Digital Commons Network^™

State International Agreements: The United States, Canada, And Constitutional Evolution, Curtis A. Bradley

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The text of the US Constitution appears to require that individual states, to the extent that they are ever allowed to conclude agreements with foreign governments, must obtain congressional approval. In practice, however, states conclude many agreements with foreign governments, including with Canada and its provinces, and they almost never seek congressional approval. This practice is an illustration of both the importance of federalism in US foreign relations and the significant role played by historical practice in informing US constitutional interpretation. The phenomenon of state international agreements assumed new prominence in 2019 when the Trump administration sued to challenge a …

The Long Hand Of Anti-Corruption: Israeli Judicial Reform In Comparative Perspective, Tom Ginsburg

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There are many ways in which to examine the current Israeli constitutional crisis. This article uses the lens of anti-corruption, a global movement which has changed politics in many countries. The long empowerment of the legal system in Israel arguably has its origins in policing corruption, which may be a particularly powerful motivator for the current governing coalition’s efforts to assert more control over the Supreme Court. The dynamics of anti-corruption in Israel are somewhat distinct from those of other countries in ways that may bode well for the Court in its confrontation with the government.

The Application Of Antitrust Law To Labor Markets -Then And Now, Richard A. Epstein

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As of late, there has been a concerted push in the Biden administration, backed by prominent academics, to expand the application of antitrust law against major employers who are said to exercise monopsony power that reduces aggregate demand and thus leaves too many workers on the sidelines. The effort takes place chiefly in two major areas: stricter attacks on covenants not-to-compete, and more intense review of mergers under the Clayton Act.

This paper begins with an historical account of the law in both areas, from which it concludes that there is no good reason to alter the status quo ante. …

Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson

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Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome- sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and …

Open Access, Interoperability, And Dtcc’S Unexpected Path To Monopoly, Dan Awrey, Joshua C. Macey

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For markets characterized by significant economies of scale, scholars and policy- makers o�en advance open-access and interoperability requirements as superior to both regulated monopoly and the breakup of dominant firms. In theory, by compelling firms to coordinate in the development of common infrastructure, these requirements can replicate the advantages of scale without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit-card networks.

This Article offers a qualification to this received wisdom. By tracing the Depository Trust and Clearing Corporation’s path to monopoly in the U.S. securities clearing and depository markets, …

Antitrust And Labor Markets: A Reply To Richard Epstein, Eric Posner

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No abstract provided.

What Can We Learn From The Federal Approach To The Prosecution Of Juvenile Crime?, Emily Buss

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In a context of widespread concern over our bloated criminal justice system and growing awareness of the harm done to individuals and society by our excessive incarceration policies, any piece of the system that has remained infinitesimally small deserves some attention. In her article, The Federal Juvenile System, 1 Esther Hong highlights the success of the largely overlooked federal juvenile delinquency system in staying extremely small and suggests this system offers lessons for its bloated state and federal counterparts. Although I agree that the federal government’s prosecution of minors under the Federal Juvenile Delinquency Act (“FJDA”) offers some valuable lessons …

Kids Are Not So Different: The Path From Juvenile Exceptionalism To Prison Abolition, Emily Buss

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Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach. Both the text of the Court’s opinions and the developmental and …

Symposium Introduction: This Violent City? Urban Violence In Chicago And Beyond, Aziz Z. Huq, John Rappaport

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To many, the city of Chicago conjures up a specter of unremitting urban violence. In 2014, the city was labeled the “murder capital” of the United States.¹ The following year, a video of the police shooting Laquan McDonald became a cynosure of public concern.² Commentators as disparate as Spike Lee and President Donald Trump agree: Chicago is uniquely bloody.³ Predictably, the empirical data about Chicago’s crime and policing trends belie the most dramatic of these claims.⁴ Yet if Chicago is not as violent as either Lee or Trump makes it out to be, the city’s experience …

Constitutional Challenges To Public Health Orders In Federal Courts During The Covid-19 Pandemic, Kenny Mok, Eric A. Posner

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We examine federal judicial cases involving nonreligious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic in early 2020 to January 27, 2022. Consistent with the tradition of judicial deference toward states during emergencies, we find a high level of success for governments. However, governments did lose in 14.2% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers who brought claims based on gun rights and property rights, while Democratic- appointed judges were more likely to rule in favor …

Police Agencies On Facebook Overreport On Black Suspects, Ben Grunwald, Julian Nyarko, John Rappaport

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A large and growing share of the American public turns to Facebook for news. On this platform, reports about crime increasingly come directly from law enforcement agencies, raising questions about content curation. We gathered all posts from almost 14,000 Facebook pages maintained by US law enforcement agencies, focusing on reporting about crime and race. We found that Facebook users are exposed to posts that overrepresent Black suspects by 25 percentage points relative to local arrest rates. This overexposure occurs across crime types and geographic regions and increases with the proportion of both Republican voters and non-Black residents. Widespread exposure to …

Ideation And Innovation In Constitutional Rights, Tom Ginsburg

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This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion …

Reflections Of A Supreme Court Commissioner, William Baude

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In 2021, President Joseph Biden convened a presidential commission to consider proposals to reform the Supreme Court. Dozens of witnesses dressed up to provide live testimony to the commission, thousands of people wrote in with additional testimony, and the commission ultimately sent the President a 294-page report.1 I served on that commission and agreed to submit our report to the President. But much is lost in committee. What follows are my own views on the subjects we considered.

In keeping with the structure of the commission’s report, Part I addresses background, Part II addresses court packing, Part III addresses term …

Escape Room: Implicit Takings After Cedar Point Nursery, Lee Fennell

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No abstract provided.

Antitrust And Inequality, Eric A. Posner, Cass R. Sunstein

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In its current form, antitrust law is sometimes said to advance consumer welfare and to disregard economic inequality. In fact, because monopoly and monopsony benefit shareholders at the expense of workers and consumers antitrust law redistributes resources from (generally wealthier) shareholders to (generally less wealthy) workers and consumers. Antitrust enforcement agencies seeking to reduce inequality might adjust their priorities and target markets that are disproportionately important for low-income people. Agriculture and health care would be good places to start; food and medicine compose a larger share of the budget of low-income people than of others, and these goods are essential …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

Articles

Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.”

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …

Assessing Affirmative Action's Diversity Rationale, Adam Chilton, Justin Driver, Jonathan Masur, Kyle Rozema

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No abstract provided.

Competing Algorithms For Law: Sentencing, Admissions, And Employment, Saul Levmore, Frank Fagan

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No abstract provided.

The Performance Of Africa's International Courts: Using Litigation For Political, Legal, And Social Change, Tom Ginsburg

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No abstract provided.

Delegation Of Powers: A Historical And Functional Analysis, Richard Epstein

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No abstract provided.

Discovering Racial Discrimination By The Police, Alison Siegler

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No abstract provided.

The Future Of Felon Disenfranchisement Reform: Evidence From The Campaign To Restore Voting Rights In Florida, Michael Morse

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No abstract provided.

Valuation Blunders In The Law Of Eminent Domain, Richard Epstein

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Limiting The Pardon Power, Albert W. Alschuler

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Although our government is said to be one of checks and balances, the president’s power “to grant Reprieves and Pardons for Offenses against the United States” appears to be unlimited. In granting this power, the Framers deliberately cast structural safeguards aside. Nevertheless, the presidency of Donald Trump prompted a search for limits. This Article examines: (1) whether a president may pardon crimes that have not yet happened (or announce his intention to do so); (2) whether he may pardon himself; (3) whether he may use pardons to obstruct justice or commit other crimes; (4) whether criminal statutes should be construed …

Rethinking Prosecutorial Discretion In Immigration Enforcement, Nicole Hallett

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Prosecutorial discretion in immigration enforcement stands at a crossroads. It was the centerpiece of Obama's immigration policy after efforts to pass comprehensive immigration reform failed. Under the Trump administration, it was declared all but dead, replaced by an ethos of maximum enforcement. Biden has promised a return to the status quo ante, but the record of using prosecutorial discretion to accomplish humanitarian goals in immigration enforcement under Obama was, at best, mixed. Moreover, it is unclear whether Biden can depend on the availability of programs such as Deferred Action for Childhood Arrivals (DACA), Obama's signature prosecutorial discretion program. Although the …

Police Deception In Interrogation As A Problem Of Procedural Legitimacy, Margareth Etienne, Richard Mcadams

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No abstract provided.

The Social Science Approach To International Law, Daniel Abebe, Adam Chilton, Tom Ginsburg

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No abstract provided.

Symposium: The Roberts Court And Free Speech: Transcript, Michael Cahill, Joel Gora, Geoffrey Stone

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No abstract provided.

The Boundaries Of Normative Law And Economics, Eric Posner

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No abstract provided.

The Comparative Constitutional Law Of Presidential Impeachment, Aziz Huq, Tom Ginsburg, David Landau

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No abstract provided.