Law Commons^™

Medical-Legal Partnerships Reinvigorate Systems Lawyering Using An Upstream Approach, Kate L. Mitchell, Debra Chopp

Articles

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Feedback Loops: Going Negative, Patrick Barry

Articles

Aelet Fishbach is a professor at the University of Chicago Booth School of Business who has studied how people seek out and process negative feedback. One of the ways she has done this is through a classroom exercise in which she divides the students into two groups: feedback givers and feedback receivers. The givers are told to pair up with a receiver and communicate the following feedback in a one-on-one setting: The person's performance s unsatisfactory; improvement is needed; and there are concrete ways they can get on the right track.

Chevron And Stare Decisis, Kent Barnett, Christopher J. Walker

Articles

This Term, in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce, the Supreme Court will expressly consider whether to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.—a bedrock precedent in administrative law that a reviewing court must defer to a federal agency’s reasonable interpretation of an ambiguous statute that the agency administers. In our contribution to this Chevron on Trial Symposium, we argue that the Court should decline this invitation because the pull of statutory stare decisis is too strong to overcome.

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

What Do Consumers Understand About Predispute Arbitration Agreements? An Empirical Investigation, Roseanna Sommers

Articles

The results of a survey of 1,071 adults in the United States reveal that most consumers do not pay attention to, let alone understand, arbitration clauses in their everyday lives. The vast majority of survey respondents (over 97%) report having opened an account with a company that requires disputes to be submitted to binding arbitration (e.g., Netflix, Hulu, Cash App, a phone or cable company), yet most are unaware that they have, in fact, agreed to mandatory arbitration (also known as “forced arbitration”). Indeed, over 99% of respondents who think they have never entered into an arbitration agreement likely have …

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

The Meme Stock Fenzy: Origins And Implications, Dhruv Aggarwal, Albert H. Choi, Yoon-Ho Alex Lee

Articles

In 2021, several publicly traded companies, such as GameStop, Bed Bath & Beyond, and AMC, became “meme stocks,” experiencing a sharp rise in their stock prices through a dramatic influx of retail investors into their shareholder base. Analyses of the meme stock surge and its implications for corporate governance have focused on the idiosyncratic creation of online communities around particular stocks during the COVID-19 pandemic. In this Article, we argue that the emergence of meme stocks is part of longer-running and more structural digital transformations in trading, investing, and governance. On the trading front, the abolition of commissions by major …

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

Research Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Vilgoen

Articles

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer

Articles

Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …

Pricing Corporate Governance, Albert Choi

Articles

Scholars and practitioners have long theorized that by penalizing firms with unattractive governance features, the stock market incentivizes firms to adopt the optimal governance structure at their initial public offerings (IPOs). This theory, however, does not seem to match with practice. Not only do many IPO firms offer putatively suboptimal governance arrangements, such as staggered boards and dual-class structures, but these arrangements have been gaining popularity among IPO firms. This Article argues that the IPO market is unlikely to provide the necessary discipline to incentivize companies to adopt the optimal governance package. In particular, when the optimal governance package differs …

Consent Searches And Underestimation Of Compliance: Robustness To Type Of Search, Consequences Of Search, And Demographic Sample, Roseanna Sommers, Vanessa K. Bohns

Articles

Most police searches today are authorized by citizens' consent, rather than probable cause or reasonable suspicion. The main constitutional limitation on so-called “consent searches” is the voluntariness test: whether a reasonable person would have felt free to refuse the officer's request to conduct the search. We investigate whether this legal inquiry is subject to a systematic bias whereby uninvolved decision-makers overstate the voluntariness of consent and underestimate the psychological pressure individuals feel to comply. We find evidence for a robust bias extending to requests, tasks, and populations that have not been examined previously. Across three pre-registered experiments, we approached participants …

States’ Duty Under The Federal Elections Clause And A Federal Right To Education, Evan Caminker

Articles

Fifty years ago, in San Antonio Independent School District v. Rodriguez, the Supreme Court failed to address one of the preeminent civil rights issues of our generation—substandard and inequitable public education—by holding that the federal Constitution does not protect a general right to education. The Court didn’t completely close the door on a narrower argument that the Constitution guarantees “an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process.” Both litigants and scholars have been trying ever since to push that door open, pressing …

Feedback Loops: More Valuable Than Money, Patrick Barry

Articles

In an essay called "Secrets of Positive Feedback,” Douglas Conant, the former CEO of Campbell Soup Company, shares a key element of the leadership style that helped him resurrect Campbell’s from financial ruin in 2001 and turn it into both a highly profitable business by the time he stepped down in 2011 and an award-winning, much more inclusive workplace: During his ten years at the helm, he wrote more than 30,000 thank-you notes to his employees and customers.

The Federal Reserve's Mandates, David T. Zaring, Jeffery Y. Zhang

Articles

Solutions to systemic problems such as climate change and racial inequities have eluded policymakers for decades. In searching for creative solutions, some policymakers have recently thought about expanding the Federal Reserve’s core set of macroeconomic mandates to tackle these issues. But there are real questions about whether that can be done from a legal perspective and whether that should be done from a policy perspective.

The War In Ukraine And Legal Limitations On Russian Vetoes, Anne Peters

Articles

A veto exercised by a permanent member of the UN Security Council to shield that state’s own manifest and prima facie aggression from condemnation and collective action by the Council is legally flawed. The UN Charter can be reasonably interpreted as prohibiting such a veto and depriving it of legal force. This flows from Article 27(3) of the Charter, in conjunction with the prohibition of the abuse of rights, as a manifestation of the principle of good faith, and the obligation to respect the right to life, against the background that the prohibition has the status of jus cogens. These …

Taming Wildcat Stablecoins, Gary B. Gorton, Jeffery Y. Zhang

Articles

Cryptocurrencies, including stablecoins, are all the rage. Investors are exploring ways to profit off of them. Governments are considering ways to regulate them. While the technology underlying cryptocurrencies is new, the economics is centuries old. Oftentimes, lawmakers are so focused on understanding a new technological innovation that they fail to ask what exactly is being created.

In this case, the new technology has recreated circulating private money in the form of stablecoins, which are similar to the banknotes that circulated in many countries during the nineteenth century. The implication is that stablecoin issuers are unregulated banks. Based on lessons learned …

Covid-19 Pandemic’S Impact On Online Sex Advertising And Sex Trafficking, Coxen O. Julia, Vanessa Castro, Bridgette Carr, Glen Redin

Articles

Disruptive social events such as the COVID-19 pandemic can have a significant impact on sex trafficking and the working conditions of victims, yet these effects have been little understood. This paper examines the effect of the COVID-19 pandemic on sex trafficking in the United States, based on analysis of over one million sexual service advertisements from the online platform Rubratings.com, using indicators of third-party management as potential proxies for trafficking. Our results show that there have been measurable changes in online commercial sexual service advertising, both with and without third-party management indicators, in the United States, with a significant decrease …

Feedback Loops: Appreciators, Coaches, & Evaluators, Patrick Barry

Articles

No individual person is likely to be able to satisfy all of our feedback needs. Which is why I tell my students to assemble a “Feedback Board of Directors.” Focus in particular, I tell them, on recruiting people who can collectively provide what Douglas Stone and Sheila Heen of Harvard Law School identify as the three basic forms of feedback in their book “Thanks for the Feedback”:

The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert

Articles

This article has three aims. First, it surveys the pre-BEPS efforts to create a multilateral tax convention (MTC) from the 19th century onward, and explains why these efforts have failed, leading to an international tax regime dominated by unilateralism and bilateralism. Second, it contrasts the success of multilateralism in investment and trade law. Third, it examines the BEPS era efforts to create an MTC and suggests that, while there has been more convergence of the tax laws of countries, a fundamental divergence of interests persists that will likely doom any such efforts to failure. The article concludes that, at this …

Mandating Repair Scores, Aaron Perzanowski

Articles

Restrictions on the repair of consumer goods have generated no shortage of policy proposals. This Article considers the empirical and legal case for one particular intervention—requiring firms to calculate and disclose their products’ scores on a uniform reparability index. These repair scores would provide consumers with salient information at or before the point of sale, enabling them to compare products on the basis of the ease and cost of repair. There is considerable empirical research, including assessments of France’s implementation of a similar requirement in recent years, suggesting that repair scores would both inform and empower consumers. Despite likely First …

Effective Communication With Deaf, Hard Of Hearing, Blind, And Low Vision Incarcerated People, Civil Rights Litigation, Tessa Bialek, Margo Schlanger

Articles

Tens of thousands of people incarcerated in jails and prisons throughout the United States have one or more communication disabilities, a term that describes persons who are deaf, hard of hearing, blind, low vision, deafblind, speech disabled, or otherwise disabled in ways that affect communication. Incarceration is not easy for anyone, but the isolation and inflexibility of incarceration can be especially challenging, dangerous, and further disabling for persons with disabilities. Correctional entities must confront these challenges; the number of incarcerated persons with communication disabilities—already overrepresented in jails and prisons—continues to grow as a proportion. Federal antidiscrimination law obligates jails and …

Due Process And Equal Protection In Michigan Anishinaabe Courts, Matthew Fletcher

Articles

In 1968, largely because the United States Constitution does not apply to tribal government activity, Congress enacted the Indian Civil Rights Act–a federal law that requires tribal governments to guarantee due process and equal protection to persons under tribal jurisdiction. In 1978, the Supreme Court held that persons seeking to enforce those federal rights may do so in tribal forums only; federal and state courts are unavailable. Moreover, the Court held that tribes may choose to interpret the meanings of “due process” and “equal protection” in line with tribal laws, including customary laws. Since the advent of the self-determination era …

Back To Basics: The Benefits Of Paradigmatic International Organizations, Kristina Daugirdas, Katerina Linos

Articles

In the early 2000s, small “coalitions of the willing,” flexible networks, and nimble private-public partnerships were promoted as alternatives to bureaucratic, consensus-seeking, and slow-moving international organizations. The Global Fund to Fight AIDS, Tuberculosis and Malaria was established as an efficient alternative to the lumbering World Health Organization. The Basel Committee, the Financial Stability Forum, and the Financial Action Task Force were lauded as global market regulators. The Pompidou Group, the Dublin Group, and Interpol were touted as effective police networks in the battle against transnational crime.

We systematically reviewed the evolution of these celebrated networks in the ensuing decades by …

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

Terrible Freedom, Ambiguous Authenticity, And The Pragmatism Of The Endangered: Why Free Speech In Law School Gets Complicated, Leonard M. Niehoff

Articles

We idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts.

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

Congress's Anti-Removal Power, Christopher J. Walker, Aaron Nielson

Articles

Statutory restrictions on presidential removal of agency leadership enable agencies to act independently from the White House. Yet since 2020, the U.S. Supreme Court has held two times that such restrictions are unconstitutional precisely because they prevent the President from controlling policymaking within the executive branch. Recognizing that a supermajority of the Justices now appears to reject or at least limit the principle from Humphrey’s Executor that Congress may prevent the President from removing agency officials based on policy disagreement, scholars increasingly predict that the Court will soon further weaken agency independence if not jettison it altogether.

This Article challenges …