Volume 3, Issue 2: April 2023
Shyamkrishna Balganesh & Peter S. Menell, Proving Copying, 64 Wm. & Mary L. Rev. 299 (2022).
Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access based on the level of similarity, and vice-versa. While analytically sound, the inverse ratio rule has proven to be a persistent source of confusion among some courts, most prominently the Ninth Circuit, causing some to misapprehend the very nature of the inquiry into copying as well as the manner in which circumstantial evidence operates. This article explains how the inverse ratio rule emanates from crucial insights about the manner in which circumstantial evidence operates, wherein multiple inferences are combined to enhance the probative value of evidence that is inconclusive in isolation. This flexible formula builds on the notion of a combined narrative that is a hallmark of all circumstantial evidence. The article unpacks the theoretical and normative logic behind the inverse ratio rule to show how it is essential to circumstantial proof of copying, reveals how purported rejections of the doctrine by courts have been driven by a basic misunderstanding of the manner in which circumstantial inferences interact, and concludes by drawing broader insights about the interplay of copyright and evidence law.
Shyamkrishna Balganesh, Relying on Restatements, 122 Colum. L. Rev. 2119 (2022).
Restatements of the Law occupy a unique place in the American legal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources of law, a reality that has thus far received hardly any systematic scrutiny. As this article argues, courts’ anomalous treatment of Restatements routinely distorts the process of common law development by introducing a plethora of institutional problems into the fray and has in recent years produced needless controversy about the utility of the Restatements themselves. This article unravels the complexity and pitfalls of the unique legal authority embodied in Restatements, which elides the traditional categories of authority that courts are familiar with. It argues that the working of this unique legal authority is masked by the manner in which Restatements seek to emulate the language, form, and structure of ordinary statutes, despite crucial differences between the two. Courts have in turn been taken by the Restatements’ combination of substantive content and statute-like formulation and resorted to a variety of different techniques of reliance in their use of Restatements, many of which unwittingly limit their own lawmaking power in the common law over time. The article then proposes a set of Restatement-specific canons of construction for courts to use in their reliance on the text of Restatements, each of which is tailored to the unique nature of authority invested in them.
Jessica Bulman-Pozen & Olatunde C. Johnson, Federalism and Equal Citizenship: The Constitutional Case for D.C. Statehood, 110 Geo. L. J. 1269 (2022).
As the question of D.C. statehood commands national attention, the legal discourse remains stilted. The constitutional question we should be debating is not whether statehood is permitted but whether it is required.
Commentators have been focusing on the wrong constitutional provisions. The Founding document and the Twenty-Third Amendment do not resolve the District of Columbia’s status. The Reconstruction Amendments—and the principle of federated, equal citizenship they articulate—do. The Fourteenth Amendment’s Citizenship Clause, as glossed by subsequent amendments, not only establishes birthright national citizenship and decouples it from race and caste but also makes state citizenship a constitutive component of equal national citizenship. Because the Founding architecture of federalism has remained in place as political rights have become integral to U.S. citizenship, national citizenship must be realized in part through the states. All Americans living in the United States, including in D.C., are constitutionally entitled to claim state citizenship where they reside.
Beyond realizing a constitutional obligation, Congress’s admission of D.C. to the Union would serve American federalism. Many of federalism’s normative values—from creating spheres of minority rule, to satisfying local preferences, to providing laboratories of experimentation—are not well realized in practice. But the very features of D.C. that have long impeded its recognition as a self-governing political community introduce new possibilities for achieving these values. As a plurality Black state, D.C. would provide a novel forum for federalism to empower people of color, and as the nation’s first city-state, D.C. would facilitate subsidiarity by merging federalism and localism.
Jeffrey A. Fagan, et. al., Getting to Death: Race and the Paths of Capital Cases after Furman, 107 Cornell L. Rev. 1565 (2022).
Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman. Analyzing a dataset of 2,328 first-degree murder convictions in Georgia from 1995–2004 that produced 1,317 death eligible cases, we show that two features of these cases combine to produce a small group of persons facing execution: victim race and gender, and a set of case-specific features that are often correlated with race. We also show that these features explain which cases progress from the initial stages of charging to a death sentence, and which are removed from death eligibility at each stage through plea negotiations. Consistent with decades of death penalty research, we also show the special focus of prosecution on cases where Black defendants murder white victims. The evidence in the Georgia records suggests a regime marred less by overbreadth in its statute than capriciousness and randomness in the decision to seek death and to seek it in a racially disparate manner. These two dimensions of capital case adjudication combine to sustain the twin failures that produce the fatal lottery that is the death penalty.
Merritt B. Fox & Joshua Mitts, Event-Driven Suits and the Rethinking of Securities Litigation, 78 Bus. Law. 1 (2023).
Event-driven securities suits—ones that arise after an issuer has experienced some kind of disaster—have become increasingly prevalent in recent years. These suits are based on the fraud on-the-market doctrine, a doctrine that ultimately gives rise to the bulk of the damages paid out in settlements and judgments pursuant to private litigation under the U.S. securities laws. The theory behind fraud-on-the-market cases is that when an issuer’s share price has been inflated by a Rule-10b-5-violating misstatement, investors who purchased shares at the inflated price have suffered a compensable injury if they still hold the shares after the inflation is gone. Although these event-driven suits differ in important ways from their more traditional cousins based on the same doctrine, they constitute a kind of stress test for the overall doctrine. The growth of event-driven cases thus provides a unique opportunity to reconceptualize the overall system of adjudicating fraud-on-the-market suits more generally. In this article, we identify the basic logic behind this cause of action and consider what that logic implies as to when liability should and should not be imposed from a social welfare perspective. The result suggests ways we can both solve the challenges posed by event-driven litigation and improve fraud-on-the-market jurisprudence more generally. In an event-driven case, the plaintiff points to a pre-disaster statement that allegedly underplayed the likelihood that the disaster would occur and argues that the disaster announcement was the corrective disclosure. But in these cases, the price drop on the day of the disaster announcement is almost never a reasonable measure of the misstatement’s share price inflation. By focusing on the price drop at the time of a corrective disclosure, as courts generally do in fraud-on-the-market suits, they have lost track of the real issue: whether the misstatement inflated the share price by a meaningful amount in the first place. More often, the answer to that question is better indicated by the price change back at the time of the misstatement. For all fraud-on-the-market suits where the plaintiff can establish a misstatement made with scienter, we argue that liability should be imposed where the misstatement’s price impact appears to be at least as great as an inflation threshold chosen to trade off the costs and benefits of adjudicating securities class actions. Liability should not be imposed where both the misstatement’s price impact appears to be smaller than this inflation threshold, and the market would not have drawn negative inferences had the issuer stayed silent instead of making the misstatement. Where the misstatement’s price impact is less than the inflation threshold, but the market would have drawn negative inferences from issuer silence, liability should be imposed if and only if both the corrective disclosure’s price impact is a reliable proxy for how much the misstatement inflated the share price, and this impact appears to be at least as great as the inflation threshold.
Michael B. Gerrard, et. al., eds., Global Climate Change and U.S. Law, 3rd Edition (American Bar Association, 2023).
This book is a comprehensive treatise on the U.S. laws that are relevant to climate change. It covers federal, state, and local statutes and regulations, as well as international agreements. Their evolution is traced and their current impact on U.S. citizens and companies is analyzed. Key issues such as climate justice, the energy transition, carbon dioxide removal, adaptation to climate impacts, and human rights litigation receive detailed treatment. The book is up to date with coverage of such recent developments as the Inflation Reduction Act and the Supreme Court's decision in West Virginia v. EPA.
Michael B. Gerrard, Waste and Chemical Management in a 4°C World, 53 Envtl. L. Rep. 10114 (2023).
Many chemicals and hazardous substances are kept in places that can withstand ordinary rain, but not severe storms or floods. If these events occur and the chemicals are released, people and the environment may be endangered. This article discusses the hazards posed to chemical and waste disposal facilities by extreme weather events that would be worsened as a result of climate change, and how U.S. laws do (or do not) deal with these hazards; and considers how the law would need to change to cope with what would happen to these facilities in a potentially 4°C world. It is adapted from a new book by the Environmental Law Collaborative (Katrina Kuh & Shannon Roesler eds., ELI Press forthcoming 2023).
Jane C. Ginsburg, “Authors’ Remuneration: Reforms To Wish For,” in Reforming Intellectual Property (Ghidini & Falce, eds., Edward Elgar Publishing, 2022).
This Chapter analyzes Articles 18–22 of the 2019 European Union’s Digital Single Market Directive on authors’ remuneration, pointing out in Part I some ambiguities in the text and proposing their author-friendly resolution in member State transposition texts. Whatever the protections domestic laws afford, however, one must not neglect the impact of rules of private international law, lest the stronger party manipulate the contract’s points of attachment effectively to deprive the author of those protections. In Part II, this chapter therefore addresses private international law approaches that will preserve domestic advantages for authors.
Jane C. Ginsburg, Fifty Years of U.S. Copyright: Toward a Law of Authors' Rights?, 50(4) AIPLA Q. J. (2023).
In honor of the 50th Anniversary of the American Intellectual Property Law Association Quarterly Journal, this article explores developments in U.S. copyright law within that timeline. Fifty years would take us to 1972, but the signal event in U.S. copyright law during that period is the 1976 Copyright Act, which took effect in 1978. I will examine how that law marks a watershed in U.S. copyright, shifting us toward a law of authors’ rights more consonant with the international standards of the Berne Convention on the Protection of Literary and Artistic Property. That said, U.S. copyright law and international norms still maintain an asymptotic relationship: U.S. law might approach a goal of authorial primacy, but its lack of moral rights and the persistence of vesting employers and certain commissioning parties with authorship status under the “works made for hire” doctrine ensure that the two lines of authority will never converge. At a more fundamental level, however, authors and authorship underpin the 1976 Act to a greater extent than its predecessors, starting with the statutory setting of creation as the point of attachment of federal copyright protection (rather than publication with proper notice of copyright). This article will consider the respects in which the 1976 Act and its implementation, through to the recent interpretations of the Act to exclude non-human authorship, center copyright on creators. Part I addresses the relationship between creativity and formalities; Part II reviews copyright ownership; Part III examines the scope of protection of authors’ economic and moral rights; and Part IV addresses secondary authorship and the fair use defense. I conclude with some reflections on “authorless works” and why they cannot sustain copyrights under the 1976 Act.
Joshua Gupta-Kagan, et. al., eds., Child Welfare Law and Practice: Representing Children, Parents, and Agencies in Child Neglect, Abuse, and Dependency Cases, 4th edition (National Association of Counsel for Children, 2023).
Child Welfare Law and Practice—commonly known as the Red Book—is a hornbook and practice guide for attorneys working in the family regulation/child protection legal system.
Joshua Gupta-Kagan, Creating a Strong Legal Preference for Kinship Care, 1(4) Fam. Integrity & Just. Q. 18 (2022).
This article describes how, contrary to positive rhetoric about kinship care and research demonstrating its value, the law governing placements of children removed by the state from their parents does not actually have a strong preference for kinship placement. This article describes the harm from this legal failure—fewer children placed with kin than ought to occur, and inconsistency across jurisdictions in the rate of children placed with kin—and calls for state legislatures and Congress to establish meaningful legal preferences for kinship placements.
Michael Heller & Hanoch Dagan, Can Contract Emancipate? Contract Theory and The Law of Work, 23 Theoretical Inq. L. 49 (2023).
Contract and employment law have grown apart. Long ago, each side gave up on the other. In this article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way.
Madhav Khosla & Mark Tushnet, Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry, 70 Am. J. Comp. L. 95 (2022).
Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine—and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power.
James S. Liebman, et. al., Family Moves and the Future of Public Education, 53 Colum. Hum. Rts. L. Rev. (2023).
State laws compel school-aged children to attend school while fully funding only public schools. Especially following the COVID-19 pandemic, this arrangement is under attack—from some as unconstitutionally coercing families to expose their children to non-neutral values to which they object, from others for ignoring the developmental needs of students, especially of color and in poverty. This article argues that, fully subsidized public education is constitutional as long as public schools fulfill their mission to model and commit people to liberal democratic values of tolerance and respect for all persons as equal choosers. To be sure, those values are not neutral. But as Brown v. Board famously concluded, their promotion in public schools is perhaps the nation’s and states’ single most compelling interest, because it is essential to the ability of people with diverse beliefs to live together harmoniously while preserving their vast freedoms in other respects. To keep public education from qualifying those freedoms any more than necessary, states give families a right to opt for private education, but at their own expense. This arrangement serves the compelling interest in public education only, however, if public schools—bolstered by compulsory education laws and their uniquely full public subsidization—attract enough families. For well over a century ago, public schools have attracted around 90 percent of all children. Today, however, family moves away from public education are eroding its ability to attract children due principally to public education’s conflation of “public” with bureaucratically “uniform” education—precluding pedagogically, democratically, and equitably essential differentiation among students. The article concludes with ways public schools can better model liberal democratic values by engaging all families in the cooperative and differentiated direction of their children’s learning.
Justin McCrary, et. al., Valid t-Ratio Inference for IV, 112 Am. Econ. Rev. 3260 (2022).
In the single-IV model, researchers commonly rely on t-ratio-based inference, even though the literature has quantified its potentially severe large-sample distortions. Building on Stock and Yogo (2005), we introduce the tF critical value function, leading to a standard error adjustment that is a smooth function of the first-stage F-statistic. For one-quarter of specifications in 61 AER papers, corrected standard errors are at least 49 and 136 percent larger than conventional 2SLS standard errors at the 5 percent and 1 percent significance levels, respectively. tF confidence intervals have shorter expected length than those of Anderson and Rubin (1949), whenever both are bounded.
Lev Menand, The Logic and Limits of the Federal Reserve Act, 40 Yale J. on Reg. 197 (2023).
The Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars of mortgage-backed securities, and opened numerous ad hoc lending facilities to support ordinary businesses, nonprofits, and municipalities. This article identifies the causes and consequences of the Federal Reserve’s expanded footprint by recovering the logic and limits of its enabling act. It begins by unpacking the statutory scheme for money and banking. Congress chartered investor-owned banks to issue most of the money supply and established the Federal Reserve for a limited purpose: to administer the banking system. Congress equipped the Federal Reserve with an interrelated set of tools to achieve a specific objective: ensure that the banking system creates enough money to keep economic resources productively employed nationwide. The rise of shadow banks—firms that issue alternative forms of money without a bank charter—has impaired the Federal Reserve’s tools. As the Federal Reserve has scrambled to adapt, it has taken on tasks it was not built to handle. This evolution has prompted calls for the Federal Reserve to tackle even more policy challenges. It has also undermined the Federal Reserve’s ability to effectively achieve its core goals. An overloaded Federal Reserve is understandable, but not desirable. Congress should modernize the Federal Reserve Act, and the banking laws on which it depends, to improve monetary administration in the United States.
Lev Menand, et. al., Networks, Platforms, and Utilities: Law and Policy (2022).
Networks, Platforms, and Utilities: Law and Policy studies the law that governs networks, platforms, and utilities (NPUs), which we also call infrastructure industries. “No task more profoundly tests the capacity of our government,” wrote Felix Frankfurter, “than . . . securing for society those essential services which are furnished by” these industries. The first edition covers the postal system, telecommunications, broadband internet, railroads, airlines, electricity, fossil fuel pipelines, money, computer operating systems, online marketplaces, and internet search. The second edition, to be published in the summer of 2024, will add chapters on mass communications, maritime shipping, motor carriers, payment systems, financial market infrastructure, social media, cloud computing, local utilities, and property systems. The book is organized vertically. After foundational chapters on key concepts, the legal framework, administration, and the relationship between regulation and antitrust, subsequent chapters examine one sector at a time. We begin with communications systems, and then cover transportation and energy. Money and finance follow, with technology platforms rounding out the book. The sectoral approach is designed to allow readers to explore the underlying dynamics of each industry, the specific problems that emerged in it over time, and how legislators, regulators, and judges have addressed them. For each NPU vertical, readers can examine its legal past, explore its present problems, and imagine its possible futures. In the process, the book offers something like a liberal arts education in the structural foundations of American capitalism.
Charles F. Sabel, et. al., Transforming the Welfare State, One Case at a Time: How Utrecht Makes Customized Social Care Work, Pol. & Soc'y (2023).
Advanced welfare states are under pressure to customize services, promptly enough to prevent a cascade of harms. With these goals, the Netherlands in 2015 decentralized social care services to municipalities, and within municipalities to neighborhood teams in continuing contact with clients. The overall results have been disappointing. But the experience of Utrecht, the Netherlands’ fourth-largest city, has been strikingly different. By using hard-to-resolve cases to signal conflicts in rules, obstructive jurisdictional boundaries, and the shortcomings of private service providers, Utrecht is learning to customize and speed delivery of social care through incremental steps. This article explains how Utrecht's success addresses apparently intractable limits to the adaptability of the rule-bound welfare state, such as the problem of low-level discretion or street-level bureaucracy and the division of services into silos, in the process bridging, and perhaps effacing, the gap between the Habermasian life world and the system world of formal rules.
Carol Sanger, The Rise and Fall of a Reproductive Right: Dobbs v. Jackson Women’s Health Organization, 56 Fam. L.Q. 117 (2022-23).
Although the phrase “Post-Roe Era” is still used by those who want to underscore the loss wrought last June by Dobbs v. Jackson Women’s Health Organization, it is only a matter of time before the present state of reproductive constitutionalism solidifies into the more authoritarian “Dobbs Era.” In these early days of transition, states are still figuring out what they want the legal status of abortion to be, ever since Dobbs overruled both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus tossing the issue of abortion’s legality back to the states for resolution. In Justice Alito’s words, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
So, should what was formerly regarded as a legal medical procedure remain so? Should it be legal and funded? Or should legal abortion migrate from a state’s health regulations to the criminal code and be illegal? Or illegal with exceptions? Or illegal with extraterritorial reach? And who should bear the burden of the illegality? Pregnant women, their physicians, and anyone who aids or assists them?
Thomas P. Schmidt, Courts in Conversation, 2022 Mich. St. L. Rev. 411 (2022).
This essay, written for a symposium on Akhil Reed Amar’s The Words That Made Us, explores how the judiciary transformed from a barely audible to a vociferous participant in America’s constitutional conversation in the period covered by Amar’s book. The emergence of written constitutions with special democratic authority offered a judicially tractable source of limits on government power. Then, after the Federal Constitution went into effect, the early Supreme Court Justices made a set of critical institutional choices that both strengthened the judicial voice and made it distinct from the other branches: They separated themselves from the President and his cabinet, suppressed overt partisanship, and started to speak through unified and elaborately reasoned “opinions of the Court” that were disseminated in official reports. These changes, I argue, remain the backbone of the Court’s institutional identity, and enabled the Court to achieve the preeminence it now enjoys in our constitutional conversation.
Colleen F. Shanahan, et. al., The Democratic (Il)legitimacy of Assembly-Line Litigation, 135 Harv. L. Rev. 359 (2022).
We take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to analysis of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, gender, and class dynamics of civil courts, which play an outsized role in state civil justice dysfunction and have normative implications for institutional design solutions. In addition, we name pervasive fraud on the part of assembly-line plaintiffs as germane to the operation of civil courts. The clustering of corporate entities in state civil courts tells part of the story; the fraudulent conduct of plaintiffs in debt cases also plays a significant role in exacerbating poverty and inequity for marginalized groups in civil courts. Part II positions Wilf-Townsend’s proposal to restructure debt proceedings into agency-style adjudication as a form of problem-solving courts, which have an established history in the U.S. justice system. We place his proposal within the larger literature on active judging and suggest that this sets forth a first step toward reimagining state civil courts. Part III draws on an invest/divest framework to set forth a broader and more aspirational vision of reform. We propose that bold reform would focus on reestablishing the democratic legitimacy of state civil courts by increasing social provision to defendants economically ravished by assembly-line litigation and also by keeping courts squarely in the business of resolving two-party adversarial disputes.
Colleen F. Shanahan, et. al., The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471 (2022).
State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts that are in tension. First, state civil courts can function as violent actors. Second, they have become unseen, collective policymakers in our democracy. This mismatch and the roles that result should spur us to reimagine state civil courts as institutions. Such institutional change requires broad mobilization toward meeting people’s social needs across the branches of government and thus rightsizing state civil courts’ democratic role.
Eric Talley, et. al., Contractual Evolution, 89 U. Chi. L. Rev. 901 (2022).
Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each of these factors contributes to the underlying evolutionary process, and their relative prominence bears directly on the speed, direction, and desirability of how contractual innovations diffuse. Using a formal model of bargaining in a sequence of similar transactions, we demonstrate how different evolutionary patterns can manifest over time, in both desirable and undesirable directions. We then take these insights to real-world dataset of over 2,000 merger agreements negotiated over the last two decades, tracking the adoption of several contractual clauses, including pandemic-related terms, #MeToo provisions, CFIUS conditions, and reverse termination fees. Our analysis suggests that there is not a “one size fits all” paradigm for contractual evolution; rather, the constituent forces affecting term evolution appear manifest in varying strengths across differing circumstances. We highlight several constructive applications of our framework, including the study of contract negotiation unfolds when price cannot easily be adjusted, and how to incorporate other forms of cognitive and behavioral biases into our general framework.
Eric Talley & Ann M. Lipton, Twitter v. Musk: The "Trial of the Century" That Wasn't, 40(4) Del. Law. 8 (2022).
The months-long saga over Elon Musk's on-again, off-again acquisition of Twitter provided considerable entertainment for lawyers and laypeople alike. But for those of us who teach business law, it also provided a unique (and in certain ways, vexing) opportunity to show real-time examples of the legal principles that are the grist for courses in contracts, corporations, corporate finance, and mergers and acquisitions. Both of us found ourselves incorporating the saga into our classroom discussions, which in turn informed our own thinking about how the dynamic played out. Although we were both relatively active on social media (indeed on Twitter itself) as the saga unfolded, the final closing of the deal in late October has given us a chance to reflect on our own takeaways in hindsight.
Shyamkrishna Balganesh, Authoring the Law, 68 J. Copyright Soc’y of the U.S.A. 353 (2021).
Copyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme Court reaffirmed the continuing significance of the doctrine but refused to endorse the public policy justification commonly offered for its existence, preferring instead to root it in copyright’s principle of authorship. In so doing however, the Court refrained from explicating the connection between authorship and the government edicts doctrine, contributing to the doctrine’s mystery. This Article develops a theory of the government edicts doctrine that anchors it firmly to the principle of authorship. The authorship rationale for the government edicts doctrine is rooted in a “personalization mismatch”: whereas authorship in copyright law is predicated on the need to personalize a work by identifying the human actor that created it, a commitment to the rule of law necessitates that lawmaking and legal directives be impersonal and derive their authority not from an identified individual. It is this basic mismatch which explains the government edicts doctrine and its principled roots in copyright law rather than broader considerations of public policy. The Article traces the competing (and confusing) normative ideas that have influenced the evolution of the doctrine, develops the analytical basis of its connection to authorship, and shows how this connection enables the doctrine to be extended and applied to new forms and modes of law and lawmaking.
Shyamkrishna Balganesh, The Institutionalist Turn in Copyright, 2021 Sup. Ct. Rev. 417 (2022).
Beginning with its 2002 decision in Eldred v. Ashcroft and thereafter continuing in the Roberts Court through its most recent decision in Google v. Oracle, the U.S. Supreme Court has embarked on an approach to copyright law best characterized as its “institutionalist turn”. The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system. The Court’s institutionalism in copyright is seen to cluster around three analytically interrelated themes: (i) the Court’s role as faithful agent interpreting Congress’s directives as contained in the complex Copyright Act of 1976, (ii) the nature of legislative-judicial interaction and deference in the domain of copyright lawmaking, and (iii) the continuity—or lack thereof—between copyright’s adjudicative mechanisms and other legal areas. This Article analyzes the origins and entrenchment of the Court’s institutionalism in its copyright jurisprudence and argues that while it may have allowed the Court to steer clear of divisive copyright issues in order to preserve its own legitimacy, it has at the same time made the Court an outsider to the modern copyright system and hurt the development of copyright doctrine and policy.
George Bermann, “The Contribution of International Commercial Arbitration to Investment Arbitration,” in International Investment Law: An Analysis of the Major Decisions (Ruiz Fabri & Stoppioni, eds., Hart Publishing, 2022).
International commercial arbitration is an old and venerable form of international dispute resolution for commercial disputes arising out of contract. Much more recently there has grown up an entirely new species of international arbitration, known as investor-State arbitration, for disputes arising out of bilateral international treaties for the mutual protection of investors and investments. This chapter examines the extent to which the practices of international commercial arbitration are apt for the resolution of treaty-based international investment disputes and the extent to which they are not.
George Bermann, “Procedures for the Enforcement of New York Convention Awards,” in Autonomous versus Domestic Concepts under the New York Convention (Ferrari & Rosenfeld, eds., Kluwer Law International, 2021).
The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards imposes an obligation on the courts of contracting States to recognize and enforce awards, but leaves the modes for doing so entirely to national law, opening up the door to considerable divergences. This study identifies the procedural and enforcement issues that are left to national law and the scale of the resulting divergences.
Anu Bradford, “International Bureaucracies: Extraterritorial Reach of the European Commission’s Legal Expertise,” in Law, Legal Expertise and EU Policy-Making (Korkea-aho & Leino-Sandberg, eds., Cambridge University Press, 2022).
The EU exercises significant influence over global regulatory standards, whether as a result of its ability to unilaterally export its rules to foreign markets via market mechanisms–a phenomenon that I have elsewhere described as ‘the Brussels Effect’–or by entrenching them globally through bilateral or multilateral negotiations. In all cases, the legal expertise of the Commission is central. It either pro-actively supplies its expertise to their foreign counterparts or responds to the demand to offer technical expertise to create a rule-based order that closely imitates the regulatory state in Europe. Companies also resort to the Commission as their preferred forum, relying on the legal expertise residing in Europe to resolve disputes originating far outside the borders of the EU. This contribution discusses the channels through which the EU’s legal expertise migrates to foreign markets, the political forces behind this migration, as well as the economic, political, and legal implications that the extraterritorial reach of EU’s legal expertise has. It shows how current crises both in the EU internal and external dimension have opened up new spaces for legal expertise to operate.
Mala Chatterjee, Intellectual Property, Independent Creation, and the Lockean Commons, 12 U.C. Irvine L. Rev. 747 (2022).
Copyrights and patents are differently-structured intellectual property rights in different kinds of entities. Nonetheless, they are widely regarded by U.S. scholars as having the same theoretical underpinnings. Though scholars have sought to connect philosophical theories of property to intellectual property, with a particular interest in the labor theory of John Locke, these explorations have not sufficiently probed copyrights’ and patents’ doctrinal differences or their philosophical implications for the theories explored. This Article argues that a defining difference between copyrights and patents has normative significance for the framework of Lockean property theory: namely, that copyright law treats independent creation as a complete defense to claims of infringement while patent law does not. This distinction entails that the two legal systems differ in their effects on the “intellectual commons”, or what exactly they give to rights-holders and take away from the rest of the world. It also entails that Seana Shiffrin’s seminal challenge to Lockean theories of intellectual property—arguably the most significant philosophical exploration of intellectual property so far, but which fails to distinguish between these two areas of law—is a success as to patents but not as to copyrights. Disentangling this and other distinctions in copyrights and patents within the Lockean framework, as well as between tangible and intellectual property generally, this Article outlines a number of possible implications for intellectual property doctrine. Specifically, it identifies revisionary implications for copyright required by the Lockean framework in order to better protect the intellectual commons, as well as for the copyright/patent division of labor if the two legal systems have distinct theoretical grounds. The Article thereby uses the Lockean framework to call attention to intellectual property’s underexplored philosophical complexity, as well as its doctrinal stakes, so that we begin considering it more carefully than it has yet been.
Lori Damrosch, Peaceful Resolution of Disputes (Brill Nijhoff, 2022).
The contributions in this collection of the American Classics in International Law series, Peaceful Resolution of Disputes, edited by Lori Fisler Damrosch, present the most influential American ideas about dispute settlement. From Alexander Hamilton's 1794 defense of arbitration, through 20th-century debates over the International Court of Justice and other international courts and tribunals, to contemporary controversies over law-of-the-sea dispute settlement, American leaders and scholars have promoted perspectives on dispute resolution shaped by the American experience. An introductory essay by the editor explores American ideas about dispute resolution in relation to war, the judicial role in resolving concrete controversies under law, and problems of institutional design.
Michael Doyle, et. al., Principles for Responsibility Sharing: Proximity, Culpability, Moral Accountability, and Capability, 110 Cal. L. Rev. 935 (2022).
Responsibility sharing was a central commitment in the 2016 New York Declaration for Refugees and Migrants. It was also a key commitment in the preamble to the landmark 1951 Refugee Convention, in which countries of first asylum were promised “international cooperation” in return for providing refuge—though the Convention did not specify what this cooperation encompassed. In this article, we explore how responsibility based on culpability, moral accountability, and capability can improve the current regime that rests on responsibility by proximity. In doing so, we draw on the 2017 Model International Mobility Convention (MIMC), a model convention drafted by a commission of independent experts and currently supported as a project of the Carnegie Council for Ethics in International Affairs.
Elizabeth Emens, Law’s Contribution to the Mindfulness Revolution, 2022 Utah L. Rev. 573 (2022).
These are phenomenally challenging times. Mindfulness is a tool that can help lawyers support themselves, each other, their clients, and their collaborators in the hard work needed to build community and take action. For these and other reasons, mindfulness has made major inroads into law and legal institutions. Law firms, law schools, and courthouses offer training in mindfulness meditation to support the cognitive clarity and emotional self-regulation necessary for the demanding work of analyzing problems, resolving conflicts, overcoming bias, and doing justice. A growing literature, from empirical social science to legal scholarship, catalogs these and other benefits of mindfulness for lawyers, judges, and law students.
The encounter between law and mindfulness has been framed, to date, as one that benefits legal actors. What has been overlooked is the way that law can benefit mindfulness. This Article argues that the developing relationship between law and mindfulness has the potential to address significant problems facing mindfulness in legal and other institutional settings.
Two major dilemmas threaten to undermine the institutional impact of mindfulness. The first dilemma (termed here the minimizing dilemma) presents this challenge: Is mindfulness so individualistic, passive, and nonjudgmental as to be irrelevant (or worse) to the tremendous injustice and other problems plaguing our society? The second dilemma (termed here the magnifying dilemma or the mandatory mindfulness problem) cuts the other way: Is the introduction of mindfulness into mainstream U.S. institutions, such as law schools and law firms, so powerful and intrusive as to be forcing people to meditate? This Article uses insights from law practice, legal pedagogy, and contract default-rule theory and research to respond to these dilemmas. Such contributions—from law to mindfulness—demonstrate that the synergies between these two seemingly disparate fields redound to the benefit of both. Recognizing the mutual benefits of this relationship helps us anticipate how law and mindfulness can both expect to grow stronger through the increasing incorporation of mindfulness programs into legal institutions.
Elizabeth Emens, Mindful Debiasing: Meditation as a Tool to Address Disability Discrimination, 53 U. Conn. L. Rev. 835 (2022).
Antidiscrimination law is at a critical juncture. The law prohibits formal and explicit systems of exclusion, but much bias nonetheless persists. New tools are needed. This Article argues that mindfulness meditation may be a powerful strategy in the battle against disability discrimination. This Article sets out eight reasons that disability bias is particularly intractable. The Article then draws on empirical, philosophical, and scholarly sources to identify mechanisms through which mindfulness meditation can address these dynamics. The Article concludes by presenting concrete doctrinal implications of bringing mindfulness to bear on disability discrimination. This Article thus contributes to the established fields of antidiscrimination law in general and disability law in particular, as well as the emerging domain of mindfulness and law.
Merritt Fox, et. al., Spoofing and Its Regulation, 2021 Colum. Bus. L. Rev. 1244 (2021).
Nearly a century after the United States enacted its first securities laws, urgent questions remain as to the scope of manipulation law: whether manipulation is possible in principle, and if so, how the law should respond in practice. Sharp disagreement among courts, economists, and legal scholars as to whether trading or quoting activity constitutes illegal manipulation has led to a legal framework that lacks precision and cogency. Moreover, the poorly articulated normative basis for court rulings has resulted in enforcement that is both under-inclusive and over-inclusive in ways that do a poor job of discouraging socially harmful transactions and enabling socially beneficial ones.
This Article seeks to clarify this confusion. Drawing on microstructure and financial economics, this Article offers a new understanding of a common kind of quote-driven manipulation, often referred to as “spoofing.” By employing an analytical and normative framework developed previously by two of the authors in assessing another major form of manipulation, trade-driven manipulation, this Article assesses the impact of spoofing on what occurs in the securities markets and carefully evaluates its effects on social welfare and economic efficiency. The result is a new understanding of quote-based manipulation that helps resolve essential questions in manipulation law and provides guidance for future regulation and enforcement.
Kellen Funk, Equity’s Federalism, 97 Notre Dame L. Rev. 2057 (2022).
The United States has had a dual court system since its founding. One might expect such a pronouncement to refer to the division between state and federal courts, but in the early republic the equally obvious referent would have been to the division between courts of common law and the court of chancery—the distinction, that is, between law and equity. This Essay sketches a history of how the distinction between law and equity was gradually transformed into a doctrine of federalism by the Supreme Court. Congress’s earliest legislation jealously guarded federal equity against fusion with common law at either the state or federal levels. The antebellum Supreme Court obligingly adopted a strongly anti-fusion stance and took pains to protect federal equity from experimental state-level reforms. In the midst of Reconstruction, Congress reconfigured the ways federal equity would intermix with state law and legal process. But in the twentieth century, Supreme Court doctrine set aside the well-documented legislative history of Reconstruction statutes in favor of a mythic retelling of the 1790s that reduced equity to a principle of federalism. This judicially invented historical narrative has led to a peculiar asymmetry in practice today, where it has become surprisingly easy for federal courts to equitably restrain the other federal branches but significantly difficult for them to redress even extreme violations of federal rights at the state and local level.
Michael Gerrard, Who Decides Where the Renewables Should Go? A Response to Danielle Stokes' Renewable Energy Federalism, 106 Minn. L. Rev. Headnotes 400 (2022).
One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition—delays in state and local permitting of renewable energy facilities. She has proposed a new approach that would give more authority to the federal government. Stokes’ approach has much to commend it. However, I differ on some aspects. I begin by describing the magnitude of the problem—the amount of new renewable capacity that is needed for the United States to meet its climate objectives. Then I describe the current system (if it can be called that) for deciding what renewable facilities are built where, and how Stokes would change that system. I provide some historical perspective on how major projects have been sited, and the important role of private developers in energy generation projects. Finally, I offer my views on which parts of Stokes’ proposal I would follow and which I would modify or discard.
Ronald J. Gilson, Corporate Governance versus Real Governance, 34 Journal of Applied Corporate Finance 8 (2022).
The rough coincidence of the 50th anniversary of Milton Friedman’s Sunday New York times Magazine article – “the Social Responsibility of Business is to Increase Profit” – and a movement advocating that corporations should have a broader purpose than maximizing shareholder value headlined by the British Academy’s project on the Future of the Corporation and especially the corporation’s obligation to other stakeholders, raises questions concerning to whom the corporation is accountable and for what. This essay broadly distinguishes different governance structures that oversee the corporation’s allocation and distributive decisions: on the one hand, how it goes about creating value; and on the other, whether it chooses to allocate the value created in a fashion different than would result from the factor markets through which stakeholders provide their contributions. This distinction roughly highlights the difference between corporate governance, which serves to allocate accountability for the profitability of the corporation’s business to the market, and real governance, which allocates accountability for distributive decisions ultimately to elected officials
Purpose driven governance amounts to [RJG11] a call for a shift back to a system of management and corporate governance that Alfred Chandler, in his iconic history of the development of the structure of large U.S corporations, labeled “managerial capitalism.” Such a solution, as Chandler’s chronicles would seem to be warning us[RJG12] , are likely to leave us confronting the same problem with which his managerial capitalism left us: the replacement of the invisible hand of markets with the visible hand of a management hierarchy. And this in turn frames the hard question: what systems hold Chandler’s management hierarchy accountable for its performance? In this article, I’ll argue that corporate governance and markets hold management accountable for value creation, and real governance, and ultimately the electorate, are responsible for redistributive decisions that override to whom factor markets allocate the value created.
Ronald J. Gilson & Curtis J. Milhaupt, Shifting Influences on Corporate Governance: Capital Market Completeness and Policy Channeling, 12 Harvard Business Law Review 1 (Winter 2022).
Corporate governance scholarship is typically portrayed as driven by single factor models, for example, shareholder value maximization, director primacy or team production. These governance models are Copernican; one factor is or should be the center of the corporate governance solar system. In this essay, we argue that, as with binary stars, the shape of the governance system is at any time the result of the interaction of two central influences, which we refer to as capital market completeness and policy channeling. In contrast to single factor models, which reflect a stable normative statement of what should drive corporate governance, in our account the relation between these two governance influences is dynamic.
Motivated by Albert Hirschman’s Shifting Involvements, we posit that all corporate governance systems undergo repeated shifts in the relative weights of the two influences on the system. Capital market completeness determines the corporate ownership structure and privileges shareholder governance and value maximization by increasing the capacity to slice risk, return, and control into different equity instruments. The capability to specify shareholder control rights makes the capital market more complete, tailoring the character of influence associated with holding particular equity securities and its reciprocal, the exposure of management to capital market oversight. Policy channeling, the instrumental use of the corporation for distributional or social ends, pushes the corporate governance gravitational center toward purposes other than maximizing shareholder value.
We show that this pattern is not limited to a particular country, and illustrate our argument by tracing the cyclical reframing of Berle and Means’ thesis in the U.S., Japan’s sluggish shift from policy channeling in its postwar heyday toward capital market completeness under the Abenomics reforms, and the distinctive case of China, where capital market completeness has itself been used as a policy channeling instrument under the pervasive influence of the Chinese Communist Party, creating the world’s most stakeholder-oriented system of corporate governance. The consistency of the pattern of shifting influences across countries with very different business and corporate systems, and across different periods of time, provides support for the dynamic pattern we describe.
We close by examining the means through which the current shift toward policy channeling in U.S. and U.K. corporate governance is taking place – the “stewardship” movement and the debate over “corporate purpose.” We view both as a reaction to the reduced managerial discretion caused by the reconcentration of ownership in the hands of institutional investors, and analyze factors suggesting that this reform movement, like others before it, is likely destined to result in a disappointment-driven movement in the opposite direction, what we label a shifting influence.
Jane C. Ginsburg, “Floors and Ceilings in International Copyright Treaties (Berne/TRIPS/WCT minima and maxima),” in Intellectual Property Ordering beyond Borders (Henning Grosse Ruse-Khan & Axel Metzger, eds., Cambridge University Press, 2022).
This Comment addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.
Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS and WCT exclusion of protection for ideas, methods and processes, should promote the free cross-border availability of facts and ideas, as well as of exercise of the Berne Convention mandatory exception for the making of “quotations” from publicly-disclosed works. Individual Berne countries of origin may protect excluded subject matter or preclude mandatory exceptions in their own works of authorship, but not in foreign Berne works. Nonetheless, member States might be able to elude Conventional maxima by resorting to copyright-adjacent sui generis rights, such as the Digital Single Market Directive’s new press publisher’s right. This Comment considers the extent to which Conventional maxima may nonetheless have a preclusive effect on such maneuvers.
Jane C. Ginsburg & Sam Ricketson, International Copyright and Neighboring Rights: The Berne Convention and Beyond (Oxford University Press, 2022).
This is a treatise on international copyright and neighboring rights law. Now in its 3d edition, many consider it the leading authority on the Berne Convention for the protection of literary and artistic works.
Zohar Goshen & Doron Levit, Agents of Inequality: Common Ownership And The Decline Of The American Worker, 72 Duke L. J. 1 (2022).
The last forty years have seen two major economic trends: wages have stalled despite rising productivity, and institutional investors have replaced retail shareholders as the predominant owners of the U.S. equity markets. A few powerful institutional investors—dubbed common owners—now hold large stakes in most U.S. corporations. And in no coincidence, when U.S. workers acquired this new set of bosses, their wages stopped growing while shareholder returns increased. This Article explains how common owners shift wealth from labor to capital, thereby exacerbating income inequality.
Powerful institutional investors pushing public corporations en masse to adopt strong corporate governance has an inherent, painful tradeoff. While strong governance can improve corporate efficiency by reducing management agency costs, it can also reduce social welfare by limiting investment and thus hiring. Common owners act as a wage cartel, pushing labor prices below their competitive level. Importantly, common owners transfer wealth from workers to shareholders not by actively pursuing anticompetitive measures but rather by allocating more control to shareholders—control that can then be exercised by other shareholders, such as hostile raiders and activist hedge funds. If policymakers wish to restore the equilibrium that existed before common ownership dominated the market, they should break up institutional investors by limiting their size.
Zohar Goshen & Reilly Steel, Barbarians Inside the Gates: Raiders, Activists, and the Risk of Mistargeting, 132 Yale L. J. 411 (2022).
This Article argues that the conventional wisdom about corporate raiders and activist hedge funds—raiders break things and activists fix them—is wrong. Because activists have a higher risk of mistargeting—mistakenly shaking things up at firms that only appear to be underperforming—they are much more likely than raiders to destroy value and, ultimately, social wealth.
As corporate outsiders who challenge the incompetence or disloyalty of incumbent management, raiders and activists play similar roles in reducing “agency costs” at target firms. The difference between them comes down to a simple observation about their business models: raiders buy entire companies, while activists take minority stakes. This means that raiders are less likely to mistarget firms underperforming by only a slight margin, and they are less able to shift the costs of their mistakes onto other shareholders. The differences in incentives between raiders and activists only increase after acquiring their stake. Raiders have unrestricted access to nonpublic information after acquiring ownership of a target company, which allows them to look under the hood to determine whether changing the target’s business strategy is truly warranted. Activists, by contrast, have limited information and face structural conflicts of interest that impair their ability to evaluate objectively what’s best for the target company.
This insight has profound implications for corporate law and policy. Delaware and federal law alike have focused on keeping raiders outside the gates, but they ignore the real threat: activists that are already inside. This Article proposes reforms to both state and federal law that would equalize the regulation of raiders and activists.
Josh Gupta-Kagan, Confronting Indeterminacy and Bias in Child Protection Law, 33 Stan. L. & Pol'y Rev. 217 (2022).
The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions and regulate low-income families and families of color.
This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself. The law does not tether permissible interventions to specific types of maltreatment. Minor cases can lead to family separations and even terminations of parent-child relationships. Steps required for reunification can become unrelated to grounds for state intervention. States expend many resources to separate families after failing to spend similar amounts to preserve families.
A child protection reform legislative agenda has begun to emerge, but without comprehensively addressing the indeterminacy at the heart of the present legal structure. This Article argues a transformed system must include determinate substantive standards for various stages of child protection cases to limit the system’s scope and the potential for biased decision making. The law should define neglect and abuse with precision, both to limit unnecessary state intervention and set maximum levels of state intervention based on the specific maltreatment at issue. The law should require states to spend as much money on helping families stay together as they would on maintaining children in foster care. State action to terminate the legal relationship between parents and children should be limited to situations in which any form of parent-child relationship is harmful to the child.
Josh Gupta-Kagan, “Establishing New Permanent Family Relationships in United States and Nordic Child Protection Systems,” in Exploring Norms and Family Laws Across the Globe (Breger, ed., Rowman & Littlefield, 2022).
This chapter focuses on the comparative creation of new parent and parent-like relationships across U.S. and Nordic child protection systems when authorities determine that parents and children cannot reunify. Creating new families and permanently ending others can represent the most drastic and emotionally fraught elements of state intervention in families, and one would expect the historic differences between the two nations to impact this area. Indeed, U.S. systems continue to use terminations of parental rights and involuntary adoptions far more frequently than Nordic countries. But the overall legal trends, and potential future developments, are more complex. In the United States, terminations of parental rights remain common, but other forms of permanency, especially guardianship, have grown in usage. In Nordic nations, terminations and adoptions remain rare, but nations have begun to question the number of placement disruptions in long-term foster care. U.S. law may provide a model for Nordic nations’ increasing focus on permanency: U.S. law has developed a spectrum of permanency options, providing alternatives to terminations of parental rights. Nordic countries' historic focus on maintaining relationships between children in out-of-home care and their parents should lead to openness to permanency options that challenge the exclusivity of parenthood, such as guardianship, as well as post-adoption contact agreements. This option is evident in Sweden, which has no statutory mechanism for adoption but does provide for the equivalent of guardianship. The option is not prevalent in other Nordic countries – but developing it could provide an appropriate balance for their child protection systems’ historic commitment to respecting family bonds and newer focus on providing permanency.
Monica Hakimi & Ingrid “Wuerth” Brunk, Russia, Ukraine, and the Future World Order, 116 Am. J. Int'l L. 687 (2022).
Russia's invasion of Ukraine is among the most--if not the most--significant shocks to the global order since World War II. This Essay assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we all inhabit.
Bert Huang, A Court of Two Minds, 122 Colum. L. Rev. F. 90 (2022).
What do the Justices think they’re doing? They seem to act like appeals judges, who address questions of law as needed to reach a decision—and yet also like curators, who single out only certain questions as worthy of the Supreme Court’s attention. Most of the time, the Court’s “appellate mind” and its “curator mind” are aligned because the Justices choose to hear cases where a curated question of interest is also central to the outcome. But not always. In some cases, the Court discovers that it cannot reach—or no longer wishes to reach—the originally curated question. Looking at what the Justices say and do in such instances offers a revealing glimpse into the interplay between their appellate and curator roles. These cases illustrate how the norms of appellate judging can enhance, rather than constrain, the Court’s discretion in choosing which issues to address and which to avoid. Using this discretion, however, entails the risk of distorting legal doctrines beyond those curated for review.
Kathryn Judge, et. al., Credit, Crises, and Infrastructure: The Differing Fates of Large and Small Businesses, 102 B.U. L. Rev. 1353 (2022).
This Essay sheds new light on the importance of credit creation infrastructure in determining who actually receives government support during periods of distress, and who continues to benefit after the acute phase of a crisis and the government’s formal support programs come to an end. The pandemic revealed, and the government’s response accentuated, meaningful asymmetries in the capacities of small and large businesses to access needed funding. At first glance, it would seem that small businesses benefited more than large ones from the government’s pandemic-support programs, as more government funds flowed into small businesses. Yet closer inspection of the range of government programs implemented and their longer-term impact reveals a very different picture. By primarily providing grants to small businesses, the government helped address their short-term cash flow challenges but did little to encourage ongoing private credit creation for these businesses. The aid provided was real but finite in nature. By contrast, the nature of the programs used to facilitate financing for the largest businesses provided major support at the moment and created expectations of future support. These interventions enhanced the viability and attractiveness of inherently fragile intermediation structures and set them up to continue to provide cheap and easy financing for the largest businesses long after the acute phase of crisis had passed. This Essay further reveals how numerous seemingly neutral choices were anything but in practice, creating a disconnect between policymakers’ stated aims and the actual impact of many of their actions. A key takeaway is that the government should do more during times of peace to understand and shape the credit creation infrastructure in ways that facilitate small business lending in good times and bad.
Kathryn Judge, “Stress Testing during Times of War,” in Handbook of Financial Stress Testing (Farmer, Kleinnijenhuis, Schuermann, & Wetzer, eds., Cambridge University Press, 2022).
In the spring of 2009, the United States was mired in the greatest recession it had faced since the Great Depression. In March, the Dow Jones Industrial Average had fallen to 6,594.44, a total decline of 53.4 percent from its peak in the fall of 2007. The official unemployment rate was over 9 percent and still trending upward, eventually exceeding 10 percent. With the support of Congress, the Federal Reserve (the Fed) and other financial regulators had launched an array of initiatives to contain the fallout of what had become a global financial crisis. These interventions, including a massive recapitalization of US banks and the effective elimination of large, independent investment banks, had succeeded in stabilizing much of the financial system, but full functionality remained elusive. The crisis had revealed significant deficiencies in the banks’ risk management systems and the capacity of regulators to detect those weaknesses. Fear and distrust remained the order of the day.
Against this background, the Federal Reserve and other bank regulators took a gamble. On May 7, 2009, they publicly announced the results of the Supervisory Capital Assessment Program (SCAP). As then-chairman Ben Bernanke explained, “the SCAP marked the first time the US bank regulatory agencies had conducted a supervisory stress test simultaneously across the largest banking firms” (Bernake, 2013). The Fed further deviated from tradition in its decision to disclose the results of the SCAP. In providing an unprecedented level of detail regarding the methodology and inputs used in reaching those results, the Fed challenged the assumption that bank supervision should always be shrouded behind a thick veil of secrecy.Both gambles paid off. As Bernanke later observed: “The SCAP stands out . . . as one of the critical turning points in the financial crisis. It provided anxious investors with something they craved: credible information about prospective losses at banks” (Bernake, 2013). Most policymakers, academics, and industry participants share Bernanke’s positive assessment of the SCAP. Stress tests have now become a core part of the supervisory and regulatory toolkit and are one of the most important postcrisis regulatory innovations. The Dodd–Frank Act requires large banking organizations to undergo stress tests, and regulators on both sides of the Atlantic have come to see stress testing as a critical component of their ongoing efforts to prevent another financial crisis. These successes have been sufficiently great that other regulators, too, have embraced stress testing. There are even proposals for yet other ways that stress testing may be used to detect weaknesses in the financial system before they threaten the health or stability of that system. (See, for example, Chapters 28 and 30 in this handbook.) These are important developments, and broad-based, regular stress testing is appropriately here to stay. These postcrisis developments, however, have shifted attention away from the distinct value, and risks, of the SCAP as a crisis-time intervention. This chapter shifts the focus back to crisis-era stress testing and other modes of justin-time information production. Even with rigorous stress testing, the complexity and dynamism of the financial markets are such that regulators will always have incomplete information. These information gaps can prove particularly problematic during periods of distress. A lack of information can contribute to regulators’ tendency to be too slow to recognize problems, exacerbating the size of a crisis and the long-term macroeconomic effects. Information gaps can also impede crisis-containment efforts once a crisis takes hold.
Without accurate information about the size and location of capital and liquidity shortages, regulators often have little choice but to oversupply or mis-shoot in their efforts to combat dysfunction. This can exacerbate moral hazard and public outrage, as large sums of taxpayer money seem to flow to the very financial institutions that are perceived to be the cause of the crisis.
Madhav Khosla, Is a Science of Comparative Constitutionalism Possible?, 135 Harv. L. Rev. 2110 (2022).
A recent wave of writing has offered a powerful and distinct answer to how comparative constitutional studies should be undertaken. It has suggested that we should observe variations in behavior and offer generalizations in law-like terms across cultures. Within this body of scholarship, few contributions have been as ambitious and thought-provoking as Professors Adam Chilton and Mila Versteeg’s recent book How Constitutional Rights Matter. This Review Essay engages with certain studies and the broader conclusions advanced by Chilton and Versteeg, both in their book and in some of their other joint work, as well as other significant contributions that typify the positivist turn in comparative constitutionalism. In addressing questions of causation, interpretation, and agency, this Review Essay underscores the importance of context in making causal and interpretive claims and in regarding people as agents who have the power to shape their collective political life.
Madhav Khosla & Mark Tushnet, “Courts and Effective Governance,” in Constitutionalism and a Right to Effective Government? (Jackson & Dawood, eds., Cambridge University Press, 2022).
Governments are put in place to carry out policies. Effective governance means that they have the capacity to implement those policies. As Samuel Huntington observed, “[t]he most important political distinction among countries concerns not their form of government but their degree of government.” The capacity to govern includes having the required material resources, the personnel for whatever is necessary to deliver the policies to their beneficiaries, and a bureaucratic organization that enables high-level officials to implement policies? How does state capacity feature in constitutional adjudication? And how can courts contribute to effective governance? This chapter addresses these questions.
Petros Mavroidis, The Sources of WTO Law and Their Interpretation (Edward Elgar Publishing, 2022).
In this incisive book, Petros C. Mavroidis examines the complex practice of interpreting the various sources of World Trade Organization (WTO) law. Written by a leading expert in WTO scholarship, the book serves as a broad grounding in the legal theory of the WTO contract and its sources, as well as its application in practice.
Petros Mavroidis, The WTO Dispute Settlement System: How, Why and Where? (Edward Elgar Publishing, 2022).
This incisive book provides a comprehensive overview of the WTO dispute settlement practice from 1995 up until the present day, illustrating the need for it to be resurrected from its current state of crisis. The WTO Dispute Settlement System will prove an essential read for students and scholars of WTO law, as well as lawyers, political scientists and policy-oriented economists interested in the WTO dispute settlement system.
Lev Menand, The Fed Unbound: Central Banking in a Time of Crisis (Columbia Global Reports, 2022).
The Federal Reserve, the U.S. central bank, was built for a monetary system composed primarily of investor-owned, government-chartered banks. But over the years, the erosion of banking law and the rise of alternative forms of money created outside of the banking system have pushed the Fed to take on more and more responsibilities to keep the economy out of recession, as it did during the 2008 crisis, and again during the first months of the COVID-19 pandemic, when it created $3 trillion to stop another financial panic. This book explains how the Fed did this, and argues that it is time to address the built-in financial stability that plagues the American economy, and not just rely on the Fed to treat its symptoms.
Lev Menand & Da Lin, The Banker Removal Power, 108 Va. L. Rev. 1 (2022).
The Federal Reserve (“the Fed”) can remove bankers from office if they violate the law, engage in unsafe or unsound practices, or breach their fiduciary duties. The Fed, however, has used this power so rarely that few even realize it exists. Although major U.S. banks have admitted to repeated and flagrant lawbreaking in recent years, the Fed has never removed a senior executive from one of these institutions.
This Article offers the first comprehensive account of the banker removal power. It makes four contributions. First, drawing on a range of primary sources, it recovers the power’s statutory foundations, showing that Congress created the authority to better align the interests of senior bankers and the public. Second, using a novel dataset obtained through Freedom of Information Act requests, it maps the actual practice of banker removal—who is removed, how often removal occurs, and for what reasons. It reveals that the Fed now uses the removal power mostly to prevent already-terminated, low-level employees from working at other banks, even though Congress never intended for the power to be used primarily in this way. Third, harnessing corporate law theory, the Article defends the legislative design. It argues that removal of senior bank executives for unsound management practices is a critical component of effective bank supervision, filling gaps left by regulatory rules and traditional corporate governance measures. Finally, the Article concludes by assessing obstacles to the use of the removal power against bank leadership and suggesting policy responses.
Thomas W. Merrill, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press, 2022).
The book is designed as a kind of guide to the perplexed about the Chevron doctrine. It discusses the origins of the doctrine, how far it departed from earlier efforts to calibrate the relationship between agencies and reviewing courts, and the major adjustments in the doctrine that have been made by the Supreme Court over time – all in an effort to allow the reader to assess its strengths and weaknesses. The book concludes with some thoughts about ways in which the doctrine might be revised or improved upon.
Thomas W. Merrill, Public Nuisance as Risk Regulation, 17 J. L. Econ. & Pol'y 347 (2022).
Although public nuisance is characterized as protecting rights common to the public, it can also be regarded, in functional terms, as a strategy for protecting against the risk of future harm – something the common law courts could not provide through ordinary actions of breach of contract and tort. Public nuisance made sense at a time when the relevant risks were local and largely defined by custom, and government was a skeletal affair. With the emergence of an alternative mode of risk regulation in the form of the administrative model, the role of public nuisance as a type of risk regulation became obsolete. Today, no one would think of responding to a new type of risk by urging the legislature to label the risk a public nuisance and entrust prosecutors and judges to use litigation to eliminate the risk.
The primary remaining function of public nuisance is as a prop in litigation campaigns launched by public officials to shift large amounts of monies from corporate defendants to state treasuries and plaintiff’s law firms. The only plausible public-interest justification for dusting off public nuisance for this task is that the litigation may serve as a catalyst for better administrative regulation. But it is inappropriate for a judge to invoke a legal doctrine in order to stimulate political reform the judge regards as desirable. Public nuisance should be limited to existing statutes authorizing such actions, interpreted in a non-dynamic fashion to be limited to their assumed applications at the time they were adopted.
Christopher Morten, et. al., Approvals and Timing of New Formulations of Novel Drugs Approved by the US Food and Drug Administration Between 1995 and 2010 and Followed Through 2021, 3(5) JAMA Health F. e221096 (2022).
New formulations of prescription drugs can improve convenience and tolerability for patients, but they also constitute manufacturer strategies to extend brand-name drug market exclusivity periods. We examined whether new formulations of brand-name novel drugs were associated with novel drugs’ sales and/or therapeutic value, as well as characterized first new formulations’ approval timing relative to the novel drug’s generic approval. We found that manufacturers are several times more likely to secure Food and Drug Administration approval for a new formulation for existing drugs that have reached blockbuster status. (Blockbuster drugs are the most profitable drugs with more than $1 billion in annual sales, but are not necessarily the most innovative or clinically meaningful drugs.) Manufacturers also dramatically reduced pursuing approval for new formulations once their drugs began to face generic competition. In contrast, companies did not develop new formulations for drugs that were considered the most therapeutically valuable, innovative, or clinically useful. Thus, while the modified formulations may not be innovative or clinically meaningful themselves, drug manufacturers frequently do not alter drugs that are particularly valuable and innovative to begin with. Our study shows that drugs’ revenue, as opposed to patient benefit, is the clear driver for reformulating drugs.
Christina D. Ponsa-Kraus, The Insular Cases Run Amok: Against Constitutional Exceptionalism in the Territories, 131 Yale L. J. 2390 (2022).
The Insular Cases have been enjoying an improbable—and unfortunate—renaissance. Decided at the height of what has been called the “imperialist” period in U.S. history, this series of Supreme Court decisions handed down in the early twentieth century infamously held that the former Spanish colonies annexed by the United States in 1898—Puerto Rico, the Philip- pines, and Guam—“belong[ed] to, but [were] not a part of, the United States.” What exactly this meant has been the subject of considerable debate even as those decisions have received unanimous condemnation. According to the standard account, the Insular Cases held that the “entire” Constitution applies within the United States (defined as the states, the District of Columbia, and the so-called “incorporated” territories) while only its “fundamental” limitations apply in what came to be known as the “unincorporated” territories (today, Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa). Scholars unanimously agree that the Insular Cases gave the Court’s sanction to U.S. colonial rule over the unincorporated territories— and that the reason for it was racism. Yet courts and scholars have recently sought to hoist the Insular Cases on their own racist petard—by “repurposing” them to defuse constitutional objections to certain distinctive cultural practices in the unincorporated territories. Adopting the standard account of the Insular Cases, according to which they created a nearly extraconstitutional zone, proponents of repurposing argue that the relative freedom from constitutional constraints that government action enjoys in the unincorporated territories can and should be exploited now to vindicate their peoples’ right to cultural self-preservation. This Article disagrees. Although I share the view that the Constitution should not ride roughshod over the cultural practices of the people of the unincorporated territories, I do not agree that the Constitution necessarily must bend to any such practices it finds there or that the Insular Cases present a legitimate—let alone desirable— doctrinal vehicle for preserving such practices. Instead, constitutional doctrines available outside of the Insular Cases present the most promising—and the only legitimate—doctrinal means for making the constitutional case in favor of cultural accommodation. Against the repurposing project, I argue that the Insular Cases gave rise to nothing less than a crisis of political legitimacy in the unincorporated territories, and that no amount of repurposing, no matter how well-intentioned— or even successful—can change that fact. On the contrary: repurposing the Insular Cases will pro- long the crisis. They should be overruled.
Charles F. Sabel & David G. Victor, Fixing the Climate: Strategies for an Uncertain World (Princeton University Press, 2022).
Global climate diplomacy—from the Kyoto Protocol to the Paris Agreement—is not working. Despite decades of sustained negotiations by world leaders, the climate crisis continues to worsen. The solution is within our grasp—but we will not achieve it through top-down global treaties or grand bargains among nations.
Charles Sabel and David Victor explain why the profound transformations needed for deep cuts in emissions must arise locally, with government and business working together to experiment with new technologies, quickly learn the best solutions, and spread that information globally. Sabel and Victor show how some of the most iconic successes in environmental policy were products of this experimentalist approach to problem solving, such as the Montreal Protocol on the ozone layer, the rise of electric vehicles, and Europe’s success in controlling water pollution. They argue that the Paris Agreement is at best an umbrella under which local experimentation can push the technological frontier and help societies around the world learn how to deploy the technologies and policies needed to tackle this daunting global problem.
A visionary book that fundamentally reorients our thinking about the climate crisis, Fixing the Climate is a road map to institutional design that can finally lead to self-sustaining reductions in emissions that years of global diplomacy have failed to deliver.
Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev. 829 (2022).
Debate about the virtues and vices of “judicial minimalism” is evergreen. But as is often the case in public law, that debate so far has centered on the Supreme Court. Minimalism arose and has been defended as a theory about how Justices should judge. This Article considers judicial minimalism as an approach for lower courts, which have become conspicuous and powerful actors on the public law scene. It begins by offering a framework that disentangles the three basic meanings of the term “judicial minimalism”: decisional minimalism, which counsels judges to decide cases on narrow and shallow grounds; prudential minimalism, which counsels judges to avail themselves of various techniques of not deciding cases (the so-called “passive virtues”) on grounds of prudence; and Thayerian minimalism, which counsels judges to refrain from invalidating the actions of the political branches except in cases of clear illegality. The Article then argues that several institutional features of lower courts make judicial minimalism in most of its forms a particularly compelling ideal for lower court judges. Further, attending to the differences between the lower courts and the Supreme Court reveals that minimalism is in tension with the institutional logic of the Supreme Court. In all, the Article aims both to clarify the concept of minimalism and to place it in its proper institutional home. After making the case for lower court minimalism, the Article proposes some strategies for realizing it: First, developing a concept of judicial role fidelity that is tailored to the institutional realities of lower courts, and second, reforming case assignment rules, nationwide injunctions, and the size of the federal bench to help channel lower courts toward more minimalist outcomes.
Elizabeth Scott & Clare Huntington, The Enduring Importance of Parental Rights, 90 Fordham L. Rev. 2529 (2022).
In this symposium contribution for The Law of Parents and Parenting, we argue that parental rights are—and should remain—the backbone of family law. State deference to parents is warranted not because parents are infallible, but rather because parental rights, properly understood and limited, promote child wellbeing. This is true for several reasons, but two stand out. First, parental rights promote the stability of the parent-child relationship by restricting the state’s authority to intervene in families. This protection promotes healthy child development for all children, and it is especially important for low-income families and families of color, who are subject to intensive state scrutiny. Second, parental rights ensure that parents, rather than a private third party or state actor such as a judge or social worker, make decisions about what advances a child’s interests. The legal system defers to parents’ decisions both because parents are well positioned to know what an individual child needs, and because state intervention to vindicate the decision-making power of a nonparent would expose the child to significant risks of family disruption and contentious litigation.
There are clear limits to parental rights, however, and the child-wellbeing rationale for these rights, which we describe in this Essay, provides a self-limiting principle. When a parent’s conduct poses a significant risk to a child, the state may intervene, even when the parent’s actions are based on religious beliefs. And when there is broad societal consensus about what children need—such as education and health care—the state properly preempts parental authority, requiring all parents to send their children to school and to obtain necessary medical care. But in many other instances, especially where there is no societal consensus, the law properly defers to parental judgments, at least for young children. This deference to parents is especially important for marginalized families because the judgments of other parties may reflect bias and dominant parenting norms.
In this Essay, which builds on previous scholarship and our work drafting the American Law Institute’s Restatement of the Law, Children and the Law, we also evaluate scholars’ proposals to limit parental rights. We explain that we share with these scholars the goal of promoting children’s interests but differ on the importance of parental rights. In our view, the legal system can best promote child wellbeing by enforcing a strong, but self-limiting, regime of parental rights.
Colleen Shanahan & Pamela Bookman, A Tale of Two Civil Procedures, 122 Colum. L. Rev. 1183 (2022).
In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent. This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful—and “lawyerless” state courts, which hear the vast majority of claims filed in this country. Doing so, we argue, reveals fundamental differences between the two sets of court procedures that operate in the United States and much about the promise and limits of procedure. We discuss how this dichotomy plays out in three of the most contentious and talked about topics in civil procedure scholarship today: written and unwritten procedure making, the role of new technology, and the handling of masses of similar claims. Seen through this lens, these examples illuminate where and how lawyers are essential to procedural development and procedural protections; they help us better understand where technology should be used to assist or replace lawyers, and where it should be used to reinvent procedure or make up for lawyers’ absence; and they reveal when fixing court procedure may simply not be enough.
Colleen Shanahan, et. al., Judges in Lawyerless Courts, 110 Geo. L. J. 509 (2022).
At the intersection of civil procedure, judicial behavior, and access to justice, this Article presents a theoretically driven multijurisdictional study of judges’ interactions with unrepresented people in state civil trial court hearings. It examines courts in three jurisdictions at the top, above the median, and near the median in the Justice Index (a ranking of state-level access to justice efforts). Despite significant jurisdictional differences, judges’ behaviors are surprisingly homogenous in the data. Rather than offering accommodation, information, and simplification as reform models suggest, judges maintained the courts’ legal complexity and exercised strict control over evidence presentation. The Article theorizes that a fundamental structural problem drives this unexpected finding—civil courts were not designed for unrepresented people. And judicial behavior is shaped by three factors that result: ethical ambiguity and traditional assumptions about a judge’s role in adversarial litigation, docket pressure, and systematic legal assistance provided only to petitioners. The Article concludes that judicial role failure is but one symptom of lawyerless courts’ fundamental ailment: the mismatch between courts’ adversarial, lawyer-driven dispute resolution design and the complex social, economic, and interpersonal problems they are tasked with solving for users without legal training.
Jane M. Spinak, The Road to a Federal Family Court, 58 Ct. Rev. 8 (2022).
The family court became a “federal” family court in the 1990s and early 2000s when the federal government transformed the court into a full partner with state and local child protection agencies in monitoring families. Federal funding mandates that had shaped and expanded state child welfare, foster care, and adoption systems since the early 1970s began to be applied more purposefully to address the role of family court in supervising those systems. The Clinton administration developed and implemented the Adoption and Safe Families Act of 1996 (ASFA) as a mechanism to harness the runaway size of the nationalized child protection system. ASFA was a time-limiting remedy to accelerate decision-making by child protection authorities and family court judges, focused especially on achieving adoptions. Preventive efforts made to keep families safely together or reunite them were largely abandoned. Instead, vast numbers of families were torn apart permanently through termination of parental rights and many anticipated adoptions never happened, leaving thousands of children aging out of foster care without a legal family. The family court largely abandoned its independent decision-making authority under this new collaborative and monitoring regime.
Susan Sturm, Lawyering Paradoxes: Making Meaning of the Contradictions, 62 Santa Clara L. Rev. 175 (2022).
Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must also collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.
This Article argues that these seemingly contradictory practices can be brought together through the theory and action of paradox. After identifying the features of these two lawyering practices—called here legality and proactive lawyering—the Article sets out five lawyering paradoxes that stem from the opposing yet interdependent features of legalistic and proactive lawyering: paradoxes of thought and discourse; relationship; motivation, mindset, and justice. Next, the Article shows the consequences of legal education’s tendency to avoid, sidestep, or downplay these paradoxes. Finally, drawing on existing research and experiences of innovators, the Article identifies three strategies that can enable students and lawyers to construct a dynamic tension between legality and proactive lawyering, and in the process, build the potential for transformative learning and meaningful justice.
Shyamkrishna Balganesh, Of Autonomy, Sacred Rights, and Personal Marks, 135 Harv. L. Rev. F. 343 (2022).
This Response examines three different senses in which the idea of autonomy might operate within trademark law’s rules relating to personal marks (i.e., marks that identity an individual) and shows that each of them is critically incomplete or too weak to independently sustain the justificatory burden for the domain. It then examines the worrisome possibility that courts’ allusions to autonomy here are little more than a trope for other considerations. It finally looks at how a genuine commitment to autonomy might be integrated into the principally market-driven framework of trademark law.
Shyamkrishna Balganesh, The Genius of Common Law Intellectual Property, 50 J. Legal Stud. S91 (2021).
Common-law intellectual property refers to different judge-made causes of action that create forms of exclusive rights and privileges in intangibles, interferences that are then rendered enforceable through private liability. In this essay, I examine Richard Epstein's writing on two such doctrines, hot-news misappropriation and cybertrespass, which embrace several important ideas to which modern discussions of intellectual property would do well to pay greater attention: the private-law nature of intellectual property claims, the interconnectedness of intellectual property and other basic areas of law, the compatibility of instrumental and noninstrumental considerations, and the valorization of judicial creativity in rule development.
Amber Baylor, Criminalized Students, Reparations, and the Limits of Prospective Reform, 99 Wash. U. L. Rev. 1 (2021).
Recent reforms discourage schools from referring students to criminal law enforcement for typical disciplinary infractions. Though rightly celebrated, these reforms remain mere half-measures, as they emphasize prospective decriminalization of student conduct without grappling with the harm to generations of former students—disproportionately Black —who have been targeted by criminalizing policies of the past. Through the lens of reparations theory, this Article sets out the case for retroactive and reparations-based redress for the criminalization of students. Reparations models reposition moral norms. They acknowledge state harm, clarify the losses to criminalized students, allow for expansive forms of redress, and cast restoration of opportunity as a project to benefit society broadly.
As families have long protested, and data corroborates, schools’ reliance on criminal law mechanisms has significant impacts. Reforms many places reconsider practices of prosecuting students under order-related misdemeanors, such as “disruption of class” and “disorderly conduct.” Some reforms lead to policymakers striking or altering criminal law statutes and imposing procedural protections. Reducing criminal law’s footprint in schools helps protect future students from the resulting harms of criminalization. Former students still face open cases, warrants, and criminal debt. Many individuals navigate criminal records, health impacts from the trauma of criminal law enforcement in school, and loss of access to educational and other public institutions. These impacts reverberate generationally in communities where schools enforce criminalizing policies. These continuing impacts indicate the limits of prospective reforms.
This Article argues that transformation of systems that harm and criminalize students requires both retroactive decriminalization and reparations-based policies. The burden of overcoming criminalization continues to rest with former students rather than the state. Repair of criminalization must incorporate accountability and redress. The Article offers models towards restoration of stolen opportunity.
George Bermann, “The Future of international Commercial Arbitration,” in Cambridge Companion to International Arbitration (Lim, ed., Cambridge U. P., 2021).
This is a wide-lens picture of the major challenges facing international arbitration today, and, more importantly, the initiatives that are underway or could be underway to address them. They include (a) cost, delay and excessive formality, (b) arbitrator ethics,(c) data protection, (d) competition from international commercial courts, (e) diversity among international arbitration actors, chiefly arbitrators, (f) transparency, and (g) the rise of settlement agreements.
George Bermann, “General Aspects of Investor-State Dispute Settlement,” in International Arbitration & E.U. Law (Mata Donna & Lavranos, eds., Elgar, 2021).
Two of the world's most powerful international law regimes -- the EU and international arbitration -- coexisted peacefully for decades. They have come into serious conflict because each asserts "autonomy." They are irreconcilable, and it falls to national courts to decide to which regime, in case of conflict, to give priority and justify doing so.
Anu Bradford & Adam S. Chilton, Regulating Antitrust Through Trade Agreements, 84 Antitrust L.J. 103 (2021).
Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These concurrent trends are consistent with the view that antitrust regulation and trade liberalization are complementary tools in governments’ efforts to create and preserve open and competitive markets.
Richard Briffault, et. al., Cases and Materials on State and Local Government Law, 9th Ed. (West Academic, 2022).
Like its predecessors, the 9th Edition focuses on the critical roles played by states and local governments and the complex structure of our state-local system. It challenges students to understand the values that inform the distribution of powers between states and local governments; the distinctive structures and organization of states and local governments; and the competing models of local government that frame the field. It then takes on local government formation and boundary change; home rule and state-local disputes; interlocal conflict and regional governance; state and local finance; and the local role in delivering government services. This Edition contains new treatments of state constitutions and city charters, state-local preemption conflicts, state and local taxation, policing, and more pervasive attention to the interplay of state and local government law with racial justice and social and economic equity.
Richard Briffault & Kim Haddow, “An Attack on Local Authority,” in The Local Power and Politics Review, 2nd Ed. (Riverstone-Newell, ed., 2022).
In the 2021 legislative sessions, Republican state lawmakers introduced a glut of preemption bills aimed at giving states more power over the administration of local government operations, signifying a new, deeper level of state interference into the inner workings of cities and counties. . . . Entering the 2021 legislative sessions, Republican state lawmakers used their power to respond to the events of 2020 – the pandemic, the racial justice movement, the presidential election, and what they perceived to be local government overreach (Brownstein 2021) – by introducing a surge of preemption bills aimed at appropriating the machinery of local government operations. As a result, some states now dictate how local elections are run, determine the process for issuing local public health orders, decree how much local governments can cut or shift funds in their budgets for policing, and threaten to give state actors the authority to intervene in local criminal cases. Combined, these and other laws constitute an unprecedented state intrusion into the day-to-day management of cities and counties.
John C. Coffee Jr., The Coming Shift in Shareholder Activism: From “Firm Specific” to “Systematic Risk” Proxy Campaigns (and How to Enable Them), 16 Brook. J. Corp. Fin. & Com. L. 45 (2021).
This article distinguishes two types of shareholder activism: (1) firm-specific activism, which has a long history and focuses on changes at a specific target company, and (2) systematic risk activism, which seeks to reduce the systematic risk in a portfolio and thereby benefit diversified investors. Typically, such a systematic risk campaign may force a portfolio company to internalize negative externalities to benefit the other companies in the portfolio (such as by reducing carbon emissions or undertaking climate risk reforms). But, systematic risk activism faces an inherent difficulty: the party that leads this campaign and invests in the target company may incur a significant loss when the target company’s stock price falls. This will be particularly difficult for activist hedge funds to accept, because they have small portfolios and cannot recoup their losses on the target firm by gains at the other portfolio companies. Properly understood, the recent campaign by Engine No. 1 with respect to ExxonMobil exemplifies these problems and suggests that activist hedge funds make ill-suited leaders for this form of activism. If so, there may be a strong demand for systematic risk activism among diversified investors, but potential campaigns could remain headless, as diversified investors will themselves be reluctant to lead such a campaign. This article surveys possible answers to this problem (some of which are suggested by the Engine No. 1 campaign). Nonetheless, this problem surrounding the incentives of hedge funds is aggravated by the traditionally independent stance of diversified investors, who are reluctant to join groups or expend funds, and by the inability of potential campaign leaders to charge adequately for their services. This article suggests several means of which to enable such campaigns.
John C. Coffee Jr., Ronald Gilson, Brian J.M. Quinn, Cases and Materials on Corporations, 9th Ed. (Aspen, 2021).
With this edition, we have made a determined effort to shrink our size without reducing our coverage. New material however has been added in all chapters. A description of some of the new material follows. In Chapter I, recognizing that issues of race have dominated the headlines and political discourse, we examine recent efforts to increase racial and gender diversity on corporate boards. We also briefly review the Public Benefit Corporation, which is a new creature that is a hybrid of a profit-making corporation and a not-for-profit entity. We alo return to this new actor on the corporate stage in connection with corporate acquisitions in Chapter IX. New to Chapter II's introduction to the basic management structure of corporations, is a focus on cases in which directors have failed to monitor a critical risk. Recent cases suggest a broadening of this claim. Chapter III continues our commitment to survey the financial economics associated with valuing corporations. .Because parties create corporations to the end of creating value, We provide a framework for doing so and the role of law in accomplishing it. With respect to non-publicly held entities, Chapter VII surveys the series of legislative authorizations for new types of vehicles that emphasize contract, including the highly successful limited liability company. Chapter IX takes up the most controversial area of corporate law over the last 30 some years governing friendly and unfriendly acquisitions. In doing so, it tracks the unique experience of Delawar over this period and the continuing dialogue between the Delaware Chancery Court and the Delaware Supreme Court about the allocation of authority between the board of directors and shareholders. A list of the updating of other chapters is too long to describe here, but is accomplished, we hope, by successfully managing managing the incorporation of new material reflecting the speed with which corporate law and financial markets are evolving and a tight focus on what is new and what no longer requires as much attention.
Jeffrey Fagan, No Runs, Few Hits, and Many Errors: Street Stops, Bias, and Proactive Policing, 687 UCLA L. Rev. 1584 (2022).
Equilibrium models of racial discrimination in law enforcement encounters suggest that in the absence of racial discrimination, the proportion of searches yielding evidence of illegal activity (the hit rate) will be equal across races. Searches that disproportionately target one racial group, resulting in a relatively low hit rate, are inefficient and suggest bias. An unbiased officer who is seeking to maximize her hit rate would reduce the number of unproductive stops toward a group with the lower hit rate. An unbiased policing regime would generate no differences in hit rates between groups.
We use this framework to test for racial discrimination in pedestrian stops with data from the contentious “Stop, Question and Frisk” (SQF) program of the New York City Police Department (NYPD). SQF produced nearly five million citizen stops from 2004–2012. The stops are regulated by both Terry (federal) and DeBour (New York) case law on reasonable suspicion. Stops are well-documented, including a structured format for reporting the indicia of reasonable suspicion that motivated the stop. We exploit these data to examine the Floyd court’s claim. We decompose stops on the basis of suspicion, as reported by officers at the time of the stop. We conduct five tests to assess whether racial discrimination characterizes SQF stops: the allocation of officers relative to crime and population in specific areas, the decision to sanction conditional on a stop, the decision to arrest or issue a summons conditional on the decision to sanction, the efficiency of stops in seizing contraband including weapons, and updating processes by officers in their search activity. In each test, we include the reasonable suspicion rationale that officers indicated as the basis of the stop. We find consistent evidence of disparities in police responses to Black, Hispanic, and Black Hispanic civilians, and significant differences by race in the use of specific indicia of reasonable suspicion that motivate stops. The higher error rates for specific indicia of suspicion suggest that rather than individualized bases of suspicion, officers may be activating stereotypes and archetypes to articulate suspicion and justify street seizures.
Merritt B. Fox & Manesh S. Patel, Common Ownership: Do Managers Really Compete Less?, 39 Yale J. on Reg. 136 (2022).
This Article addresses an important question in modern antitrust: when large investment funds have holdings across an industry, is competition depressed?
The question of the impact of common ownership on competition has gained much attention as the role of institutional shareholding has grown, with the funds of the three largest management companies holding in aggregate approximately 21% of the shares of a typical S&P 500 firm. It is a source of acute disagreement among scholars and policymakers, with some who believe common ownership does depress competition seeking antitrust law reforms that would significantly constrain how investment funds operate. Neglected in this vigorous debate, however, is a careful analysis of how the persons who in the first instance actually make the decisions that determine an industry’s competitiveness—firm managers—would act differently in the presence of common ownership. In essence, even if the common owners were to pressure firms to compete less, how, if at all, would that change the structure of incentives within which these managers work?
The forces that shape managerial decision-making at publicly traded firms have been the object of intense study by scholars of corporate governance for decades, primarily through use of managerial agency cost analysis. The question of how the dynamics among firms in a concentrated industry affect its level of competition has been subject to similarly intense scrutiny by industrial organization economists. We use learning from both of these fields to conclude that, at current levels, common ownership is unlikely to have a meaningful effect on the managerial structure of incentives in ways that the industrial organization theories suggest would affect competition. This conclusion thus cautions against the proposed antitrust reforms, which would solve a non-problem while adding to the costs of the investment vehicles of choice for tens of millions of ordinary Americans.
Merritt B. Fox, et. al., Distributed Ledger Technology and the Securities Markets of the Future: A Stakeholder Survey, 2021 Colum. Bus. L. Rev. 651 (2021).
This Article evaluates the implications of distributed ledger technology (DLT) for the securities markets of the future and their regulation. DLT is an integral part of the larger revolution in computing, communication and data storage capacity that has transformed securities markets over the last few decades and promises further radical change in the years to come. The potential of DLT, if it can be realized, could improve the functioning of our securities markets while at the same time sharply reducing costs. Based on an interview survey of about 100 persons who play prominent roles in actually making these markets work or in regulating them, this Article reports on the most important topics and themes that have emerged from the wide range of interviewees’ opinions about the extent to which DLT will affect the future of securities markets and their regulation. A significant number saw the potential for DLT to transform securities markets and market structure, from the possibility of stock trading on DLT to the potential impact on intermediaries, the ordinary retail investor, and on preventing wrongdoing in the stock market. However, key questions remain about implementation and the appetite for making DLT-based changes among both market participants and regulators.
Talia B. Gillis, The Input Fallacy, 106 Minn. L. Rev. 1175 (2022).
Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms.
Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails to address discrimination concerns and threatens to create an algorithmic myth of colorblindness. The ubiquity of correlations in big data combined with the flexibility and complexity of machine learning means that one cannot rule out the consideration of protected characteristics, such as race, even when one formally excludes them. Moreover, using inputs that include protected characteristics can in fact reduce disparate outcomes.
Nevertheless, the leading approaches to discrimination law in the algorithmic age continue to commit the input fallacy. These approaches suggest that we exclude protected characteristics and their proxies and limit algorithms to pre-approved inputs. Using my simulation exercise, I consider these approaches. I demonstrate that they fail on their own terms, are unfeasible, and overlook the benefits of accurate prediction. These failures are particularly harmful to marginalized groups and individuals because they threaten to perpetuate their historical exclusion from credit and, thus, from a central avenue to greater prosperity and equality.
I argue that fair lending law must shift to outcome-focused analysis. When it is no longer possible to scrutinize inputs, outcome analysis provides the only way to evaluate whether a pricing method leads to impermissible disparities. This is true not only under the le- gal doctrine of disparate impact, which has always cared about outcomes, but also under the doctrine of disparate treatment, which has historically avoided examining disparate outcomes. Now, disparate treatment too can no longer rely on input scrutiny and must be considered through the lens of outcomes. I propose a new framework that regulatory agencies, such as the Consumer Financial Protection Bureau, can adopt to measure disparities and fight discrimination. This proposal charts an empirical course for antidiscrimination law in fair lending and also carries promise for other algorithmic contexts, such as criminal justice and employment.
Jane C. Ginsburg, US Second Circuit Court of Appeals tames ‘transformative’ fair use; rejects ‘celebrity-plagiarist privilege’; clarifies protectable expression in photographs, 16 J. Intell. Prop. L. & Practice 638 (2021).
The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.
In addition to analyzing the Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith, this Comment also addresses the relevance to transformative use of the Supreme Court’s ruling in Google v. Oracle, and concludes that the highly software-specific context of that case cabins its fair use analysis to functional code far from the “core of copyright.”
Jane C. Ginsburg, et. al., Trademark and Unfair Competition Law, 7th Ed. (Carolina Academic Press, 2022).
In the three decades since the first edition, both the number of stand-alone trademarks courses offered in U.S. law schools and the quantity of trademark law scholarship have vastly expanded. The growth of the Internet has fundamentally challenged trademark law to adapt; each successive edition of the Casebook has reflected these challenges, both within the chapters on acquisition of trademarks and on their infringement, and in a chapter devoted to Domain Names. Over the last 30 years, First Amendment issues have also come increasingly to the fore. Recent editions have focused on expressive uses of marks and related defenses; the Seventh Edition continues and deepens that attention. As in prior editions, the Casebook begins with a Prelude case that captures many of the issues that will recur throughout the course. We then provide introductory case law and secondary material on the concepts and policies underlying trademark law, and incorporate trademark policy concerns throughout the book. We have continued to include in-depth coverage of important advanced topics in the second half of the Casebook. Thus, along with Domain Names, False Advertising and Remedies receive their own chapters.
Madhav Khosla & Milan Vaishnav, The Three Faces of the Indian State, 32 J. of Democracy 111 (2021).
For more than seven decades, India’s Constitution has provided a framework for liberal democracy to flourish in one of the world’s most diverse societies. Legal changes and shifts in bureaucratic practices, however, have undermined central tenets of the prevailing order. In today’s India, the assent of the people is both necessary and sufficient to justify all forms of state action. This article outlines three manifestations of India’s new constitutionalism—the “ethnic state,” the “absolute state,” and the “opaque state.” These distinct, yet overlapping faces of the Indian state have undermined the rule of law, equal citizenship, checks and balances, and democratic accountability.
Ronald Mann & Michael Fronk, Assessing the Influence of Amici on Supreme Court Decisionmaking, J. 18 Empirical Legal Stud. 700 (2022).
The authors analyze a dataset of indicators of the influence of amicus filings on the decisions of the United States Supreme Court from October Term 2013 through October Term 2018), examining the effect of filings on the prevailing party, on citations to amicus filings, and on sources drawn from amicus filings. The dataset includes 386 cases, 4500 amicus filings, and 22,000 citations in Supreme Court decisions. In some ways, the paper updates scholarship from the turn of the century, when amicus filings were much less prevalent, but it also breaks new ground with the data about citations to amicus filings and sources drawn from amicus filings.
The principal findings are (1) the effect of amicus filings on the decision is much more even than it was at the turn of the century, when it was concentrated on bottom-side filings; and (2) the effects of filings are much more noticeable for amicus filers less directly motivated by monetary considerations (academics, think tanks, and the like) and less noticeable for those more directly motivated by monetary considerations (trade associations and businesses).
Lev Menand, Why Supervise Banks? The Foundations of the American Monetary Settlement, 74 Vand. L. Rev. 951 (2021).
Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue. Today, supervision is in retreat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. This Article rescues supervision and its historical pedigree. It argues that understanding supervision requires understanding the broader institutional order that depends on it. It labels that order the “American Monetary Settlement” (“AMS”). The AMS is designed to create an elastic money supply using chartered banks. It has four pillars: delegation—investor-owned banks, not the government, create the bulk of the money supply; (2) separation—banks cannot engage in ordinary commercial activities; (3) diffusion—banks are spread across the country and anyone is eligible to apply for a charter; and (4) supervision—special government officials, empowered to stamp out “unsound” banking, ensure that banks fulfill their public purpose. Supervisors, in other words, act as outsourcers, chartering banks and overseeing their managers. The recent decline of supervisory governance, especially stress testing, cedes public power to private actors and raises questions about durability of current monetary arrangements.
Lev Menand & Morgan Ricks, Federal Corporate Law and the Business of Banking, 88 U. Chi. L. Rev. 1361 (2021).
This Article reinterprets the National Bank Act—the organic statute governing national banks—as a corporation law and recovers the reasons why Congress wrote it: not to catalyze private wealth creation or to regulate an existing industry, but to solve an economic governance problem. National banks are federal instrumentalities charged with augmenting the money supply. Congress recruited private shareholders and managers to run these instrumentalities as a check on monetary overissue and to prevent politicized asset allocation by government officials—a form of premodern agency independence. Viewing the NBA as corporation law exposes an error at the heart of U.S. banking jurisprudence: the corporate powers of national banks are not a regulatory statute for which courts should read ambiguous language broadly, but part of the federal charters of national banks. The opposite rule of construction applies—ambiguity cuts against the corporation. This Article also reveals that the primary supervisor of national banks, the Comptroller of the Currency, lacks a statutory basis to charter nondepository “banks” and its current efforts to do so threaten an unprecedented colonization of American enterprise law by a federal government agency.
Christopher Morten, et. al., Strengthening the FDA’s Enforcement of ClinicalTrials.gov Reporting Requirements, 326 JAMA 2131 (2021).
On April 28, 2021, the US Food and Drug Administration (FDA) announced that it “issued its first Notice of Noncompliance to Acceleron Pharma, Inc. (Acceleron) for failing to submit required summary results information to ClinicalTrials.gov.” These results were based on a phase 2 trial that reached its primary completion date in June 2017. The trial examined the safety and efficacy of the candidate drug dalantercept in combination with an FDA-approved drug, axitinib, in patients with advanced renal cell carcinoma. Acceleron not only missed its 2018 deadline for submitting results to ClinicalTrials.gov, but also ignored an initial warning (Pre-Notice of Noncompliance) that the FDA sent the company in July 2020. The FDA’s first Notice of Noncompliance was recognized as an important, if long overdue, step by the agency toward fulfilling its responsibility to enforce the federal law that requires clinical trial sponsors to disclose trial results to the public via ClinicalTrials.gov. But, the Notice of Noncompliance also prompts a key question: what comes next for noncompliant trial sponsors and the FDA?
Christopher Morten, et. al., Transparency of Regulatory Data Across the European Medicines Agency, Health Canada, and the U.S. Food and Drug Administration, 49 J. L. Med. & Ethics 456 (2021).
Based on an analysis of relevant laws and policies, regulator data portals, and information requests, we find that clinical data, including clinical study reports, submitted to the European Medicines Agency and Health Canada to support approval of medicines are routinely made publicly available.
W. Kerrel Murray, Discriminatory Taint, 135 Harv. L. Rev. 1190 (2022).
The truism that history matters can hide complexities. Consider the idea of problematic policy lineages. When may we call a policy the progeny of an earlier, discriminatory policy, especially if the policies diverge in design and designer? Does such a relationship condemn the later policy for all times and purposes, or can a later decisionmaker escape the past? It is an old problem, but its resolution hardly seems impending. Just recently, Supreme Court cases have confronted this fact pattern across subject matters as diverse as entry restrictions, nonunanimous juries, and redistricting, among others. Majority opinions seem unsure whether or why “discriminatory predecessors” matter, and individual Justices who agree that they do squabble over methodology.
One could answer these questions by banishing them. Thus, some would simply treat any nonidentical policy predecessor as minimally relevant, and only relevant insofar as it suggests present-day bad intent. Anything else, they suggest, risks an unmoored original sin jurisprudence, with courts claiming to know guilt when they see it. Simple is not always better, however, especially if it risks eliding information material to a policy’s validity. But again: how do we divine materiality?
Better approaches are possible. While our law broadly appreciates that continuity matters to legal meaning and responsibility, constitutional law has undertheorized it. Deploying continuity here helps conceptualize, and craft guideposts for, “discriminatory taint”: an objectively ascertainable relationship between an earlier policy and a later, similar policy. Thus defined, taint can impugn some policies that might otherwise have passed constitutional muster. Yet it also facilitates realistic approaches — judicial and nonjudicial — to distinguishing genuine purging of taint from its laundering. And it supplements debates on the nature of wrongful discrimination by underscoring how continuity can help identify persistent constitutional problems even absent subjective bad intent.
Lynnise Pantin, Race and Equity in the Age of Unicorns, 72 Hastings L. J. 1453 (2021).
This Article critically examines startup culture and its legal predicates. The Article analyzes innovation culture as a whole and uses the downfall of Theranos to illustrate the deficiencies in Silicon Valley culture, centering on race and class. The Article demonstrates that the rise and fall of the unicorn startup Theranos and its founder, Elizabeth Holmes, is emblematic of the problem with the glorification and pursuit of the unicorn designation for startup ventures. The examination of the downfall of Theranos exposes how investors, founders, and others in Silicon Valley engage with each other in the context of pursuing unicorn status. The saga of Theranos lays bare how the wealthy and the privileged control the private financial markets and underscores the structural inequities within the startup ecosystem. Such a structure promotes certain types of entrepreneurs to the exclusion of others. Diverse and nontraditional entrepreneurs in the startup world face tremendous hurdles to securing financing, mentorship and media exposure. In stark contrast, founders like Holmes benefit from a perception of worthiness drawn from factors such as race, socioeconomic status, pedigree and social connections. This Article examines how the culture of creating the next unicorn has ramifications beyond fraud and risk, but also socio-economic consequences.
Lynnise Pantin & Praveen Kosuri, Nowhere to Run, Nowhere to Hide, 29 Clinical L. Rev. 199 (2021).
As the COVID-19 global pandemic ravaged the United States, exacerbating the country’s existing racial disparities, Black and brown small business owners navigated unprecedented obstacles to stay afloat. Adding even more hardship and challenges, the United States also engaged in a nationwide racial reckoning in the wake of the murder of George Floyd resulting in wide-scale protests in the same neighborhoods that initially saw a disproportionate impact of COVID-19 and harming many of the same Black and brown business owners. These business owners had to operate in an environment in which they experienced recurring trauma, mental anguish and uncertainty, along with physical destruction of many of their businesses and communities. This essay looks at how the generation-defining events of 2020 and the first half of 2021 affected the landscape of operating a small business, particularly for Black small business owners in Philadelphia and New York, where the authors run transactional law clinics at the University of Pennsylvania Law School and Columbia Law School. It goes on to describe how the pandemic and George Floyd protests affected their clinic students, clients, and themselves. The essay analyzes the events of the last year and a half in the historical context of past events of economic disruption and racial unrest. It concludes that a lasting impact of the COVID-19 pandemic will be the recognition of systemic racism and inequity that has persisted in American society for over 150 years and how it stunts Black and brown entrepreneurship.
David Pozen & Jonathan Gould, Structural Biases in Structural Constitutional Law, 97 NYU L. Rev. 59 (2022).
Structural constitutional law regulates the workings of government and supplies the rules of the political game. Whether by design or by accident, these rules sometimes tilt the playing field for or against certain political factions—not just episodically, based on who holds power at a given moment, but systematically over time—in terms of electoral outcomes or policy objectives. In these instances, structural constitutional law is itself structurally biased.
This Article identifies and begins to develop the concept of such structural biases, with a focus on biases affecting the major political parties. Recent years have witnessed a revival of political conflict over the basic terms of the U.S. constitutional order. We suggest that this phenomenon, and a large part of structural constitutional conflict in general, is best explained by the interaction between partisan polarization and structural bias, each of which can intensify the other. The Article also offers a typology of structural biases, keyed to the contemporary United States but potentially applicable to any system. To date, legal scholars have lagged social scientists in investigating the efficiency, distributional, and political effects of governance arrangements. The concept of structural bias, we aim to show, can help bridge this disciplinary gap and thereby advance the study of constitutional design and constitutional politics.
David Pozen & Thomas Schmidt, The Puzzles and Possibilities of Article V, 21 Colum. L. Rev. 2317 (2021).
Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly specific and stringent constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but at least in the text itself we assume we can find some objective common ground.
This paper calls into question each piece of this standard picture of Article V. Neither the language nor the law of Article V supplies a determinate answer to a long list of fundamental puzzles about the amendment process. Legally questionable amendments have not been the exception throughout U.S. history; they have been the norm. After detailing these descriptive claims, the paper explores their doctrinal and theoretical implications. Appreciating the full extent of Article V’s ongoing ambiguity, we suggest, counsels a new approach to judging the validity of contested amendments, undermines some of the premises of originalism and textualism, and helps us to see new possibilities for constitutional change. Because the success or failure of attempted amendments turns out not to be exclusively or even primarily a function of following the rules laid out in the canonical document, all constitutional amending in an important sense takes place outside Article V.
Alex Raskolnikov, Distributional Arguments, In Reverse, 105 Minn. L. Rev. 1583 (2021).
What should the government do about the distribution of resources and outcomes in society? Two arguments have shaped academic debates about this question for several decades. The first argument states that economic regulation should focus on efficiency alone, leaving distributional considerations for the tax-and-transfer system. The second argument objects to government assistance for people unintentionally harmed by legal reforms. Taken together, the two arguments impose major restrictions on the range of possible distributional policies.
This Article contends that a growing body of research in the economics of trade, immigration, industrial organization, labor, and environmental regulation reveals that the core assumptions underlying the two distributional arguments do not hold. Moreover, once these assumptions are changed to reflect reality, the analytical machinery underlying the arguments goes in reverse: the conclusions become not merely indeterminate but opposite of those originally advanced. The revised distributional arguments support enacting a broad-based transitional assistance program for low-skill workers, embracing some distributionally informed legal rules, and replacing our complex, obscure, state-specific social safety net with a simpler, transparent, nationally uniform one. More generally, reversing the normative thrust of the two distributional arguments shifts the focus of the academic inquiry. Instead of debating whether the government should actively shape distributional outcomes in a variety of ways, the question becomes how the government should do so given institutional, informational, and political constraints. Finding and refining answers to this question would help policymakers to craft better policy responses to major economic shocks, whether these shocks arise from legal reforms, technological transformations, or a deadly pandemic.
Daniel C. Richman, Defining Crime, Delegating Authority—How Different are Administrative Crimes?, 39 Yale J. on Reg. 304 (2021).
As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty – not the abstract “liberty” said to be protected by the separation of powers, but rather the lived liberty gained through careful and accountable criminal lawmaking that is free from the pathologies that have bedeviled federal criminal law for more than a century – administrative crimes are normatively quite attractive
Daniel C. Richman & Sarah A. Seo, How Federalism Built the FBI, Sustained the Local Police, and Left Out the States, 17 Stan. J. Civ. Rights & Civ. Lib. 421 (2022).
This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is crucial for understanding why the police have gone for so long without meaningful state or federal oversight, with consequences still confronting the country today. This history highlights how structural impediments to institutional accountability have been set over time and also identifies a path not taken, but one that can still be pursued, to expand the states’ supervisory role over local police.
Robert E. Scott & Alan Schwartz, Obsolescence: The Interactable Production Problem in Contract Law, 121 Colum. L. Rev. 1659 (2021).
Contract law has long suffered from an institutional problem: Which legal institution can best create an efficient law for commercial contracts that can overcome "obsolescence”—the persistence of rules that only solve yesterday’s contracting problems? Until the early 20th century, contract law was largely created by common law courts. The law's default rules were efficient when created and courts updated them as commerce changed. But there were few rules and the common law process is slow. In response, the 20th century saw public and private lawmaking bodies enact commercial statutes in discrete legal areas such as secured credit, commercial paper and bankruptcy. Cohesive interest groups rapidly updated these discrete rules, but the rules, both originally and as changed, served only the interests of the creating groups. Private lawmaking efforts also assumed a generalist portfolio. In the Uniform Commercial Code, they reached beyond specialized fields to the law of sales and then, in the Restatements, to all contracting behavior. But these generalist bodies lack the institutional capacity to update, so many of their rules have not changed with changing commercial practice. Obsolescence is not innocuous: it can induce inefficient contracting practices and encourage parties to behave strategically. The need for a modern general law of commercial contracts remains. Specialized lawmakers are subject to interest group capture and the generalist lawmaking bodies cannot update. Courts have responded better to the obsolescence concern, but they are slow and limited. Hence we suggest a public/private regulatory response to the vexing production problem in contract law.
Kate Andrias & Benjamin Sachs, Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality, 130 Yale L. J. 546 (2021).
This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and political inequality. It also offers critical lessons for government officials, organizers, and advocates seeking to respond to the inequalities made painfully evident by the COVID-19 pandemic.
Kate Andrias & Alexander Hertel-Fernandez, Ending At-Will Employment: A Guide for Just Cause Reform, Roosevelt Institute (2021).
This paper critiques the at-will employment standard that dominates American workplaces, showing that it undermines workplace health and safety and workers' dignity. Replacing employment-at-will with a strong just cause standard would not only have significant economic, social, and democratic benefits but would bring the U.S. in line with the labor standards already shared by peer democracies. The report details multiple pathways toward ending at-will employment in the U.S. private sector, including enacting federal legislation, utilizing executive branch authority, and adopting state and local just cause standards.
Shyamkrishna Balganesh & Peter S. Menell, Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, 44 Colum. J. L. & Arts 285 (2021).
For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements projects but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century.
This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risk undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation, and highlighting the unique legislative process through which the statute was developed.
Shyamkrishna Balganesh, Long Live the Common Law of Copyright!: Georgia v. Public.Resource.Org, Inc. and the Debate over Judicial Role in Copyright, 121 Colum. L. Rev. F. 1 (2021).
In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth century copyright doctrine — the government edicts doctrine — and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious implications for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copyright adjudication that is at odds with the dominant approach under the Copyright Act of 1976, which sees courts as limited to interpreting and deferring to the text of the statute. This Essay unpacks the longstanding debate about judicial role in copyright that manifested itself rather vividly in the majority and dissenting opinions in the case. In the process, it shows how Chief Justice Roberts’ opinion for the Court consciously unraveled a delicate — but undesirable — institutional balance that has come to be accepted within the world of copyright law, and imagines the consequences that it might have for the future of copyright adjudication and law-making.
George Bermann, Rescuing the Federal Arbitration Act, 20 Ybk Priv. Int’l L. 15 (2020).
The American Law Institute (ALI), which will celebrate its centenary in 2023, has for decades been publishing Restatements of the Law in fields in which the law is uncertain, inconsistent, and on occasion even incoherent. With that in mind, it is unsurprising that the principal fields of law that have historically been the subject of a Restatement are those dominated by state common law. The law in state law fields is apt to differ from one state to another, necessarily producing discrepancies that may or may not be justified. At the same time, the law in common law fields – which by definition is judge-made – is not codified, making it difficult to ascertain, especially since judicial decisions in the common law tend to be narrowly factbased. That is why the paradigmatic subjects of U.S. Restatements have been state common law fields like contracts, tort, property, and even conflict of laws, none of which is governed at the federal level or by statute.
George Bermann, After First Options: Delegation Run Amok, 32 Am. Rev. Int’l Arb. 15 (2021).
In its First Options opinion, the Supreme Court expressed its belief that the principle of consent is the cornerstone of arbitration was to hold (a) that parties are presumptively entitled, in a court challenge to an unfavorable award, to independent judicial review of the dispute's arbitrability and (b) that a party can be deprived of that right only by means of "clear and unmistakable" evidence that the parties had "delegated" from courts to tribunals the authority to address arbitrability issues. In First Options itself, the Court found that the clear and unmistakable evidence test was not met, as a result of which the losing party was entitled to de novo review of arbitrability and, upon conducting that review, the Court found an absence of consent and ordered that the award be vacated. In subsequent cases, such as Schein, the question was a particular one, viz. whether the "clear and unmistakable" evidence test is met when a so-called Kompetenz-Kompetenz clause is contained in the rules of arbitral procedure that parties incorporate by reference in their contractual arbitration clause. Now, the Second Circuit has decided that, if (a) a claimant initiates arbitration, (b) the respondent contests arbitral jurisdiction, and (c) the claimant argues, in response to the challenge, in favor of jurisdiction, that constitutes "clear and unmistakable" evidence of a delegation within the meaning of First Options, so that the claimant is entitled only to highly deferential, not independent, judicial review of the tribunal's jurisdictional determination. The question to be explored is whether these findings of a delegation are consistent with First Options' requirement that evidence of delegation must be "clear and unmistakable," absent which a party is entitled to independent post-award review by a court of the dispute's arbitrability -- and if not, whether First Options still has any vitality.
Anu Bradford et. al., Do Legal Origins Predict Legal Substance?, 64 J. L. & Econ. 207 (2021).
There is a large body of research in economics and law suggesting that the legal origin of a country—that is, whether its legal regime is based on English common law or French, German, or Nordic civil law—profoundly impacts a range of outcomes. However, the exact relationship between legal origin and legal substance has been disputed in the literature and not fully explored with nuanced legal coding. We revisit this debate while leveraging novel cross-country data sets that provide detailed coding of two areas of laws: property and antitrust. We find that having shared legal origins strongly predicts whether countries have similar property regimes but does little to predict whether countries have similar antitrust regimes. Our results suggest that legal origin may be an important predictor of legal substance in well-established legal regimes but does little to explain substantive variation in more recent areas of law.
Richard Briffault, The Promise and Peril of Local Election Administration, Reg. Rev. (2021).
The administration of elections in the United States – including elections for federal office – is highly decentralized. Fundamental election law decisions – such as registration and voter identification requirements, and early in-person voting and vote-by-mail rules – are made by the states, but the actual conduct of elections is handled almost entirely by local governments. Local election administration has frequently been criticized but the 2020 election underscored the value of local election administration. Much of the success of the election – record high turnout facilitated by a massive, unheralded shift to early and mail-in voting undertaken in the midst of a once-in-a-century pandemic, with few Election Day problems and no security breakdowns or proven fraud – is attributable in large measure to the work of local election officials. Local administrators proved to be resilient, innovative, and attentive to local circumstances and concerns, and demonstrated a commitment – sometimes challenged by their states and tested in court – to make it easier for eligible voters to vote. These local efforts, in turn, have triggered a backlash, with a number of states enacting new laws to curb local powers and subjecting local elections officers to new restrictions, burdensome new requirements, and new penalties. The benefits of local election administration should not be overstated.. Local boards can be incompetent or taken over by ideologues, and interlocal inconsistencies in the application of election rules can be troubling. Nevertheless, the 2020 election demonstrates the value of a significant local role in running elections, much as the state legislative pushback against local democracy-advancing efforts underscore the troubling degree of politicization of our electoral process.
Richard Briffault, Elected-Official-Affiliated Non-Profits: Closing the Public Integrity Gap, 35 Notre Dame J. Ethics & Pub. Pol. 591 (2021).
Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they operate outside election law, and as they do not personally enrich their sponsors, they are usually not covered by ethics restrictions. Yet, due to their close connection to elected officials, their fundraising raises the same concerns of official favoritism or the appearance of such favoritism to donors that lie at the heart of public integrity law.
This article examines the rise of elected official affiliated nonprofits, the public integrity gap revealed by their activities. It presents proposals that would close that gap by requiring transparency and restricting pay to play donations, and considers the constitutional questions that likely would be raised by these proposals, The proliferation of elected-official-affiliated groups demonstrates that the connections between the elected officials and their supportive committees are real, as are the possibilities for undue influence and its appearance. It is past time to close the public integrity gap. Targeted disclosure requirements and limitations on pay to play donors are constitutionally appropriate mechanisms for doing so.
John C. Coffee, Jr., The Future of Disclosure: ESG, Common Ownership, and Systematic Risk, 2021 Colum. Bus. L. Rev. Sym. 602 (2021).
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. In its final hours, the Trump Administration adopted new rules that discourage voting based on ESG criteria and thus by extension chill ESG investing. This controversy will continue.
As more institutions shift to portfolio-wide decision making, there is an optimistic upside: externalities may be curbed by collective shareholder action. For entirely rational reasons, the new “universal” shareholders who now dominate the market will resist even large public companies who might seek to impose externalities on other companies. Owning the market, the “universal” shareholder will protect the market. Still, this process of resistance may produce frictions, and the disclosure needs of individual investors and institutional investors will increasingly diverge. Of course, not all institutional investors are indexed or even diversified, but those that remain undiversified (for example, hedge funds) logically have the perspective of an option-holder and favor greater risk-taking. Across the board, retail investors have different perspectives and preferences than do institutional investors.
Above all, the combination of high common ownership and institutional sensitivity to systematic risk makes disclosure a far more powerful force. Once a very good disinfectant, it may now be developing a laser-like power to effect significant social change.
Elizabeth F. Emens, Disability Admin: The Invisible Costs of Being Disabled, 105 Minn. L. Rev. 2329 (2021).
Disability law has failed to account for a form of labor that especially burdens people with disabilities. That labor is the office-work of life, also called life admin. Disability spurs three main forms of life admin: medical admin, benefits admin, and discrimination admin. First, the managerial and secretarial labor of dealing with a medical issue (including the research, scheduling, forms, bills, and insurance hassles that may follow) can overwhelm a person already confronting a medical challenge. Second, the admin of applying for benefits (involving paperwork, documentation, denials, appeals, and recertifications) is so onerous and complicated that even lawyers find it perplexing. Third, discrimination, which under the Americans with Disabilities Act (ADA) includes the failure to accommodate, creates even more forms of disability admin: from deciding whether and how to protest biased treatment or lack of access, to figuring out how to navigate through or around inaccessible environments, to name just two examples. Recognizing the admin costs of disability has important implications for legal doctrine, most notably the analysis of what is a “reasonable” accommodation under the ADA. Courts have used a cost-benefit framework to determine reasonableness, but they have failed to include the admin costs to individuals in the calculus. Correcting this oversight is merely the most prominent of the doctrinal insights that ensues from appreciating the role of disability admin in the law that affects people with disabilities. This Essay sets out the central components of disability admin before proceeding to demonstrate its neglect and its importance to disability law.
Elizabeth F. Emens, The Art of Access: Innovative Protests of an Inaccessible City, 47 Fordham Urb. L. J. 1359 (2020).
This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work — these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites these artists address, which will inform the Essay’s study of the interplay between disability, creativity, and urban life.
Kellen Funk, Propertied Rites, 36. Const. Comment. 175 (2021).
This Essay reviews Jack Rakove’s Beyond Belief, Beyond Conscience and Winnifred Fallers Sullivan’s Church State Corporation with an eye towards the complex management of religious property in U.S. constitutional doctrine. Part I summarizes Rakove’s book and highlights its value in the context of recent scholarship on early American legislative theory. Part II critiques Rakove’s turn from description towards advocacy of James Madison’s liberal protestant political theology. Part III summarizes Sullivan’s book as a particularly potent rebuttal to Rakove’s. Part IV takes up Sullivan’s method to consider the most recent crisis of religious property before the Supreme Court, that of government lockdowns in the Covid-19 pandemic. Under current doctrine, religious freedom claims are for localized, propertied, truly liberal believers. The Supreme Court does not have, because it has not developed, the capacity to think theologies of religious people on national or supranational scales, to believe a religious exercise claim can be made by massive groups who do not all engage in the propertied rituals the Court is used to seeing.
Jane C. Ginsburg, “Conundra of the Berne Convention Concept of the Country of Origin” in Festschrift for Jorgen Blomqvist (Morten Rosenmeier et. al., eds., Ex Tuto Publishing A/S, 2021).
This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a work exclusively made available over digital networks? In both situations, in the absence of treaty specification, the work may have multiple countries of origin. A plurality of countries of origin may be problematic because, under Berne art. 5(3) “Protection in the country of origin is governed by domestic law.” Berne minimum protections do not apply to local works in their countries of origin. As a result, the greater the number of countries of origin, the fewer the number of countries in which the work must receive the minimum Conventional coverage. Even where minimum protections may apply, variations in the country of origin can affect the calculus of copyright term under art. 7(8), the availability of coverage for works of applied art under art. 2(7), and claims to artists’ resale royalties under art. 14ter; in all those cases, the availability of protection turns not on national treatment, but on reciprocity with the country of origin.
Jane C. Ginsburg, Minimum and Maximum Protection Under International Copyright Treaties, 44 Colum. J. L. & Arts 1 (2020).
This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.
Maeve Glass, Slavery’s Constitution: Rethinking the Federal Consensus, 89 Fordham L. Rev. 1815 (2021).
For at least half a century, scholars of the early American Constitution have noted the archival prominence of a doctrine known as the “federal consensus.” This doctrine instructed that Congress had no power to interfere with the institution of slavery in the states where it existed. Despite its ubiquity in the records, our understanding of how and why this doctrine emerged is hazy at best. Working from a conceptual map of America’s founding that features thirteen local governments coalescing into two feuding sections of North and South, commentators have tended to explain the federal consensus either as a vestige of a much older constitutional tradition rooted in localism or as the result of a brokered political compromise between the sections. Cast as an archaic relic of the colonial era or as a one-off political compromise, the doctrine has appeared in the most recent scholarship as one that by the mid-1800s had devolved into a limp and unpersuasive rhetorical disclaimer.
This Essay offers a different origin story for the federal consensus, one that invites us to re-center the doctrine’s central importance in the founding constitutional order. Drawing on a model of inquiry that expands the conventional map of America’s founding to include the material modes of production and exchange, this Essay allows us to see how the bedrock principle of noninterference emerged not only from the oft cited vestiges of localism and sectionalism but also from the customary practices and exigencies of long-distance maritime trade in the Atlantic world. As economic historians have shown, long before the doctrine appeared in print in 1790, America’s merchant class had forged a trading network along the Atlantic coast, creating an interregional economy that spanned from the Massachusetts Bay to the plantation coast and outer-lying islands. Predicated on a rule of noninterference with the underlying modes of enslaved labor on which white wealth depended, these preexisting norms of racialized property ownership and commercial exchange provided a useful starting point for the rules of constitutional union at a time when the concepts and structures of public law constitutional governance in the newly created United States remained inchoate and ill-defined.
By recovering this genealogy and expanding our map of the founding, this Essay offers a more complete view of the origins of one of the oldest and most consequential rules of constitutional union. In doing so, it allows us to see the institution of racial slavery not simply as one confined to a single section of the South and upheld by its peculiar doctrine of states’ rights but as a fundamentally American institution, one upheld by a rule of federal and state inaction in the face of slavery’s systemic taking of Black lives.
Maeve Glass, Theorizing Constitutional History, 60 Hist. & Theory 331 (2021).
The historical study of American constitutional law has long rested on a conceptual framework that divides the past into linear units of analysis. Constitutional time unfolds according to discrete eras defined by changes in political leadership and governance, whereas constitutional space typically appears divided into bordered jurisdictions and regional sections. Despite the prominence of this conceptual framework, scholars have yet to ask how, why, and to what effect it became the paradigmatic mode of study. In the absence of close study, the framework instead appears as a neutral embodiment of the constitutional order. This essay offers a preliminary sketch of how theories of knowledge production, and particularly Louis Althusser's theory of law as an ideological apparatus, can help to move beyond this facile assumption. By returning to a selection of landmark judicial opinions and legal treatises from the long nineteenth century and analyzing their discursive practices in relation to the dominant modes of production, this exploratory essay suggests a striking possibility: that the paradigm that we have assumed to be a primordial part of the constitutional order only emerged in its current iteration in the late nineteenth-century shift from a plantation mode of production rooted in enslaved labor to an industrial mode of production rooted in wage labor. As these sources indicate, leading jurists in America's age of conquest and enslavement regularly analyzed questions of state power and rights by organizing time according to chains of title rooted in dispossession based on race and space according to the geographic circuits of capital. Effective in naturalizing the strict racialized hierarchy integral to the production and circulation of export commodities, this discourse of tethering institutions to the history of property acquisition and the movement of commodities began to shift with the formal abolition of slavery and rise of intensive industrialization, as a new generation of legal academics created a paradigm of institutional time and space that, by erasing material histories of structural inequality, made it possible to reconstitute an old social order predicated on racial classifications of whiteness.
Michael Heller & Hanoch Dagan, Autonomy for Contract, Refined, 40 J. L. & Phil 213 (2021).
In ‘The Choice Theory of Contracts’, we advance a claim about the centrality of autonomy to contract. Since publishing Choice Theory, we have engaged dozens of reviews and responses; here, we reply to Robert Stevens, Arthur Ripstein, and Brian Bix. All this rigorous debate confirms for us one core point: contract’s ultimate value must be autonomy, properly understood and refined. Autonomy is the telos of contract and its grounding principle. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for law reform.
Olatunde C.A. Johnson & Kristen Underhill, Vaccination Equity by Design, 131 Yale L. J. F. 53 (2021).
This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.
Olatunde C.A. Johnson, Towards a Law of Inclusive Planning: A Response to Fair Housing for a Non-Sexist City, 134 Harv. L. Rev. F. 312 (2021).
Kazis’s important article, Fair Housing for a Non-sexist City, shows how law shapes the contours of neighborhoods and embeds forms of inequality, and how fair housing law can provide a remedy. Yet what received less attention from Kazis is the role women might play in driving exclusion. Race and class dynamics do not only compound exclusion based on gender — the notion that gendered exclusion is most intensely felt for those who are poor or of color, or who operate in these intersectional categories. Race and class destabilize the very category of gender, because women themselves and gendered norms can drive the decisions to exclude based on race and class. This is evident most powerfully in the creation and design of suburbs that subsidized and constructed neighborhoods to include a particular set of women, and a specific domestic conception of women and family, while it excluded other people and family arrangements.
Sarah Knuckey et. al., Advancing Socioeconomic Rights Through Interdisciplinary Factfinding: Opportunities and Challenges, 17 Ann. Rev. L. & Soc. 375 (2021).
The human rights movement is increasingly using interdisciplinary, multidisciplinary, mixed-methods, and quantitative factfinding. There has been too little analysis of these shifts. This article examines some of the opportunities and challenges of these methods, focusing on the investigation of socio-economic human rights. By potentially expanding the amount and types of evidence available, factfinding's accuracy and persuasiveness can be strengthened, bolstering rights claims. However, such methods can also present significant challenges and may pose risks in individual cases and to the human rights movement generally. Interdisciplinary methods can be costly in human, financial, and technical resources; are sometimes challenging to implement; may divert limited resources from other work; can reify inequalities; may produce “expertise” that disempowers rightsholders; and could raise investigation standards to an infeasible or counterproductive level. This article includes lessons learned and questions to guide researchers and human rights advocates considering mixed-methods human rights factfinding.
Sarah Knuckey & Margaret Satterthwaite, “Should Human Rights Practice Be Rights-Based?” in The Struggle for Human Rights: Essays in Honor of Philip Alston (Bhuta, et al., eds., Oxford U. P., 2021).
Human rights scholars and organizations often call on governments to adopt “human rights-based approaches” (HRBAs) to a vast array of policy areas and challenges, from climate change to housing, poverty, development, humanitarian response, and health policy. Yet, curiously, human rights actors do not commonly describe their own human rights practice as “rights-based.” In this chapter, we argue that the human rights-based approach has been exported to many fields without ever being sufficiently integrated within the human rights field. The human rights movement too often fails to measure up to the principles of participation, empowerment, and accountability. The chapter challenges advocates to reform their practice, and includes questions to guide reform and deeper exploration.
Benjamin Liebman et. al., Automating Fairness? Artificial Intelligence in the Chinese Court, 59 Colum. J. Transnat’l. L. 515 (2021).
How will surging global interest in data analytics and artificial intelligence transform the day-to-day operations of courts, and what are the implications for judicial power? In the last five years, Chinese courts have come to lead the world in their efforts to deploy automated pattern analysis to monitor judges, standardize decision-making, and observe trends in society. This Article chronicles how and why Chinese courts came to embrace artificial intelligence, making public tens of millions of court judgments in the process. Although technology is certainly being used to strengthen social control and boost the legitimacy of the Chinese Communist Party, examining recent developments in the Chinese courts complicates common portrayals of China as a rising exemplar of digital authoritarianism. Data are incomplete, and algorithms are often untested.
The rise of algorithmic analytics also risks negative consequences for the Chinese legal system itself, including increased inequality among court users, new blind spots in the state’s ability to see and track its own officials and citizens, and diminished judicial authority. Other jurisdictions grappling with how to integrate artificial intelligence into the legal system are likely to confront similar dynamics. Framed broadly, our goal is to push the nascent literature on courts, data analytics, and artificial intelligence to consider the political implications of technological change. In particular, recent developments in China’s courts offer a caution that two powerful trends—ascendant interest in algorithmic governance and worldwide assaults on judicial authority—could be intertwined.
Christopher J. Morten & Amy Kapczynski, The Big Data Regulator, Rebooted: Why and How the FDA Can and Should Disclose Confidential Data on Prescription Drugs and Vaccines, 109 Calif. L. Rev. 493 (2021).
Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all safety and efficacy data for drugs and vaccines with minimal redactions, deploying data use agreements to ensure the most sensitive data is handled appropriately. In line with the literature that has been critical of simplistic calls for “transparency,” we urge a more contextual form of “data publicity.” We also show that clinical trial data publicity can be achieved without legislative reform, while respecting privacy, protecting any legitimate trade secrets, and maintaining or improving incentives to innovate. The FDA must adapt to protect and expand structural accountability and to protect the public and its trust. The model we offer here could guide similar action at other regulatory agencies as well, enabling better oversight of information-intensive industries and helping safeguard the agencies themselves.
W. Kerrel Murray, Populist Prosecutorial Nullification, 96 N.Y.U. L. Rev. 173 (2021).
No one doubts that prosecutors may sometimes decline prosecution notwithstanding factual guilt. Everyone expects prosecutors to prioritize enforcement based on resource limitation and, occasionally, to decline prosecution on a case-by-case basis when they deem justice requires it. Recently, however, some state prosecutors have gone further, asserting the right to refuse categorically to enforce certain state laws. Examples include refusals to seek the death penalty and refusals to prosecute prostitution or recreational drug use. When may a single actor render inert her state’s democratically enacted law in this way? If the answer is anything other than “never,” the vast reach of American state criminal law demands a pertinent framework for ascertaining legitimacy.
In offering one, this Article provides the first extended analysis of the normative import of the locally elected status of the state prosecutors who make such pledges. If legitimacy is the problem, local elections can be the solution. That is, there may well be something suspect about unilateral prosecutorial negation of democratically enacted law. Yet that same negation can be justified as distinctly democratic when the elected prosecutor can wrap it in popular sanction.
This Article first unspools a once-robust American tradition of localized, populist nonenforcement of criminal law, best seen in jury nullification. It then draws upon democratic theory to construct a normative basis for reviving that tradition in the context of state prosecutors’ categorical nonenforcement. These moves uncover a before-now unappreciated connection: At least where the prosecutor ties her categorical nullification to the polity’s electorally expressed will, she accomplishes wholesale what nullifying juries could once do retail. I thus dub that wholesale action “populist prosecutorial nullification.” Building upon that analogy and my normative analysis, I set out a novel framework for evaluating state prosecutors’ categorical nonenforcement that is keyed to the concept of localized popular will, while accounting for populism’s well-known downsides.
Alex Raskolnikov & Giuseppe Dari Mattiacci, Unexpected Effects of Expected Sanctions, 50 J. Leg. Stud. 35 (2021).
The economic analysis of law enforcement holds that greater expected sanctions lead to greater compliance. The literature on positive and negative incentives holds that rewards and sanctions—or carrots and sticks—have identical first-order incentive effects. We extend the basic model of law enforcement in three ways. We allow agents to opt out of the regulatory regime, we allow for enforcement errors, and we model agents who vary in at least one trait in addition to their cost of compliance. We show that, following these three realistic modifications of the basic model, the two fundamental conclusions just described do not hold. Greater expected sanctions do not necessarily lead to greater compliance; carrots and sticks are not substitutes in their incentive effects. We also show that adding taxes and subsidies to the regulatory toolkit does not expand the set of achievable outcomes.
Alex Raskolnikov, “Deterrence Theory: Key Findings and Challenges” in Cambridge Handbook of Compliance (Benjamin Van Rooij & D. Daniel Sokol, eds., Cambridge U. P., 2021).
This chapter reviews the key findings of the optimal deterrence theory and discusses the remaining challenges. Some of these challenges reflect current modeling choices and limitations. These include the treatment of the offender’s gains in the social welfare function; the design of the damages multiplier in a realistic, multi-period framework; the effects of different types of uncertainty on behavior; and the study of optional, imperfectly enforced, threshold-based regimes – that is, regimes that reflect the most common real-world regulatory setting. Other challenges arise because several key regulatory features and enforcement outcomes are inconsistent with the deterrence theory’s predictions and prescriptions. These inconsistencies include the “abnormally” high levels of compliance, the pervasiveness of gain-based (rather than harm-based) sanctions, the widespread use of offense history in sanctions design, the variation of sanctions based on legal aggressiveness, and the significance of the offender’s mental state in the determinations of both liability and sanctions. The chapter discusses how the recent optimal deterrence scholarship has addressed – but has not fully resolved – all these challenges.
Robert E. Scott et. al., Investigating the Contract Production Process, 16 Cap. Mkts. L. J. 1 (2021).
Contract law and theory have traditionally paid little attention to the processes by which contracts are made. Instead, contracts among sophisticated parties are assumed to be full articulations of the desires of the parties; whatever the process, the outcome is the same. This article compares sovereign debt contracts from US and UK firms, with different production processes, that are trying to do the same thing under very similar legal regimes. We find that the production process likely matters quite a bit to the final form that contracts take.
Sarah Seo, “User’s Guide to History” in Research Handbook on Modern Legal Realism (Shauhin Talesh et. al., eds., Edward Elgar, 2021).
Historical knowledge is necessary to make informed policy choices, but history’s methods are unsuited for determining what, exactly, those policies should be. This chapter examines how historians have been contributing to the New Legal Realist project, identifies obstacles in translating historical conclusions into policy arguments, and explores specific ways that the past can inform the present. Although the discipline of history may not produce concrete policy proposals, it can help us to think more critically about present-day issues by envisioning alternative solutions inspired by the past, identifying problems that become more apparent in historical context, reframing questions that need asking, and exploring causation. By explaining how our laws and legal practices came to be, historians can identify problems and their origins, which is a crucial first step to figuring out what to do next.
Jane M. Spinak & Nancy D. Polikoff, Foreward: Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, 11 Colum. J. Race & L. 427 (2021).
The 2001 book, Shattered Bonds: The Color of Child Welfare, by Dorothy Roberts, called out the racism of the child welfare system and the harms that system perpetrates on families and communities. Twenty years later, despite numerous reform efforts, the racism and profound harms endure. It is time for transformative change. In this foreword to the symposium Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, honoring the 20th anniversary of Shattered Bonds, we highlight Professor Roberts’ articulation of her development as a family policing abolitionist and summarize the articles and comments contributed from scholars in numerous disciplines and well as impacted parents, family defense advocates and system-change activists. These contributions help us learn from history and political theory; focus on the unique and shared circumstances of Native American families; critique, and call for repeal of, much of current law; condemn the punitive, and racially disproportionate, surveillance of families; and demand a new approach that diverts the massive funding of the foster-care industrial complex into support, services, and healing for families, tribes, and communities.
We call for abolition of the family regulation system, the term we use as a more accurate description of what is commonly called the child welfare or child protection system. We situate this call in the context of the more developed movement for prison abolition. The current system is predicated on seeing individual parents as a risk to their children. It fails to see the strengths and resilience of parents and families; the harms of surveillance and removal; and the structural forces that harm children by failing to invest in adequate housing, income, child care, health and mental health services, and educational opportunities for all families. Abolition provides the transformative mind-set that will enable loving and strengthened families to raise happy, healthy, safe, educated, and imaginative children.
BOOKS, MONOGRAPHS, & EDITED VOLUMES
The Cambridge Handbook of Copyright Limitations and Exceptions (Shyamkrishna Balganesh, Ng-Loy Wee Loon, & Haochen Sun eds., Cambridge U. P., 2021).
While copyright law is ordinarily thought to consist primarily of exclusive rights, the regime's various exemptions and immunities from liability for copyright infringement form an integral part of its functioning, and serve to balance copyright's grant of a private benefit to authors/creators with the broader public interest. With contributors from all over the world, this handbook offers a systematic, thorough study of copyright limitations and exceptions adopted in major jurisdictions, including the United States, the European Union, and China. In addition to providing justifications for these limitations, the chapters compare differences and similarities that exist in major jurisdictions and offer suggestions about how to improve the enforcement of copyright limitations domestically and globally. This work should appeal to scholars, policymakers, attorneys, teachers, judges, and students with an interest in the theories, policies, and doctrines of copyright law.
George A. Bermann, et al., Transnational Litigation in a Nutshell, (West Academic P., 2nd ed., 2021).
This title identifies and explores recurring issues of jurisdiction, procedure, and choice of law entailed in the resolution of transnational disputes in U.S. courts. It covers the sources of transnational litigation law in the United States, personal and subject matter jurisdiction, parallel litigation, foreign sovereign immunity and the act of state doctrine, choice of law, extraterritorial discovery, extraterritorial provisional relief, recognition of foreign judgments, and the role of courts in connection with international arbitration.
The Cambridge Handbook of International and Comparative Trademark Law (Irene Calboli and Jane C. Ginsburg eds., Cambridge U. P., 2020).
Trade in goods and services has historically resisted territorial confinement, but trademark protection remains territorial, albeit within an increasingly important framework of multilateral treaties. Trademark law therefore demands that practitioners, policy-makers and academics understand principles of international and comparative law. This handbook assists in that endeavour, with chapters describing and critically analyzing international and regional frameworks, and providing comparative perspectives on the substantive issues in trademark law and related fields, such as geographic indications, advertising law, and domain names. Chapters contrast common law and civil law approaches while focusing on the US and EU trademark systems in light of the role these systems have played in the development of trademark laws. Additionally, this handbook covers other jurisdictions, both common law and civil law, on the Asia-Pacific, African, and South American continents. This work should be read by anyone seeking a better understanding of trademark law around the world.
Jane C. Ginsburg & David S. Louk, Legislation: Interpreting and Drafting Statutes, in Theory and Practice (West Academic P., 1st ed., 2021).
This casebook serves courses in legislation, statutory interpretation, and legislation & regulation—the processes of enacting, implementing, and interpreting our nation’s laws. While most casebooks present these issues principally through judicial opinions construing statutes, this casebook trains students’ focus on the statutes themselves. Extensive statutory excerpts precede most judicial opinions, and students are directed to work their way through the text on its own terms before grappling with judicial readings. Later chapters offer case studies on not only the statutory text but also, where relevant, the statute’s legislative history, and agency or executive branch interpretations rendered in the form of rules, guidance, or opinion letters. These case studies enhance understanding of how potential interpretations or applications narrow over the course of the interpretive process until a prevailing view emerges, often as a result of an accretion of judicial (and sometimes administrative) decisions interpreting the text over time and as applied to new and evolving problems. To do so, the casebook includes numerous recent decisions from the 2018 and 2019 Supreme Court terms, including Babb v. Wilkie (2020), Barr v. Am. Assoc. of Pol. Consultants (2020); Bostock v. Clayton Cty. (2020), New Prime v. Oliveira (2019), and U.S. Forest Serv. v. Cowpasture River Preserv. Assoc.
Michael Heller & James Salzman, Mine! How the Hidden Rules of Ownership Control Our Lives (Doubleday, 2021).
A hidden set of rules governs who owns what--explaining everything from whether you can recline your airplane seat to why HBO lets you borrow a password illegally. In this lively guide, we reveal how things become "mine." "Mine" is one of the first words babies learn. By the time we grow up, the idea of ownership seems natural, whether buying a cup of coffee or a house. But who controls the space behind your airplane seat: you reclining or the squished laptop user behind? Why is plagiarism wrong, but it's okay to knock-off a recipe or a dress design? And after a snowstorm, why does a chair in the street hold your parking space in Chicago, but in New York you lose the space and the chair? Mine! explains these puzzles and many more. Surprisingly, there are just six simple stories that everyone uses to claim everything. Owners choose the story that steers us to do what they want. But we can always pick a different story. This is true not just for airplane seats, but also for battles over digital privacy, climate change, and wealth inequality. As we show--in the spirited style of Freakonomics, Nudge, and Predictably Irrational--ownership is always up for grabs. With stories that are eye-opening, mind-bending, and sometimes infuriating, Mine! reveals the ownership rules of the 21st century that secretly control our lives.
Alston and Heyns on Unlawful Killings: A Compendium of the Jurisprudence of the United Nations Special Rapporteurs on extrajudicial, summary or arbitrary executions from 2004-2016 (Sarah Knuckey et. al., eds., Pretoria U. L. P., 2020).
This book provides a detailed overview of the law and policy related to unlawful killings and the right to life. Each chapter contains an introductory overview and selected extracts from UN Special Rapporteur reports to the United Nations General Assembly and the Human Rights Council and other normative work, and covers the applicable international law, policy considerations, and common fact scenarios.
Petros C. Mavroidis, The Regulation of International Trade, Volume 3: The General Agreement on Trade in Services (M.I.T. P., 2020).
A comprehensive analysis of GATS that considers its historical context, the national preferences that shaped it, and a path to a GATS 2.0. The previous two volumes in The Regulation of International Trade analyzed the General Agreement on Tariffs and Trade (GATT), the first successful agreement to generate multilateral trade liberalization, and the World Trade Organization (WTO), for which the GATT laid the groundwork. In this third volume, Petros Mavroidis turns to the General Agreement on Trade in Services (GATS), a WTO treaty that took effect in 1995, and offers a comprehensive analysis that considers the historical context of the GATS, the national preferences that shaped it, and a path to a GATS 2.0. Mavroidis examines the GATS through its negotiating record, considering whether the GATS as it is can appropriately address the concerns of the world trading community. The GATS deals exclusively with non-tariff barriers (NTBs)—precisely the instrument that the WTO has not managed to tame, and one of some significance in light of the digital revolution, which has enlarged the scope of cross-border transactions in which neither supplier nor consumer needs to travel for a service to be consumed. Mavroidis argues that the GATS has brought about a platform to liberalize services, and has locked in some pre-GATS liberalization. What is missing, he contends, is a “GATS-Think” that would generate liberalization from now on.
Petros C. Mavroidis & Andre Sapir, China and the WTO: Why Multilateralism Still Matters (Princeton U. P., 2021).
China’s accession to the World Trade Organization (WTO) in 2001 was rightly hailed as a huge step forward in international cooperation. However, China’s participation in the WTO has been anything but smooth, with China alienating some of its trading partners, particularly the United States. The mismatch between the WTO framework and China’s economic model has undermined the WTO’s ability to mitigate tensions arising from China’s size and rapid growth. What has to change? China and the WTO demonstrates that unilateral pressure, by the United States and others, is not the answer. Instead, Petros Mavroidis and André Sapir show that if the WTO enacts judicious reforms, it could induce China’s cooperation, leading to a renewed confidence in the WTO system. The WTO and its predecessor, the General Agreement on Tariffs and Trade, are predicated on liberal domestic policies. They managed the previous accessions of socialist countries and big trading nations, but none were as large or powerful as China. Mavroidis and Sapir contend that for the WTO to function smoothly and accommodate China’s unique geopolitical position, it needs to translate some of its implicit principles into explicit treaty language. To make their point, they focus on two core complaints—that Chinese state-owned enterprises (SOEs) benefit from unfair trade advantages, and that domestic companies, private as well as SOEs, impose forced technology transfer on foreign companies as a condition for accessing the Chinese market—and they lay out specific proposals for WTO reforms. In an age of global trade disputes, China and the WTO offers a timely exploration of unprecedented challenges to the current multilateral system and fresh ideas for lasting solutions.
ARTICLES & BOOK CHAPTERS
Shyamkrishna Balganesh & Taisu Zhang, Legal Internalism in Modern Histories of Copyright, 134 Harv. L. Rev 1066 (2021) (book review).
Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation about copyright, it also overlooks the centrality of legal internalism in the evolution of copyright, a domain that has always been understood as a creation of the law. The Review unpacks the core tenets of legal internalism, examines how it operates as an important variable of legal change, contrasts it with the idea of legal consciousness, and shows how legal internalism directs and regulates the entry of nonlegal considerations into different areas of law.
George A. Bermann, Understanding ICSID Article 54, ICSID Review - Foreign Investment Law Journal (2020).
To the surprise of many, questions have recently arisen over the scope of inquiry, if any, that a national court may, consistent with Article 54 of the ICSID Convention, make in connection with the enforcement of an ICSID award. It has long been assumed in many, if not most, quarters that a national court is privileged to condition enforcement of an ICSID Convention award on a single simple requirement, viz. that the award be certified by the Secretary-General of ICSID. Until recently, doubts over whether that is so have been raised in a very small number of jurisdictions. But the Commission of the European Union has taken the view that an ICSID Convention award may be denied enforcement if it is contrary to a principle of “autonomy” of EU law and, based on its judgment in Achmea case in connection with non-ICSID awards, the European Court of Justice most likely takes the same view. This suggests that the European Union regards violation of EU public policy, more generally, as a defense to enforcement of an ICSID award. Based on text, object and purpose, legislative history, and predominant state practice, this position appears to run seriously afoul of the ICSID Convention. At the same time, some meaning must be given to the language in Article 54 according to which an ICSID award must be enforced by a national court “as if it were a final judgment of a court” of the enforcing State. The author finds that the understanding of Article 54 that best reflects all pertinent considerations is that it imposes on courts the modest requirement that they subject the enforcement of ICSID awards to no more restrictive or onerous procedures than they impose on the enforcement of national judgments.
Anu Bradford, et al. The Chicago School’s Limited Influence on International Antitrust, 87 U. Chicago L. Rev. 297 (2020).
Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenets of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly rejected by the Chicago School—such as using antitrust law to promote goals beyond efficiency or regulate unilateral conduct—are common features of antitrust regimes in other countries. We also provide suggestive evidence that the influence of the antitrust revolution launched by the Chicago School has been more limited outside of the United States.
Elizabeth F. Emens, The Art of Access: Innovative Protests of an Inaccessible City, 47 Fordham Urban L. J. 1359 (2020).
This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work — these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites these artists address, which will inform the Essay’s study of the interplay between disability, creativity, and urban life.
Ronald J. Gilson & Curtis J. Milhaupt, Shifting Influences on Corporate Governance: Capital Market Completeness and Policy Channeling, European Corporate Governance Institute (2021).
Corporate governance scholarship is typically portrayed as driven by single factor models, for example, shareholder value maximization or director primacy, reflecting a stable normative statement of what influence is or should be the center of the corporate governance system. In this essay, we argue that the shape of the corporate governance system is actually the result of the dynamic interaction of two central influences, which we label capital market completeness and policy channeling. Motivated by Albert Hirschman’s Shifting Involvements, we posit that all corporate governance systems undergo repeated shifts in the relative weights of the two influences. Capital market completeness determines the corporate ownership structure and privileges shareholder governance by increasing the capacity to slice risk, return, and control into different equity instruments. Policy channeling, the instrumental use of the corporation for distributional or social ends, pushes the governance gravitational center toward purposes other than maximizing shareholder value. The article shows that this pattern is not limited to a particular country, by analyzing the cyclical reframing of Berle and Means’ thesis in the U.S., Japan’s shift from policy channeling in its postwar heyday toward capital market completeness under Abenomics reforms, and the Chinese Communist Party’s use of capital market completeness as a policy channeling instrument. The article closes by examining the current shift toward policy channeling in U.S. and U.K. corporate governance via “stewardship” and “corporate purpose,” and suggest that this reform, like others before it, is likely destined to result in a disappointment-driven shift in the opposite direction.
Ronald J. Gilson & Alan Schwartz, An Efficiency Analysis of Defensive Tactics, 11 Harv. Bus. L. Rev. (2021).
For thirty-five years, courts and scholars have divided over the effects of defensive tactics in the market for corporate control. Strong defensive tactics locate authority to accept a hostile bid in the target’s board. The board can bargain for a higher takeover price than uncoordinated shareholders could realize but high takeover prices may reduce shareholder returns by reducing the likelihood of receiving a bid. The Delaware Courts themselves disagree. The Delaware Chancery Court would locate ultimate decision authority in the target’s shareholders, while the Supreme Court, by permitting strong defensive tactics, allocates extensive power to the target’s board. Though the Supreme Court’s view settles the legal issue in Delaware for now, the normative debate among scholars and decision-makers regarding whether the shareholders or the board should decide remains unresolved. The Delaware courts ask whether defensive tactics maximize target shareholder welfare: the shareholders’ expected return from acquisitions. But a second question concerns social welfare: do defensive tactics reduce efficiency in the market for corporate control? Empirical difficulties so far have prevented analysts from answering either question rigorously. The analyst can neither observe bids a target’s defensive tactics level deterred nor can the analyst observe how an otherwise identical market would behave under weak and then strong defensive tactics levels. The article addresses the two empirical questions by creating a structural model that predicts how the market for corporate control performs under varying defensive tactics levels and then testing the model by simulating market performance. A simulation permits us to isolate the effect of different defensive tactics levels and to solve for a target’s optimal tradeoff between the increased share of an acquisition’s gain strong defensive tactics can permit and the reduced probability of receiving bids in consequence of the acquirer’s reduced gain. (2020).
Suzanne B. Goldberg, Harassment, Workplace Culture, and the Power and Limits of Law, 70 Amer. U. L. Rev. 419 (2021).
This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls—about policy, procedures, training, and operations—shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result. By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “lowgrade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts. The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise.
Bernard E. Harcourt, “Contre-/Counter-” in Thinking with Balibar: A Lexicon of Conceptual Practice (Stathis Gourgouris et al., eds., Fordham U. P., 2020).
In the context of understanding the work that legal and political concepts do in shaping social reality, this chapter of a book on conceptual practices explores the role of the prefix "counter-", as in counterrevolution, counterinsurgency practices, or counterterrorism, as opposed to the work of the prefix "anti-", in concepts like antiterrorism, or the word "against" as in "against prediction." The prefix "counter-" tends to function by entering the opposed concept and using its internal logic. "Counterinsurgency," for instance, as opposed to "anti-guerilla," uses the internal logic of Maoist insurgency theory to defeat an insurrection. It adopts and accepts the logic, in fact it fully embraces the logic; but it tries to do it better, to reappropriate it, to redeploy it even more aggressively. It does not rest on the idea that there would be two opposing views that are contrary to each other in a dialectical confrontation. Instead, it burrows into the logic and deploys it against its opponent. This chapter explores these differences and the productivity of the "counter-" prefix.
Michael Heller & Hanoch Dagan, “Choice Theory: A Restatement” in Research Handbook on Private Law Theories (Hanoch Dagan & Benjamin Zipursky, eds., Elgar Pub., 2020).
This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to rewrite the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use of the contract power. We conclude this restatement of choice theory by highlighting its most important jurisprudential payoff – how our account relates to and improves on the economic analysis of contract. Choice theory is the modest price that economic analysis must pay to account for individual freedom.
Bert I. Huang, Law’s Halo and the Moral Machine, 119 Colum. L. Rev. 1811 (2019).
How will we assess the morality of decisions made by artificial intelligence—and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.
Bert I. Huang, Judicial Credibility, 61 Wm. & Mary L. Rev. 1053 (2020).
Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge — here, as a “Bush judge” or “Clinton judge” — can influence the credibility of judicial review in the public mind.
Kathryn Judge & Dan Awrey, Why Financial Regulation Keeps Falling Short, 61 B. C. L. Rev. 2295 (2020).
This article argues that there is a fundamental mismatch between the nature of finance and current approaches to financial regulation. Today’s financial system is a dynamic and complex ecosystem. For these and other reasons, policy makers and market actors regularly have only a fraction of the information that may be pertinent to decisions they are making. The processes governing financial regulation, however, implicitly assume a high degree of knowability, stability, and predictability. Through two case studies and other examples, this article examines how this mismatch undermines financial stability and other policy aims. This examination further reveals that the procedural rules meant to promote accountability and legitimacy often fail to further either end. They result instead in excessive expenditures before new rules are adopted, counterproductive efforts to perfect ever more detailed rules, and too little re-evaluation of existing rules in light of new information or changed circumstances. The mismatch between the nature of finance and how finance is regulated helps to explain why financial regulation has failed in the past and why it will likely fail again. It also suggests the need for a new approach to financial regulation, one that acknowledges the limits of what can be known given the realities of today’s complex and constantly evolving financial ecosystem.
Sarah Knuckey et al., “The Proportionality Rule and Mental Health Harm in War” in Necessity and Proportionality in International Peace and Security Law (Claus Creß and Robert Lawless, eds., Oxford U. P., 2020).
The foundational international humanitarian law rule of proportionality -- that parties to an armed conflict may not attack where civilian death or injury would be excessive -- is normally interpreted to encompass civilian physical injuries only. Attacks may cause significant mental harms also, yet current interpretations of the law lag behind science in understanding and recognizing these kinds of harms. This article analyzes legal, public health, psychology, and neuroscience research to assess the extent to which mental health harms should and could be taken into account in proportionality assessments.
Jody S. Kraus & Robert E. Scott, The Case Against Equity in American Contract Law, 93 S. Calif. L. Rev. 1323 (2020).
The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective—such as the penalty, just compensation and forfeiture doctrines—were created by equity in the early common law to police against abuses of the then prevalent penal bond. But when the industrial revolution pushed courts to accommodate fully executory agreements, and parties abandoned the use of penal bonds, the exclusively ex ante focus of the new contract law that emerged rendered the ex post doctrines obsolete. While intended initially to do justice between the parties, if used today these doctrines perversely and unjustly deny parties contractual rights that were bargained for in a free and fair agreement. Yet judges continue to recognize the ex post doctrines, even as they struggle to reconcile them with respect for the parties’ intent. Although infrequently applied, the ex post doctrines are far from dead letter. The penumbra of uncertainty they cast over contract adjudication continues to undermine contracting parties’ personal sovereignty. The only case for continuing to recognize these equitable interventions, therefore, must turn on whether they serve a new valid purpose. We consider and reject the possible purposes of paternalism and anti-opportunism suggested by contemporary pluralist scholars. In our view, the criteria governing theories of legal interpretation support the interpretation of contract law between the parties as exclusively serving personal sovereignty rather than any pluralist interpretation. Under its best interpretation, contract law has no place for the ex post perspective.
Benjamin L. Liebman, Ordinary Tort Litigation in China: Law versus Practical Justice?, 13 J. Tort Law 197 (2020).
This essay examines the roles courts play in tort litigation in China, in particular in litigation resulting from death and injury on China’s roads. At first glance traffic accident litigation in China appears to be an area in which courts play minor roles, due to a strict liability system and scheduled damages. Tort litigation might also seem to be an area where there is no strong reason for court practice in China to differ from practice elsewhere: tort cases are common and appear far removed from core stability concerns of the Chinese Party-state. Examining tort cases, however, suggests how difficult it is to separate out the role courts play in tort cases in China from those played in areas officially deemed sensitive. Courts adjudicating routine cases seek to eliminate not just the possibility of unrest but also of litigant dissatisfaction. The result is that much of what occurs in traffic accident litigation in China appears unusual when placed in a comparative perspective. Courts hearing tort cases in China serve as problem-solvers for society, and for the Party-state. To do so courts ignore legal rules or innovate in the interstices of unclear law in ways that ensure that weak or aggrieved parties receive compensation, losses are shared among those able to pay, and the risk of unrest is mitigated. Tort litigation provides insight into the values influencing the resolution of routine civil cases in China: concerns about fairness and social stability; high levels of deference to other state actors; and a desire by judges to avoid responsibility. Popular and scholarly descriptions of Chinese courts often suggest that courts that fail to follow the law do so because of political interference or corruption. Tort cases suggest another possibility: courts ignore the law when they view it as unfair or unable to provide a practical solution to a dispute.
Benjamin L. Liebman et al., Mass Digitization of Chinese Court Decisions: How to Use Text as Data in the Field of Chinese Law, 8 J. Law and Courts 177 (2020).
Since 2014, Chinese courts have placed tens of millions of court judgments online. We analyze the promise and pitfalls of using this new data source, highlighting takeaways for readers facing similar issues using other collections of legal texts. Drawing on 1,058,986 documents from Henan Province, we identify problems with missing data and call on scholars to treat variation in court disclosure rates as an urgent research question. We also outline strategies for learning from a corpus that is vast and incomplete. Using a topic model of administrative litigation in Henan, we complicate conventional wisdom that administrative lawsuits are an extension of contentious politics that give Chinese citizens an opportunity to challenge the state. Instead, we find a high prevalence of administrative cases that reflect an underlying dispute between two private parties, suggesting that administrative lawsuits are often an attempt to enlist help from the state in resolving an underlying civil dispute.
James S. Liebman et al., Mine the Gap: Using Racial Disparities to Expose and Eradicate Racism, 30 S. Calif. Rev. L. & Soc. Just. 1 (2021).
For decades, lawyers and legal scholars have disagreed over how much resource redistribution to expect from federal courts and Congress in satisfaction of the Fourteenth Amendment’s promise of equal protection. Of particular importance to this debate and to the nation given its kaleidoscopic history of inequality, is the question of racial redistribution of resources. A key dimension of that question is whether to accept the Supreme Court’s limitation of equal protection to public actors’ disparate treatment of members of different races or instead demand constitutional remedies for the racially disparate impact of public action. For a substantial segment of the nation’s population as well as its judiciary and legal culture, governmentally mandated redistribution, and particularly racial redistribution, of resources to remedy the disparate results of public action is anathema to [JL1] our constitutional order—so much so that such redistribution may provoke violence that horribly magnifies inequality. Avoiding that prospect leads us to propose a new constitutional understanding of the relationship between disparate impact and treatment to serve as an alternative to racial redistribution—or, should our legal culture change sufficiently in reaction to current events, as a necessary supplement to redistribution. While acknowledging the need to mind the racial and other gaps that public action persistently creates and tolerates, our strategy calls upon public actors and oversight bodies to mine the gaps for dispositive evidence of disparate treatment. Compared with how federal courts and our legal culture currently understand disparate treatment, our approach is more honest about the existence and meaning of centuries of unrelenting racial disparities and more insistent on transparency about why disparities keep occurring and whether they are innocent. Yet, the proposal also is moderated by its continuing prioritization of disparate treatment over disparate impact per se; by the extent to which it remains constitutionally and culturally precedented; by its objective of reform but not necessarily outright racial redistribution; and by its effort to avoid rowing upstream against the nation’s individualistic current or being swept by it over treacherous and violent falls. In offering this approach, we recognize the need constantly to calibrate the breadth of the concession being made to liberty over equality and community, in order to keep the voracious appetite of the nation’s individualism from consuming all hope of equity and social solidarity among diverse populations.
Thomas W. Merrill & Henry E. Smith, “The Architecture of Property” in Research Handbook on Private Law Theories (Hanoch Dagan and Benjamin Zipursky, eds., Elgar Pub., 2020).
This chapter outlines an approach to property theory we call property as architecture. The architectural approach views property as an integrated system or structure anchored in certain unifying principles, namely, the centrality of things, the right to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and property rule protection and equity. The architectural approach does not fall into the trap of depicting property as a massive heap of ad hoc rules. Nor does it seek to reduce the institution of property to a means of realizing some particular theory of the good. Rather, it recognizes that property is such a widespread and enduring institution because it functions, at a reasonable cost in terms of informational demands, to advance a plurality of ends or goals for both individuals and larger social units.
Thomas W. Merrill, Re-Reading Chevron, 70 Duke L. J. 1153 (2021).
Though increasingly disfavored by the Supreme Court, Chevron remains central to administrative law doctrine. This Article suggests a way for the Court to reformulate the Chevron doctrine without overruling the Chevron decision. Through careful attention to the language of Chevron itself, the Court can honor the decision’s underlying value of harnessing comparative institutional advantage in judicial review, while setting aside a highly selective reading that unduly narrows judicial review. This re-reading would put the Chevron doctrine—and with it, an entire branch of administrative law—on firmer footing.
Joshua Mitts, Short and Distort, 49 J. Leg. Stud. 287 (2020).
Pseudonymous attacks on public companies are followed by stock price declines and sharp reversals. I find these patterns are likely driven by manipulative stock options trading by pseudonymous authors. Among 1,720 pseudonymous attacks on mid- and large-cap firms from 2010-2017, I identify over $20.1 billion of mispricing. Reputation theory suggests these reversals persist because pseudonymity allows manipulators to switch identities without accountability. Using stylometric analysis, I show that pseudonymous authors exploit the perception that they are trustworthy, only to switch identities after losing credibility with the market.
David E. Pozen & Adam Samaha, Anti-Modalities, 119 Mich. L. Rev. 729 (2021).
Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters — the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the “anti-modalities” of constitutional law and to investigate their implications. The anti-modalities both stabilize and undermine the modalities. On the one hand, they work in tandem to ensure that constitutional interpretation remains a distinctive legal enterprise. The two argument bundles are in this sense mutually reinforcing, even co-constitutive. On the other hand, by ruling out various important categories of reasoning — from general moral theory to emotional judgment to many cost-benefit calculations — the anti-modalities put continuous pressure on the modalities to accommodate such reasoning in adulterated forms, or else insist on a long distance between the inputs into supreme law and the concerns that most people care about. We call this distance constitutional law’s “resonance gap.” Such a gap arises in all areas of law, but it is especially pronounced in the constitutional realm. Although the anti-modalities play a critical role in preserving the law/politics distinction, they have deleterious consequences for each side of that line. The best response, this Article suggests, is not necessarily to narrow the resonance gap but rather to narrow the domain of constitutional law. If constitutional argument must exclude (or purport to exclude) vital modes of reasoning, we might worry less about refining its grammar and more about restricting its reach.
David E. Pozen & Kim L. Scheppele, Executive Underreach, in Pandemics and Otherwise, 114 Am. J. Int’l. L. 608 (2020).
Legal scholars are familiar with the problem of executive overreach, especially in emergencies. But sometimes, instead of being too audacious or extreme, a national executive's attempts to address a true threat prove far too limited and insubstantial. In this Essay, we seek to define and clarify the phenomenon of executive underreach, with special reference to the COVID-19 crisis; to outline ways in which such underreach may compromise constitutional governance and the international legal order; and to suggest a partial remedy.
Alex Raskolnikov, Criminal Deterrence: A Review of the Missing Literature, 28 Supreme Ct. Econ. Rev. 1 (2020).
This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself. By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent. These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-know yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment). I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program. The empirical analysis of environmental and tax compliance are two stark examples. Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain. These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies. Among the literature’s missing pieces, several stand out both on their own and because they combine to produce a highly unfortunate result. First, the literature makes only a minor effort to estimate the cost of crime, and essentially no effort to estimate the cost of white-collar offenses. Combined with no centralized reporting of white-collar crimes and, therefore, no empirical analysis of them, the literature adds to the impression — not supported by the available evidence — that street crime is a great social problem while white-collar crime is a minor one. Second, the literature fails to treat misdemeanors (and misdemeanor enforcement) as an independent subject of study. This creates an impression — also unjustified — that thirteen million or so misdemeanor charges a year — and countless millions of stops, frisks, and interrogations that lead to no charges—all heavily skewed by race and class — are not a major social problem either. Third, the literature is only starting to develop a benefit-cost analysis of various crime-reducing strategies. This analysis almost exclusively considers measures reflected in the optimal deterrence model and, therefore, internal to the criminal justice system. This creates an impression — almost surely false — that deterrence is the only means of reducing future crime. Finally, the literature ignores distributional analysis altogether, even though the burdens of crime and the criminal justice system vary dramatically, predictably, and disturbingly by race and income. By disregarding this variation, the literature may be reinforcing it. For all these reasons, the criminal deterrence literature may well be contributing to the overwhelming, singular focus of American society and law enforcement on the forceful deterrence of street crime. Addressing the missing pieces would enrich the literature, expand its appeal and policy-relevance, and enable academics to contribute to the effort of setting the US criminal justice system on the path of long-overdue structural reform.
Robert E. Scott et. al., Revising Boilerplate: A Comparison of Private and Public Company Transactions, 2020 Wis. L. Rev. 629 (2020).
The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across settings where the agency costs are likely to be significantly different. Using a hand-collected dataset of “No Recourse” terms used in commercial contracts, we test whether agency costs explain contract stickiness by comparing two different contexts: public versus private company deals. Our study is preliminary, but we find evidence that market-wide revisions to the No Recourse clause are greater in the private company setting where agency costs are likely smaller. Further, we find that industry-wide coordination events that signal that other lawyers are likely to revise their clauses are key to inducing widespread change. This change appears to be accelerated by the presence of large law firms that may be better able to coordinate the shift to a new market standard.
Sarah A. Seo, “The Originalist Road Not Taken in Kansas v. Glover” in Supreme Court Review 2019-2020 (American Constitution Society).
In Kansas v. Glover, the Supreme Court held that it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the car, absent any information to the contrary. This essay argues that what makes Glover a hard case and an easy case is that the Court’s reasonable-suspicion jurisprudence under the Fourth Amendment, which originated with Terry v. Ohio, makes it nearly impossible to address the social-justice implications of technology-aided policing. It suggests that Justice Kagan’s concurrence and Justice Sotomayor’s dissent, both of which are rooted in doctrine, will prove ineffective in ameliorating the social issues. The essay concludes with the proposal that the Court overrule Terry based on originalist grounds, which would provide a more effective limit on the police’s use of technology.
Sarah A. Seo, Charles Reich and the Legal History of Privacy, 36 Touro L. Rev 823 (2021).
Charles Reich and the Legal History of Privacy: This essay explores what legal scholars can learn from historians and what historians can learn from legal scholarship. It first highlights what legal scholars can learn from historians by reviewing Sarah Igo’s The Known Citizen. Then it provides an alternative legal account to Igo’s history of privacy, which clears up questions that Igo raised but could not answer. Finally, the essay concludes by situating Charles Reich as a link between historians, who read him as a primary source, and law professors, who read his work as legal scholarship. The essay argues that reading Reich as both can deepen our understanding of the history of privacy in the twentieth-century United States.
Colleen F. Shanahan et. al., Judges and the Deregulation of the Lawyer’s Monopoly, 89 Fordham L. Rev. 1315 (2021).
In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as well as how technology and artificial intelligence may be leveraged in adjudicating disputes. While overt regulatory changes remain enormously controversial, scholars and policymakers have missed a critical part of the landscape: the role state court judges are playing in the de facto deregulation of the legal profession at the civil trial level. Across the nation, the rise of pro se parties has forced judges to rethink their roles. In the new reality of pro se courts, judges in debt collection, eviction, and family matters—which, together, occupy roughly ninety percent of all civil court dockets—must make critical decisions about how to balance the duty of impartiality with the need to achieve a measure of justice and ensure fair adjudication of disputes. Drawing on original data, including interviews and hundreds of hours of court observations, from a multi-site investigation of the civil justice landscape, this Article shows how some judges—mired in the pro se crisis—are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge which we believe, in turn, influences processes and outcomes. In addition to demonstrating this novel phenomenon, the Article raises three important implications of trial judges’ role in diluting the lawyer’s monopoly. First, the collaboration between judges and nonlawyer advocates is hidden behind the scenes. The quiet partnership assists judges in maintaining the perception of impartiality in the courtroom, which is critical to public trust in the courts, while enabling pro se parties to properly raise claims and seek remedies from the justice system. Second, an opportunity to develop norms around the role of nonlawyers is being squandered. Trial court judges, who are typically excluded from formal regulatory processes, could be leaders in deregulating the lawyer’s monopoly in ways that ensure the integrity of the legal profession, fill a justice gap for pro se litigants, and help to open up pathways for public and formal recognition of a new class of legal professionals. And finally, due process demands that the role of nonlawyers be made public. Our research reveals that only one party to the dispute—the petitioner for a protective order—receives nonlawyer assistance, while the respondent typically receives little to no assistance at all. Domestic violence advocates have been effective in organizing wrap-around services for survivors, including help with preparing court papers, but those accused of domestic violence and subject to protective order proceedings benefit from no such organizing effort. Bringing nonlawyer assistance out of the shadows would make plain that more needs to be done to level the playing field for both parties.
Eric Talley et. al., Patently Risky: Framing, Innovation and Entrepreneurial Preference, 34 Harv. J. L. & Tech. 191 (2020).
It is well known that innovation law and policy must strike a balance between incentivizing inventions on the one hand, and granting monopolies to successful innovators on the other. In achieving this balance, it is commonly presumed that actors in innovation markets respond to their economic environments just like anyone else (at least on a first approximation). This paper presents evidence to the contrary, using a series of controlled experiments. In our experiments, subjects were offered a choice between (a) a monetary payoff with certainty; and (b) a riskier (but potentially more lucrative) option. Our principal manipulation was to alter how the latter option was framed: subjects in the control group were presented with an unadorned choice between safe and risky options, while subjects in the treatment group were confronted with the identical economic choice, but with the risky option framed as an investment in an “innovation-related” project. We find strong evidence that when the risky choice was framed in this way, subjects exhibited significantly less risk aversion, and that they did so across many variations on the experimental setting. We calibrate our results to an equivalent downward “shock” that the innovation-related frame introduces to subjects’ manifest risk preferences. Our findings have implications for legal design questions, not only within intellectual property but also in other legal settings (such as venture capital) where the need to account for people’s risk tolerance plays an important role.
Eric Talley et. al., Liability Design for Autonomous Vehicles and Human-Driven Vehicles: A Hierarchical Game-Theoretic Approach, 118 Transportation Research Part C: Emerging Technologies (2020).
Autonomous vehicles (AVs) are inevitably entering our lives with potential benefits for improved traffic safety, mobility, and accessibility. However, AVs' benefits also introduce a serious potential challenge, in the form of complex interactions with human-driven vehicles (HVs). The emergence of AVs introduces uncertainty in the behavior of human actors and in the impact of the AV manufacturer on autonomous driving design. This paper thus aims to investigate how AVs affect road safety and to design socially optimal liability rules for AVs and human drivers. A unified game is developed, including a Nash game between human drivers, a Stackelberg game between the AV manufacturer and HVs, and a Stackelberg game between the law maker and other users. We also establish the existence and uniqueness of the equilibrium of the game. The game is then simulated with numerical examples to investigate the emergence of human drivers' moral hazard, the AV manufacturer's role in traffic safety, and the law maker's role in liability design. Our findings demonstrate that human drivers could develop moral hazard if they perceive their road environment has become safer and an optimal liability rule design is crucial to improve social welfare with advanced transportation technologies. More generally, the game-theoretic model developed in this paper provides an analytical tool to assist policy-makers in AV policymaking and hopefully mitigate uncertainty in the existing regulation landscape about AV technologies.
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.