Law Commons^™

Racial Targets, Atinuke O. Adediran

Faculty Scholarship

It is common scholarly and popular wisdom that racial quotas are illegal. However, the reality is that since 2020’s racial reckoning, many of the largest companies have been touting specific, albeit voluntary, goals to hire or promote people of color, which this Article refers to as “racial targets.” The Article addresses this phenomenon and shows that companies can defend racial targets as distinct from racial quotas, which involve a rigid number or proportion of opportunities reserved exclusively for minority groups. The political implications of the legal defensibility of racial targets are significant in this moment in American history, where race …

U.S. Law And Discrimination In Health Care, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Should Prosecutors Be Expected To Rectify Wrongful Convictions, Bruce A. Green

Faculty Scholarship

In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although …

The Uncertain Judge, Courtney M. Cox

Faculty Scholarship

The intellectually honest judge faces a very serious problem about which little has been said. It is this: What should a judge do when she knows all the relevant facts, laws, and theories of adjudication, but still remains uncertain about what she ought to do? Such occasions will arise, for whatever her preferred theory about how she ought to decide a given case—what I will call her preferred “jurisprudence”— she may harbor lingering doubts that a competing jurisprudence is correct instead. And sometimes, these competing jurisprudences provide conflicting guidance. When that happens, what should she do?

Drawing on emerging debates …

Algorithmic Personalized Wages, Zephyr Teachout

Faculty Scholarship

The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.

Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put …

Disclosing Corporate Diversity, Atinuke O. Adediran

Faculty Scholarship

This Article’s central claim is that disclosures can be used instrumentally to increase diversity in corporate America in terms of race, gender, sexual orientation, and disability. Until recently, scholars and policymakers have underappreciated this possibility because diversity was often omitted from the larger Environmental, Social, and Governance (“ESG”) disclosures context, even though, as this Article empirically shows, public companies make diversity disclosures in that context.

Diversity disclosures are important not only for shareholders’ interests in transparency, but also for the benefit of other stakeholders, including employees, customers, and the communities in which companies operate, who want to know whether companies …

Pragmatic Family Law, Clare Huntington

Faculty Scholarship

Family law is a central battleground for a polarized America, with seemingly endless conflict over abortion, parental control of school curricula, gender-affirming health care for children, and similar flash points. This is hardly surprising for an area of law that implicates fundamental concerns about equality, bodily autonomy, sexual liberty, gender norms, parenting, and religion. Polarization poses significant risks to children and families, but centering contestation obscures another important reality. In many areas of doctrine and policy, family law has managed to avoid polarization, even for politically and socially combustible issues. Instead, states are converging on similar rules and policies, working …

Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib

Faculty Scholarship

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that …

Race-Ing Antitrust, I. Bennett Capers, Gregory Day

Faculty Scholarship

Antitrust law has a race problem. To spot an antitrust violation, courts inquire into whether an act has degraded consumer welfare. Since anticompetitive practices are often assumed to enhance consumer welfare, antitrust offenses are rarely found. Key to this framework is that antitrust treats all consumers monolithically; that consumers are differently situated, especially along lines of race, simply is ignored.

We argue that antitrust law must disaggregate the term “consumer” to include those who disproportionately suffer from anticompetitive practices via a community welfare standard. As a starting point, we demonstrate that anticompetitive conduct has specifically been used as a tool …

Professor Samuel H. Pillsbury's Science Of Mind: A Tribute, Deborah W. Denno

Faculty Scholarship

No abstract provided.

Patent's New Salience, Janet Freilich

Faculty Scholarship

The vast majority of patents do not matter. They are almost never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has a tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grants of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are under-enforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the …

Conflict, Consistency And The Role Of Conventional Morality In Judicial Decision-Making, Aditi Bagchi

Faculty Scholarship

Cardozo defends a pragmatic approach to judicial decision-making. Judges should apply and develop legal rules with an eye toward their social function. “Public policy” at this stage of decision-making theoretically could be rooted in a social scientific exercise or some other direct attempt to come up with the optimal rule.

Cardozo instead directs judges to conventional morality. Conventional morality is an unlikely solution given the specter of inconsistency that it raises. But in the disagreement and conflict about conventional morality that seem to render it unstable lie the resources for self-correction over time. Judicial decision-making is inevitably inconsistent to some …

Unfair Competition Under The Usmca: The Case Of Migrant Workers On Us Farms, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Tax Benefits And Fairness In K–12 Education, Linda Sugin

Faculty Scholarship

This Article examines the tax law’s subsidies for inequality and segregation in primary and secondary education, analyzing the federal charitable deduction and education savings plans, and state tax credits for education. It argues that the tax system diverts funds from traditional public education into private education, fostering economic, racial, religious, and political separation. The tax law also operates to increase resource inequality within public education by subsidizing schools that affluent children attend. In a novel analysis, the Article contends that the jurisprudence around the charitable deduction for education—though longstanding—is legally incoherent, and argues that no deduction should ever be allowed …

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed H. Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible “Decision of 1789” as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law’s strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president’s power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist view …

What’S “Controversial” About Esg? A Theory Of Compelled Commercial Speech Under The First Amendment, Sean J. Griffith

Faculty Scholarship

This Article uses the Securities and Exchange Commission’s SEC’s recent foray into Environmental, Social, and Governance ESG to illuminate ambiguities in First Amendment doctrine. Situating mandatory disclosure regulations within the compelled commercial speech paradigm, it identifies the doctrinal hinge as “controversy.” Rules compelling commercial speech receive deferential judicial review, provided they are purely factual and uncontroversial. The Article argues that this requirement operates as a pretext check, preventing regulators from exceeding the plausible limits of the consumer protection rationale.

Applied to securities regulation, the compelled commercial speech paradigm requires the SEC to justify disclosure mandates as a form of investor …

Hiding In Plain Sight: An Ilo Convention On Labor Standards In Global Supply Chains, James J. Brudney

Faculty Scholarship

This Article proposes a solution to the primary challenge currently confronting governments, employers, and workers under international labor law: how to promote and protect decent labor conditions in global supply chains (GSCs).

The Article begins by summarizing why existing public law and private law approaches have failed to meet this challenge over several decades. It describes the shortcomings of law and practice in developing countries as well as the weakness of corporate social responsibility (CSR), including the most ambitious version of CSR, the U.N. Guiding Principles on Business and Human Rights. It then analyzes the problems with recent national laws …

Reflection, Deliberation, And Dialogue: Stipanowich's Contribution To Dispute Resolution, Jacqueline Nolan-Haley .

Faculty Scholarship

No abstract provided.

Punishment Without The State, I. Bennett Capers

Faculty Scholarship

People are speaking up on social media and in other virtual spaces, sometimes to spur the criminal process, sometimes in response to the criminal system’s perceived failures, and even sometimes completely indifferent to the criminal system. People are expressing moral condemnation. They are shaming, shunning, banishing, and canceling. What are the implications of punishment through virtual spaces, in lieu of the usual—and now seemingly antiquated—space of physical courtrooms? More broadly, when all the world can become a virtual courtroom, a “place” for judgment, what are the implications for how we think about crime itself? And perhaps most importantly, if social …

Civil Justice At The Crossroads: Should Courts Authorize Nonlawyers To Practice Law?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Home Rulings, Nestor M. Davidson

Faculty Scholarship

Home rule developed through nearly a century and a half of popular reform aimed at devolving legal authority, leaving a legacy of detailed constitutional provisions in many states. State courts, however, can interpret these provisions as a relatively unconstrained instrumental and normative exercise in constitutional common law, reflexively valorizing state authority in the process. Home rule jurisprudence carries an irreducible element of judicial discretion, but this Essay argues that paying insufficient attention to constitutional text—read in the context of the reform movements that help shape the adoption of those home rule provisions—undermines popular sovereignty and risks ossifying the institutional flexibility …

Taxation And The Constitution, Reconsidered, John R. Brooks, David Gamage

Faculty Scholarship

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi

Faculty Scholarship

The theory of carceral abolition entered the mainstream during the 2020 global protests for Black lives. Abolition calls for divestment from carceral institutions like police and prisons in favor of the expansion of social and economic programs that ensure public safety and nurture community well-being. Although there is little scholarship explicitly linking abolition to international human rights, there are scholars and advocates who implicitly echo abolitionist theories by critiquing the international human rights regime's overreliance on criminal law. These critics argue that relying on carceral institutions to address impunity for human rights abuses and promote gender justice does little to …

Nondomination And The Ambitions Of Employment Law, Aditi Bagchi

Faculty Scholarship

There is something missing in existing discussions of domination. While republican theory and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, …

Unplugging Heartbeat Trades And Reforming The Taxation Of Etfs, Jeffrey M. Colon

Faculty Scholarship

The much-touted tax efficiency of equity exchange traded funds (ETFs) has historically been built upon portfolios that track indices with low turnover and the tax exemption for in-kind distributions of appreciated property.

This rule permits ETFs to distribute appreciated shares tax-free to redeeming authorized participants (APs) and reduce a fund’s future capital gains. ETFs and APs, working together, exploit this rule in so-called heartbeat trades in which an ETF distributes shares of a specific company or companies to a redeeming AP, instead of a pro rata basket of the ETF’s portfolio. The distributed securities are appreciated shares of companies that …

Victim Civil Litigation And The Elusive Goal Of Corporate Accountability, Howard M. Erichson

Faculty Scholarship

This article, written for the Clifford Symposium on Tort Law and Public Policy, examines the challenges of using victim civil litigation to hold corporations accountable for serious wrongdoing. First, it offers thoughts on defining the terms of victim civil litigation, corporate wrongdoing, and corporate accountability. Next, taking seriously the distinction between accountability grounded in punishing the wrongdoer and accountability grounded in providing redress to victims, it considers four major hurdles and how they interfere with each kind of accountability. It calls these hurdles the information asymmetry problem, the collective action problem, the Whac-a-Mole problem, and the agency problem. Using the …

Pauli Murray: Human Rights Visionary And Trailblazer, Darin E. W. Johnson, Catherine Powell

Faculty Scholarship

No abstract provided.

Benjamin Cardozo And American Natural Law Theory, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Visiting Judges, Pamela K. Bookman, Alyssa S. King

Faculty Scholarship

No abstract provided.