Law Commons^™

Predictability And Adaptation In Law And Other Markets (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Public Law and Legal Theory Working Papers

People and enterprises that are subject to the law find it useful to know what the law is at present, but then also to anticipate future rules. If laws are stable this is easily done. Stability is more common where the judicial branch is concerned, because precedents are often valued, and for good reason. They are more often followed by judges than by those involved in other methods of lawmaking. But in all of lawmaking, and even in the private sphere, there is value to consistency and certainty. And yet, surprises can be attractive if they are not confronted on …

Lost Time: Paying For Delays Associated With Labor Strikes And Traffic Jams (Chapter In A Coming Book: Research Handbook On Law And Time), Saul Levmore

Public Law and Legal Theory Working Papers

Waiting is often costly. In many settings, one party delays to impose costs on another. In other settings, delay yields a small gain while imposing significant costs on others who cannot easily bargain. Where the parties can bargain, at least one expects the other to relent and to bring about a settlement that is mutually beneficial. Inasmuch as time offers the opportunity to gather information, compare alternatives, and reach yet better bargains, law does not and should not simply discourage all delays. On the other hand, it is often the case that when parties delay before reaching a bargain, they …

Toward Principled Background Principles In Takings Law, Lior Strahilevitz, Becca Hansen

Public Law and Legal Theory Working Papers

Blunders made by lawyers, judges, and scholars have caused the Supreme Court’s recent opinion in Cedar Point Nursery v. Hassid to be deeply misunderstood. In Cedar Point, the Court re-wrote takings law by treating temporary and part-time entries onto private property as per se takings. Prior to Cedar Point these sorts of government-authorized physical entries would have been evaluated under a balancing framework that almost invariably enabled the government to prevail. As it happens, there were two well-established rules of black letter law that California’s lawyers and amici mistakenly failed to invoke in defending the Cedar Point union organizer access …

The Corporate Governance Of Public Utilities, Aneil Kovvali, Joshua Macey

Public Law and Legal Theory Working Papers

Rate regulated public utilities own and operate one-third of U.S generators and nearly all the transmission and distribution system. These firms receive special regulatory treatment because they are protected from competition and subject to rate caps. In the past decade, they also have been at the center of high-profile corporate scandals. They have bribed regulators to secure subsidies for coal-fired generators and nuclear reactors. They have caused wildfires and coal ash spills that resulted in hundreds of deaths and billions of dollars in liability. Their failure to maintain reliable electric service has contributed to catastrophic blackouts. Perhaps most consequentially, they …

Be Careful What You Wish For, Albert W. Alschuler

Public Law and Legal Theory Working Papers

[A]ny change in sentencing practices is likely to be an improvement. Judge Marvin Frankel in 1973 ¹

Fifty years ago, Marvin E. Frankel published an elegant, timely, and extraordinarily influential book, Criminal Sentences: Law Without Order. Four years after this book called for the appellate review of sentences and for greatly limiting the discretion of both sentencing judges and parole boards, California became the first state to limit sharply judicial sentencing discretion and abolish parole.²

Twenty other states joined the reform movement before Congress embraced the move from individualized to wholesale sentencing in 1984.³ The Sentencing Reform Act …

Climate Change Policy In The International Context: Solving The Carbon Leakage Problem, David A. Weisbach, Samuel S. Kortum

Public Law and Legal Theory Working Papers

Under the Paris Agreement, nations set their own emissions goals and policies. As a result, climate policies vary widely across countries, with some countries imposing stringent emissions policies and others doing very little. A key problem when carbon policies vary across countries is that energy intensive industries can relocate to places with few or no emissions restriction. Relocated industries would continue to pollute but would be operating in a less desirable location. Moreover, the countries that imposed strict emissions reductions lose the benefit of having those industries located domestically. This problem, known as leakage, is one of the key reasons …

Against Political Theory In Constitutional Interpretation, Christopher Havasy, Joshua Macey, Brian Richardson

Public Law and Legal Theory Working Papers

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write …

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Public Law and Legal Theory Working Papers

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …

Sharing Where Bargains Are Impossible, Saul Levmore, Andrew Verstein

Public Law and Legal Theory Working Papers

Cooperation sometimes breaks down, and former teammates will disagree about what happens next. For example, when can an employee quit to join a competitor? Courts often resolve disputes by looking at the parties actual or hypothetical bargain. Thus, a court may ask whether there was a non-competition agreement (and whether it was reasonable), or whether the employee is taking a “corporate opportunity” as she departs. These are all-or-nothing determinations by courts; either the bargain, or law, fully allows or fully prohibits the disputed conduct.

This is a suitable approach when fair and efficient bargains are possible. But, this article argues …

Investments In The Magnificent Ambersons: Business, Marriage, And Law-Making, Saul Levmore

Public Law and Legal Theory Working Papers

Successful investments often reflect insight, implementation, and good fortune. In Booth Tarkington’s Pulitzer Prize-winning novel, The Magnificent Ambersons1 (written in 1918, adapted by Orson Welles in a celebrated 1942 film, and recently rediscovered and scheduled for release with material that had been removed over Welles’ objection), horses give way to the automobile and the characters’ fortunes rise and fall as the world changes with the advent of this new technology. Meanwhile, the decision to marry, like one to enter other partnerships, also depends on insight, effort, and good fortune. I aim to show these parallel themes in the novel. The …

Cross-Border Influencers: Democracy And Externalities, Saul Levmore

Public Law and Legal Theory Working Papers

The United States1does not allow foreigners to influence U.S. elections by giving money to political parties or candidates, but many other countries do allow cross-border influencing. Indeed, the variety of policies among countries is remarkable.2 Some countries, like the United States, that forbid financial contributions from outside the country, do permit cross-border contributions across domestic borders, such as those of states and cities. Meanwhile, Canadians cannot contribute to the campaigns of U.S. political candidates, and cannot even (lawfully) influence the American political process by purchasing campaign t-shirts or bumper stickers. This prohibition is in place even though, like constituents of …

International Agreements By U.S. States: Federalism, Foreign Affairs, And Constitutional Change, Curtis A. Bradley

Public Law and Legal Theory Working Papers

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

The Hidden Judicial Springs Of U.S. Foreign Policy, Mariano-Florentino Cuéllar, Aziz Z. Huq

Public Law and Legal Theory Working Papers

No abstract provided.

A Constitutional Perspective On Institutional Neutrality, Tom Ginsburg

Public Law and Legal Theory Working Papers

We live in an era of the academic corporate statement, in which university leaders issue pronouncements on various issues as if they were political figures. Like their counterparts in large corporations, they apparently feel the need to state institutional values publicly and often. Commentary on the issues of the day is seen as projecting pastoral empathy and solidarity; silence is viewed as complicity. We want leaders who can craft the perfect statement satisfying all, and in the right font size.

Such trends cut directly against the intuition behind the Kalven report, which is that academic institutions should remain spaces of …

Twilight-Zone Originalism: The Peculiar Reasoning And Unfortunate Consequences Of New York State Pistol & Rifle Association V. Bruen, Albert W. Alschuler

Public Law and Legal Theory Working Papers

In New York State Rifle & Pistol Ass'n v. Bruen, the Supreme Court held unconstitutional a New York Statute that, as construed by the state courts, allowed an individual to carry a firearm outside her home or business for purposes of self-defense only if she could show licensing authorities "a special need for self-protection distinguishable from that of the general community." By a vote of six-to-three, the Court concluded that this statute violated the right to keep and bear arms guaranteed by the Second Amendment and applied to the states by the Fourteenth Amendment.

The Court announced a general standard …

Grid Reliability In The Electric Era, Joshua Macey, Shelley Welton, Hannah Wiseman

Public Law and Legal Theory Working Papers

The United States has delegated the weighty responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Despite the fact that NERC is one of the largest and most important examples of industry-led governance—and regulates in an area that is central to our economy and basic human survival— this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To achieve deep decarbonization, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run …

Stark Choices For Corporate Reform, Aneil Kovval

Public Law and Legal Theory Working Papers

For decades, corporate law scholars insisted on a simple division of responsibilities. Corporations were told to focus exclusively on maximizing financial returns to shareholders while the government tended to all other concerns by adopting new regulations. As reformers challenged this orthodoxy by urging corporations to take action on pressing social problems, defenders of the status quo have responded by suggesting that these efforts could be dangerous. In their view, internal corporate governance reforms could interfere with the adoption of external governmental regulations that would be more effective. The hypothesis that reformers face a stark choice between pursuing internal corporate changes …

Submerged Independent Agencies, Brian D. Feinstein, Jennifer Nou

Public Law and Legal Theory Working Papers

Independent agencies are in the judicial crosshairs. Scholars criticize their efficacy—while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them “submerged independent agencies.” These entities are “agencies” because they wield discretionary …

Cash Substitution And Deferred Consumption As Data Breach Harms, Lior Strahilevitz, Lisa Yao Liu

Public Law and Legal Theory Working Papers

In a series of federal court cases, judges have debated whether data breaches that expose consumer information satisfy Article III of the United States Constitution’s requirement that plaintiffs suffer an “injury in fact.” Judicial opinions find no constitutional standing in a narrow majority of such cases, and plaintiffs are likely to lose absent causal links to subsequent identity theft or the disclosure of embarrassing information. Consumers whose data are breached thus are left without a federal remedy, and firms’ incentives to invest in data security are diminished. Our paper identifies a novel injury that results from data breaches. Upon learning …

The Unexpected Costs Of Moral Minimization As An Interrogation Tactic, Margareth Etienne, Richard H. Mcadams

Public Law and Legal Theory Working Papers

No abstract provided.

Reasoning And Precedents In Appellate Courts, Saul Levmore

Public Law and Legal Theory Working Papers

No abstract provided.

Toward A "Tender Offer" Market For Labor Representation, Aneil Kovvali, Jonathan R. Macey

Public Law and Legal Theory Working Papers

American workers are not sharing in the robust growth of the economy. Traditionally, large numbers of workers sought to improve their lot by bargaining collectively through unions. But the strategy does not seem to be working for enough workers. Despite some renewed recent activity, private sector unionization rates remain below 10%, and the unions that are in place have struggled to perform well, either in avoiding scandals or in delivering significant returns to workers in the form of job security or wage growth. This Article proposes a radical fix to the problem of declining unions. Drawing inspiration from corporate governance …

Screening Meaning, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Public Law and Legal Theory Working Papers

Trademark law exists to promote competition. If consumers know which companies are responsible for which products, they can more easily find the products they actually want to purchase, and companies will have incentives to cultivate reputations for high quality. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this paper, we establish that this equation of source significance and pro-competitiveness is misguided. …

The United States As The Ultimate Tax Haven, Daniel Hemel

Public Law and Legal Theory Working Papers

No abstract provided.

The Corruption Of The Pardon Power, Albert Alschuler

Public Law and Legal Theory Working Papers

This Article shows how the pardon power has been corrupted over the past forty years. It begins with a brief history of federal clemency. Throughout this history, presidents gave weight to the views of prosecutors and judges and afforded politicians considerable influence. Nevertheless, until well into the twentieth century, presidents liberally granted clemency to both prisoners and ex-offenders who, after completing their sentences, sought to erase their convictions.

In the early 1930s, as parole became a common means of releasing prisoners, the use of clemency to release prisoners declined. The abolition of parole in the 1980s, however, brought no revival …

Horizontal Collusion And Parallel Wage-Setting In Labor Markets, Johnathan Masur, Eric A. Posner

Public Law and Legal Theory Working Papers

Horizontal collusion among employers to suppress wages has received almost no attention in the academic literature, in contrast with its more familiar cousin, product market collusion. The similar economic analysis of labor and product markets might suggest that antitrust should regulate labor and product markets in the same way. But product markets and labor markets do not operate identically: people behave differently as employees and as consumers. Unlike consumers who can switch products relatively easily, employees face significant frictions in changing jobs. Other labor market frictions are created by the pay equity norm and downward nominal wage rigidity. These factors …

Is Quasi-Judicial Immunity Qualified Immunity?, William Baude

Public Law and Legal Theory Working Papers

Has qualified immunity finally found its roots? Scott Keller’s Qualified and Absolute Immunity at Common Law shows the breadth and complexity of nineteenth century case law dealing with official immunities. ¹ But its most important claim, for today’s purposes, is the claim to find a historical basis for a doctrine of qualified immunity: an immunity from suit given to all government officials (including, but not only, the police) whenever they are sued for violating the Constitution. According to Keller, “the common law definitively accorded at least qualified immunity to all executive officers’ discretionary duties” in 1871, when Congress passed the …

What We Ask Of Law, Aziz Z. Huq

Public Law and Legal Theory Working Papers

A minimal, reasonably uncontroversial, demand of a legal system is that it should stabilize a polity against the chance hazards of ordinary violence and soften the blows of extraordinary, destabilizing misfortune. Law in the contemporary United States, however, has not abated the lethal toll of violent crime, the serial mass shootings of children, the endless flow of racialized police violence, or even the toll of insurrectionary violence that shadows democratic politics. The gap between law’s operation in practice and its ultimate aspirations toward social order offers a hint that something in our dominant working model of law, and its relation …

Appellate Panels Of One, Saul Levmore

Public Law and Legal Theory Working Papers

Appellate review can be understood as an opportunity to correct errors made by lower courts and, by virtue of their multi-member panels, as a way to benefit from the wisdom of crowds. Appellate panels of three judges, and then a larger Supreme Court of nine, are likely to interpret, apply, or advance law more correctly, or simply better, than a single lower-court judge whose effort is under review.¹ Appellate review can also be understood as relying on more experienced or otherwise superior decision-makers or as designed to make law more uniform, inasmuch as lower court decisions on many matters …

Our Constitutionalism Of Force, Farah Peterson

Public Law and Legal Theory Working Papers

The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order …