Digital Commons Network^™

Democracy & Religion: Some Variations & Hard Questions, Kent Greenawalt

Faculty Scholarship

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 …

Global Investor Protection: Securities Law Enforcement Around The World, Matthew Diller, Martin Gelter, Eugenio J. Cardenas, Merritt B. Fox, Geoffrey Jarvis, Pierre-Henri Conac, Todd Cosenza, Jill Fisch, Yuliya Guseva, Elad Roisman, Sean Griffith

Faculty Scholarship

Today's topic is a great one – one that is of central importance to the fairness of our markets and their integrity. The Securities and Exchange Commission (SEC) and the U.S. system of protecting the integrity of capital markets have long been seen as the gold standard. But does that continue to be true? Are there other systems and models that are, in fact, better than what we do here in the United States? We, of course, are filled with flaws and shortcomings of our own.

Profiling And Consent: Stops, Searches, And Seizures After Soto, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

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 …

Judicial Credibility, Bert I. Huang

Faculty Scholarship

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 …

Political Wine In A Judicial Bottle: Justice Sotomayor's Surprising Concurrence In Aurelius, Christina D. Ponsa-Kraus

Faculty Scholarship

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 …

On Trust, Law, And Expecting The Worst, Elizabeth F. Emens

Faculty Scholarship

This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, …

Taking Compliance Seriously, John Armour, Jeffrey N. Gordon, Geeyoung Min

Faculty Scholarship

How can we ensure corporations play by the “rules of the game” – that is, laws encouraging firms to avoid socially harmful conduct? Corporate compliance programs play a central role in society’s current response. Prosecutors give firms incentives – through discounts to penalties – to implement compliance programs that guide and monitor employees’ behavior. However, focusing on the incentives of firms overlooks the perspective of managers, who decide how much firms invest in compliance.

We show that stock-based pay, ubiquitous for corporate executives, creates systematic incentives to short-change compliance. Compliance is a long-term investment for firms, whereas managers’ time horizon …

The Covid-19 Pandemic And Business Law: A Series Of Posts From The Oxford Business Law Blog, Gert-Jan Boon, Markus K. Brunnermeier, Horst Eidenmueller, Luca Enriques, Aurelio Gurrea-Martínez, Kathryn Judge, Jean-Pierre Landau, Marco Pagano, Ricardo Reis, Kristin Van Zwieten

Faculty Scholarship

The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.

Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times …

Why Should We Care About International Law?, Monica Hakimi

Faculty Scholarship

International lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles — known as realist — posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons …

Making Sense Of Customary International Law, Monica Hakimi

Faculty Scholarship

This Article addresses a longstanding puzzle about customary international law (CIL): How can it be, at once, so central to the practice of international law — routinely invoked and applied in a broad range of settings — and the source of such persistent confusion and derision? The centrality of CIL suggests that, for the many people who use it, it is not only comprehensible but worthwhile. They presumably use it for a reason. But then, what accounts for all the muddle and disdain?

The Article argues that the problem lies less in the everyday operation of CIL than in the …

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

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 in writing the rules for and administering the …

Public Health Law Tools: A Brief Guide, Kristen Underhill

Faculty Scholarship

The COVID-19 pandemic offers a threat with few precedents in modern times and tests the tools of modern surveillance and public health law. The goal of this chapter is to provide a brief overview of the types of measures that state and federal governments can invoke to treat and prevent the spread of infectious disease. The following sections will provide an orientation to domestic public health law followed by the types of measures available to state and federal public health authorities.

Although this chapter does not consider international institutions, treaties, or norms that affect public health, these are also essential …

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection …

Copyright As Legal Process: The Transformation Of American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. …

Power In Human Rights Advocate And Rightsholder Relationships: Critiques, Reforms, And Challenges, Sarah Knuckey, Benjamin Hoffman, Jeremy Perelman, Gulika Reddy, Alejandra Ancheita, Meetali Jain

Faculty Scholarship

Human rights advocacy can construct passive “victims,” objectify or displace rightsholders and affected communities, and contribute to their disempowerment. In response to critiques – made by rightsholders, activists, and scholars alike – about the values and effects 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 affected individuals and groups. However, the tactics and modalities of these efforts 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 …

Rule By Data: The End Of Markets?, Katharina Pistor

Faculty Scholarship

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 …

Tech Dominance And The Policeman At The Elbow, Tim Wu

Faculty Scholarship

One school of thought takes much of law and the legal system as essentially irrelevant to the process of technological evolution. This view takes as axiomatic that the rate technological change is always accelerating, that any firm or institution dependent on a given technology is therefore doomed to a rapid obsolescence. Law, at best, risks interfering with a natural progression toward a better technological future, hindering “the march of civilization.”

This paper discusses the historical role of antitrust investigation in changing the course of technological development by focusing on the example of the IBM litigation (1969 - 1984). While widely …

Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah S. Purdy, David Singh Grewal, Amy Kapczynski, K. Sabeel Rahman

Faculty Scholarship

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 …

The Curse Of Bigness: New Deal Supplement, Tim Wu

Faculty Scholarship

This is a supplement to the book, The Curse of Bigness: Antitrust in the New Gilded Age. It covers the years between 1920 - 1945, with a focus on the New Deal, and represents material left out of the original book.

It is meant to be read together with the larger volume, but can also be read separately.

Legitimate Interpretation – Or Legitimate Adjudication?, Thomas W. Merrill

Faculty Scholarship

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. …

Conference On Best Practices For Managing Daubert Questions, Daniel J. Capra, David G. Campbell, Debra A. Livingston, James P. Bassett, Shelly Dick, Traci L. Lovitt, Thomas Marten, Kathryn N. Nester, Thomas D. Schroeder, Elizabeth J. Shapiro, Timothy Lau, Vince Chhabria, John Z. Lee, William H. Orrick Iii, Edmund A. Sargus Jr., Sarah A. Vance, Edward K. Cheng

Faculty Scholarship

This article is a transcript of the Philip D. Reed Lecture Series Conference on Best Practices for Managing Daubert Questions, held on October 25, 2019, at Vanderbilt Law School under the sponsorship of the Judicial Conference Advisory Committee on Evidence Rules. The transcript has been lightly edited and represents the panelists’ individual views only and in no way reflects those of their affiliated firms, organizations, law schools, or the judiciary.

The Promise And Limits Of Cyber Power In International Law: Remarks, Monica Hakimi, Ann Väljataga, Zhixiong Huang, Charles Allen, Sue Robertson, Doug Wilson

Faculty Scholarship

Hi, everyone. I am Monica Hakimi from the University of Michigan Law School, and I would like to welcome you to our panel on cyber power and its limits. The topic almost does not need an introduction. We all know just from reading the news that our collective dependence on cyberspace is also a huge vulnerability, and state and non-state actors exploit this vulnerability to do one another harm. They use cyber technologies not just to spy on one another, but also, for example, to interfere in national elections, to steal trade secrets or other valuable information, to disrupt the …

Lessons From The Prekindergarten Movement, Clare Huntington

Faculty Scholarship

I am deeply grateful for the ambition of Nancy Dowd’s book, Reimagining Equality. Professor Dowd offers a powerful and essential vision for addressing the entrenched inequalities that pervade our society. And she is unapologetic about the breadth and depth of change needed to achieve this vision. I do not want to distract from her inspiring call for a New Deal for Children by introducing questions about political feasibility, but thinking about what is possible in the here and now is a useful place to begin the conversation about systemic change.

So, what is possible in this era of Trump? …

A Mission Statement For Mutual Funds In Shareholder Litigation, Sean J. Griffith, Dorothy S. Lund

Faculty Scholarship

This Article analyzes the conduct of mutual funds in shareholder litigation. We begin by reviewing the basic forms of shareholder litigation and the benefits such claims might offer mutual fund investors. We then investigate, through an in-depth docket review, whether and how the ten largest mutual funds participate in shareholder litigation. We find that although shareholder suits offer potential benefits, the largest mutual funds have essentially forfeited their use of litigation. This finding is particularly striking given that index funds and other long-term oriented mutual funds generally cannot sell their shares when they are dissatisfied with company performance, leaving them …

The New Restatement Of Children And The Law: Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

This Essay is based on a previous article: Clare Huntington & Elizabeth Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371 (2020) (offering a comprehensive account of the Child Wellbeing framework).

Since the 1960s, the law regulating children has become increasingly complex and uncertain. The relatively simple framework established in the Progressive Era, in which parents had primary authority over children subject to a limited supervisory and protective role of the state, has broken down. Lawmakers have begun to grant children some adult rights and privileges, raising questions about their traditional status as vulnerable, dependent, …

Executive Underreach, In Pandemics And Otherwise, David E. Pozen, Kim Lane Scheppele

Faculty Scholarship

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.

Reframing Affirmative Action: From Diversity To Mobility And Full Participation, Susan P. Sturm

Faculty Scholarship

Legality and efficacy call for reframing the affirmative-action debate within a broader institutional effort to address structural inequality in higher education. Although defending affirmative action as we know it continues to be important and necessary, it is crucial to identify and address the disconnect between affirmative action and higher education's practices that contribute to enduring racial and economic inequality and waning social mobility. There is a persistent and growing gap between higher education’s rhetoric of diversity, opportunity, and mobility and the reality of underparticipation, polarization, and stratification. That gap has racial, gender, and socioeconomic dimensions. The path to shoring up …

Conceptualizing Legal Childhood In The Twenty-First Century, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

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 …

Furman'S Legacy: New Challenges To The Overbreadth Of Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what …

In Defense Of Empiricism In Family Law, Elizabeth S. Scott

Faculty Scholarship

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 …