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Full-Text Articles in Law
The Hidden Judicial Springs Of U.S. Foreign Policy, Mariano-Florentino Cuéllar, Aziz Z. Huq
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
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
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
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 …
Civil Procedure As The Regulation Of Externalities: Toward A New Theory Of Civil Litigation, Ronen Avraham, William Hubbard
Civil Procedure As The Regulation Of Externalities: Toward A New Theory Of Civil Litigation, Ronen Avraham, William Hubbard
Articles
No abstract provided.
Infrastructure, Enforcement And Covid-19 In Mumbai Slums: A First Look, Anup Malani, Vaidehi Tandel, Sahil Gandhi, Shaonlee Patranabis, Luas Bettencourt
Infrastructure, Enforcement And Covid-19 In Mumbai Slums: A First Look, Anup Malani, Vaidehi Tandel, Sahil Gandhi, Shaonlee Patranabis, Luas Bettencourt
Articles
No abstract provided.
The Application Of Antitrust Law To Labor Markets -Then And Now, Richard A. Epstein
The Application Of Antitrust Law To Labor Markets -Then And Now, Richard A. Epstein
Articles
As of late, there has been a concerted push in the Biden administration, backed by prominent academics, to expand the application of antitrust law against major employers who are said to exercise monopsony power that reduces aggregate demand and thus leaves too many workers on the sidelines. The effort takes place chiefly in two major areas: stricter attacks on covenants not-to-compete, and more intense review of mergers under the Clayton Act.
This paper begins with an historical account of the law in both areas, from which it concludes that there is no good reason to alter the status quo ante. …
Grid Reliability Through Clean Energy, Alexandra Klass, Joshua Macey, Shelley Welton, Hannah Wiseman
Grid Reliability Through Clean Energy, Alexandra Klass, Joshua Macey, Shelley Welton, Hannah Wiseman
Articles
In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.
This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. …
Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson
Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson
Articles
Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome- sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and …
Open Access, Interoperability, And Dtcc’S Unexpected Path To Monopoly, Dan Awrey, Joshua C. Macey
Open Access, Interoperability, And Dtcc’S Unexpected Path To Monopoly, Dan Awrey, Joshua C. Macey
Articles
For markets characterized by significant economies of scale, scholars and policy- makers o�en advance open-access and interoperability requirements as superior to both regulated monopoly and the breakup of dominant firms. In theory, by compelling firms to coordinate in the development of common infrastructure, these requirements can replicate the advantages of scale without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit-card networks.
This Article offers a qualification to this received wisdom. By tracing the Depository Trust and Clearing Corporation’s path to monopoly in the U.S. securities clearing and depository markets, …
English Common Law And The Ius Commune: The Contributions Of An English Civilian, R. H. Helmholz
English Common Law And The Ius Commune: The Contributions Of An English Civilian, R. H. Helmholz
Articles
Any student of legal history who believes that the European ius commune played a meaningful part in the origins and development of English law will profit from reading Reinhard Zimmermann’s masterpiece, The Law of Obligations. Indeed, that student will read it with joy. I am one of that number, and I remember my own reaction well when his book first appeared—equal parts of admiration and encouragement. Not only was the book a sparkling and learned treatment of many important aspects of the civil law, subjects about which I needed to learn more, it also proved to be the source of …
Antitrust And Labor Markets: A Reply To Richard Epstein, Eric Posner
Antitrust And Labor Markets: A Reply To Richard Epstein, Eric Posner
Articles
No abstract provided.
What Can We Learn From The Federal Approach To The Prosecution Of Juvenile Crime?, Emily Buss
What Can We Learn From The Federal Approach To The Prosecution Of Juvenile Crime?, Emily Buss
Articles
In a context of widespread concern over our bloated criminal justice system and growing awareness of the harm done to individuals and society by our excessive incarceration policies, any piece of the system that has remained infinitesimally small deserves some attention. In her article, The Federal Juvenile System, 1 Esther Hong highlights the success of the largely overlooked federal juvenile delinquency system in staying extremely small and suggests this system offers lessons for its bloated state and federal counterparts. Although I agree that the federal government’s prosecution of minors under the Federal Juvenile Delinquency Act (“FJDA”) offers some valuable lessons …
The Epistemology Of The Internet And The Regulation Of Speech In America, Brian Leiter
The Epistemology Of The Internet And The Regulation Of Speech In America, Brian Leiter
Articles
The Internet is the epistemological crisis of the 21st century: it has fundamentally altered the social epistemology of societies with relative freedom to access it. Most of what we think we know about the world is due to reliance on epistemic authorities, individuals, or institutions that tell us what we ought to believe about Newtonian mechanics, evolution by natural selection, climate change, resurrection from the dead, or the Holocaust. The most practically fruitful epistemic norm of modernity, empiricism, demands that knowledge be grounded in sensory experience, but almost no one who believes in evolution by natural selection or the reality …
Kids Are Not So Different: The Path From Juvenile Exceptionalism To Prison Abolition, Emily Buss
Kids Are Not So Different: The Path From Juvenile Exceptionalism To Prison Abolition, Emily Buss
Articles
Inspired by the Supreme Court’s embrace of developmental science in a series of Eighth Amendment cases, “kids are different” has become the rallying cry, leading to dramatic reforms in our response to juvenile crime designed to eliminate the incarceration of children and support their successful transition to adulthood. The success of these reforms represents a promising start, but the “kids are different” approach is built upon two flaws in the Court’s developmental analysis that constrain the reach of its decisions and hide the true implications of a developmental approach. Both the text of the Court’s opinions and the developmental and …
Symposium Introduction: This Violent City? Urban Violence In Chicago And Beyond, Aziz Z. Huq, John Rappaport
Symposium Introduction: This Violent City? Urban Violence In Chicago And Beyond, Aziz Z. Huq, John Rappaport
Articles
To many, the city of Chicago conjures up a specter of unremitting urban violence. In 2014, the city was labeled the “murder capital” of the United States.1 The following year, a video of the police shooting Laquan McDonald became a cynosure of public concern.2 Commentators as disparate as Spike Lee and President Donald Trump agree: Chicago is uniquely bloody.3 Predictably, the empirical data about Chicago’s crime and policing trends belie the most dramatic of these claims.4 Yet if Chicago is not as violent as either Lee or Trump makes it out to be, the city’s experience …
Regulatory Oscillation, Jonathan S. Masur
Regulatory Oscillation, Jonathan S. Masur
Articles
In the wake of the Reagan deregulation, America experienced twenty- eight years of regulatory progression, with precious little retrogression. That trend came to a crashing halt during the four years of Donald Trump's presidency. As a candidate, Trump campaigned on a series of pledges to reverse and undo as much of the work done by Barack Obama as possible. The Trump EPA was particularly active in this effort. In addition to reversing the Clean Power Plan, under Trump the EPA repealed or substantially weakened a number of other important Obama-era regulations, including a substantial increase in fuel economy standards and …
Democratic Backsliding And Multiracial Democracy. A Response To The 2021 Jorde Symposium Lecture By Steven Levitsky, Tom Ginsburg
Democratic Backsliding And Multiracial Democracy. A Response To The 2021 Jorde Symposium Lecture By Steven Levitsky, Tom Ginsburg
Articles
We live in an anxious era, particularly about the possibility of multiethnic democracy. The polarization of American democracy in general, accelerated by Trumpism in particular, has challenged narratives of race as gradually declining in significance. Instead, conventional wisdom suggests that Trumpism results directly from rising racial resentment of a White population that fears losing its relative power.2 “Dog Whistle Politics” have been discarded in favor of openly nativist appeals, including by media figures such as Tucker Carlson.3
We are not alone. In France, the theory of the Grand Remplacement (Great Replacement) has spread from the fringes to the …
Streaming Property, Lee Anne Fennell
Streaming Property, Lee Anne Fennell
Articles
People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …
Antitrust Overreach In Labor Markets: A Response To Eric Posner, Richard Epstein
Antitrust Overreach In Labor Markets: A Response To Eric Posner, Richard Epstein
Articles
No abstract provided.
Article 2(4) And Authoritarian International Law, Tom Ginsburg
Article 2(4) And Authoritarian International Law, Tom Ginsburg
Articles
In 1970, Thomas Franck asked a rhetorical question of enduring significance: Who Killed Article 2(4)?1 The reference is to the provision of the United Nations Charter that requires all member states to refrain “from the threat or use of force against the territorial integrity or political independence of any state.”2 Vladimir Putin’s gambit in Ukraine, conducted with the rhetorical purpose of eliminating the country as an independent state, is the latest in a series of events that periodically cause analysts to bemoan the end of the post-World War II international order. Will this time be different? Will it …
Modeling Comparative Cost-Effectiveness Of Sars-Cov-2 Vaccine Dose Fractionation In India, Zhanwei Du, Lin Wang, Abhishek Pandey, Wey Wen Lim, Matteo Chinazzi, Ana Pastore Piontti, Eric H.Y. Lau, Peng Wu, Anup Malani, Sarah Cobey, Benjamin Cowling
Modeling Comparative Cost-Effectiveness Of Sars-Cov-2 Vaccine Dose Fractionation In India, Zhanwei Du, Lin Wang, Abhishek Pandey, Wey Wen Lim, Matteo Chinazzi, Ana Pastore Piontti, Eric H.Y. Lau, Peng Wu, Anup Malani, Sarah Cobey, Benjamin Cowling
Articles
No abstract provided.
Personalized Class Actions, Omri Ben-Shahar
Managerial Contracting: A Preliminary Study, Lisa Bernstein, Brad Peterson
Managerial Contracting: A Preliminary Study, Lisa Bernstein, Brad Peterson
Articles
Important types of contractual relationships—among them those between integrated product manufacturers and their suppliers—are neither fully transactional nor fully relational. The agreements that govern these relationships incorporate highly detailed written terms that focus not only on what is promised but also on the details of how it is to be achieved and how suppliers’ actions will be monitored and responded to over the life of the agreement. Together with the implicit relational contracts that support their operation, these provisions create an economic hybrid that lies between markets and hierarchies, a set of relatively standard institutional arrangements that give buyers the …
Toward A “Tender Offer” Market For Labor Representation, Aneil Kovval, Jonathan R. Macey
Toward A “Tender Offer” Market For Labor Representation, Aneil Kovval, Jonathan R. Macey
Articles
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 this strategy does not seem to be working for enough workers. Despite some recent renewed activity, private-sector unionization rates remain below ten percent 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 pro-poses a radical fix to the problem of declining unions. Drawing inspiration from corporate governance …
Constitutional Challenges To Public Health Orders In Federal Courts During The Covid-19 Pandemic, Kenny Mok, Eric A. Posner
Constitutional Challenges To Public Health Orders In Federal Courts During The Covid-19 Pandemic, Kenny Mok, Eric A. Posner
Articles
We examine federal judicial cases involving nonreligious civil-liberties challenges to COVID-19-related public health orders from the start of the pandemic in early 2020 to January 27, 2022. Consistent with the tradition of judicial deference toward states during emergencies, we find a high level of success for governments. However, governments did lose in 14.2% of the cases, and in those losses, there is evidence of partisan or ideological influence. Republican-appointed judges were more likely to rule in favor of challengers who brought claims based on gun rights and property rights, while Democratic- appointed judges were more likely to rule in favor …
The Legal Envelope Theorem, David A. Weisbach, Daniel J. Hemel
The Legal Envelope Theorem, David A. Weisbach, Daniel J. Hemel
Articles
Nontax legal rules regulating the workplace, the financial sector, real property, and many other areas affect the ability of governments to collect revenues and provide public goods. Yet tax-collection considerations rarely enter into economic analyses of nontax legal rules. Usually, tax-collection concerns are shunted aside to separate studies (and separate law school courses) rather than integrated into debates in nontax spheres. This separation between nontax legal rules and tax-collection considerations bears significant negative consequences for the ability of law and economics to generate descriptively accurate and normatively attractive accounts of important nontax legal questions.
This Article takes a step toward …
Duplicative Taxation Among The States: A Problem Not Worth Solving?, Julie Roin
Duplicative Taxation Among The States: A Problem Not Worth Solving?, Julie Roin
Articles
Recent legal and economic changes not to mention the rise in telecommuting caused by COVID have raised the salience of a lon-simmering fact about the operation of state and local income tax systems: some multistate employers and employees pay a combined income tax liability that is higher than the tax they would have borne had they operated in just one jurisdiction. Seemingly beyond the reach of the courts to correct, there have been persistent calls for congressional action to eliminate or reduce this "duplicative" taxation. This Article suggests that the alleged problem may be both less of a problem, and …
Police Agencies On Facebook Overreport On Black Suspects, Ben Grunwald, Julian Nyarko, John Rappaport
Police Agencies On Facebook Overreport On Black Suspects, Ben Grunwald, Julian Nyarko, John Rappaport
Articles
A large and growing share of the American public turns to Facebook for news. On this platform, reports about crime increasingly come directly from law enforcement agencies, raising questions about content curation. We gathered all posts from almost 14,000 Facebook pages maintained by US law enforcement agencies, focusing on reporting about crime and race. We found that Facebook users are exposed to posts that overrepresent Black suspects by 25 percentage points relative to local arrest rates. This overexposure occurs across crime types and geographic regions and increases with the proportion of both Republican voters and non-Black residents. Widespread exposure to …
Promoting Regulatory Prediction, Jonathan Masur, Jonathan Remy Nash
Promoting Regulatory Prediction, Jonathan Masur, Jonathan Remy Nash
Articles
It is essential for environmental protection that private actors be able to anticipate government regulation. If for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government …