in the Founding Era, that the sheer force of political debate transformed what had been an inchoate and malleable object of vast possibilities into the fixed, textual document that we know it today. This essay argues that while this approach may well appeal to legal scholars seeking to challenge originalism with accounts of the unsettled nature of the Founding era, it comes at a cost. In particular, this approach makes it difficult to see, much less analyze, the stabilizing forces of the material realities and long-standing customary rules of commercial partnership that existed beyond the halls of political debate and that limited the possibilities of constitutional meaning. By reading the book in historiographical context, this essay makes the case for a broader framework of analysis, one that can accommodate both the internal uncertainties of political discourse in the Founding era and the enduring customs of a much older Atlantic marketplace rooted in race-based enslavement.
Assaf Hamdani & Zohar Goshen, Corporate Control, Dual Class, and the Limits of Judicial Review, 120 Colum. L. Rev., 941 (2020).
Companies with a dual-class structure have increasingly been involved in high-profile battles over the reallocation of control rights. Google, for instance, sought to entrench its founders’ control over the corporation by recapitalizing from a dual-class into a triple-class structure. The CBS board, in contrast, attempted to dilute its controlling shareholder by distributing a voting-stock-dividend that would empower minority shareholders to block a merger it perceived to be harmful. These cases raise a fundamental question at the heart of corporate law: What is the proper judicial response to self-dealing claims regarding reallocations of corporate control rights? This Article shows that the reallocation of control rights raises an inevitable tradeoff between investors’ protection from agency costs and the controller’s ability to pursue its idiosyncratic vision, making the value of different allocations of control rights both firm-specific and individual-specific. It is thus inherently impossible to create objective valuation models for reallocation of control rights. The impossibility of creating reliable valuation models sets the limits of judicial review: The legal tools long used by Delaware courts to adjudicate conflicts over cash-flow rights, such as entire fairness review, are fundamentally incompatible with the adjudication of conflicts over reallocations of control rights. This Article explores the policy implications of this insight and suggests that courts treat reallocations of control rights as questions of charter interpretation as to who has the power to decide on reallocations of control rights, and avoid reviewing the discretion to use that power. Courts should enforce the decision of the parties as to reallocations of control rights and apply the business judgement rule where the charter is silent.
Kent Greenawalt, Democracy & Religion: Some Variations & Hard Questions, 149 Dædalus, 25 (2020).
The ideas sketched here concern the nonestablishment and free exercise norms expressed in the U.S. Constitution, their application to governmental institutions from legislatures to prisons and the military, the place of religion in the curricula of public schools, and the proper role of religious convictions in lawmaking. A major concern of the essay is the problem of achieving an appropriate balance between governmental neutrality toward religion, as required by the nonestablishment norm, and governmental accommodation of religious practices that would otherwise violate ordinary laws, as required by the free exercise norm. A recurring theme is the complexity of the issues and the variability of possible solutions given differences in the history and culture of democratic societies.
Philip Hamburger, Delegating or Divesting?, 115 Northwestern U. L. Rev., 88 (2020).
A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation. A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation. This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power. First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it. Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself. A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.
Hanoch Dagan & Michael Heller, Why Autonomy Must Be Contract’s Ultimate Value, 20 Jerusalem Rev. Leg. Stud., 148 (2019).
In “The Choice Theory of Contracts,” we develop a liberal theory of contract law. One core task of the book was to persuade advocates of economic analysis that they must situate their enterprise within our liberal framework. Oren Bar Gill pushes back strongly in “Choice Theory and the Economic Analysis of Contracts.” He offers a penetrating – perhaps devastating – critique of our approach. Bar-Gill notes the substantial convergence between choice theory and a welfarist view. If he is right, then what does choice theory add? Our task in this Essay is to demonstrate that welfare economics cannot simply absorb contractual autonomy. We show that choice theory has irreducible normative and reformist value along the four dimensions that are core to Bar-Gill’s critique: (a) contract’s regard for the future self, (b) the special role it ascribes to relational justice, (c) its distinction between utility and community, and (d) its prescription of intra-sphere multiplicity. We go further: welfare economics is indefensible without autonomy as its foundation. Since publishing “Choice Theory,” we have engaged dozens of critiques. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy, properly refined. It cannot be welfare. Nor can foundational value pluralism possibly suffice. Autonomy justifies contract.
Bert Huang, Coordinating Injunctions, 98 Tex. L. Rev., 1331 (2020).
Consider this scenario: Two judges with parallel cases are each ready to issue an injunction. But their injunctions may clash, ordering incompatible actions by the defendant. Each judge has written an opinion justifying her own intended relief, but the need to avoid conflicting injunctions presses her to make a further choice—“Should I issue the injunction or should I stay it for now?” Each must make this decision in anticipation of what the other will do. This Article analyzes such a judicial coordination problem, drawing on recent examples including the DACA cases and the “sanctuary cities” cases. It then proposes a solution: When faced with a possible clash of injunctions, each district judge should issue or stay her intended relief in accordance with the real-world outcome she thinks the majority of district judges would choose. Following such a shared convention, judges with diverse views will have a better chance of avoiding a clash because their estimates of the majority view are probably more similar than their individual views. And a stay would not signify abandoning a judge’s own views (which are still fully aired in her written opinion) but would instead reflect an awareness that other judges’ views may differ—akin to the existing practice of a stay pending appeal. Notable complications are addressed, including the first-mover advantage of the earliest judge to act; the role of the appeals courts; the possibility of circuit splits; and how such a shared convention might break down.
Sarah Knuckey et. al., Power in Human Rights Advocate and Rightsholder Relationships: Critiques, Reforms, and Challenges, 33 Harv. Hum. Rts. J., 1 (2020).
Human rights advocacy can construct passive “victims,” objectify or displace rightsholders and af ected communities, and contribute to their disempowerment. In response to critiques – made by rightsholders, activists, and scholars alike – about the values and ef ects of such disempowering advocacy models, many advocates are increasingly prioritizing an understanding of these dynamics and reforming practice to better center and support the agency of directly af ected individuals and groups. However, the tactics and modalities of these ef orts are under-examined in scholarly literature, and many human rights advocates lack access to adequate documentation of tactics and spaces for peer learning. In this article, we seek to contribute to improved practice and to deeper understanding of both the potential and limits of advocates’ responses to critiques of how they relate to rightsholders. We examine: first, how common advocacy practices risk rightsholder disempowerment, and second, the many tactics advocates are developing to promote rightsholders at the center of advocacy and as agents of change, and the key challenges faced in seeking to do so. We ground the analysis in concrete practices, drawn from our experiences as advocates and from a workshop and interviews with other scholars and advocates. We organize our analysis into key moments in the advocacy timeline, from when decisions are made about the issues on which to focus, through to investigations, advocacy, and evaluation. We find that while advocates can engage in disempowering practices at each stage, advocates and rightsholders have at their disposal a wide variety of tools and practices to help redefine the terms of their relationships, in ways that can contribute to restructuring power imbalances. We conclude with recommendations which can further reform the human rights field toward increased support for rightsholder agency and power.
Clarisa Long, Privacy and Pandemics in Law in The Time of COVID-19 (Katharina Pistor, ed., 2020).
In times of pandemic, extensive data collection, either of individuals' physical location or health status, may be desirable from a public health perspective. Governments around the world are collecting location and tracking data on people in order to stem the spread of COVID-19. Once surveillance and data collection mechanisms become established, however, they could become permanent. In addition to collecting personally identifiable information ("PII") in the form of cell phone location data, governments might also collect personal health information ("PHI") in the form of COVID-19 test results or immunity results. This raises important issues and challenges for information privacy and health privacy law. These issues will not be going away.
Thomas W. Merrill, Legitimate Interpretation—Or Legitimate Adjudication, 105 Cornell L. Rev., 1395 (2020).
Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if we refocus the debate by asking what constitutes legitimate adjudication, as determined by the social practice of the parties and their lawyers who take part in adjudication, it is possible to develop an account of legitimacy that produces a much better fit between theory and practice. The decisional norms employed by adjudicators include faithful agent arguments about governing texts, arguments from precedent, and arguments from settled practice, but also, in a more qualified fashion, considerations of morality and social consequences. Adjudicators mix and match these norms in reaching outcomes but do so in a way that is regarded as legitimate by the losers as well as the winners in contested adjudications. A general normative implication of this refocused account of legitimacy is that adjudicators, including high-level appeals courts, should not stray far from their basic function of dispute resolution, as opposed to law declaration.
Thomas W. Merrill, The Economics of Leasing, 12 J. Leg. Analysis, 221 (2020).
Leasing may be the most important legal institution that has received virtually no systematic scholarly attention. Real property leasing is familiar in the context of residential tenancies. But it is also widely used in commercial contexts, including office buildings and shopping centers. Personal property leasing, which was rarely encountered before World War II, has more recently exploded on a world-wide basis, with everything from autos to farm equipment to airplanes being leased. This article seeks to develop a composite picture of the defining features of leases and why leasing is such a widespread and highly successful economic institution. The reasons fall under three general headings. (i) Leasing is an attractive method of financing the acquisition of assets, especially for persons who have limited capital or would like to conserve their capital and cash flows for other purposes. (ii) Leasing is a device for minimizing the risks that either lessees or lessors associate with owning assets; although leasing also creates risks, various lease modifications have been developed to manage these derivative risks. (iii) By dividing the rights to an asset between lessor and lessee, leasing permits the parties to specialize in different functions and to solve various impediments to contracting that would be difficult to overcome among separate owners. Understanding the economic advantages of leasing is an important first step in considering possible legal reforms of leasing.
Joshua Mitts et. al., Trading Against the Random Expiration of Private Information: A Natural Experiment, 75 J. of Finance, 5 (2019).
For years, the Securities and Exchange Commission (SEC) accidentally distributed securities disclosures to some investors before the public. We exploit this setting, which is unique because the delay until public disclosure was exogenous and the private information window was well defined, to study informed trading with a random stopping time. Trading intensity and the pace at which prices incorporate information decrease with the expected delay until public release, but the relation between trading intensity and time elapsed varies with traders' learning process. Noise trading and relative information advantage play similar roles as in standard microstructure theories assuming a fixed time window.
Jonathan Macey & Joshua Mitts, Asking the Right Question: The Statutory Right of Appraisal and Efficient Markets, Bus. Lawyer, 2019.
In this article, we make several contributions to the literature on appraisal rights and similar cases in which courts assign values to a company’s shares in the litigation context.
Edward Morrison & Andrea Saavedra, Bankruptcy’s Role in the COVID-19 Crisis in Law in The Time of COVID-19 (Katharina Pistor, ed., 2020).
Policymakers have minimized the role of bankruptcy law in mitigating the financial fallout from COVID-19. Scholars too are unsure about the merits of bankruptcy, especially Chapter 11, in resolving business distress. We argue that Chapter 11 complements current stimulus policies for large corporations, such as the airlines, and that Treasury should consider making it a precondition for receiving government-backed financing. Chapter 11 offers a flexible, speedy, and crisis-tested tool for preserving businesses, financing them with government funds (if necessary), and ensuring that the costs of distress are borne primarily by investors, not taxpayers. Chapter 11 saves businesses and employment, not shareholders. For consumers and small businesses, however, bankruptcy should serve as a backstop to other policies, such as the CARES Act. Consumer bankruptcy law’s primary goal is to discharge debts, but that’s not what most consumers need right now. What they need is bridge financing, and perhaps forbearance, until the crisis ends, they get back to work, and they regain their ability to pay their debts again. These key policy levers—bridge financing and forbearance—are available in theory to small businesses in Chapter 11, especially if the government supplies the bridge financing when credit markets are dysfunctional. The practical reality is that bankruptcy is expensive for small businesses, which may deter them from using it in the first place. Equally important, our courts will be flooded if Chapter 11 is the primary rescue policy for small businesses.
Edward Morrison et. al., Race and Bankruptcy: Explaining Racial Disparities in Consumer Bankruptcy, 63 J. L. & Econ., 269 (2020).
African American bankruptcy filers select Chapter 13 far more often than other debtors, who opt instead for Chapter 7, which has higher success rates and lower attorneys’ fees. Prior scholarship blames racial discrimination by attorneys. We propose an alternative explanation: Chapter 13 offers benefits, including retention of cars and driver’s licenses, that are more valuable to African American debtors because of relatively long commutes. We study a 2011 policy change in Chicago, which seized cars and suspended licenses of consumers with large traffic-related debts. The policy produced a large increase in Chapter 13 filings, especially by African Americans. Two mechanisms explain the disparate racial impact: African Americans were more likely to have traffic debts and incurred greater costs from car seizures and license suspension due to relatively long commutes. When we match African Americans to other debtors with similar commutes, we find no racial difference in Chapter 13 filing propensities.
Katharina Pistor, The Value of Law, 49 Theor. & Soc., 165 (2020).
Much has been written about the value of law, mostly in ideational terms. In this article, I draw attention to law’s pecuniary value. Law, I argue, is the very stuff from which many wealth generating, or capital, assets are made, foremost among them intangible assets that account for most of the private wealth today. For law to serve as a fountain of wealth, it must be backed by state power, and indeed, sovereign states have been more than willing to offer a helping hand. They have found intellectual support in neoclassical economics and in its off-spring, law and economics, theoretical approaches that have sought to ground law in the scientific analysis of the economy, in efficiency rather than in justice. In doing so, they have averted their eyes from the fact that the most critical source for wealth, that is law, is itself of the state and should be subject to social norms enshrined in our constitutions, not abstract welfarism.
Katharina Pistor, Rule by Data: The End of Markets?, 83 Law & Contemp. Prob., 101 (2020).
This Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations may be organized, and law is not the only feasible mode of governing these relations. Central planning under socialism posed an alternative, which proved ultimately non-viable. The rise of big tech companies (Big Tech) and their accumulation of vast amounts of data offers yet another possibility: the rule by data.
Christina Ponsa-Kraus, Political Wine in a Judicial Bottle: Justice Sotomayor’s Surprising Concurrence in Aurelius, Yale L. J. Forum, 101 (2020).
For seventy years, Puerto Ricans have been bitterly divided over how to decolonize the island, a U.S. territory. Many favor Puerto Rico’s admission into statehood. But many others support a different kind of relationship with the United States: they believe that in 1952, Puerto Rico entered into a “compact” with the United States that transformed it from a territory into a “commonwealth,” and they insist that “commonwealth” status made Puerto Rico a separate sovereign in permanent union with the United States. Statehood supporters argue that there is no compact, nor should there be: it is neither constitutionally possible, nor desirable as a goal of self-determination. Without even acknowledging the existence of this debate, Justice Sotomayor recently declared the existence of the “compact” in a concurrence in a case in which no one raised it. By doing so, Justice Sotomayor took sides in the divisive political debate over Puerto Rico’s future.
Julian Nyarko, David Pozen & Eric Talley, A Computational Analysis of Constitutional Polarization, 105 Cornell L. Rev., 1 (2019).
This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine-learning and text analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in non-constitutional discourse; (3) that conservative-leaning speakers have driven this trend; (4) that members of Congress whose political party does not control the presidency or their own chamber are significantly more likely to invoke the Constitution in some, but not all, contexts; and (5) that contemporary conservative legislators have developed an especially coherent constitutional vocabulary, with which they have come to “own” not only terms associated with the document's original meaning but also terms associated with textual provisions such as the First Amendment. Above and beyond these concrete contributions, this Article demonstrates the potential for computational methods to advance the study of constitutional history, politics, and culture.
Jedediah Purdy et. al., Building a Law and Political Economy Framework: Beyond the 20th-Century Synthesis, 129 Yale L. J., 1600 (2020).
We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it from analyses of power. This Feature offers a framework for identifying and critiquing the Twentieth-Century Synthesis. This is also a framework for a new “law-and-political-economy approach” to legal scholarship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power, equality, and democracy at the center of legal scholarship. This Feature offers a framework for identifying and critiquing the Twentieth-Century Synthesis. This is also a framework for a new “law-and-political-economy approach” to legal scholarship. We hope to help amplify and catalyze scholarship and pedagogy that place themes of power, equality, and democracy at the center of legal scholarship.
David Schizer, Enhancing Efficiency at Nonprofits with Analysis Disclosure, 11 Colum. J. Tax Law, 76 (2020).
The U.S. nonprofit sector spends $2.54 trillion each year. If the sector were a country, it would have the eighth largest economy in the world, ahead of Brazil, Italy, Canada, and Russia. The government provides nonprofits with billions in tax subsidies, but instead of evaluating the quality of their work, it leaves this responsibility to nonprofit managers, boards, and donors. The best nonprofits are laboratories of innovation, but unfortunately some are stagnant backwaters, which waste money on out-of-date missions and inefficient programs. To promote more innovation and less stagnation, this Article makes two contributions to the literature. First, this Article breaks new ground in identifying sources of inefficiency at nonprofits. The literature focuses on incentives, arguing that managers and board members are less motivated to run a nonprofit efficiently because they cannot keep its profits. In response, this Article emphasizes that the problem is not just motivation, but also information. Measuring success is harder at nonprofits. Instead of tracking profitability, they use metrics that are less reliable and harder to measure. These measurement challenges complicate the efforts even of dedicated and competent managers to operate efficiently. While this information problem is familiar, another has been largely overlooked in the literature: When success is hard to measure, incompetence and self-interested practices are less visible, and thus are harder to stop. For example, if managers regularly overpay vendors, the consequence at a for-profit firm (lower profits) is easier to observe than at a nonprofit (less effective service for beneficiaries). Second, this Article recommends a response to this underappreciated source of inefficiency: better analysis and disclosure as a strategy for organizational change. In principle, nonprofits are supposed to maximize social return, but how can they operationalize this abstract principle? To help them do so, this Article recommends three questions that nonprofits should answer every year: first, how important are the challenges the nonprofit is trying to address?; second, how effective are the nonprofit’s responses to these challenges?; and third, is the nonprofit the right organization to respond to these challenges? These questions press nonprofit managers and boards to be more explicit about priorities, monitor progress, improve and expand high-value programs, and fix or shut down ineffective ones. This Article also recommends that nonprofits should disclose this analysis to the public, even though current law does not require them to do so. This disclosure would empower donors and rating agencies to be more effective monitors. It also would help donors make better informed philanthropic choices and would enable charities to borrow innovative ideas from each other more easily.
Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev., 1371 (2019).
The law governing children is complex, sometimes appearing almost incoherent. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children, subject to limited state oversight, has broken down over the past few decades. Lawmakers started granting children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, and legally incompetent beings. As children emerged as legal persons, children’s rights advocates challenged the rationale for parental authority, contending that robust parental rights often harm children. And a wave of punitive reforms in response to juvenile crime in the 1990s undermined the state’s long-standing role as the protector of children. We address this seeming incoherence by identifying a deep structure and logic in the regulation of children that is becoming clear in the twenty-first century. In our conceptual framework, the law’s central goal, across multiple legal domains, is to promote child wellbeing. This unifying purpose has roots in the Progressive Era, but three distinct characteristics distinguish the modern approach. Today, lawmakers advance child wellbeing with greater confidence and success by drawing on a wide body of research on child and adolescent development and the efficacy of related policies. This is bolstered by the clear understanding that promoting child wellbeing generally furthers social welfare, leading to a broader base of support for state policies and legal doctrines. Finally, there is a growing recognition that the regulation of children and families has long been tainted by racial and class bias and that a new commitment to minimizing these pernicious influences is essential to both the legitimacy and fairness of the regime. In combination, these features make the contemporary regulatory framework superior to earlier approaches.Rather than pitting the state, parents, and child in competition for control over children’s lives—the conception of family regulation since the 1960s—our Child Wellbeing framework offers a surprisingly integrated regulatory approach. Properly understood, parental rights and children’s rights, as well as the direct role of the state in children’s lives, are increasingly defined and unified by a research-driven, social-welfare-regarding effort to promote child wellbeing. This normatively attractive conceptualization of legal childhood does not define every area of legal regulation, but it is a strong through line and should be elevated and embraced more broadly. In short, our framework brings coherence to the complex legal developments of the past half century and provides guidance moving forward for this critical area of the law.
Elizabeth S. Scott, In Defense of Empiricism in Family Law, 95 Notre Dame L. Rev., 1507 (2020).
It is fitting to include an essay defending the application of empirical research to family law and policy in a symposium honoring the scholarly career of Peg Brinig, who is probably the leading empiricist working in family law. While such a defense might seem unnecessary, given the expanding role of behavioral, social, and biological research in shaping the regulation of children and families, prominent scholars recently have raised concerns about the trend toward reliance on empirical science in this field. A part of the criticism is directed at the quality of the science itself and at the lack of sophistication of legal actors, who may be unable to evaluate research adequately or to understand the limits for particular legal purposes of even well-designed and well-executed studies. For example, decisionmakers increasingly use algorithms that critics argue incorporate questionable factors. Also, researchers themselves may have biases that shape outcomes. And one study, or a handful, is a thin reed on which to base any policy. But skeptics also challenge family law’s turn to empiricism on more fundamental grounds, arguing that emphasis on empirical knowledge may obscure important value competitions in family law or have undue influence on how different values are prioritized. Ultimately, critics raise the concern that the use of empirical knowledge can reinforce bias and harm marginalized families and communities. This Essay acknowledges these problems but suggests that most concerns can be alleviated by more careful and sophisticated use of science. The application of science to questions of family and juvenile law is a relatively recent phenomenon. Legal actors have already become skillful in the use of this tool, and interdisciplinary teams of legal scholars and researchers have played a key role in the design of research and translation of empirical knowledge to law. This trend holds extraordinary promise as a means to inform regulation in ways that enhance individual and social welfare. The Essay highlights issues on which the introduction of scientific knowledge has resulted in beneficial reforms. First, twenty-first century juvenile justice regulation increasingly has been shaped by developmental science clarifying that teenage offenders differ in important ways from adult counterparts. Second, policies supporting family preservation and healthy child development have gained support from a large body of research on child development as well as programmatic studies. These examples provide lessons for the use of research in this domain. Finally, the Essay probes the foundational critique of empiricism in family law and argues that the threat may be less severe than critics fear. To be sure, values shape family law and policy, and competing values often cannot be prioritized solely (or even largely) on the basis of empirical knowledge. But values often have empirical content, and accuracy in evaluating the stakes of the value contests is important. Moreover, the evidence does not support the concern that answers offered by empirical studies will be given undue weight in values competitions. The likely alternative—reliance on conventional wisdom and assumptions about the world—is usually inferior as a basis of policy and possibly more likely to result in biased calculations harmful to marginalized families.
Robert E. Scott et. al., Anticipating Venezuela’s Debt Crisis: Hidden Holdouts and the Problem of Pricing Collective Action Clauses, 100 Boston U. L. Rev., 253 (2020).
A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an activist creditor willing to serve as a collectivizing agent to enforce the relevant rights in litigation. WhereWhen activist creditors, intent on litigating, hide from the market in order to enhance their returns, the market lacks the information to price the collective rights accurately. In this Article, we use data from Venezuela’s ongoing debt crisis to test this collective action story. Our data provides evidence of the absence of price differences in contract terms that require collective decision-making for enforcement. Conversely, we find that in those situations where the market identifies the presence of an activist creditor, the relevant rights do get priced. This evidence sheds light on how the absence of efficient pricing of terms in these collective markets can impede efforts by defaulting sovereign debtors, like Venezuela, to restructure their obligations. Moreover, the timing of when such terms are priced is critical for social welfare. Because collective action clauses that provide strong enforcement rights are not priced at the time the sovereign issues bonds, sovereigns are not given the right incentives to adopt these terms at the outset.
Robert E. Scott, The Paradox of Contracting in Markets, 83 L. Contemp. Prob., (2020).
Contract design that motivates parties to invest and trade more efficiently occurs primarily in thin markets characterized by bespoke, bilateral agreements between commercial parties. In that environment, the cost of producing each contract is relatively high. Those costs are justified by offsetting design improvements in contractual incentives. In contrast, more efficient production of contract terms occurs in thick, multilateral markets where parties can realize the scale advantages of standardization. In this environment, the cost of producing individual contracts is relatively low but at the offsetting cost of undermining contractual incentives. These very different trade-offs are dictated by changes in the markets in which contracting occurs. As a consequence, parties in multilateral markets trade using contracts containing defective terms. Only by coordinating in a network around a common objective--to revise and update contract terms to eliminate or clarify latent defects --can parties in multilateral markets optimize the tradeoff between efficient contract design and efficient production of contracts. This analysis has important normative payoffs in refocusing the debate over the regulation of consumer transactions. The starting point here is to abandon the bilateral contract paradigm and focus instead on ways that the state can facilitate the formation of a regulatory network that improves the efficiency of standardized contract terms in multilateral consumer markets.
Colleen Shanahan et. al., COVID, Crisis, and Courts, 99 Tex. L Rev. Online, 10 (2020).
Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression every day and will continue to do so with even more urgency in the future: state civil courts. Even before the pandemic, as other branches of government failed to address inequality, state civil courts became the government actor of last resort for the tens of millions of Americans each year who suffer the consequences of these failures. Now, these same courts—for the first time in history—have quickly and nimbly changed the way they provide justice. Courts’ improvisation in the face of a global public health crisis present an opportunity for social change. In contrast to burgeoning attention to state criminal courts, this role for state civil courts was hidden from those not directly involved and largely ignored by scholars. Now it is unavoidable. This essay lays out a framework for change that state civil courts should embrace as they reopen to the tidal wave of litigants.
Jane Spinak, Child Welfare and COVID-19: An Unexpected Opportunity for Systemic Change in Law in The Time of COVID-19 (Katharina Pistor, ed., 2020).
The complex system of child welfare and foster care has key points where life-altering decisions are made and where COVID-19 will have an impact now and for a long time to come. Looking at three of them sequentially provides a roadmap for how child welfare decisions are made and how the pandemic will affect them now and into the future. They also provide opportunities to rethink the ways in which child welfare and family court systems have continuously failed families and children.
Stephen Griffin & Matthew Waxman, War Powers: Congress, the President, and the Courts—A Model Casebook Section, 2020.
This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer less detail. We plan to update this section periodically in response to feedback and events.