Law Commons^™

Transforming The Welfare State, One Case At A Time: How Utrecht Makes Customized Social Care Work, Charles F. Sabel, Jonathan Zeitlin, Jan-Kees Helderman

Faculty Scholarship

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 …

New York Adopts Nation’S Strongest Environmental Justice Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

On March 3, New York Gov. Kathy Hochul signed the strongest environmental justice (EJ) law in the United States. While federal guidelines and the laws of some other states — notably California, Massachusetts, and Washington — require analysis, disclosure and consideration of EJ issues, only a New Jersey law adopted in 2020 imposed substantive limitations, as we discussed in our May 12, 2021, column. New York’s new law—building on enactments in 2019 and 2020 — is even more restrictive.

The new law — which we’ll call the EJL — provides that the Department of Environmental Conservation(DEC) “shall not issue an …

Epic Fail: Harkenrider V. Hochul And New York's 2022 Misadventure In "Independent" Redistricting, Richard Briffault

Faculty Scholarship

In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. The constitution now includes multiple new substantive requirements for districting plans, including a prohibition on the “draw[ing of] [districts] to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.” It also directs the creation of an “Independent Redistricting Commission” (“IRC”) to draw up, for submission to the legislature, maps that, following an extensive process of …

Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan P. Sturm

Faculty Scholarship

The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.

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 …

Money And The Public Debt: Treasury Market Liquidity As A Legal Phenomenon, Lev Menand, Joshua Younger

Faculty Scholarship

The market for U.S. government debt (Treasuries) forms the bedrock of the global financial system. The ability of investors to sell Treasuries quickly, cheaply, and at scale has led to an assumption, in many places enshrined in law, that Treasuries are nearly equivalent to cash. Yet in recent years Treasury market liquidity has evaporated on several occasions and, in 2020, the market’s near collapse led to the most aggressive central bank intervention in history.

This Article pieces together what went wrong and offers a new account of the relationship between money issue and debt issue as mechanisms of public finance. …

Noneconomic Objectives, Global Value Chains And International Cooperation, Bernard M. Hoekman, Petros C. Mavroidis, Douglas R. Nelson

Faculty Scholarship

Systemic conflicts increasingly affect the global value chains (GVCs) underpinning globalization by creating policy uncertainty and politicizing trade and investment decisions. Unilateral policies to attain competitiveness and noneconomic objectives (NEOs), including national security, create incentives for international cooperation to attenuate policy spillovers. Recent initiatives seeking to do so are organized around supply chain governance and need not be anchored in trade agreements. Whether such cooperation is feasible and can be designed to be effective in realizing NEOs is unclear. Plurilateral GVC-centered cooperation offers a potential path for states to pursue NEOs and reduce policy uncertainty for international business. Research offers …

Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill

Faculty Scholarship

The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …

In California And Europe, A New Dawn For Corporate Climate Disclosure, Magali Delmas, Michael B. Gerrard, Eric Orts

Faculty Scholarship

The Securities and Exchange Commission (SEC) is expected to finalize a new rule this month to cover required corporate climate disclosures by public-reporting companies. But the bigger news is that California Gov. Gavin Newsom (D) has announced that he will soon sign into law two climate change disclosure bills passed by the state Legislature.

Moore V. United States, Brief For The American Tax Policy Institute As Amicus Curiae In Support Of Respondent, Lawrence M. Hill, Stephen B. Land, David M. Schizer, Philip Wagman

Faculty Scholarship

Petitioners’ case is not about realization, notwithstanding their claim that it “squarely and cleanly” raises that issue. The income taxed by the mandatory repatriation tax (MRT) was, in fact, realized by an Indian limited liability company (KisanKraft) while petitioners owned a stake in it. So the question here is not whether there was realized income, but who can be taxed on it. The Court has long recognized the constitutional power of Congress to tax the owners of an entity on income realized by that entity. Just as Congress has the power to tax a partner on the income earned by …

Statehood And Sea-Level Rise: Scenarios And Options, Michael B. Gerrard

Faculty Scholarship

Sea-level rise may make some low-lying nations uninhabitable by the end of this century, if not before. If a country is under water, is it still a state? Does it still have a seat in the United Nations? What is the citizenship, if any, of its displaced people?

These questions take on increasing urgency as the world continues doing too little to avert catastrophic climate change. Many climate policy analyses agree the goal should be to keep global average temperatures within 1.5°C (2.7°F) above pre-industrial temperatures. That is the level that the small island states have demanded, as a matter …

Exemplary Legal Writing 2021: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

This is not the first great book that Erwin Chemerinsky, Dean of Berkeley Law School, has authored, but it is perhaps his most chilling. For in 308 pages of tightly reasoned detail, he demonstrates beyond cavil how the Supreme Court of recent decades (and well before the addition of the Trump appointees) undertook to undercut most of the reforms by which the Warren Court had sought to reduce police misconduct.

When Judges Were Enjoined: Text And Tradition In The Federal Review Of State Judicial Action, Alexandra Nickerson, Kellen R. Funk

Faculty Scholarship

It is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime. In such cases, injunctive relief against judicial officers may be the only or most effective remedy against constitutional violations, but federal courts from the trial level up to …

The End Of Asylum Redux And The Role Of Law School Clinics, Elora Mukherjee

Faculty Scholarship

The Biden Administration has perpetuated many of the prior administration’s hostile policies undermining access to asylum at the southern border. This Essay first examines these policies and then identifies emerging opportunities for law school clinics to address these new challenges, including by serving asylum seekers south of the U.S.-Mexico border.

Cardozo And Uncertainty In The Common Law, Shyamkrishna Balganesh

Faculty Scholarship

Benjamin Cardozo’s The Nature of the Judicial Process is best understood as one of the most successful contributions to this category of work defending the common law on the basis of its process. In the book, Cardozo offers a spirited and principled defense of the judicial process, all in an effort to highlight the manner in which judges manage the seemingly pervasive uncertainty of the common law method in the discharge of their duties. All the same, it is obvious that he considered the project to be necessarily incomplete. Just a few years after the publication of the Judicial Process …

Tribute To R. Kent Greenawalt: A Common-Law Thinker In A Text Driven Age, Peter L. Strauss

Faculty Scholarship

Kent Greenawalt was my colleague and friend for half a century. Over those years, we shared responsibility both for students at the beginning of their legal studies and for candidates for the doctoral degree. The course in Legal Methods, while we each taught it, was an intensive three-week, thirty-nine class hour introduction to legal studies that divided its attention between common law case analysis and statutory interpretation; Kent’s nuanced understanding of both profoundly shaped my approach to each. In the doctoral program, he offered a graduate seminar on jurisprudence; my responsibility was for a seminar on legal education. Sharing these …

Our Avatars, Ourselves, Mala Chatterjee

Faculty Scholarship

On 2013 an episode of the British TV show Black Minvrimagined a harrowing possibility: that technology might allow us to recreate the dead. A young woman named Martha loses her partner in a sudden accident and copes with the loss-or perhaps refuses to cope with itwith the assistance of an unnerving artificial intelligence, trained on her partner's data footprint, that can speak, act, and appear exactly as he did. It's not long before Martha becomes obsessed with the emulation, gathering every remnant of her partner's life to incorporate into the model and spending hours on the phone conversing with his …

The Right To Amend State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

This Essay explores the people's right to amend state constitutions and threats to that right today. It explains how democratic proportionality review can help courts distinguish unconstitutional infringement of the right from legitimate regulation. More broadly, the Essay considers the distinctive state constitutional architecture that popular amendment illuminates.

Disabling Travel: Quantifying The Harm Of Inaccessible Hotels To Disabled People, Kristen L. Popham, Elizabeth F. Emens, Jasmine E. Harris

Faculty Scholarship

During its 2023–2024 term, the U.S. Supreme Court will decide a case with significant implications for the future of the Americans with Disabilities Act (ADA). In Acheson Hotels v. Laufer, the Court will determine whether a civil rights “tester” plaintiff has Article III standing to sue a hotel for failing to provide information about the hotel’s accessibility online — in violation of Department of Justice (DOJ) regulations applying the ADA’s requirement of “reasonable modifications in policies, practices, or procedures” — when the plaintiff did not intend to book a hotel reservation. Plaintiff-Respondent Deborah Laufer has not only challenged the …

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

Section 5 In Action: Reinvigorating The Ftc Act And The Rule Of Law, Lina M. Khan

Faculty Scholarship

The Federal Trade Commission Act of 1914 didn’t just create a new agency. It created new law for that agency to enforce. The heart of that law is Section 5, which provides that ‘unfair methods of competition in or affecting commerce’ are ‘hereby declared unlawful’. In passing this law, Congress also tasked the FTC with identifying the range of methods of competition that qualify as unfair, since lawmakers recognized they could not specify them all prospectively.

This is a straightforward reading of the statute, and yet it is somewhat controversial. There is a school of thought that considers Section 5’s …

States Of Emergency: Covid-19 And Separation Of Powers In The States, Richard Briffault

Faculty Scholarship

No event in recent years has shone a brighter spotlight on state separation of powers than the COVID-19 pandemic. Over a more than two-year period, governors exercised unprecedented authority through suspending laws and regulations, limiting business activities and gatherings, restricting individual movement, and imposing public health requirements. Many state legislatures endorsed these measures or were content to let governors take the lead, but in some states the legislature pushed back, particularly — albeit not only—where the governor and legislative majorities were of different political parties. Some of these conflicts wound up in state supreme courts.

This Essay examines the states’ …

Nondelegation Blues, Philip A. Hamburger

Faculty Scholarship

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

This Foreword goes beyond existing scholarship in showing how underlying principles, framing assumptions, constitutional text, and contemporary analysis are all aligned in barring transfers of power among the branches of government. Rarely in constitutional law does a conclusion about a highly contested question rest on such a powerful combination.

At the same time, …

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Fixing The Climate: Charles Sabel In Conversation With Filippo Barbera, Filippo Barbera, Charles F. Sabel

Faculty Scholarship

In this interview with Filippo Barbera, Charles F. Sabel discusses his latest book, Fixing the Climate (Princeton University Press, 2022, with D.G. Victor), that dramatically reorients our thinking about the climate crisis. It provides a road map to institutional design oriented around concrete problem-solving that can finally lead to self-sustaining reductions in emissions that years of global diplomacy have failed to deliver. The discussion touches upon a number of key issues of general interest for social scientists: global governance; decisions under uncertainty and risk; pragmatic solutions to wicked problems; technological solutions and innovation.

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill

Faculty Scholarship

The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.

Yes, Tax The Rich — And Also The Merely Affluent, Alex Raskolnikov

Faculty Scholarship

Most Americans believe that economic inequality is too high, and many think that higher taxes are the answer. There is some disagreement about who should pay higher taxes, but there is broad agreement about who should not. At least since the heyday of the Occupy Wall Street movement, 'We Are the 99 Percent'' has been the dividing line.

“Those in the 1 percent are walking off with the riches, but in doing so they have provided nothing but anxiety and insecurity to the 99 percent,” explained Nobel laureate Joseph Stiglitz in his 2012 book The Price of Inequality. The …

Can Contract Emancipate? Contract Theory And The Law Of Work, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we re-unite 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 …