Law Commons^™

Toward A Liberal Common Good Constitutionalism For Polarized Times, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

In Common Good Constitutionalism, Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. For the common good constitutionalist, a government is established primarily to do good things for people. It envisions an active government, including a strong president, a strong administrative state, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, …

Constitutional Liberalism Through Thick And Thin: Reflections On Frank Michelman's Constitutional Essentials, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

In his new book, Constitutional Essentials, Frank Michelman provides a splendid elaboration and defense of “the constitutional theory of political liberalism” implicit in John Rawls’s classic work, Political Liberalism. In this essay, we make some observations about what a difference 30 years makes, comparing the political and constitutional climate in which Rawls wrote and published Political Liberalism in 1993 with the climate in which Frank wrote and published this exegesis of it. We focus on (1) changes in our circumstances of pluralism, including the accentuation of polarization and unreasonable views, and (2) the simultaneous breakdown of trust in the Supreme …

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 …

Error Aversions And Due Process, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

William Blackstone famously expressed the view that convicting the innocent constitutes a much more serious error than acquitting the guilty. This view is the cornerstone of due process protections for those accused of crimes, giving rise to the presumption of innocence and the high burden of proof required for criminal convictions. While most legal elites share Blackstone’s view, the citizen-jurors tasked with making due process protections a reality do not share the law’s preference for false acquittals over false convictions.

Across multiple national surveys, sampling more than 10,000 people, we find that a majority of Americans views false acquittals and …

The Territories Under Text, History, And Tradition, Andrew Willinger

Faculty Scholarship

In two of its major decisions in the 2021–2022 Term, New York State Rifle & Pistol Ass’n v. Bruen and Dobbs v. Jackson Women’s Health Organization, the Court continued solidifying its originalist method of constitutional interpretation by looking increasingly to historical regulatory practice to construe how the Constitution protects individual rights. The Court is focused not only on the original public meaning of constitutional provisions, but also on historical practice. Historical laws and practices are now key to understanding how those who lived at the relevant time thought a constitutional provision might be applied and what regulatory approaches were consistent …

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 …

Un-Erasing Race In A Medical-Legal Partnership: Antiracist Health Justice Advocacy By Design, Danielle Pelfrey Duryea, Peggy Maisel, Kelley Saia

Faculty Scholarship

This Article covers a potential response to a Massachusetts state law which has been interpreted to require health care providers and birthing hospitals to report to state authorities any infant born to a person taking medication of opioid use disorder. While the statute mandates reports where a professional has "reasonable cause to believe that a child is suffering physical or emotional injury" as a result of substance dependence at birth, the Article highlights that many institutions report all infants born to persons with substance abuse disorders, regardless of risk of harm, for fear of penalty for failure to report. As …

Feminist Legal Theory And Praxis After Dobbs: Science, Politics, And Expertise, Aziza Ahmed

Faculty Scholarship

Fifty years ago, in Roe v. Wade, Justice Blackmun set into motion the idea that abortion should be a decision between a woman and her doctor.' That idea traveled from the Supreme Court decision to popular discourse; with it, came the notion that when it comes to reproduction, medical experts are a key part of women's liberation. In Dobbs v. Jackson Women's Health Organization, the court ignored the role of experts and threw the question of who should decide when and how a person has an abortion to the people. In my essay for this symposium issue dedicated to feminist …

Family Needs, Family Leave In 2023, Katharine B. Silbaugh

Faculty Scholarship

Instituting support for women and children is a difficult task to imagine in a world that is removing reproductive freedom and healthcare. In this hypothetical, do we treat the removal of abortion care as a force majeure, natural disaster, or an earthquake? If so, after the earthquake, the community bands together and works tirelessly to compensate for what has happened. But the removal of abortion care was not a natural disaster-it was planned, and it is embedded in background conditions that are pushing further away from support for women and children.

The primary task of this Article is to respond …

Amicus Brief In Sec V. Jarkesy On Original Public Meaning Of Article Ii & Presidential Removal, Jed Handelsman Shugerman

Faculty Scholarship

In holding that the SEC’s administrative law judges’ protections against removal were unconstitutional, the Fifth Circuit extended Free Enterprise Fund v. PCAOB, 561 U.S. 447 (2010), and Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020). Those precedents were based on an incomplete historical record. Subsequent historical research shows that the Founding generation never understood Article II to grant the President an indefeasible removal power.

To be sure, this evidence does not suggest Congress should have unlimited power to protect any executive office or delegate removal to itself. Rather, the bottom line is that the evidence of original public …

Surrey's Silence: Subpart F And The Swiss Subsidiary Tax That Never Was, Steven Dean

Faculty Scholarship

Was Stanley Surrey racist? Was he a coward for not speaking as plainly about the Swiss tax haven problem in public as the Surrey Papers reveal his team did in private? In the broad sweep of history Surrey’s silence may have mattered a great deal or it may have mattered very little. The quiet aspect of the Liberia problem that it highlights undoubtedly does. Exploiting the public’s misunderstanding of the term tax haven as Surrey quickly learned to do has become second nature to scholars and policymakers alike. No less powerful than the loud aspect of the Liberia problem, the …

Amazon's Pricing Paradox, Rory Van Loo, Nikita Aggarwal

Faculty Scholarship

Antitrust scholars have widely debated the apparent paradox of Amazon seemingly wielding monopoly power while offering low prices to consumers. A single company’s behavior thereby helped spark an intellectual renaissance as scholars debated why Amazon’s prices were so low, whether antitrust enforcers should intervene, and, eventually, how the field should be reformed for the era of large online platforms. One of the few things that all parties have agreed upon amidst those contentious conversations is that Amazon offers low prices. This Article challenges that assumption by demonstrating that Amazon charges higher prices than commonly understood. More importantly, unraveling the disconnect …

Trial Selection And Estimating Damages Equations, Keith N. Hylton

Faculty Scholarship

Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

The Association Of Participating In A Summer Prelaw Training Program And First-Year Law School Students’ Grades, Heather M. Buzick, Christopher Robertson, Jessica Findley, Heidi Burross, Matthew Charles, David M. Klieger

Faculty Scholarship

This study estimates the association of participation in a nine-week online educational program to prepare students for post-graduate (juris doctorate) education and law school grades. We collected registrar data from 17 U.S. law schools for participants and non-participants from the same year and a prior year. We compared first-semester law school grades between participating and non-participating students weighted by propensity scores. Course participation was associated with improved first-semester grades in a keyed course (Contracts Law) and overall grade point average. According to pre- and post-survey responses, a substantial portion of those who completed the program reported feeling more prepared for …

Red White And Blue – And Also Green: How Energy Policy Can Protect Both National Security And The Environment, David M. Schizer

Faculty Scholarship

Too often, energy policy protects the environment while neglecting national security, or vice versa. Since each goal is critical, this Article shows how to advance both at the same time.

For national security, the key is to avoid depending on the wrong suppliers. If they are vulnerable to attack (like some Middle Eastern producers), they need to be defended. Or, if they are themselves geopolitical threats (like Russia and Iran), their energy exports fund harmful conduct. This Article breaks new ground in showing why suppliers tend to be insecure or menacing: authoritarian regimes — which are more likely to pose …